Slugger O'Toole

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#Smithwick: are we back full circle to an untested allegation of ‘collusion’?

Wed 4 December 2013, 6:02pm

So, have the Buchanan and Breen families got any closer to the truth about how their loved ones died on 20th March 1989?

After lengthy hearings in front of Judge Peter Smithwick, the substantial report yesterday included a full account of the IRA operation in which they died, supplied by the IRA itself (see pages 398-411). This included that they knew from surveillance that the car driven by the two RUC men was used by senior officers liaising with Dundalk, and, the IRA knew the routes it travelled and had tried to intercept it before. The IRA also had Dundalk Garda Station under direct observation from an empty house. This latter point, which was never contradicted by the tribunal, is key since it openly challenges the theory that the IRA needed confirmation from within Dundalk Garda Station (and thus “collusion”). Smithwick also believed that the IRA were targeting Breen in particular, whilst the IRA claimed that they didn’t know Breen was in the car until they intercepted it.

The tribunal itself arose from claims made by Kevin Fulton, aka Peter Keeley, that a member of Gardaí from Dundalk had assisted the IRA during the operation. The claim was made to Jeffrey Donaldson in 2000 and Judge Cory in 2003, but omitted from his ghost-written book Unsung Hero published in 2006. This claim was the foundation of the tribunal and Judge Smithwick’s interpretations of the evidence effectively interpolates the existence of a mole in Dundalk Garda Station (the premise on which the whole tribunal was based). However, this is how he describes Fulton/Keeley himself:

The reality is that sometimes Mr Fulton has given truthful information and sometimes he has given untruthful information. (p276 – unless stated page numbers are in the report proper, rather than the longer pdf)

and

The second issue of substance is that there is a degree of inconsistency between the statement provided by Kevin Fulton to Judge Cory in 2003 and his evidence to the Tribunal. (p276)

So, despite Judge Smithwick’s own misgivings, Fulton/Keeley’s evidence was his claim that he had been told “our friend” had helped on the operation, and that he understood that “our friend” either meant a Garda in Dundalk or specifically, Owen Corrigan. This appears to be the sole basis on which it is was believed that the IRA operation relied on a report of visual contact prior to confirmation that it was to proceed. The lengthy questioning around “our friend” is given on pages 1024 onwards in the pdf of the report (Fulton/Keeley’s statement is on page 732 of the pdf).

The Fulton/Keeley claim of a mole was supported by the allegations made by Ian Hurst (aka Martin Ingram) who claimed to have worked for the FRU and had access to various types of intelligence. Previous reports that considered evidence by Hurst/Ingram described him in this way:

We are of the view that Martin Ingram to a substantial degree exaggerated the importance of his role at HQNI and his level of knowledge and access to intelligence. (Saville, 140.271)

and

Given his general lack of credibility, I do not attach any weight to his [Hurst/Ingram's] allegations with respect to the FRU and the murder of Mr Finucane. (de Silva, 21.204)

Smithwick, too, is scathing about Hurst/Ingram:

Given the striking inconsistency between his Statement of Intended Evidence and his Oral Evidence, and given the changing nature of his oral evidence in relation to when, how often, and in what specific context he had seen Owen Corrigan’s name in intelligence documents, I simply did not find Mr Hurst to be a credible witness. (p.287)

Chapter 11 of the report deals with Garda intelligence about the killings and a possible IRA contact in Dundalk Garda Station, although Smithwick dismisses the claims against named individuals. Much of this evidence was given over the period from June 2011 to May 2012, at which stage a new piece of evidence was introduced, at the very end of the hearings, by the PSNI (see p385-392). With both Fulton/Keeley and Hurst/Ingram being regarded as unreliable, this “live and of the moment” intelligence becomes the substantive basis on which Judge Smithwick had to assess a claim of participation from someone within Dundalk Garda Station in the IRA operation. In that regard, Smithwick himself states:

As regards the issue of how the Tribunal is to assess the current intelligence, this unquestionably places me in a difficult position. I do not have access to the underlying raw intelligence to verify for myself the circumstances in which this intelligence was provided. [my emphasis] Undoubtedly, this would have been preferable, and it is something which I sought to achieve in discussions with the Northern Ireland Office, the Security Service and the PSNI. (p396)

Clearly, with no sight of the ‘raw intelligence’ Smithwick is not in a position to assess whether the sources are as unreliable as Fulton/Keeley and Hurst/Ingram. In his own conclusions then, Smithwick makes two points:

In the instant case, leaving to one side the question of intelligence, the Tribunal has not uncovered direct evidence of collusion. (p424)

Yet, based on the same Garda intelligence which he dismisses relative to the individuals named, and the PSNI “live and of the moment” intelligence that he was not shown, Smithwick reaches the conclusion that the IRA operation was launched following visual confirmation of the RUC target from within Dundalk Garda Station. This then requires a circular argument that the IRA provided an inaccurate or incomplete account of their operation, since the IRA’s own direct observation of the station makes the requirement for verification from within the station redundant. Ironically, the two sets of intelligence data that Smithwick then decided to give preference to, he had either selectively ignored on other matters (from Garda sources) or which he had admitted he didn’t even get to see (from the PSNI). The latter had also been introduced late to the hearings, after Fulton/Keeley and Hurst/Ingram had already been shown to be unreliable. So Smithwick’s central conclusion appears to pretty much rest on the reliability of undisclosed intelligence introduced by the PSNI at the end of the tribunal’s hearings. It also gives preference to the theory that the IRA was specifically targeting Harry Breen,when the IRA said themselves they didn’t realise Breen was in the car.

Remarkably, on foot of the report from Smithwick, Unionists have rapidly downgraded the level of proof they normally require for anything approaching a finding of “collusion” (indeed, on the BBC Spotlight programme last night, Arlene Foster was even happy to upgrade this to a “culture of collusion”). Others have been less enthusiastic about the interpretations of the tribunal evidence. Professor Dermot Walsh, an expert of human rights and policing at Kent University, has described them as ‘sensationalist’ (h/t to @repstones):

The Smithwick Tribunal also adopted a very broad interpretation of what amounts to collusion, and proceeded on the assumption that silence was indicative of having something to hide. Despite all these factors, the Tribunal was not able to conclude that any identifiable member of the Irish police actually colluded with the IRA in the murders. When placed in that context, the sensationalist headlines lose their punch.

 

Whatever use they might find in it, the staging of the tribunal has meant that the Buchanan and Breen families got an account of the death of their loved ones from the IRA itself. Paradoxically, though, that fact is completely lost amongst so much evidence described as ‘intelligence’ from unattributable sources, of unknown value and which is often completely contradictory. In the case of the Smithwick Tribunal, whilst systematically eliminating all the previous claims of “collusion”, the introduction of new claims by the PSNI at the end, and their acceptance by Smithwick has now merely brought the whole process full circle to an untested allegation of collusion based on claims from “security sources”.

The dubious role intelligence agencies played throughout the conflict in the north is clearly perpetuating itself into the ‘peace’ as well. It is clear that it is impossible to hold inquiries and investigations into the past when there is such a high level of tolerance in official circles (on both sides of the border) for the agendas and intrigues of the intelligence services.

In that respect, the final words of Peter Smithwick are cruelly ironic:

The culture of failing adequately to address suggestions of wrongdoing, either for reasons of political expediency or by virtue of misguided loyalty, has been a feature of life in this State. Too often that culture has resulted, some years later, after doubts, grievances and injustices have festered, in the setting up of investigations, commissions or Tribunals of Inquiry.

 

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Comments (20)

  1. Barney (profile) says:

    John

    Your title says it all, this tribunal can only be described as a sham, the families of the two people murdered are none the wiser.

    When widgery produced the required result people were rightly disgusted I suggest that this tribunal produced the right result.

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  2. sherdy (profile) says:

    Is this a case of ‘The king’s new clothes’?
    Smithwick says he has seen no direct evidence of collusion, but then claims ‘on the basis of probability’ that it happened.
    Am I missing something? No evidence, but you’re guilty!
    It is to be expected that our unionist politicians would leap on such a ‘story’ but the headlong rush by Southern politicians and the Garda commissioner to accept the judge’s decision and heap opprobrium on republicans seems very much like callous point-scoring.

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  3. qwerty12345 (profile) says:

    Interesting how quickly Unionist politicians accept these evidence free findings but reject other findings where there actually IS some evidence.

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  4. Mick Fealty (profile) says:

    John,

    “Remarkably, on foot of the report from Smithwick, Unionists have rapidly downgraded the level of proof they normally require for anything approaching a finding of “collusion”.

    I think that’s quite so, but I think the report is pretty thorough going and works the material presented to pretty well. There’s an awful lot of engrossing detail in there that deserves much more teasing out.

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  5. Charles_Gould (profile) says:

    After the complete mess up that Gerry Adams is making of *anything* relating to the truth, is it time to revisit the claim that he would not lose out massively if there was a truth commission?

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  6. Count Eric Bisto von Granules (profile) says:

    Circumstantial evidence well laid out – check
    Engrossing detail – check
    Well presented – check
    Further work to be done – check

    Well that tips the burden of proof for me, abrogating the need for concrete evidence. I say we accept the findings. Let the hand wringing commence and allow those who think the Gardai were as riven as the RUC unfettered control of the narrative emanating from the finding.

    Nuts

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  7. gendjinn (profile) says:

    John,

    thanks for so quickly digging into the details of the report. It neatly answers the questions I asked last night in Mick’s thread on the subject.

    Smithwick concludes there was collusion, but cannot name an officer involved nor provide direct evidence to substantiate his assertion. This is quite troubling.

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  8. Charles_Gould (profile) says:

    Evening Extra pointed out the serious finding that

    1 If Senior Gardi had passed intelligence to the RUC that Bob Bucannan was on an IRA death list the two RUC officers could have been saved.

    2. And and that senior Garda officers tried to undermine a retired superintendent who testified he passed intelligence about this death list to the highest authorities and that nothing was done.

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  9. Framer (profile) says:

    Smithwick defined his version of collusion (which is not a crime as such) as something that “generally means the commission of an act, I am also of the view that it should be considered in terms of an omission or failure to act. In the active sense, collusion has amongst its meanings to conspire, connive or collaborate. In addition I intend to examine whether anybody deliberately ignored a matter, or turned a blind eye to it, or to have pretended ignorance or unawareness of something one ought morally, legally or officially oppose.”
    When analysing for his report he used the civil law test of ‘on the balance of probabilities’ as opposed to ‘beyond reasonable doubt.’
    His job was to make a judgment not decide a conviction.
    He may have detected various acts of collusion amongst Gardai but he also judged that at least one (unidentified) Guard was a murderer and guilty of a definable crime.
    That has now to be taken forward by others.

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  10. tacapall (profile) says:

    Charles maybe you never knew this but every RUC officer was considered a target by the IRA at that time and im absolutely sure both Breen and Buchannan knew that fact.

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  11. tmitch57 (profile) says:

    “It also gives preference to the theory that the IRA was specifically targeting Harry Breen,when the IRA said themselves they didn’t realise Breen was in the car.”

    If the IRA were observing the police station from a nearby house, they would be more likely to clue in on the car and hence not know which particular RUC detectives were in it. If they were tipped off from a Garda source, they would likely know who was visiting the station. Hence, the IRA’s statement MIGHT be another post facto attempt to cover a source by suggesting a way for the knowledge of the officer’s presence to be known without a mole.

    I recently read Alan Barker’s account of his career in the Special Branch. After he was attacked in his car and it was sprayed with bullets, he wanted to replace it with RUC financial assistance for security reasons for himself and his family. He was told that there was no funding for such a purpose available. So even if Breen and Buchanan that their car was known to the IRA they might not have been in a position to replace it.

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  12. socaire (profile) says:

    RUC men were making more in overtime in a week than my regular wage for a month.

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  13. tmitch57 (profile) says:

    @Socaire,

    But were you considered a target?

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  14. socaire (profile) says:

    Probably. I was Irish.

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  15. Alias (profile) says:

    The Smithwick Tribunal is a good illustration of the futility of trading justice for so-called truth. It is clear that the PIRA members who gave evidence lied extensively and would do so by default to any such ‘truth’ commission that may be established.

    Justice Smithwick asks a very salient question in his report:

    “…one of the former personnel noted that “we are not going to compromise former comrades and locations.” There was sensitivity, in this regard, around ensuring that no one was identified as having stolen the van for the operation. This does raise the very valid question in my mind, if the Provisional IRA had received assistance from a member of An Garda Síochána, would they be prepared potentially to compromise that person by revealing that fact to this Tribunal?”

    In other words, they make highly unreliable witnesses.

    He lists other areas where they provided unreliable testimony: “It seems to me that there is something of a significant contradiction lying at the heart of the version of events which the former [PIRA] personnel provided to the Tribunal.” There sure is – they claimed they didn’t know the identity of the two officers in the car – that the car rather than the officers were the target – but contradicted that claim by stating that Harry Breen “was, for obvious reasons, a target we had particular interest in.” and that ““identification is important. A Northern registered car was not enough.”

    He also finds them to be unreliable witnesses in describing how they murdered the two police officers:

    “…there was a clear contradiction between the answers given by the former [PIRA] personnel in the course of the face to face interview on the one hand, and the evidence before me of the autopsy performed on Harry Breen on the other, in relation to how Harry Breen was shot. The autopsy conclusion, which notes that the fatal shot was fired in the back of Harry Breen’s head, is simply inconsistent with the former members’ account that he was shot while still sitting in the car. Their version also does not account for the presence of a white handkerchief on the road near his body. I have to say that I think I must accept and prefer the un–contradicted autopsy evidence in this respect.”

    He makes another salient observation about why the PIRA members would feel the need to lie about the true cowardly nature of their crimes:

    “I am cognisant of the fact that there may be some political sensitivity in their admitting to this Tribunal that Harry Breen was shot when he had, as one eyewitness described it, gotten out of the car with his arms raised, or that he was subsequently shot at close range in the back of the head.”

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  16. DC (profile) says:

    ‘Probably. I was Irish’ = http://www.youtube.com/watch?v=K05iuZatB-o

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  17. socaire (profile) says:

    The British Army were generally not sectarian. They generally could not identify Republicans. So they shot at us because we were Irish as they have been doing for the past half millenium. Is that not sad enough?

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  18. Barnshee (profile) says:

    It was an isolated case a few bad apples LOL
    the tip of an ice berg

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  19. Barney (profile) says:

    Barnshee wrote

    “the tip of an ice berg”

    I presume that your evidence for this assertion is going to be presented very soon

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  20. sherdy (profile) says:

    Barney, – I don’t see how you can ask Barnshee for his evidence as Judge Smithwick didn’t need any evidence before coming to his ‘probably guilty’ conclusion.

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