HC Deb 15 March 1995 vol 256 cc874-82

2 pm

Dr. Joe Hendron (Belfast, West)

This debate is about a major miscarriage of justice. Three men are in prison in Northern Ireland serving two life sentences each for murders that they did not commit.

It is alleged that Patrick Kane, Sean Kelly and Michael Timmons are guilty of murder because they were present at a violent incident, which occurred at a different location and was perpetrated by two unknown assailants and which culminated in the murder of two army corporals. None of the three men is accused of direct involvement in the murder; none had direct knowledge of the direct perpetrators; none is alleged to have any paramilitary connections, including membership of the Irish Republican Army; and none has a criminal record. They all maintain their innocence.

On 19 March 1988, Corporals David Howes and Derek Wood were murdered by the IRA in Penny lane in Andersonstown in west Belfast. What happened to the two soldiers was extremely brutal, and the nearest thing to the crucifixion of Christ that one could see. Earlier that day, due to the presence of world media, millions of television viewers watched in horror as a crowd in west Belfast set upon the two occupants of a silver Volkswagen that had driven into a large funeral procession. One of the occupants of the car fired a shot, but shortly afterwards the two men were violently hauled from their car, disarmed, taken to Casement park, stripped and savagely beaten.

When their pockets were searched, it became apparent that the two men were soldiers in civilian dress, and they were later identified as Corporals David Howes and Derek Wood. They were subsequently driven in a black taxi to Penny lane about half a mile away, where they were shot dead by the IRA.

Those events took place in a highly charged atmosphere. The funeral into which the soldiers drove was that of Kevin Brady, an IRA man. Mr. Brady, along with two others, was murdered a few days earlier in Milltown cemetery after a gun and grenade attack by a loyalist at the funeral of three unarmed IRA members who were shot dead in Gibraltar by the Special Air Services. No explanation has been given as to why the corporals were present at the funeral procession, nor why the police and the army did nothing to attempt to rescue them.

Those who attended Kevin Brady's funeral were very apprehensive, and genuinely believed that the car contained loyalist gunmen who were hellbent on mass murder. Much of what happened—particularly the final murder—was filmed by an army helicopter, but the two IRA gunmen have never been identified or apprehended. Instead, scores of people were arrested and more than 40 were charged in connection with their activities in and around the stopping of the car and the grievous bodily harm inflicted on the soldiers prior to their being taken away by taxi to be murdered by the IRA.

I am seriously concerned about other cases, but my main focus today is on three of the men who have been found guilty of murder. I believe that a grave miscarriage of justice has taken place. I further believe that Patrick Kane, Sean Kelly and Michael Timmons should he released immediately. All three men were found guilty of murder under the principle of common purpose. It is accepted that none of them had been convicted of the actual murders or was present when the soldiers were murdered. Mr. Justice Carswell ruled that the accused were guilty either because there was a plan to murder the two soldiers and the accused knowingly agreed to and supported the joint enterprise; or, if the purpose of the joint enterprise was not to commit murder, it was foreseeable that a murder might be committed. Given the unpremeditated nature of the incident, there has been no suggestion that there was a preconceived plan to murder the soldiers.

The Committee on the Administration of Justice report commented: When considering Kane, Timmons and Kelly it is crucial that their entire alleged involvement lasted only a few minutes. Therefore, how could it possibly be foreseeable that a murder might be committed?

Patrick Kane was arrested in December 1988 at his home and he was taken to Woodburn police barracks where he was interrogated for several hours. At no time was a solicitor or an appropriate adult—I use that term in the legal sense—present. Later that day, he was charged with grievous bodily harm and false imprisonment. He was allowed out on bail of £150 and two sureties of £300 each. At no time was he remanded in custody—I emphasise that point. He continued working for 14 months while out on bail, and a judge allowed him to go to the Republic of Ireland on holiday as the police had no objection to the trip.

The charge of murder was added in June 1989. Even though charged with murder, Patrick Kane was allowed to stay out on bail until his trial in February 1990. He was found guilty of counselling and procuring the murder of the soldiers, because the judge held that Kane was present at and engaged to a minor extent in the physical beating of the soldiers, and that the accused must have known that murder was one possible outcome of his illegal conduct.

Kane was convicted on the basis of controversial video identification evidence and on confessions that he was alleged to have made to the police following several hours of sustained interrogation. It was clearly established before Patrick Kane's trial that he had the IQ of a 10 or 11-year-old and that he was considerably deaf. Dr. Gisli Hannes Gudjonsson, head of forensic psychology services and clinical psychologist to the Bethlem Royal and Maudsley hospitals, examined Patrick Kane on 18 February 1990 in prison for approximately two hours.

In his report, dated 19 February 1990, he comments that at the beginning of the session Mr. Kane begged not to be asked to read anything. He explained that he was almost completely illiterate and felt very embarrassed by it. He said that he tried very hard to cover up his illiteracy when he was with people he did not know. He did not want the other prisoners to know that he could not read or write and, on occasions, he would pretend to other prisoners that he could read.

In his conclusion, Dr. Gudjonsson commented that Mr. Kane's IQ falls at the bottom 8 to 9 per cent. of the general population. That would give him a mental age of about 11 years. He found that Mr. Kane was almost completely illiterate and that the most striking feature of Mr. Kane's personality was his high anxiety. Dr. Gudjonsson felt that Mr. Kane was clearly a man of nervous disposition who would be at a considerable disadvantage when having to cope with an unfamiliar and demanding situation. When in a situation that he found particularly stressful, Dr. Gudjonsson found that Mr. Kane would be more inclined than the average person to consider only the immediate or short-term consequences of his behaviour.

Patrick Kane has suffered from defective hearing for many years and has attended the ear, nose and throat department of the Royal Victoria hospital in Belfast since 1968. A senior consultant at the hospital, Mr. Roy Gibson, prepared a report on 21 February 1990, which was submitted to the court by Patrick's defence lawyers. Mr. Gibson studied Patrick's notes and said that it appeared that Mr. Kane had first attended the Royal Victoria hospital on 25 March 1968. It was recorded in his notes that his hearing reserve is so poor that it is not justifiable to operate on him at all". He had surgery on his right ear in 1989. In the report's conclusion, Mr. Gibson stated: Patrick Kane has a moderate hearing loss at low tones and a severe hearing loss at high tones in both ears". We have evidence from one of the country's leading psychologists that Patrick Kane had the intelligence of an 11-year-old, yet for some mysterious reason Dr. Gudjonsson's report was not made available to the trial judge or to the judges in the Court of Appeal.

Mr. Gibson's reports on Mr. Kane's defective hearing were accepted by the court, but at no time discussed either at the main trial or at the Court of Appeal. Despite his obvious handicaps and the contravention of his rights and natural justice, he had been interviewed five times on the first day of his detention—from 10.30 in the morning until late at night—in the absence of a solicitor or any other appropriate adult, as is provided by law in cases such as his.

He asserts that the statements that he made to the police are false and were made out of fear and confusion. Furthermore, the claim made by the police that he kicked one of the soldiers and escorted a priest, Father Alex Reid, away from the scene of the attack is entirely inconsistent with the video evidence of events. A policeman who interviewed Mr. Kane stated in evidence: Had I had any idea that he had a hearing defect, I possibly would have looked for an interpreter. In the BBC documentary "Rough Justice" Mr. Kane's case was examined in great detail and John Ware, the reporter, concluded that the conviction and life sentence passed on Mr. Kane were perverse. On the programme, Peter Thornton QC agreed that a jury might well have reached a different conclusion from Mr. Justice Carswell who, as a Diplock court judge, was sitting alone.

In the same programme, Mr. John Ware spoke about Father Alex Reid, who had been an independent witness in Casement park. Father Reid did not believe that the soldiers would be murdered; he thought that the danger was not from the IRA, but from people losing their heads. He said that he was holding on to both soldiers and thought that he had things under control. It finally became clear to him that the IRA was taking charge after the men began to be stripped. Mr. Justice Carswell seemed to see the stripping as the benchmark for deciding when there could have been no doubt about the soldiers' fate.

Kane said in his statement that he saw a priest on his knees saying prayers beside one of the persons. He goes on to say that he realised then that something bad was happening or going to happen and decided that he wanted out. Indeed, the man in the green jacket seen on video and believed by the judge to be Kane is clearly walking towards the gates, avoiding any contact with the crowd around the half-naked soldiers. He stays behind the wall, keeping well way from the action. The green man cannot leave immediately because, as the heli-tele showed, the park gates were closed. While the man in the green jacket is behind the wall, an IRA man dressed in white goes into the crowd and takes Father Reid from someone else and Father Reid is manhandled towards the gates.

The judge's conflicting assessment of Patrick Kane's statement must give further concern. Mr. Justice Carswell accepted as true the written statement that Kane had made to the police, and he also relied on the video evidence to prove that the defendant was someone he claimed not to be. The judge chose to disregard major discrepancies between the video and the written evidence.

At the time of his arrest, Michael Timmons was also charged with murder, grievous bodily harm and false imprisonment. He admitted to having been present in Casement park when the soldiers were beaten. Like the other defendants, he denies that he intended to engage in serious criminal activity, still less in a conspiracy to murder.

Although Mr. Timmons was not accused of direct involvement in the murder of the two soldiers, or even of transporting them to the place where they were murdered by others, he was found guilty of murder. The appeal judges concurred with Mr. Justice Carswell's finding.

Sean Kelly was arrested some 11 months after the murder of the two soldiers. He made a statement to the police giving an account of his movements that day and denied any involvement in the murder or beating of the two men. He then chose to exercise his right to remain silent, both in response to further police questioning and at the trial itself.

Mr. Justice Carswell found inconsistencies between Mr. Kelly's statement to the police and the video evidence, yet he had reservations about accepting the identification of Kelly from the heli-tele film on its own because of the poor quality of the film. Nevertheless, the judge determined that, although the video evidence was uncertain, it, combined with the adverse inference of guilt which he was able to draw from the silence of the accused, gave him sufficient grounds to find as a fact that Sean Kelly was in Casement park and that he was guilty of murder.

There have been other judicial inconsistencies. In another Casement park case, the driver of a black taxi was found guilty by Mr. Justice McDermott of transporting the soldiers to the place of the murders, but he was acquitted of murder.

In a second case, another person who actually confessed that at some point he thought that the soldiers would be killed was acquitted of murder by Mr. Justice McCollum, who claimed that the man did not know what he was saying and that he, the judge, believed that no one could have been thinking so clearly in such a situation.

In its report in 1992, the Committee on the Administration of Justice concluded: the attitude of the particular judge hearing the case is sometimes just as important as what the accused did.".

Mr. David Trimble (Upper Bann)

I thank the hon. Member for giving way, and I am reluctant to interrupt him because of the shortage of time. On his last point, will he take into account the fact that, at the appeal hearing, the appeal judgment stated: These contentions by the prosecution as to the legal basis for murder by the appellants as secondary parties were accepted by the defence as correct … It was not contended by the defence that the trial judge had misdirected himself as to the law, or misapplied it.". In view of that clear statement by the Court of Appeal, will the hon. Gentleman withdraw the aspersions that he has cast on the judgment of the trial judge.

Dr. Hendron

No. I will most certainly not withdraw that. There are gross inconsistencies.

Anyone studying the case—we know it was a horrific slaughter of two soldiers—or reading the transcript of the trial and of what the appeal judge said should watch the "Rough Justice" programme as it showed that there are serious differences in interpretation of the statements, especially that made by Patrick Kane and the evidence on video. That is extremely important.

In conclusion, unlike Paratrooper Lee Clegg, whose case is being reviewed in June this year, Patrick Kane, Michael Timmons and Sean Kelly did not kill anyone. Those three men have not had a fair trial, and most definitely are not guilty of murder. As with the Guildford Four and the Birmingham Six, we are again seeing a gross miscarriage of justice. I am asking the Secretary of State, through the Minister, to take whatever steps are necessary to have the three men released forthwith.

2.17 pm
The Minister of State, Northern Ireland Office (Sir John Wheeler)

Before I respond to the hon. Member for Belfast, West (Dr. Hendron), I should like to congratulate him on his success in securing an Adjournment debate for the second time. The subject is one about which he and many other people both inside and outside the House have a deep and sincere concern.

I welcome the opportunity presented to me to explain to the House my right hon. and learned Friend's role in these cases. The House may find it helpful if, at the outset, I remind him of the Secretary of State's powers to refer a case to the Court of Appeal in Northern Ireland. They are the same as those available to the Home Secretary in respect of convictions in England and Wales.

It is not for Ministers to substitute their own assessment of the evidence in any case for that of the courts. Their function, by long-established practice, is to examine whether there is some new evidence or other consideration of substance that has not previously been before the courts and that now appears to cast some doubt on the safety of the conviction. This is the criterion: whether it appears to cast doubt. It is not for Ministers to reach a concluded view on whether a conviction is safe.

I remind the House that, on 30 March 1990, Kane, Timmons and Kelly were convicted of murder, grievous bodily harm and false imprisonment. On 5 July 1991, the Court of Appeal of Northern Ireland upheld their convictions and sentences.

The Secretary of State and I have received many representations regarding the cases of the three men. The representations have in the main, but not exclusively, sought to dispute the deductions made by the courts based on the evidence that they accepted. When representations have sought to challenge the evidence itself, they have tended to concentrate on the identification of the defendants from the considerable video and film footage that is available. In the case of every representation, the Secretary of State had to satisfy himself as to whether the points argued had or had not already been before the courts.

In addressing the question of identification evidence, the Court of Appeal said: "In seeking to identify any of the appellants on the films, we reminded ourselves, being all too familiar with the frailties of identification, of the need for caution before reaching any firm conclusion".

The court went on to state, in respect of Patrick Kane: Repeated running of the films, concentrated observation of them and comparison with the general appearance of Kane in the park satisfies us that the man seen inside the park dressed in the combination of colours of green anorak, dark trousers and white shoes was undoubtedly Kane. In respect of Kelly, the court said: We looked at the film very many times. We had it played and replayed over at normal and slow speeds. We were satisfied beyond reasonable doubt that Kelly was indeed the figure inside the Park that the prosecution pointed to. I have also noted the widespread expression of unease concerning the application of the law on common purpose to these cases. I am sure that the House will expect me to comment on that aspect.

The principle of common purpose is not new, and its use is not confined to Northern Ireland or, indeed, to the United Kingdom. Mr. Justice—now Lord Justice—Carswell's written trial judgment provides a detailed account of the law pertaining to common purpose and his application of that law to the defendants; I therefore do not propose to rehearse all the arguments now.

I consider it important, however, for the House to hear Lord Lane's comments, expressed as recently as 1989, which the trial judge quoted in his judgment. Lord Lane said: A must be proved to have intended to kill or do serious harm at the time he killed. B may not be present at the killing; he may be a distance away, for example, waiting in the getaway car; he may not know that A has killed; he may have hoped (and probably did) that A would not kill or do serious injury. If, however, as part of their joint plan it was understood between them expressly or tacitly that if necessary one of them would kill or do serious harm as part of their common enterprise, then B is guilty of murder". In applying the law on common purpose, the court did not contend that Kane, Timmons or Kelly attended the funeral that day with murder in mind. However, the court did consider them to have joined in and given support to a joint enterprise, a foreseeable consequence of which was the eventual murder of the soldiers. It was that finding of fact that was upheld by the Court of Appeal. The Court of Appeal's comments are also pertinent in relation to the principle of common purpose. It said: These contentions by the prosecution as to the legal basis for murder by the appellants as secondary parties were accepted by the defence as correct both before the trial judge and this Court. The court also stated: It was not contended during the hearing of these appeals that the trial judge had misdirected himself as to the law, or misapplied it. The contentions were directed in each case against the Judge's findings of fact and the inferences he drew from them. In the case of Kane, various representations have pointed to his illiteracy, aural impediment and intellectual limitations, and drawn attention to the fact that an "appropriate adult"—the hon. Gentleman's term—was not provided before and during his questioning by the police. All those aspects have been considered most carefully.

Patrick Kane was arrested in December 1988 under the powers derived from the ordinary criminal law, not emergency legislation. The provisions of the non-statutory "Guide to the Emergency Powers" which relate to the appointment of an "appropriate adult" were not therefore applicable. Similar "appropriate adult" provisions have subsequently been introduced for non-scheduled cases in code "C" of the Police and Criminal Evidence (Northern Ireland) Order 1989, but they did not come into operation until 1 January 1990.

Patrick Kane's counsel at trial and on appeal argued that his statements should be treated as inadmissible. The Court of Appeal noted: Before the trial judge, his counsel submitted that no weight should be given to his oral statements or the written statement because he was illiterate, of low intellectual ability and had a significant hearing loss. Before this Court his counsel, Miss McDermott QC, went further. She submitted that the trial judge should have ruled all these statements inadmissible on those grounds. The court concluded: This Court sees no reason why the judge should have held his statements either inadmissible or of no weight or lesser weight than they commanded on their face. The allegation of a hearing loss could not have been a relevant factor in the nature of the challenge made. It is clear from the transcript that the case he was making at trial implied that he had heard all the suggestions made to him by the police. Otherwise he could not have agreed with them through fear. Nor do we consider that the other grounds put forward are of any avail. He was at the time of his arrest a man of 31 years. Although he could not read or barely write, he was able to write his signature and the words 'No complaints'. But much more so, any detailed reading of the transcript of his evidence, particularly the searching cross-examination by Mr. Foote, shows that he had a ready capacity at all times to understand the purport of the questions put and at times to anticipate and evade what might have been incriminating. It is clear that the question of Kane's intellectual abilities was very fully argued by his counsel and duly considered by the court. Those aspects therefore do not constitute new material on the basis of which my right hon. and learned Friend could properly ask the Court of Appeal to reconsider his case.

We have also been aware of suggestions of judicial inconsistency between this case and others. It must, however, be borne in mind that judges are duty bound to assess each case on its own circumstances—even when several cases arise from a common incident—and weigh the evidence separately: both the persuasiveness of the prosecution case and the credibility of the accused's defence. The fact that different outcomes may be pointed to does not of itself mean that a particular conviction is unsafe or a sentence wrong.

As I said, the Secretary of State has given the utmost thought to all the representations received before today, and has concluded that in respect of all three men the criterion for a referral to the Court of Appeal of Northern Ireland has not been fulfilled.

At this point it may be timely to remind right hon. and hon. Members that the Criminal Appeal Bill was approved without a Division on Second Reading in the House on 6 March. .A number of hon. Members welcomed its extension to Northern Ireland. The Secretary of State's decision to seek to have the Bill extended to Northern Ireland followed a wide-ranging consultation process. The new independent body will investigate miscarriages of justice and when necessary refer them to the Court of Appeal for review.

I have listened with great interest to the hon. Gentleman's speech today. I wish to assure him and the House that the Secretary of State's mind remains open and that he is willing to consider most carefully any further material put to him, pending the establishment of the new Criminal Cases Review Commission.

It being half past Two o'clock, the motion for the Adjournment of the House lapsed, pursuant to Order [19 December].