The Train Robbery Frame-Up highlighted the abuse of Garda; brutality and the Special Court has been shown to conspire with the Heavy Gang in its perversion of justice Osgur Breathnach and Brian McNally are innocent men. Only their unconditional release will ensure that the most basic civil and human rights are protected in the 26 Cos.

BRIAN MCNALLY

Brian McNally comes from Co. Derry. He is married and has a young family in Dublin. He is a former Chairman of the Community Association in St. Margarets and is active in local politics.

EVIDENCE

Brian McNally testifed that a detective offered him £25 a week if he acted as an informer. When questioned about this Det. Insp. Myles Hawkshaw claimed privilege. McNally went on to describe how he had been beaten "until I cried like a child".

He described how Det. Gardai Tom Dunne, Canavan,, Drew and Joe Egan pushed him from one to the other. "It seemed like I was being used as a handball, I was being struck, punched kicked - I think - and shoved."

Later Det. Garda Finn kneed him in the stomach and another man hit him with an instrument nine inches long over the left eye. McNally said he seemed to fall against the table. "It must have been that my two legs came apart, but I got the instrument fair in the balls. I just roared. The pain was unearthly. I have never suffered a pain like it in my life."

Asked why he put his name to a statement McNally replied that he had been scared: "If they told me that I had killed all in Dublin, I would have signed my name to a statement admitting it."

Mrs Kathleen McNally told the Special Criminal Court that she was 'raging' when she saw the condition of her husband at the Bridewell two days after his arrest. Mrs McNally said that she saw him on Wednesday April 7th and that he looked terrible. He was white and shaking all over. His hair was not combed. His left eye was swollen, blackened and almost closed. His other eye was badly blood-shot. The buttons on his shirt were missing.

MEDICAL EVIDENCE

Dr Sean O'Cleireigh testified that he examined Brian McNally in Mountjoy Prison on the 8th April 1976.

On examination he found bruising on McNally's left shoulder; thighs and legs. His left eye was swollen and discoloured. He had tenderness over his entire body and was in a very great state of stress.

Dr O'Cleirigh said that he examined McNally again at the Bridewell on April 14th at the request of the accused's solicitor. He had swelling and tenderness over the left cheek-bone and tenderness around the eye. Tests indicated that McNally was suffering from treble vision.

Dr Richard Burke, medical officer at Portlaoise Prison on 9th April 1978, gave similar evidence.

NICKY KELLY Nicky Kelly is a native of Arklow, Co. Wicklow and was partially active in the struggle for adequate hospital and medical facilities in the County. EVIDENCE Nicky Kelly's own words give a clear picture of what happened to him in police custody. O'Hara (a policeman) said "He doesn't look worried. He will be by the time we're finished with him."

The following are quotes from Nicky Kelly's evidence:

Finn rammed my head off the locker door. Some of the Brits treatment. Spreadeagled. Jabbed in ribs, slapped in face, legs kicked. Fell on ground. Lights switched off. Placed behind door. Spreadeagled. Door pushed in. Collision. Ended up on ground. Once on floor refused to get up. Hair pulled. Hit on back. Frightened more than hurt."

"Taken upstairs to cell by Finn. Smell of drink off him. Corner of cell. Toilet. Grabbed by hair. "tomorrow - long day". Shoved head 5-6 times down toilet. didn't wet face. Taken out of cell by Finn. To wall - out of sight of cell, short delay. Knee in groin. Caught in thigh. Spat in face. "adopting you". Back to cell. 5 minutes there. Finn: "eventually you'll talk".

"Finn hit back of ears after wrong answers. Telephone ears 10 times. Dunne punched, slapped in face and arms."

"Lawlor and Boland. Punched. Punched. Fell to ground. Boland hit me with chair - not much force."

On floor, on back, hands stretched backwards. Chair put on palms. Finn sits on chair. Spits (plural) on face. Leering. Cried. Frightened. Didn't know what they were going to do to me. Very tired, sore, ears ringing, bad headache, stomach sick, afraid of my life."

"Cleary produced blackjack. Beaten by Cleary on biceps. Left on table. Black lathe 10" long, 1" in diameter. Flexible Swish. Noise. 'own up, make statement.' Beaten above knee. Inside led upwards and downwards. Names thrown".

Miss Nuala Dillon, Nicky Kelly's girlfriend at the time gave evidence of seeing him in the Bridewell.

"Nicky" she said "looked shook, his hands were shaking and he was sweating." In another room as she lay down on a bench trying to sleep she heard what sounded like someone screaming. She rushed into the passageway and ran up to a detective, saying: "I can hear someone screaming, please get me out of here."

MEDICAL EVIDENCE

Dr Sean O'Cleirigh examined Nicky Kelly in Mountjoy prison on April 8th, 1976. He found extensive bruising on his outer arms from the shoulder to the elbow. There were also bruises over the left shoulder blade, over the ribs, over the pubic bone and on his left hip and thigh. He found extensive bruising over the mastoid bone of the left ear, which itself was also bruised. And the car area was also slightly bruised. All of these bruises were tender. The accused man, he said, was very apprehensive.

Dr Samual Davis, Medical Officer at Mountjoy Prison examined Nicky Kelly on the 9th April 1976.

He found extensive bruising on the left shoulder and scapula. This bruising measured 5 inches by 2 inches and 3 inches by 1 inch. There was extensive bruising on the upper arm. The left arm was completely bruised on the outer side, and on the inner side there was a third of an area which was not bruised, but was sore and tender to touch on examination. There was circular bruising on the lateral, or outer surface of the left forearm, and there was circular bruising, about 2 inches in circumference above the wrist on the inner surface. Dr Davis added that he found two superficial injuries about 1 inch in size over the pectoral area, slightly above the left nipple.

Kelly had a large superficial bruise on the outer surface of the right upper arm, measuring about 7 inches by 7 inches, and continuing into the back of the right shoulder. There were bruises on both buttocks and also behind the left ear. There was bruising as well on the front and back of the left thigh.

OSGUR BREATNACH Osgur Breatnach stood for election in Dun Laoghaire in the 1975 Local Government Elections and just missed election by a few votes. He is a founder member of the Dun Laoghaire Unemployed Action Group. He is a dedicated user and advocate of the Irish language and is editor of The Starry Plough, the newspaper of the IRSP. EVIDENCE Osgur Breatnach was questioned at the bottom of 18 steps which led

into a tunnel which links the prison section of the Bridewell with the District Court. He testified that when he got to the bottom of the stairs he said to himself: "This is it. I'm going to get a hiding". When he told the two Gardai who began questioning him that he would not account for his movements until his solicitor was present one of them slapped him across the face with the open palm of his hand.

"Both men moved in on me and began to pull my coat off. I said 'wait a minute, I will account for my movements' putting up both hands. I told them that at the time of the robbery I was in bed with my wife. But it was as if I didn't say it. They proceeded to kick, punch, elbow and bang me against the wall."

Osgur Breatnach said that the detectives kept saying that they had the guns and the money and maintained that he committed the robbery. He was in the tunnel for 45 minutes and said: "It was clear to me that this was a type of brainwashing".

He was taken upstairs and the beating resumed. The chair was pulled from under him and he was thrown against objects. He said: "One would move in and hit me and then I would be pushed to someone else. I am not sure how many men were in the room - certainly four or five travelled all around the room. I lost complete recollection of time and where I was.

I was crying and I wanted them to stop so I said "bhi me ann" - I was there.

MEDICAL EVIDENCE

Dr Noel Smith, who examined Osgur Breatnach in a room at the Four Courts half an hour before the conditional order of Habeus Corpus was applied for on 7th April 1976, testified in the High Court that day that he found Breatnach to be suffering from headaches, loss of memory, pains in the back of his head and neck and might be suffering from concussion. He had a large swelling on the top rear part of his head, buttocks and his right leg and bruising on his arms and left leg.

Dr Smith said that all the injuries were on the back part of the body and were not consistent with falling backwards. There were no marks on the front part of the body.

He recommended that Osgur Breatnach be removed to hospital for an X-Ray. Mr Justice Hamilton accordingly ordered that Osgur Breatnach be hospitalised.

Dr Richard Burke, medical officer, Portlaoise Prison, examined Osgur Breatnach on his admission to the prison on April 9th. He found that Osgur Breatnach had a lump on the top of his head, bruising on the upper left arm and minor bruising on both legs below the knee.

TRIAL OCT.1978

The trial of the IRSP 3 began in the Special Criminal Court. When asked to plead the defendants replied:

"Ned Ryan's Heavy Gang are guilty, I'm not guilty."

"Framed by Heavy Gang and not guilty."

"I have been tortured and framed and am the victim of a State Conspiracy. Not guilty.''

EVIDENCE

The major issue of the trial was whether the statements of the accused men had been made voluntarily. The defendants repeated their testimony that they had been tortured by the Heavy Gang, Mrs Cathleen McNally and Miss Nuala Dillon (a former girlfriend of Nicky Kelly) were called as witnesses and they described their reactions of shock seeing the condition of the men in custody. Six independent witnesses were called. Among these were the Royale brothers from Dublin who had been in custody in the bridewell on the night the IRSP members were held there. These witnesses described the screams that they heard in the Bridewell and both stated that they believed at the time that someone was being beaten. When they banged on their cell door and asked what was happening they were told by the prison guard "to keep well out of it". Aidan Browne S.C. who had appeared for the State on the occasion that a habeus corpus application was being made on behalf of Osgur Breatnach was also called as a defence witness. Mr Browne testified that he had been shocked by Breatnach's appearance when he saw him in the High Court in April 1976. It is significant that only shortly after this Aidan Browne called for an independent public inquiry into allegations of police brutality at a Council for Civil Liberties Conference.

MEDICAL EVIDENCE

Dr Smyth, Osgur Breatnach's family doctor, who examined him in the Four Courts in April '76 prior to the habeus corpus application in his evidence said that Breatnach appeared to him to have been suffering from concussion. Dr. O'Cleirigh and Dr McGee who had examined all the IRSP men in Mountjoy at the request of their solicitor stated that their examinations established that the men had extensive injuries. Dr Samuel Davis, the prison doctor in Mountjoy Prison, and Dr Richard Burke, the medical officer in Portlaoise Prison confirmed the nature and extent of the injuries. All the medical witnesses, both for the prosecution and the defence, stated that they believed the injuries to be consistent with a beating and that they could not have been self-inflicted.

CONSTITUTIONALITY OF ARREST

The sequence of events which led to Osgur Breathnach being arrested five times before he was charged with an offence was outlined at length. Special Branch detectives testified that they were unaware that Osgur Breatnach had been arrested and detained for 48 hours in connection with the train robbery. The arrest and re-arrest of Osgur Breatnach under S.30 of the Offences Against the State Act '39 was a crucial element in the case against him. That court held however that the arrests, although unconstitutional, were not illegal as the policemen involved did not know that they were acting illegally. Clearly the Hoey decision in 1976, when the Supreme court held that it was unconstitutional to repeatly arrest a person under S.30 in connection with the same offence, meant that the Prosecution were not in a position to argue the legality of the arrests. The question which arose was how the trial court would deal with the arrests which were unconstitutional and illegal - but not illegal.

JUDGEMENT

On the 1st December 1978 the Special Criminal Court delivered its judgement on the admissibility of statements.

In the course of 90 minutes it held that the statements of all three men should be admitted against them.

The court stated that they believed the police witnesses to be honest and reliable and that given the considerable conflict of evidence in the case in all aspects they believed the testimony of the police. The court dismissed the evidence of Mrs McNally and Miss Dillon as collusive. They stated that they believed Aidan Browne S.C. had been deliberately misled by Osgur Breatnach who must have been "acting", they also dismissed the medical evidence of Dr Smyth. The court held that it believed the injuries on the men to have been self-inflicted or inflicted in collaboration with others.

In Brian McNally's case the Court admitted a verbal statement against him as the signed written statement had been taken after the period of his lawful detention expired.

In Osgur Breatnach's case the court held that although his second arrest was unconstitutional nevertheless the police could not have known that they were acting unconstitutionally and that they would therefore admit the statement against him "in the public interest' .

VERDICT

On the 13th December 1978 the Special Criminal Court found Brian McNally, Osgur Breathnach and Nicky Kelly guilty of removing the mail bags from the C.I.E. train in Co. Kildare in March 1976.

Osgur Breathnach was sentenced to 12 years penal servitude. Brian McNally 9 years penal servitude and Nicky Kelly (in his absence) to 12 years penal servitude. Leave to appeal was refused.

HEAVY GANG VINDICATED

"The State has spent £I million in framing me!" - Osgur Breathnach.

The Great Train Robbery Frame-up cost over £1 million of taxpayers money. It was the lengthiest and costliest political trial in the history of the State. As a result of the guilty verdicts returned, the State repression apparatus is now as strong as it was during the years when secret military courts handed out death sentences to any Republican before them.

The Heavy Gang have been vindicated. Their method, torture, has been condoned. The Fianna Fail Government have proved that despite their protests against police brutality while in Opposition, they are as anxious as the Coalition to destroy anti-imperialists by any means. The verdicts in the frame-up trial guarantee that the Heavy Gang will be reactivated and re-established as an instrument of political repression. Heavy Gang members with their individual fascist mentality will seek out new opportunities for themselves to interrogate and extract "confessions". There will be more torture. There will be more frame-ups in the future.

The Special Criminal Court has proved that it is prepared to distort both the facts and the law in order to pronounce guilty verdicts. In the frame-up trial the judges in Green Street abandoned the presence that they were acting in a judicial capacity in a legal institution. Their finding that the IRSP men's injuries were ''self-inflicted or inflicted in collaboration with others" would do credit to a South African court. Mr Justice Liam Hamilton, Judge Clarke and District Justice Cathal O'Floinn were adament in rejecting the obvious reality that the Heavy Gang and the Special Branch had conspired to frame the IRSP men in the dock. The judges recognised clearly that they were political appointees and that they were in Green Street to perform a political function. These judges accepted fully the role assigned to them. They retired for an entire week to make their decision on the admissibility of statements. In their judgement, these three judges extended the repressive boundaries of the Special Criminal Court further than they had ever gone before.

SPECIAL COURT - MOUTHPIECE OF HEAVY GANG

The Special Criminal Court has been severely criticised by Amnesty International because it was prepared to ignore the legal principles in relation to the admissibility of statements.

Amnesty International had pointed out in it's Report that the onus of proof that a statement was voluntary rested with the prosecution. The Cornelscourt case was singled out by Amnesty as a particular example of the admission of a statement despite the testimony of defendants that they had been brutalised by the police. In the case of the IRSP men, the Special Criminal Court was confronted with monumental medical evidence which attested to the injuries found on the defendants after their 'interrogation' by the police. This astonishing trial court accepted the medical evidence to be true, it could not do otherwise, but went on to rule that the IRSP members had beaten one another up. This astonishing conclusion was reached by the judges despite the fact that the police themselves had never claimed that the men had injured themselves. On the contrary, the police claim was that they received no injuries at all in custody. The same formula.''I did not beat anyone, nor did I hear or see anyone beaten" was sworn to repeatedly by the police witnesses at the trial. The prosecution also produced the Gardai and the matrons who had been on prison duty in the Bridewell at the time to testify that they had neither seen nor heard anything unusual. In this second trial, the Special Criminal Court did not, could not, simply ignore the accused men's evidence that they had been tortured, as had been Special Court practice in previous cases. Instead they were forced to invent an explanation as to why the injuries existed. The Special Court judges truly became an extension of the Heavy Gang.

Sidenote:
Amnesty International comments

On October 8th 1978 Amnesty International criticised the Irish Government over its rejection of most of the major recommendations of the O'Briain Committee and urged the Government to reconsider its attitude and implement the recommendations.

In a letter to the Taoiseach, Jack Lynch, the Secretary-General of Amnesty Mr Martin Ennals noted that the Government did not comment on the O'Briain Committee recommendation that "reliance on confessions and selfinculpatory statements should be lessened".

His letter continued:

"Amnesty International believes that reliance on confessions and self-inculpatory statements is disturbing and would like to point out that in many systems of law a conviction cannot be based on a statement made in the presence of a police officer only (as opposed to a judicial or other outside authority) if that statement is later denied or withdrawn by the accused."

The letter claimed that continuation of the present procedure would "maintain an incentive to obtain confessions and self-inculpatory statements, which, can easily lead to the undue use of mental and physical pressure".