Committee Reports > List of Committees > Dáil > 1971 > Committee of Public Accounts > Final Report - Northern Ireland Relief Expenditure

MIONTUAIRISC NA FIANAISE

(Minutes of Evidence)

Dé Céadaoin, 3 Samháin, 1971

Wednesday, 3rd November, 1971

The Committee met at 4.15 p.m.

DEPUTY P. HOGAN in the chair.

ORDER OF DÁIL OF 1st DECEMBER, 1970.

Mr. E. F. Suttle (An tArd-Reachtaire Cuntas agus Ciste) was in attendance in an advisory capacity.

[PUBLIC SITTING].

Detective Sergeant Donald McDonald sworn and examined.

Chairman.—I have to announce first that on 28th October a letter was sent to Ciaran Mac an Aili, Solicitor, 36 Wicklow Street, Dublin 2, which read:

Dear Sir,

I am directed by the Committee of Public Accounts to state for the information of your client, Mr. John Kelly, that it has summoned Detective Sergeant McDonald, Special Detective Unit, Dublin Castle to appear before it on Wednesday next, 3rd November at 4.15 p.m. to give evidence in connection with the matter referred to it by Order of the Dail of 1st December 1971.

Yours faithfully,

The Secretary.

11832. Sergeant McDonald, can you recall searching Mr. John Kelly at the Bridewell Garda Station on 27th May, 1970?

—I can, yes.

11833. What did you find when you took him in and examined him?

—I found two blank cheques. One was completely blank and the other was drawn on the Munster and Leinster Bank. There was no amount of money on the cheque and it had two signatures. Roger Murphy and John Loughlin were the two signatures on the cheque. The other cheque was completely blank.

11834. You have not got the originals of these cheques on you?

—I have, yes.

(cheques presented)

11835. I will pass these cheques around to the members of the Committee. Did you ask any questions about them?

—I did. I just asked where he had got possession of them and I got no reply whatsoever.

11836. You got no information or no comment about the cheques?

—No.

11837. These two cheques have been issued by the Munster and Leinster Bank, Lower Baggot Street?

—That is correct.

11838. One of the cheques—the number is 354072—is signed by John Loughlin and Roger Murphy.

—That is right.

11839 The serial number on the cheque shows that it came from the same cheque book as was used to operate the Loughlin/ White/Murphy account at the Munster and Leinster Bank, Lower Baggot Street. Is that correct?

—Yes, that is true.

11840. The second cheque was blank and the serial number is 925383. This was taken from the same cheque book that was used to operate the George Dixon account. Is that correct?

—I am not familiar with that.

11841. You have no further information to offer as regards these cheques? You have got no further information?

—I have not, no.

Thank you, Sergeant McDonald.

The witness withdrew.

Captain Kelly called.

Chief Superintendent Fleming called.

(Captain Kelly’s Counsel—Mr. Sutherland)

11842. Chairman.—Before we begin I wish to ask Captain Kelly does he wish to give evidence. He is not bound to do so but does he wish to give evidence?

Captain Kelly.—Not at this time.

11843. I take it, Captain Kelly, that as you are being represented by counsel counsel will conduct the case for you?

—That is correct.

11844. The other point I would like to make is that it would help us—because people’s memories get a bit frayed—if, when adverting to the evidence, you would indicate the page number in the little green book so that we will be all on the same word, so to speak.

Chief Superintendent Fleming.—Before we start, Mr. Chairman, I should like to say something. You will appreciate that I have come here in response to your summons, that I have come voluntarily. This Committee wished me to give all the information I had when I appeared before them on 9th February last and I did so. Any information that I gave in public I had already given in a private discussion with Committee a few days prior to 9th February. It might appear from the public record that I was anxious to go beyond what I was asked but this was not so as I was merely telling what I had already given in a private discussion and what the Committee were already aware of. The Committee will appreciate that I am appearing before them now voluntarily but as regards the question of cross-examination I have something to say as regards that. All the evidence I have given was to assist the Committee and if this affected certain people it was not my fault or responsibility. Captain Kelly made statements before the Committee and elsewhere which affect my personal reputation and, in my view, it is only right and proper that cross-examination should not be one-sided. If the object of asking me before the Committee is to have Captain Kelly’s counsel cross-examine me, I feel that Captain Kelly should also be subject to cross-examination by my counsel. I am prepared to answer any question subject to privilege on the basis that Captain Kelly will also be prepared to do likewise. Otherwise I must, with respect, decline to be cross-examined by Captain Kelly’s counsel.

11845. Chairman.—Is that satisfactory to you, Captain Kelly?

Captain Kelly.—Certainly, I would have no objection to it but I just wonder on what grounds Chief Superintendent Fleming would want to cross-examine me. I did not mention him in my evidence until he introduced me.

11846. Chairman.—Well, he has said you did so it is up to him to indicate where you mentioned him.

Captain Kelly.—He told the story, on which the cross-examination is based. It was Chief Superintendent Fleming introduced what might arise on this Committee and that is where it started.

11847. Chairman.—Could the Chief Superintendent give us any reference to what was said?

Chief Superintendent Fleming.—Not at this stage, Mr. Chairman. I think it should not be so one-sided, that I should not be cross-examined if Captain Kelly is not prepared to be cross-examined by my counsel.

11848. Captain Kelly.—On what does he wish to cross-examine me?

Chief Superintendent Fleming.—There are a number of points I would like to cross-examine him on.

11849. Deputy MacSharry.—In relation to evidence given here?

—Yes, and statements outside.

11850. Chairman.—Of course, we would be concerned with what is said here. What is said here is recorded in our books of evidence. Are you able to indicate any page or paragraph?

Chief Superintendent Fleming.—Not at this stage, sorry.

Captain Kelly.—Mr. Chairman, may I make a point, please?

11851. Chairman.—You are equally prepared to submit to cross-examination?

Captain Kelly.—I do not think in the course of my evidence I introduced Chief Superintendent Fleming at all. The first introduction of Chief Superintendent Fleming, as far as I was concerned, was when he appeared in public here and made the submission which, to me, was completely wrong, was a defamation of my character, was untrue and this is the reason for my cross-examination. I did not refer to Chief Superintendent Fleming until then, so, therefore, I do not see any reason why Chief Superintendent Fleming should have any right to cross-examine.

11852. Deputy Collins.—If Captain Kelly has referred to Chief Superintendent Kelly and Chief Superintendent Kelly wishes to cross-examine Captain Kelly on his evidence to the Committee surely Chief Superintendent Fleming is within his rights?

Deputies.—Yes.

11853. Captain Kelly.—On which evidence?

Deputy MacSharry.—On the evidence presented here.

Captain Kelly.—That is okay. I do not mind.

11854. Chairman.—I take it we have an assurance from you, Captain Kelly, that you are prepared to likewise submit to any cross-examination from Chief Superintendent Fleming?

Captain Kelly.—Any evidence I gave in regard to Chief Superintendent Fleming that he might think defames him in any way—and I submit I gave no evidence as regards Chief Superintendent Fleming at all until I was forced into the position of contradicting what I state was untruthful evidence. I do not think there was any evidence I gave other than a submission to contradict the statement he made here on his first day in public here.

11855. Chairman.—Is Captain Kelly’s counsel satisfied with that?

Mr. Sutherland (Counsel for Captain Kelly).—I am satisfied, yes.

11856. Chairman.—Chief Superintendent, are you prepared to go ahead on the basis of that assurance?

Chief Superintendent Fleming.—Yes, provided that Captain Kelly is prepared to be cross-examined by my counsel.

Captain Kelly.—I have already said I am quite prepared to be cross-examined on any evidence I gave which defames Chief Superintendent Fleming but I state that the submission I made was made in answer to the untruthful submission by Chief Superintendent Fleming which is the basis of my cross-examination. This is why I requested the cross-examination.

11857. Chairman.—Perhaps we could hand it over to your counsel now?

Chief Superintendent Fleming.—Mr. Chairman, I take it then that Captain Kelly’s counsel is only entitled to cross-examine me on statements I made in relation to him. He has not the wide field of cross-examination on the whole proceedings.

11858. Captain Kelly.—The point is this. Your credibility is at stake, Chief Superintendent.

Chief Superintendent Fleming.—It is not.

11859. Chairman.—I have indicated at the beginning and asked that the counsel would refer us to the green books, give the paragraph and the page number and state the question clearly, one question at a time so that we know exactly where we are going. He has agreed to do that.

Mr. Sutherland.—Certainly, Mr. Chairman. If, at any time, I transgress this rule I will be grateful if you will draw my attention to it. At the outset Chief Superintendent, this is not directly referable to the Committee’s inquiry. There are certain matters of a general nature which I would like you to clear up. First of all, how long have you been in the guards?

Chief Superintendent Fleming.—Twentyfive and a half years.

11860. You are familiar, I presume, with the rules in criminal cases?

—Yes.

11861. I suppose you have given evidence of one kind or another on numerous occasions since you joined the force?

—Yes.

11862. Generally, would you agree with me that you would be able to decide on whether or not evidence which you were giving to any court of law was admissible evidence or not?

—Yes, I would have a reasonable idea.

11863. Would you also accept that the laws of evidence exist, generally speaking, for the protection of the concept of truth?

In a court, yes.

11864. The same principles, I must suggest, would apply before this Committee?

—I was not aware of that. I was asked, every question was: “What information have you on this, what information have you on the other”.

11865. I am not, in fact, making the point that you think I am, Chief Superintendent. This Committee, of course, was not bound by the rules of evidence of a court. I imagine because of this you did not feel any compunction in stating as fact what, in fact, was second-hand knowledge. Would that be true?

—Anything I stated was the truth.

11865a. We will come to that in a moment when we deal with individual instances. Would you accept with me that your evidence in relation to the acts of Captain Kelly during the period of August, 1969, to December, 1969, in particular, was hearsay evidence?

—It would not be accepted in a court of law.

11866. You would accept that it was hearsay evidence?

—Yes.

11867. How would you define hearsay evidence.

—I do not think it is for me to define.

Chairman.—Perhaps you would put that in another way.

11868. Mr. Sutherland.—You would accept that the evidence you gave in relation to that period of time was evidence gleaned from a source other than yourself?

Chief Superintendent Fleming.—Correct.

11869. And that if you referred to conversations or acts that this was information which you obtained from another source?

—That is correct, yes.

11870. You mentioned in reply to Deputy MacSharry—Question 9906—in relation to the activities of Captain Kelly between August and December, 1969, that this evidence was not used in the arms trial because, in your own words:

“It could not have been used in the arms trial. In any event it was not relevant to the arms trial. I fail to see how it was relevant to the arms trial.”

Are you stating to this Committee that the evidence which you gave of associations between Captain Kelly and the IRA and, in particular, Mr. Cathal Goulding, which you referred to at Question 5628 on page 417 …?

Chairman.—You are putting two questions at the same time. Perhaps you could put one at a time.

11871. Mr. Sutherland.—Perhaps I will just refer to this question—5628 at page 417. In answer to this question you stated:

“At the outset I would like to point out that all this information has come from confidential sources and I am not at liberty to reveal the sources from which the information came. First, in about the last week of September, 1969, Captain Kelly met Cathal Goulding, Chief of Staff of the IRA, in Virginia, County Cavan, and he agreed to get him a regular supply of arms and ammunition for use in Northern Ireland.”

Do you maintain that that evidence was not relevant to the arms trial?

—No.

11872. Do you deny that you stated—in answer to Question 9906—that this evidence was not relevant.

—I said that at the time, yes in answer to Deputy MacSharry, I think it was.

11873. You do accept that you did state to this Committee that the reason why this evidence was not given to the Committee was that it was not relevant?

—That is correct, yes.

11874. Do you still maintain that that is the case?

—Yes.

11875. I must suggest to you that it was relevant and that the reason why that evidence was not given before the arms trial was that it was not admissible because it was hearsay evidence?

—Yes, it would not have been admissible.

11876. It would have been necessary, would it not, for you to give your source of information had you given any evidence on this issue before the arms trial.

—They could not force me to give a source of information.

11877. Would I not be correct in saying that the evidence would be inadmissible unless you produced the source?

—Exactly.

11878. I must suggest to you that you knew quite well, in answering this question put to you by Deputy MacSharry, that the reason why this evidence was not produced at the arms trial was quite simply because it was not admissible on the basis of it being hearsay but that it certainly was relevant?

—It was not relevant and it would have been inadmissible.

11879. Let me turn to another point. Chief Superintendent, what do you understand as being the meaning of cross-checking in relation to the sifting of information which might come to your knowledge as a member of the Special Branch?

—I am not prepared to answer that. That is a police matter.

11880. It has been referred to before the Committee by the ex-Minister for Justice and all I wish to know is what is the meaning of cross-checking? I don’t want any names or any individuals. I just want to understand what is meant by cross-checking?

11881. Chairman.—Where is it in the green book?

11882. Mr. Sutherland.—It is referred to by Mr. Ó Moráin at page 896, Question 11774. Could you explain to this Committee what is meant by cross-checking?

—Chief Superintendent Fleming.—I could but I am not prepared to explain it. It is police procedure and we are not prepared to explain how we operate.

11883. Mr. Sutherland.—I respectfully submit, Mr. Chairman, that this question should be answered by the witness and that you, Mr. Chairman, should direct that he answers this question. I have asked in general terms what is the meaning of crosschecks. I am quite sure it is a simple procedure and that there is no reason why the Chief Superintendent should refuse to answer the question on grounds of State security, or any other reason.

11884. Chairman.—You did refer also to evidence by Deputy Ó Moráin?

—Mr. Sutherland.—That is correct—page 896, Question 11774.

11885.—Chairman.—Well, of course, Chief Superintendent Fleming has no responsibility for evidence that Mr. Ó Moráin may offer.

—Mr. Sutherland.—I quite accept that, Mr. Chairman. I think that the point of this question would be perfectly obvious and that it is directly relevant to the evidence of Chief Superintendent Fleming.

11886. Chairman.—Are you alluding now to page 418?

—Mr. Sutherland.—No, I am alluding to Deputy Ó Moráin’s evidence at page 896.

11887. Deputy R. Burke.—The question of checking and double checking arose on page 418, Question 5643, originally.

—Mr. Sutherland.—That is correct.

11888. Chairman.—The page is 896 and the number is?

—Mr. Sutherland.—11774.

11889. Deputy Nolan—Will you read that question, please?

11890. Chairman.—Perhaps, in respect of that question, could you tell why you feel that the Chief Superintendent should reply?

Mr. Sutherland.—Precisely because the most important aspect of the evidence of Chief Superintendent Fleming is the source from which he got it. I am quite prepared to accept that Chief Superintendent Fleming cannot divulge the source from where he got his information but it is also quite clear, from other evidence which has been before this Committee, that other parties in the Department of Justice, superior to Chief Superintendent Fleming, doubted the source from which Chief Superintendent Fleming got his evidence and which he categorically stated to be facts before this Committee. I want to get to the basis of this cross-checking method of obtaining information.

11891. Chairman.—It seems to me that the important matter, from the point of view of the Chief Superintendent’s evidence, is if he himself is satisfied with the bona fides of his evidence?

Mr. Sutherland.—With respect, Mr. Chairman, that is Chief Superintendent Fleming’s own opinion of the evidence which he has given to this Committee. The fact remains that doubts have been cast on the veracity of this information by other sources and I think it is only proper that Captain Kelly be afforded the opportunity of some inquiry into the means by which this information was obtained. I think that the question is totally innocuous from the point of view of national security and I suggest the Chief Superintendent is merely evading something which he could quite easily answer.

11892. Chairman.—I make this suggestion at this point. Perhaps you could direct your question more specifically to Chief Superintendent Fleming’s own evidence?

Mr. Sutherland.—With respect again, Mr. Chairman, this is directly referable to his evidence because practically all his evidence, as it was related to Captain Kelly, was from a source which he would not name or would not divulge and which said source was apparently not acceptable to his Minister at that time. I respectfully submit that I must be entitled to put some questions on this matter to Chief Superintendent Fleming.

Chief Superintendent Fleming.—First I would like to state that the question of checking and double-checking should be self-explanatory to anybody. How we check and double-check sources is a police matter. I am not prepared to divulge anything further on it. Furthermore, the Minister for Justice at the time or nobody else, in the police or anywhere else has any knowledge of what sources of information are available to us.

11893. Mr. Sutherland.—I am not asking you for your sources.

—You said the Minister for Justice was wary of the source of information.

11894. You said in evidence, just one moment ago, that it was self-explanatory what cross-checking meant. Would you explain it?

—No, not as regards police work I won’t explain it.

11895. If it is self-explanatory would you explain it. I don’t mean in reference to police work?

—Not as regards our branch of work.

11896. You refuse to answer that question?

—I refuse to answer that question, yes.

11897. You are aware that Deputy Ó Moráin, your Minister at the relevant period, has stated that the source which he believed you to be referring to—cross-checking—is a source that was not reporting direct to your section at all and a source which was regarded as very doubtful by Commissioner Wymes and himself?

—That is the first I heard of that. When Mr. Ó Moráin gave evidence he never indicated to me that the source was in doubt.

11898. Were you speaking to him on numerous occasions, apart from the occasion in December?

—No.

11899. That was the only occasion on which you spoke to him directly?

—That was the only occasion.

11900. Were you aware when you made your reports on Captain Kelly’s activities to your superiors that they were very dubious about the authenticity of these reports?

—No.

11901. I suggest to you that your evidence to this Committee, stated in the most definite manner, is no more and no less than a mass of information peddled to you by some source who could not be produced to give evidence before this Committee.

—It is evident that the source cannot be produced but as regards the information it is 100 per cent correct.

11902. Could this source give evidence, on oath, in deposition to this Committee in a written form?

—No.

11903. Why not?

—Well, I don’t want to have a dead man on my hands for one thing.

11904. Do I take it from that that there is one individual concerned?

—There are a few individuals who may be concerned. I am not prepared to say.

11905. Is it possible that these informants have misled you?

—No, quite impossible.

11906. Why do you say it is quite impossible?

—As I said the information was checked and doubly-checked at the time.

11907. Let me refer you specifically to Question 5628. In answer to that question you alleged that in the last week of October, 1969, Captain Kelly met Cathal Goulding, Chief of Staff of the IRA, in Virginia, Co. Cavan. Did you learn at that meeting at a time contemporaneous with it?

—That was the last week of September, 1969.

11908. Yes. Did you learn of that meeting in the last week of September, 1969?

—I would have, yes.

11909. You did know of it?

—Yes.

11910. Did you know how many people were present at it?

—No, I wouldn’t have known how many people were present.

11911. Do you know where it took place?

—No, some place in Virginia.

11912. You don’t know what part of Virginia?

—No.

11913. Was it possible that the only two people present were Cathal Goulding and Captain Kelly?

—I am not prepared to answer that one, Mr. Chairman, sorry.

11914. You are not prepared to answer that one?

—Definitely not.

11915. In reply to Question 5724 you answered in reply to a question which stated:

“The first indication which you had of Captain Kelly’s activities was when you came across somebody called Kelly whom you were told was an army officer at the Bailieboro’ meeting in early October.”

Your answer was:

“I was told he was operating in the Six Counties at this stage. That was the first information I got of Captain Kelly’s existence.”

In fact that was incorrect; you knew about it before that, did you?

—I knew of Captain Kelly’s existence in September. I first heard of him operating in the Six Counties and I submitted a report to my authorities to pass on to the Army for him to watch his step.

11916. The answer to that question—5724 —is therefore incorrect. The first indication that you had of his existence was not at the Bailieboro’ meeting in early October?

—The first information I had was in September.

11917. I see. Therefore, you wish to change that evidence. You are unaware as to where that meeting was held. Is that correct? You cannot give evidence on that?

—No, I am not prepared to give evidence on that.

11918. You didn’t know, I think, one moment ago?

—I am not prepared to say where it was held.

11919. You now say it is a matter of not being prepared to say one way or the other. Do you accept that the £7,000 which you alleged Captain Kelly paid to Cathal Goulding did not come from the Fund?

—I don’t know. I have no idea where the money came from.

11920. Do you accept, having regard to the evidence before this Committee, that it couldn’t have come from the Fund?

—The Fund wasn’t open at that time.

11921. You are aware of that now?

—Yes.

11922. It is quite clear from the evidence before this Committee that it could not have come from that Fund?

—Not from that Fund. It wasn’t open at the time.

11923. If any money was paid over, which I am not for one moment suggesting, you have no idea where it came from?

—I have no idea where it came from.

11924. I suggest to you that no money was paid over by Captain Kelly to Cathal Goulding?

—I am positive sure there was.

11925. Having given this evidence you referred to the fact that a further sum of £1,000 was paid over by Captain Kelly to Goulding in November, 1969, but you could not swear to that, in your own words?

—That it was personally to Goulding?

11926. Perhaps I should refer you to your actual answer. It is Question 5629. You said that you couldn’t swear to that?

—What I meant was that I couldn’t swear it was handed personally to Goulding. There may have been an intermediary.

11927. Do I take it that the inference you intended to give by this remark was that you could swear to the evidence which you had given immediately prior to that—that is in relation to the money passed over by Captain Kelly to Cathal Goulding in Virginia, Co. Cavan. Is that the inference which you intended to give?

—That was my information on it at the time, yes.

11928. Isn’t the reality—and you know quite well—that you cannot swear to any of this yourself of your own knowledge?

—I have already admitted that. It is not to my own knowledge. As far as I am concerned it is information received.

11929. All that you can swear to is that somebody gave you certain information?

—Yes.

11930. Mr. Sutherland.—To turn to another point: when you interviewed Captain Kelly he stated in evidence that you told him that there were three Ministers involved in this matter. You denied this in answer to Question 5,637. You said, I think, that what in fact happened was that you asked him if Mr. Blaney, Mr. Haughey and Mr. Boland were involved?

—That is correct, yes.

11931. Why did you mention Mr. Boland?

—I had my own reason for mentioning him at the time.

11932. What was the reason?

—I am not prepared to say what the reason was.

11933. Why not?

—Because it involves other information.

11934. In what way does it involve other information?

—It is no concern of this Committee.

11935. It is very much a concern of this Committee?

—It is not in relation to the £100,000.

11936. I must ask you, again, Chief Superintendent, for what reason did you mention Deputy Boland?

—I am not prepared to say for what reason.

11937. Did you not mention Mr. Gibbons?

—No.

11938. I must suggest that you did.

—No. I did not. Captain Kelly mentioned Mr. Gibbons, that he wanted to see Mr. Gibbons.

11939. You are aware, Chief Superintendent, I assume, that Mr. Cosgrave on 6th May is alleged to have had in his possession a document in relation to this affair on headed Garda notepaper?

—I saw that somewhere before—in a newspaper or——

11940. Chairman.—I do not know if this——

Mr. Sutherland.—With respect, again, Mr. Chairman, this is very relevant, because I respectfully submit that the whole evidence against my client is based on the assumption that he was not authorised to do what he did by Mr. Gibbons. I respectfully submit that any acts which he took part in were authorised by Mr. Gibbons and that this can be proved.

11941. Mr. Sutherland.—Have you, as the man charged with State security particularly, made any inquiries as to where that paper came from?

Chief Superintendent Fleming.—No.

11942. Whether officially, or unofficially, surely you made some inquiries?

—No: not really. I made no inquiries.

11943. Were you totally disinterested?

—I am satisfied it did not come from my Department.

11944. Deputy Collins.—I submit that this is not marked clearly in the book of evidence.

11945. Chairman.—I am sure this paper was never passed to Mr. Fleming.

Chief Superintendent Fleming.—No, it was not.

11946. Mr. Sutherland.—I must suggest to you that you did mention Mr. Gibbons as being one of the three Ministers involved and that you have now changed this evidence to include Mr. Boland, in order to get over this matter.

—That is not correct.

11947. You have no explanation that you are prepared to give, nonetheless, to this Committee why you mentioned Mr. Boland?

—No. None.

11948. I must again suggest that you are declining to bring Mr. Gibbons into the matter because you know that if he authorised the importation of the arms, the trial should never have been brought.

—That was not my concern at the time.

11949. Deputy Dowling.—This is not——

11950. Mr. Sutherland.—I will refer you now to the meetings again which you allege took place between Captain Kelly and Mr. Cathal Goulding. You are aware, of course, that Mr. Goulding has denied that these meetings took place?

—Yes.

11951. The first meeting which you allege took place in Virginia, Co. Cavan, where you state that Captain Kelly agreed to get a regular supply of arms and ammunition for use in Northern Ireland. That is in answer to Question No. 5628. You say that you learned of this meeting during late September.

—Yes.

11952. On receipt of that information, what did you do?

—Depended on when I received the information, I would have reported it immediately to my own authorities.

11953. But surely you remember specifically? This was a rather strange piece of information to hear. Surely you must remember what exactly you did with it?

—I would have reported it to my own authorities.

11954. Who would you have reported it to?

—I would have reported it to the Commissioner—possibly to the Assistant or Deputy Commissioner.

11955. Would it not be correct to say that you would have reported it to Chief Superintendent Pat Malone?

—Mr. Malone was not Assistant Commissioner at that time.

11956. I must suggest that in fact the person who you reported to at that time was not Deputy Commissioner, but was a Chief Superintendent?

—That may be: he may have been acting as Deputy or as Assistant Commissioner.

11957. Do you accept that all information which you obtained did not go to either the Commissioner or to the Deputy Commissioner, but as far as you were concerned, went to Chief Superintendent Malone? Was not he immediately in charge of the Special Branch?

—I never addressed any correspondence direct to Chief Superintendent Malone.

11958. To whom did you address it?

—I would have addressed it either to the Commissioner of one of the Branches or to the Deputy or Assistant Commissioner.

11959. At Question No. 9938 you stated that you were aware that Captain Kelly categorically denied having met Goulding and that the following evening he admitted that he met him three times. Do you remember stating that?

—Yes.

11960. Was that, in fact, accurate?

—I understood that from his evidence to the Committee that he admitted meeting him three times.

11961. Don’t you know that this statement of yours was incorrect?

—No.

11962. I must suggest to you that Captain Kelly had never said that. Are you not aware of that now?

—No.

11963. I must suggest to you that that, in fact, is the case and that you were aware of it at the time.

—I would have said that it wasn’t.

11964. You have mentioned in reply to Question 5628 that Captain Kelly attended at a meeting with the IRA at Cavan in the first week of October?

—Yes.

11965. Do you remember on what date that meeting was held?

—No.

11966. Were you ever informed on what date.

—I was never told of the date.

11967. You would have an idea whether it was during the week or at the week-end?

—I have no idea.

11968. Is it normal police procedure when you obtain information not to obtain the dates on which meetings occurred?

—Yes.

11969. That is normal procedure—not to obtain this information?

—That is occasionally, yes.

11970. Does it facilitate your cross-checking, not to know the date on which a meeting occurred?

—It might safeguard an informant.

11971. It might safeguard an informant not to tell you the date on which this meeting occurred?

—Exactly.

11972. In what way?

—I am not prepared to say in what way.

11973. You are aware, I think, that a meeting took place which Captain Kelly has referred to in Bailieboro?

—Yes.

11974. On 4th and 5th October?

—Yes.

11975. You are aware of what happened at that meeting?

—No. I am not.

11976. Are you aware that Captain Kelly has stated that at that meeting requests were made for trading facilities and arms?

—I am aware that he gave that in his evidence, yes.

11977. Are you also aware that he gave that evidence in relation to a request from the Defence Committees?

—I cannot remember now exactly what he said in his evidence, but I know he mentioned about the meeting in Bailieboro’.

11978. I must suggest to you that any meeting which Captain Kelly had at that time in Bailieboro’ was a meeting requested not by the IRA but by Defence Committees, and that in some way your information has become confused in relation to these meetings? Do you accept that that could be the case?

—No, I do not.

11979. Were you aware at that time of the difference between the Defence Committees and the IRA?

—Yes, I would have been aware.

11980. Were you aware at that time that there were in fact two organisations which you could say were concerned with the defence of the minority in different ways in the North of Ireland?

—Meaning the IRA and Defence Committees?

11981. Yes.

—Yes.

11982. Was it not your evidence to this Committee that in fact there was only one organisation up to January or February, 1971?

—One IRA organisation—they split in January, 1970.

11983. I must suggest to you that you are playing with words, Chief Superintendent. I must suggest to you that you are playing with words, that you gave the indication to this Committee that there was only one body——

—I beg your pardon——

Chairman.—Perhaps you would keep to the question.

Mr. Sutherland.—Certainly.

—Chief Superintendent Fleming.—As a matter of fact, I was cleared at the time of the question. I was asked about the split in the IRA at the time. I was specific here on that date. I said there was one organisation until January, 1970.

11984. But now you are prepared to accept that there were in fact two organisations up to between August, 1969, and December, 1969——

—Not in the 26 Counties, we are not prepared to accept that there were. There were Defence Committees in the North.

11985. Well, in the North you are prepared to accept that there were in fact two organisations at that time?

—Yes. You had defence in the North: you had the IRA here.

11986. Is it possible that the evidence which you gave to this Committee in respect of meetings alleged to have been held between Captain Kelly and members or persons residing in the North of Ireland, that your evidence in fact was incorrect in that any meetings he had were not with the IRA but were with defence committees.

—No. Any evidence I gave referred to the IRA.

11986a. What exactly is your position in the police force or the position of the Special Branch? What is the power and authority of the Special Branch in relation to the police force as a whole?

—I don’t understand that question?

11987 Let me rephrase it, in that case. Does the Special Branch operate outside urban districts of Dublin?

—It can operate anywhere by direction of the Commissioner.

11988. Were any special directions given to the Special Branch at the time to operate outside Dublin?

—No.

11989. Therefore I take it that all your operations were in fact in or around Dublin?

—More or less. There may have been odd operations outside Dublin.

11990. I take it, therefore, that in August to December, 1969, that no member of the Special Branch was in Bailieboro’, Co. Cavan?

—I would not accept that.

11991. Then there were operations outside the urban district of Dublin?

—For example, last night we may have had men outside Dublin: we could have them again tonight, but I am not prepared to say.

11992. Therefore, in fact the Special Branch operates everywhere in the country without special permission from anybody? Is that correct?

—They operate, yes. They must operate.

11993. I thought you said one moment ago that that was not the case?

—We get permission from the Commissioner for our operations.

11994. Let me go back over this again. During the period of August, 1969, to December, 1969, was permission granted by the Commissioner for any operations outside Dublin?

—Again we are on to police procedure, Mr. Chairman. I am not prepared to answer that question.

11995. I thought one moment ago you purported to answer it?

—No, I have no intention of answering it.

11996. In giving your evidence, one way or the other, to this Committee you stated that you spoke on behalf of both the Special Branch and the police?

—Yes.

11997. To whom do you report—to go over this again the chain of command—to whom do you report?

—The Deputy or Assistant Commissioner.

11998. On the issue of the handing over of money by Captain Kelly to members of an allegedly subversive organisation, who did you report to?

—I cannot be sure. I think, Mr. Chairman, you have a copy of the reports that were made at that time. Possibly it may have been to the Commissioner.

11999. If you could think back to the time, Chief Superintendent, you will accept that this must have been startling information for you?

—In our job it is not.

12000. It wasn’t surprising for you to hear that a number of Army Intelligence had handed over a large sum of money to a member of the subversive organisation?

—It was surprising, yes.

12001. Surely you remember it with great clarity?

—I don’t remember who I handed the report to. Possibly the Deputy Commissioner, possibly the Commissioner.

12002. Do you remember whether you made the report verbally or in writing?

—It would have been in writing, yes.

12003. And that was made at the time? —It would have been made very shortly after the time.

12004. Would you accept that at this time, from your own knowledge, there was a liaison between Army Intelligence and the police?

—I expect there was, yes.

12005. Don’t you know quite well that there was——

—Yes, there——

12006. There were regular meetings?

—I am not aware of that.

12007. You are not aware of that.

—Regular meetings?

12008. In the Castle between the police authorities and Army Intelligence?

—If I may ask, who would represent the police authorities?

12009. I am asking you whether or not you are aware of the fact that there were regular meetings?

—I am not aware of regular meetings.

12010. Are you aware that Chief Superintendent, as he then was Pat Malone was in regular contact with Army Intelligence?

—Chief Superintendent Pat Malone was never in the Castle until he was promoted Deputy Assistant Commissioner some months ago.

12011. I am not asking whether he was in the Castle or not. Were you aware that during the period of August, 1969, to December, 1969, he was in regular contact with Army Intelligence Authorities?

—No. I was not aware of it.

12012. Chairman.—I do not know what point you are leading up to—

—Mr. Sutherland.—Surely, Mr. Chairman, this is absolutely crucial to the whole issue in the evidence of what has been given about Captain Kelly? Whether or not the information which Chief Superintendent Fleming has told the Committee he had at that time would have been relayed to the Army authorities?

12013.—Deputy Nolan.—It is not very relevant to the expenditure of the £100,000.

—Mr. Sutherland.—I am not directly concerned with the expenditure of £100,000.

12014. Deputy Nolan.—We are.

—Mr. Sutherland.—With respect, Mr. Chairman, I am concerned solely with defamatory statements which were made about my client before this Committee. If those defamatory statements were outside the bounds of authority of this Committee, it certainly is not my client’s fault.

12015. Chairman.—All right. Proceed.

12016. Deputy Collins.—If defamatory statements were made outside this Committee, I do not see why this Committee should be used as a ground to have redress. There are civil courts of law to take care of such redress. We are only interested here with specific evidence in our books of evidence.

12017. Mr. Sutherland.—Would I be correct in saying this—I have changed it slightly to another point—would I be correct in saying that the Deputy Commissioner, the Commissioner, the Minister for Justice, were in a position to obtain other information from the Chief Superintendents of Louth, Meath, Donegal and the other areas in the North of Ireland.

—Yes, they would have been.

12018. And they would be in a position to compare any evidence which you may have given to them with evidence at their disposal?

—Yes.

12019. Subsequent to your giving this information, which I still suggest must have been startling at the time to you, did you ever make any inquiries from the Deputy Commissioner or the Commissioner as to what steps you were to take in regard to any operations of which you might be aware that Army officers were engaging on in the North of Ireland?

—No. I made no inquiries.

12020. Did you just forget about the £7,000 which had been paid over according to your informant?

—I don’t query my authorities’ actions.

12021. I am not suggesting that you should query their actions. I am merely suggesting that it surely would have been acceptable to you as a Chief Superintendent to ask for directions in respect of any future occurrences of a like kind.

—No, it never occurred to me.

12022. It never occurred to you?

—It never occurred to me.

12023. You never mentioned the £7,000 again?

—I never mentioned it later.

12024. You submitted the report and that was the last you heard of it?

—That was the last I heard of it.

12025. Did you submit any further reports in respect of activities which you allege Captain Kelly was involved in?

—I possibly did, yes.

12026. Well, do you remember in particular of any reports that you sent in relation to any other meetings that you allege that he intended?

—No, not specifically.

12027. Not specifically.

—I made numerous reports every day.

12028. And you never remember discussing any of these reports at any time with anybody?

—No.

12029. Did you regularly have conferences with your Deputy Commissioner and Commissioner?

—No.

12030. Did you ever obtain, or when did you obtain, directions from anybody as to the manner in which you were to conduct the affairs of the Special Branch?

—Pardon?

12031. Did you ever, at any stage, have meetings in respect of your organisation with either the Deputy Comissioner or the Commissioner?

—I had a meeting with the Commissioner when I took over in the Branch.

12032. After the time when you took over during the months of August, 1969, to December, 1969, had you any other meetings, apart from the one referred to in December, 1969, with any superior officer?

—I would have umpteen meetings with the Deputy Commissioner. I would have met him every day of the week.

12033. After you reported this £7,000, which you alleged to have been handed over by Captain Kelly to members of a subversive organisation, did you never mention that again?

—No.

12034. It was in no way referred to?

—It wasn’t, no.

12035. It is surely inconceivable that Captain Kelly, had he acted as you suggested he did, would have remained in the Army during the following five or six months.

—I have no control over the Army.

12036. Am I right in saying that every bit of evidence which you have about Captain Kelly’s activities is hearsay evidence?

—No.

12037. Is there any evidence which you can give to the Committee in respect of his activities, or any meetings which he had, which is personal to you only?

—As regards meetings with the IRA?

12038. As regards meetings with anybody?

—That would be hearsay evidence, yes.

12039. What I asked you was is there any evidence in relation to his activities which you can give, from your own knowledge.

—I misunderstood that question. It would be just hearsay evidence, yes.

12040. And there is no manner, whether by deposition or otherwise, whereby you would suggest that this Committee could hear this evidence?

—Definitely not.

12041. Do you remember being told to check, by your superior officers, the information which you had obtained?

—Yes—the Minister for Justice.

12042. Was that the only occasion, in fact, on which the evidence which you had produced, was mentioned to you after September, 1969?

—As far as I remember, yes.

12043. Did he explain why he asked you to check it?

—No. He just asked me to keep checking it.

12044. You would accept that to check indicates that your superiors at least were not satisfied with your sources?

—That may not be. It probably meant to get further information on it.

12045. Yet in answer to Deputy Burke— Question 5643—you said that your information was absolutely accurate?

—Yes.

12046. Wouldn’t it be correct that as far as you are concerned, as far as you know, your informant or informants were telling you the truth?

—That is correct, yes.

12047. You do accept that at no time have you personally seen or spoken to any member of the IRA who has spoken to Captain Kelly?

—I am not prepared to answer that question, Mr. Chairman.

12048. Are you prepared to answer the question: Did you obtain any of your information from sources who are members of an illegal organisation?

—Sorry. Again, Mr. Chairman, I am not prepared to answer that.

12049. Did the Minister for Justice at any time indicate to you that he was not satisfied with the evidence which you had produced for him?

—No, never.

12050. On the occasion when you spoke to him in December, 1969, did you refer to the fact that Captain Kelly had, according to your information, paid over moneys to a subversive organisation?

—Yes.

12051. Do you remember what his reply to that was?

—No, because there were other matters discussed at that meeting. There were a number of reports that we passed on to the Minister that day.

12052. You don’t remember any comment that he made on that?

—Not as regards that one specifically, no.

12053. It was of minor importance, was it, at that meeting?

—It possibly was.

12054. Did you conduct personally, or did officers on your behalf conduct, an interrogation of Colonel Hefferon during April or May, 1970?

—As far as I remember some of the members of the detective branch took a statement from Colonel Hefferon at that time.

12055. With regard to this statement, did you examine it?

—I am sure I read it at the time.

12056. Chairman.—Perhaps you could give us the reference on the interrogation of Colonel Hefferon. Have you got the reference for that?

Mr. Sutherland.—I have not, in fact, got a reference for this. This, as far as I know, is not contained in any of the Minutes of Evidence before this Committee. It is the final point which I want to make, Mr. Chairman. I think it is of some relevance in regard to the evidence which is being given by Chief Superintendent Fleminb to this Committee.

12057. Chairman.—Of course the Chief Superintendent is being cross-examined on the basis of what appears here.

Mr. Sutherland.—It is directly relevant to what appears, I think, before this Committee.

12058. Chairman.—It is fair enough to refer to Captain Kelly but I am a bit nervous of going outside that.

Mr. Sutherland.—With respect, Mr. Chairman, this is directly relevant to what has been said about Captain Kelly by Chief Superintendent Fleming. I think that will be quite clear in one moment. It is a very brief point.

Chairman.—All right.

12059. Mr. Sutherland.—You, I presume, at that time examined the statement which had been taken from Colonel Hefferon by Inspector Ducey particularly.

—Chief Superintendent Fleming.—I would have read it at the time, yes.

12060. Would you accept that in the preparation of this statement that certain irrelevant parts of it or comments made by Colonel Hefferon might have been omitted?

—I don’t know. I do not know what was in the statement at this stage.

12061. Did you examine the notes, as officer in charge of the investigations, taken by the officers who took the statement immediately after it was finished?

—I am sure I did.

12062. Do you remember the last thing that Colonel Hefferon said on that statement.

—No. I am sure he said “this statement has been read over to me and it is correct”. That would have been the last thing on it.

12063. Immediately before that do you remember reading the last sentence of that statement in which Colonel Hefferon said that “any acts which Captain Kelly——”

12064. Chairman.—If you are introducing any new evidence I think it would be desirable that you would have some documentation to substantiate it.

12065. Mr. Sutherland.—It is merely the authorisation of Mr. Gibbons that I am referring to, Mr. Chairman, and this has been introduced by my client on numerous occasions during the hearing. I must suggest to you, Chief Superintendent, that the last sentence of that statement was——

—Chief Superintendent Fleming.—I am prepared to accept what you say but I do not know what was in that statement at the moment.

12066. Chairman.—Would you quote the statement?

12067. Deputy Collins.—To my way of thinking Chief Superintendent Fleming made no reference to authority given by Mr. Gibbons to Captain Kelly in his evidence. We are concerned with Chief Superintendent Fleming’s evidence to this Committee and not to any question of authority not given in that evidence.

12068. Mr. Sutherland.—With respect, the whole tenor of Chief Superintendent Fleming’s evidence was to the effect that Captain Kelly was acting outside the bounds of authority and this consistently appeared in his evidence before this Committee, was in fact, acting and meeting with members of subversive organisations and surely the most relative point as far as defamatory statements about my client is that he be allowed to explain that he was doing anything that he did do, he did with the authorisation of the Minister for Defence, who was his Minister. I merely want to put to the Chief Superintendent that while a sentence in that statement was that Colonel Hefferon said that anything that Captain Kelly had done he had done with the authorisation of the Minister for Defence. Do you remember reading that?

—He possibly did say that, but I can’t swear to that at the moment. That statement was made two years ago.

12069. Chairman.—Can you produce that statement?

—Mr. Sutherland.—What I intend to state, Mr. Chairman, is that this was omitted from the statement which was included in the book of evidence before the arms trial. Colonel Hefferon, I think, would be prepared to give evidence on it himself.

12070. Chairman.—Could you produce the statement for us?

—Mr. Sutherland.—Naturally we are not in possession of the statement taken by the Guards from Colonel Hefferon at this time.

12071. Deputy Tunney.—Mr. Chairman, that is only hearsay evidence.

12072. Chairman.—Is it in the book of evidence?

—Mr. Sutherland.—This evidence is not hearsay and Colonel Hefferon, as I have suggested, will be prepared to give evidence to this Committee on the point.

12073. Deputy Tunney.—As far as we are concerned, Mr. Chairman, it is being presented to us by Mr. Sutherland, who is a legal man, that it is something that was said but which is not in this statement. If it is not in the statement, surely what Mr. Sutherland is contending is that it is only hearsay evidence and we have already agreed that hearsay evidence is not evidence.

12074. Mr. Sutherland.—I am suggesting it to Chief Superintendent Fleming; if he wishes to deny that it is a fact, that is certainly all right. I am not giving evidence on it. I am suggesting that this was omitted deliberately by the Special Branch from the statement included in the book of evidence.

—Chief Superintendent Fleming.—I am sorry I cannot answer that. I do not know what was in the statement, but Colonel Hefferon gave evidence in the court during the arms trial and I am sure if that was omitted from his statement, he brought it to the notice of the Judge at the time——

12075. You don’t remember——?

——or his defending counsel. I don’t remember at this stage. There were umpteen statements taken.

12076. Deputy Dowling.—I thought we had an agreement here early on, when Captain Kelly spoke about how he could be questioned by the counsel for the Chief Superintendent here, that he referred to particular items referred to in the book, and to those alone. This is not an arms trial. Reference was made to the arms trial. This is not the arms trial: this is an inquiry and an opportunity was given to Captain Kelly to have counsel here crossexamine on the basis of information given him before the Committee and on that alone.

—Mr. Sutherland.—With respect, Mr. Chairman, I am not concerned with this inquiry today. I am concerned with defamation of the character of my client. I am not concerned with the bounds or limits or rights of this inquiry into it as to inquiring into anything. I am concerned merely with the fact that defamatory statements have been made by the Chief Superintendent about my client. The fact that these defamatory statements may have gone outside or may necessarily bring in matters which are not directly referable to this inquiry is, as far as I am concerned, irrelevant.

12077. Deputy Dowling.—When the book of evidence is referred to, is that something that was before this Committee?

Chairman.—Yes.

12078. Deputy Dowling.—Is it something that should be examined now?

Chairman.—It was here. If you could keep to the matters here.

12079. Mr. Sutherland.—As I said, Mr. Chairman, I don’t intend to go on any longer. I merely want to put this question finally to Chief Superintendent Fleming. Do you remember at any stage any statement being made by Colonel Hefferon to the police or to the Special Branch specifically that Captain Kelly had at all times acted with the authorisation of Mr. Gibbons?

—Chief Superintendent Fleming.—I don’t know. That may have been in his statement. I can’t swear to that at the moment. I would like to help you out but I can’t at the moment.

12080. You don’t remember it?

—It may have been in it, yes. I read his statement at the time but there were, could have been 12 or 14 pages in his statement. I can’t remember everything he said.

12081. Do you remember how many pages were submitted eventually into the book of evidence?

—I have no idea. I did not prepare the book of evidence.

12082. Much less than 14 pages.

—Possibly. When it is typed, it would naturally——

12083. If that statement was included in the book of evidence wouldn’t it in fact have meant that there was no case against Captain Kelly?

—As I said, Colonel Hefferon gave evidence in court. His counsel was there; Captain Kelly’s counsel was there. Why didn’t he mention that in court if it was not in the book of evidence?

12084. I am suggesting to the Committee that this evidence can be given to the Committee by Colonel Hefferon.

—Yes.

12085. And in closing, I would make one submission, Mr. Chairman, I would suggest that it is incumbent on this Committee to call Chief Superintendent or Deputy Commissioner Pat Malone to give evidence with regard to information which he may have obtained or may not have obtained from Chief Superintendent Fleming. A final point I would like to make is this: the evidence which was given to this Committee by Chief Superintendent Fleming would not, as you are all aware, have stood up in any court of law. It is impossible for this Committee or for anybody else to test the veracity of this information, quite simply, because it is all hearsay. This must be taken into account in relation to evidence which appears to be directly contradictory to that evidence: the evidence of Mr. Ó Moráin, the evidence of Captain Kelly and the evidence of Colonel Hefferon. I respectfully submit that, in your deliberations, the Committee must accept that this alleged evidence of Chief Superintendent Fleming cannot seriously be taken as refuting any evidence given by a member on oath before this Committee. I just ask the Committee to bear that in mind in their final deliberations. I have no further question.

Captain Kelly and Counsel withdrew.

Chief Superintendent Fleming examined further.

12086. Chairman.—I am passing you two cheques which Sergeant McDonald identified. Are you familiar with these two cheques?

—Yes. I received those from Sergeant McDonald on the day of John Kelly’s arrest.

12087. Chairman.—You have no further information to give.

—No, I have no further information. One of them refers to the Loughran-Murphy account and the other one to the George Dixon account, the smaller of the two cheques.

12088. Chairman.—Will you specify the numbers as to which is which?

—No. M.925383 refers to the George Dixon account in the Munster and Leinster Bank, Lower Baggot Street. The other cheque No. 354072 refers to the Loughran-Murphy account: it was the LoughranWhite-Murphy account.

12089. Chairman.—We want to retain the cheques, if you don’t mind.

—That is quite all right.

The Committee adjourned at 5.45 p.m.