‘As the trial went on,’ Private Eye magazine noted, ‘it became clear that if Mr Haughey and his co-defendants were guilty of importing arms into Ireland, so was the entire Irish cabinet.’
The state’s case was in shambles by the time Hefferon left the stand next day, but very shortly the whole proceedings were in disarray when the judge, Andreas O’Keefe, the president of the high court, declared a mistrial after being accused of conducting the proceedings in an unfair manner by one of the defence counsels. The latter withdrew the remark and apologised, but it was no good.
Charlie was understandably livid. ‘Resign from the Front Bench,’ he shouted at the judge.
Outside the court afterwards a member of the jury told Capt. Kelly he ‘had the case won’. The various defence teams had not even begun to present their side, but the juror had already made up his own mind. ‘It was not a guilty verdict, even at this stage,’ he explained.
There was a lot of speculation about O’Keefe’s motives in declaring a mistrial. ‘Was it that having heard the critical evidence he did not want to have to direct the jury?’ Kevin Boland later asked. Many people thought the judge was simply giving the state an opportunity to drop the case without having to suffer the indignity of losing it in open court.
A new trial began on 6 October 1970 with Mr Justice Seamus Henchy presiding. At the outset there was controversy over the status of Hefferon, when the prosecution indicated it would not be calling him as a witness. Counsels for the defendants naturally objected. They were anxious to cross-examine him, so they did not want to call him as their witness. The controversy was eventually resolved by the judge calling Hefferon as his witness so that the state and the defence could cross-examine him. The former director of military intelligence again turned out to be a very effective witness for the defence, as did Capt. Kelly when he elected to take the witness stand in his own defence.
At this point Charlie really did not need to testify at all, but he was anxious to play down his role in the affair. Capt. Kelly’s testimony had hardened the evidence of Charlie’s involvement, because he testified that he told the Minister for Finance about the plans to bring in guns, which were financed out of the money provided by the Department of Finance for relief of distress in Northern Ireland.
On the stand Charlie gave an added twist to his own defence. Like the others, he contended that what was being done was legal because it had the approval of the Minister for Defence, but he added that he did not actually know that a consignment of arms was involved. He said he authorised customs’ clearance without knowing or, for that matter, caring about the actual nature of the cargo, which he assumed was something ‘needed by the army to fulfil the contingency plans’ to help the people in Northern Ireland. It would have made no difference, he added, if he had been told that guns were involved.
‘If you had known that they were intended for possible ultimate distribution to civilians in the north would that have made any difference?’ his counsel Niall McCarthy asked.
‘No, not really,’ he replied, ‘provided, of course, that a government decision intervened. I would have regarded it as a very normal part of army preparations in pursuance of the contingency plans that they would provide themselves with, and store here on this side of the border, arms which might ultimately, if the government said so, be distributed to other persons.’
Charlie said he had no reason whatever to suspect Capt. Kelly. He had suggested making him a special customs officer to deal with pig-smuggling because he believed Gibbons was afraid the British might be on to the captain’s activities.
‘My view of the situation was that Capt. Kelly was a very valuable intelligence officer,’ Charlie explained. ‘I never heard any suggestion that he did not have Mr Gibbons complete confidence.’
While that seemed plausible enough, Charlie was not as convincing when he said he did not know the exact nature of the shipment. Fagan and Berry had testified that they each talked to Charlie on the telephone about the shipment. They knew it was an arms cargo and each assumed Charlie also knew, but neither actually said that arms were involved.
‘Did you ask Mr Fagan any questions as to what this consignment consisted of?’ Charlie was asked.
‘No,’ he replied. ‘We were speaking on the phone, and, as far as I can recollect, Mr Fagan told me he had already been in touch with Col Hefferon. I had no doubt in my mind that this was a consignment which was coming in as a result of the direction which we had given in pursuance of the contingency plans.’
‘Did you appreciate that it was arms and ammunition?’
‘No. I did not appreciate or know at that point of time, and, even when I spoke to Mr Berry, the words “arms and ammunition” were never used.’
In dealing with his telephone conversation of 18 April with Berry, Charlie tried to give the impression of having a very vivid memory of the discussion. For instance, Berry said that he had answered the telephone himself, whereas Charlie contended that a child answered it first.
To remember a small point like that, which had absolutely no bearing on the subsequent conversation, would indicate a clear recollection of the call. But Berry was later adamant on this point. He had been in the sauna when the telephone began to ring and he hoped somebody else would answer it. When nobody did, he answered it himself in the nude.
Charlie said that Berry had omitted a number of things in his account of the call. For instance, he said that Berry had asked at the outset if Charlie had a scrambler and he mentioned that the consignment weighed ‘seven or eight tons’. Berry also said that ‘it was the most stupidly handled affair he had ever known in his civil service days’. None of those points were important except that, if true, they would indicate that, even without contemporary notes, Charlie had a better recollection of the conversation than Berry. All this was important because Charlie was categorically contradicting Berry’s testimony on two vital points. Firstly, he was contending he had never said anything about guaranteeing that the arms would be sent directly to the north, and secondly, he stated Berry had missed his concluding words. Having said ‘it had better be called off’, Charlie stated that he added: ‘what ever it is’.
He said he called off the shipment in order to avoid bad publicity. ‘It was made clear to me,’ he explained, ‘that the special branch wished this cargo to come, and wished to seize it. I was quite certain in my mind that evening that something had gone wrong, and that army intelligence was clearly at cross-purposes with the special branch, and there was a grave danger of an unfortunate incident occurring at Dublin airport with, as I said, all the attendant publicity.’ Yet throughout all this he said that he still did not know that a cargo of arms was actually involved.
Charlie said he did not ask Berry because they were speaking on an unsecured telephone line without a scrambler. Such confusion was understandable under the circumstances, but this would not explain why Charlie did not ask Gibbons what the whole thing was about when they met privately afterwards.
‘Do you tell us that a conversation took place with your colleague the Minister for Defence, in the privacy of your office – with nobody else present – and you decided between you to call off the importation of a certain consignment, and that that conversation began and ended without you knowing what the consignment was?’ Charlie was asked.
‘Yes,’ he replied. ‘Nor did he mention what the consignment was.’
‘Did you not ask him what it was?’
‘No. It did not arise. In my mind was present the fact that this was a consignment being brought in by army intelligence in pursuance of their own operations.’
‘As a matter of simple curiosity, were you not interested at that stage in finding out what the cargo was that all the hullabaloo was about?’
‘No,’ Charlie replied. ‘The important thing was that the army and special branch were at cross-purposes, and that it had better be stopped. I don’t rule out the possibility that it could well have been in my mind that it could have bee
n arms and ammunition – but it could have been a lot of other things.’
‘If your evidence is correct,’ the prosecutor said, ‘I suggest that when Mr Gibbons came to see you on Monday your reaction would have been, “I have already called this off for you but now, please, tell me what it’s all about?”’
‘That’s not what happened,’ Charlie maintained. ‘It may be what you think should have happened – but it did not happen.’
In his opening address the prosecutor had stated ‘that Mr Haughey’s involvement – while of a lesser degree, because he was only there briefly – was of a vital nature because it was he who had given directions to Mr Fagan that this consignment was to be cleared without customs examination.’ In his closing statement Charlie’s counsel contended that the defendant had merely facilitated a legitimate request from army intelligence, seeing that it was actually Col Hefferon who suggested that Capt. Kelly should approach Charlie in the matter in the first place.
Niall McCarthy tried to dismiss the damaging evidence given by Gibbons by contending that the Minister for Defence was posturing as having been opposed to importing the arms even though he never so much as suggested to Capt. Kelly the whole thing should be called off. ‘I think,’ he continued, ‘it is hard to find anywhere – and I mean anywhere – in the evidence of Mr Gibbons anything convincing in his action and in his deeds consistent with what he now says was his view of what was happening at the time.’
‘But, Gentlemen,’ Charlie’s counsel said to the jury, ‘if Mr Gibbons’ attitude to what was happening was as he now declares it to be, surely he would there and then have said, “Capt. Kelly, you cannot go on with this – this must stop”.’ But Gibbons did nothing. He left the captain go out of his office without a reprimand, a rebuke or a warning.
Delivering his summation to the jury, the prosecutor challenged Charlie’s testimony. ‘For the purpose of establishing the case made by Mr Haughey in his defence, it is necessary,’ he said, ‘to disbelieve the evidence of four other witnesses: Capt. Kelly, Mr Fagan, Mr Berry, and Mr Gibbons.’ He then outlined some of the discrepancies.
Capt. Kelly had testified that he told Charlie of the nature of the consignment. Moreover, there was ‘one piece of evidence which is crucial to the case, crucial in the sense that a verdict in favour of Mr Haughey cannot be reconciled with this piece of evidence,’ the prosecutor continued. ‘Mr Berry said that Mr Haughey said on the telephone, could the consignment be let through if a guarantee was given that it would go direct to the north?’
‘Gentlemen,’ the prosecutor added, ‘if it was just Mr Haughey and just Mr Berry, or just Mr Haughey and just Mr Fagan, or just Mr Haughey and just Mr Gibbons, or just Mr Haughey and just Capt. Kelly, nobody could quarrel with the decision that you are not prepared to reject Mr Haughey’s account. But I think you have to consider the cumulative effect of the evidence: is he right, and all they wrong? Because you, gentlemen, have got to hold that they are all wrong.’
During an RTÉ interview with Vincent Browne in 1998, Kevin Boland confirmed a story that he had told Browne eighteen years earlier, that he had actually discussed the arms issue with Haughey before the crisis erupted, so there was no doubt he knew that arms were involved. Thus, Haughey was clearly lying when he testified about not knowing about the guns. ‘When he denied that he was involved in it,’ Boland stated, ‘he was not telling the truth.’
In his charge to the jury on the final day of the trial, 23 October 1970, the judge spent some time on the conflict between Charlie’s testimony and that of Berry and Gibbons. In each instance, he contended, one of them committed perjury.
In one sense, Gibbons’ testimony seemed particularly credible because so much of it was against himself. ‘Poor Mr Gibbons was the anti-star of the trial,’ reported Sir John Peck, the British ambassador to Ireland. ‘From his evidence it is hard to avoid drawing a number of inferences, all unflattering. He seems to have been foolish to the point of idiocy.’
Gibbons, who had earlier denied in the Dáil that he was even aware of the gun-running plans, told a different story at the trial. When he was challenged about this discrepancy, he essentially admitted that he had lied to the Dáil by lamely stating that he was not under oath there. The judge suggested that the jurors would have to decide themselves whether the denials in the Dáil showed ‘Mr Gibbons to be a man given to half-truths and lies, and whether, as a result you should treat him as being discredited as a witness.’
Generally, however, the evidence that a witness gives against himself is considered most effective. Haughey’s self-serving evidence conflicted with evidence that Gibbons, Capt. Kelly and Anthony Fagan had given against themselves, so there was little doubt in the minds of many people about who had told the truth.
‘Either Mr Gibbons concocted this and has come to court and perjured himself, or it happened,’ the judge said. ‘There does not seem to me to be any way of avoiding a total conflict on this issue between Mr Haughey and Mr Gibbons.’ The discrepancies were so great that he did not think they could be attributed to a simple memory failing of one of the participants. ‘I would like to be able to suggest some way you can avoid holding there is perjury in this case,’ Henchy continued. ‘You have a solemn and serious responsibility to decide in this case, firstly, whether Mr Gibbons’ conversation took place or not, and, secondly, whether Mr Berry’s conversation took place or not. I shall not give any opinion on these crucial matters because, were I to do so, I might be thought to be constituting myself the jury.’
As far as the conspiracy charge went, however, all this would be important only if Capt. Kelly was found guilty. If Charlie’s testimony was believed he could be found not guilty while all the others could be convicted. Thus the crucial issue was whether Gibbons had authorised the importation. If he had, then the operation was legal. Henchy told the jury that they could conclude that when the Minister for Defence was informed about the planned importation and ‘did not say No, in categorical terms, Capt. Kelly was entitled to presume that Mr Gibbons was saying Yes. That is a view that is open to you.’
‘Did the accused come to an agreement to import arms and ammunition into the state without the authority of the Minister for Defence?’ was the main question that the jury had to answer, according to one of the jurors. They found the answer simple. ‘It was a completely unanimous verdict,’ he explained. ‘It didn’t take an awful lot of time actually.’
Another juror explained that he had concluded that ‘the cabinet had decided to get these arms in and get them up to the north, and at some stage they changed their mind, or some of them changed their minds. For me, it was a big charade from the beginning.’
The verdict was a foregone conclusion. The Taoiseach had conveniently gone to New York for a meeting of the United Nations. Everyone who attended the final session of the trial had clearly ‘come to cheer the inevitable result’, Kevin Boland wrote.
It took the jury less than a hour to reach a verdict. ‘Not Guilty’ on all counts.
The court immediately erupted into a wild scene of cheering and shaking hands. Outside in the foyer Charlie’s supporters were ecstatic.
‘We want Charlie,’ they shouted. ‘Lynch must go.’
‘I was never in any doubt that it was a political trial,’ Charlie declared at a press conference immediately afterwards. ‘I think those who were responsible for this debacle have no alternative but to take the honourable course that is open to them.’
‘What is that?’
‘I think that is pretty evident,’ he replied. ‘There is some dissatisfaction with the Taoiseach at the moment.’
When asked if he would be a candidate for Taoiseach himself, he said he was ‘not ruling out anything’.
His remarks were unanimously interpreted as a challenge to the Taoiseach. But Lynch was confident of coping with any challenge to his leadership.
‘If the issue is raised,’ he told newsmen in New York, ‘I look forward to the outcome with confidence.’
/> Lynch’s supporters were ready for a showdown. As a test of strength they called on all members of the parliamentary party to show their loyalty to the Taoiseach by going to Dublin airport to welcome him home from the United States. ‘Everyone had to be there unless he or she had a doctor’s cert’, according to Boland. As a result an overwhelming majority turned out, and Charlie’s challenge promptly evaporated.
There was little doubt that Haughey lied about his knowledge of the whole affair, but then so did Lynch. One of the jurors later raised serious questions about Lynch’s relationship with Gibbons. ‘Either Jack Lynch wasn’t aware of what went on in the Four Courts, or he ignored what went on in the Four Courts,’ the juror argued. There is no doubt that Lynch did follow the trial.
The British ambassador reported, for instance, that Lynch ‘told me privately that he was furious with Mr Gibbons for his performance as a witness, and that he seems to be getting into an impossible position. I thought it very likely that his resignation would be ready to be put in the Taoiseach’s hand when he returned.’
Lynch refused to reinstate Charles Haughey and Neil Blaney to cabinet, even though they had been cleared in court. He justified this on the grounds that they knew of the plans to import the arms but had not informed him. Gibbons admitted in court that he also knew of the plans, so why did Lynch retain him?
Surely, it was because Gibbons had actually informed the Taoiseach about the plans. In late 1969, Gibbons told Hefferon that Lynch had been asking questions about Capt. Kelly’s activities as a result of a warning from Peter Berry. Gibbons later stated that he ‘did pass on information to the Taoiseach at that time in 1969 that there was questionable activities on the part of certain members of the government making contract with people they should not make contact with, certainly without the sanction of the government and the Taoiseach.’
Haughey's Forty Years of Controversy Page 7