IN A startling new development, it has emerged that the government led by Jack Lynch in 1970 ignored strong advice from the Attorney-General's Office and its own legal team, and decided that Charles Haughey should be the only politician to face charges in the Arms Trial.
Neil Blaney should also have been sent for trial, according to the expert opinion, despite the fact that a District Justice found he had no case to answer.
The Fianna Fáil administration was told by its legal team of Seamus McKenna SC, Eamonn Walsh SC and Aidan Browne BL that "they were firmly of the opinion that the District Justice was in error" and they advised that Mr Blaney's fate should be placed in the hands of a jury.
For some reason not explained in the State papers, a decision was taken by someone there is no indication by whom that the view of the legal experts should be ignored, that Mr Blaney should not be pursued and that Charles Haughey should stand alone as the only politician in the dock. Significantly, the decision was taken against the background of a vicious power struggle between the Lynch and Haughey factions in Fianna Fáil.
The difficulty arose about how to deal with the sacked Agriculture Minister, Mr Blaney, when a District Justice refused to send him for trial on charges similar to those laid against Mr Haughey and his codefendants regarding the illegal importation of weapons for use in the North in a "doomsday situation".
The McKenna opinion was based on the belief that the written evidence of the star witness for the prosecution, Minister for Defence Jim Gibbons, would ensure that the matter went for jury decision and would not be thrown out by the judge again, as happened in the District Court.
The view was that Mr Gibbons's statement was convincing. However, it has emerged in recent weeks that conflicting written evidence from Colonel MichaelHefferon, Army Director of Intelligence at the time, had been subject to 16 alterations. The altered statement gave the impression that Colonel Hefferon fully backed up Mr Gibbons.
It is believed the experts advising the Government did not know that the evidence of Colonel Hefferon, would eventually discredit Mr Gibbons's statement.
Nor would they have taken account of the rift in Fianna Fáil between the Lynch and Haughey factions and the threat which that posed to Mr Lynch.
Although the expert view was that Mr Blaney fired along with the Finance Minister, Mr Haughey, on May 6, 1970 could still stand trial under a 1936 law, there was no further action taken against Blaney, according to new data released by the National Archives. (Mr Lynch subsequently told the then British ambassador, Sir John Peck, that he was furious with the inept performance of Mr Gibbons as a witness.)
Notes on Col Hefferon's statement of May 30, 1970 indicate it was seen by the Department of Justice Secretary, Peter Berry, the next day, May 31. Mr Berry marked the passages, which were deleted later. The document was marked as "seen" by the Justice Minister, Desmond O'Malley, onJune 1.
It was most unusual for a sensitive witness statement to be passed to the highest level of the Justice Department. Normal procedure was for gardaí to compile the statements and send them to the Attorney-General's office (there was no DPP in 1970). Although Mr McKenna appeared for the prosecution, he and other members of his team would not have known about the crucial alterations to Col Hefferon's statement. Otherwise, they might have taken a different view about the quality of Mr Gibbons's evidence and advised caution. They did not know and, as a result, urged that the charge against Mr Blaney should proceed and a similar recommendation, in stronger terms, was made at the highest level within the office of the Attorney-General and chief government law officer, Colm Condon.
Both sets of legal opinion were issued on July 2, 1970, the same day that Mr Blaney appeared before Dublin District Court on the conspiracy charge to import arms from the Continent between August 1, 1969 and May 1, 1970; he was not returned for trial by jury at Dublin Circuit Criminal Court.
Mr Haughey went for trial along with Capt James Kelly, who was an Army Intelligence Officer until he retired on May 1, 1970; John Kelly (no relation), a Belfast Citizens' Defence Committee organiser; and Albert Luykx, a Belgian-born Irish citizen, who acted as an interpreter for Capt Kelly.
The legal opinion of Mr McKenna, E M Walsh and Aidan Browne, for the prosecution, was delivered in a two-page hand-written text to Mr Condon and signed by them individually straight after the District Court hearing involving Mr Blaney.
It told the Attorney-General: "Making due allowance for all relevant factors, we are firmly of the opinion that the District Justice was in error in refusing to return Mr Blaney for trial. Should the case be prosecuted further against him, we consider that if the admissible evidence and relevant evidence against [Mr Blaney] particularly that of Mr Gibbons is borne out at the trial, that he would not be entitled to a direction from the Court and the question of guilt, or innocence, would properly fall to be decided by the jury."
The view of Mr McKenna's legal team was shared by legal expert(s) within A-G's office, who, as the constitutional law officer, would have advised the Government of the issues arising from the decision not to send Mr Blaney for trial.
On the same day July 2, 1970 in a typed official document headed 'Office of the Attorney-General', the following advice was offered to Mr Condon: "I think the decision of the District Justice refusing informations in the case of Neil T Blaney shows that he either did not appreciate the evidence against him, or chose to ignore it. In my view, it is a clear case in which a direction under Section 62 of the Courts of Justice Act, 1936 should be made by you. I attach a form of such direction for signature, if you agree."
The two-letter abbreviated signature at the bottom of the document is unreadable. The 1930s legislation was introduced by Eamon de Valera's second government at the time when four years of Blueshirt political agitation was winding down and IRA activity was increasing. It pre-dated the Offences Against the State Act.
In any event, Mr Condon decided not to follow the advice of Mr McKenna's team, or that from within his own office. He did not sign the form for the issue of a direction against Mr Blaney. It remains unsigned in the National Archives. Mr Condon, who has since retired, has made it clear that he had no knowledge of the original statement by Col Hefferon to gardaí on May 30, 1970 and was only aware of the version he was given for the book of evidence.
The first Arms Trial collapsed in September 1970, when Judge Andreas O'Keeffe was accused by Mr E M Wood SC of allowing in matters unrelated to the charge which might damage his client, Albert Luykx. The second in October was presided over by Judge Seamus Henchy. It ended with a "not guilty" verdict by the jury.