A Malignant Menage d'trois

By Anthony McIntyre

Next Monday shall see UTV's Insight, with typical investigative skill, unpick the threads that have been weaved together post-Patten to fashion a renamed garment now termed the PSNI. While we do not yet know either Insight's contents or conclusions, the very nature of the issues it intends to confront may lead some viewers to conclude that behind the facade of a name change, buttressed by RUC front men and women immersed in a discourse - although crucially not a culture - of human rights, sits the real policing agenda in the North. Whatever the new gloss, the nervous over-the-shoulder glance at Nuala O'Loan, the reworded title, the primary function of policing here is essentially what it has always been - political rather than civic. The PSNI, no less than the RUC, is both the cutting edge of the British state's willingness to maintain the union and the guarantor of the state's own skewed application of the consent principle. The police will of course pursue firemen who murder their lover's husband, arrest drug dealers - if they are not in the UDA, and crack down hard on those who violently prey on the elderly. Just as they have always done. Equally so, they will treat with absolute contempt legal safeguards put in place to protect the citizen from the type of police abuses that were so frequent in the past; and which some would hope to bamboozle us into believing exist only in the past.

About a year and half have passed since Martin Brogan was arrested along with Mark Carroll on a South Down road. Both men claim they were merely travelling to a filling station to buy diesel for Carroll's car. For a while the vehicle's fuel cap had been giving its owner trouble. The remote control that unlocked it was not working. Carroll suggested to Brogan that the journey to the station might be futile if he couldn't open the cap. They stopped at the next available lay-by so that Carroll could work on it manually. It would prove a long and costly break. It was while they had stopped and disembarked that Martin Brogan claims to have found a walkie-talkie radio and gloves. When I spoke to him in his Castlewellan home, just before Christmas, I asked him why he bothered picking them up. 'Curiosity' was his response. Such paraphernalia naturally drew the attention of republicans, he proffered by way of explanation. While true, there are many who would raise eyebrows and question the prudence of such a course, seeing it, even at its most innocent, as a rash act, a foolhardy rush of blood to the head.

At the same time Mark Carroll, a friend and workmate of Brogan but not a republican of any hue - casually dismissing the suggestion that he has an interest in politics - confirms that it was his suggestion to stop the car. It could have been any lay-by he pulled into. Brogan's explanation was certainly not without precedent. I recall being in jail along side Micky Timmons who ended up serving a life sentence for his non-involvement in the deaths of two British Army corporals in West Belfast in 1988. It was part of the conventional wisdom in the H-Blocks at the time that Micky got a life sentence for 'being nosy', as he liked to put it. Like many thousands of the city's nationalists he had attended the funeral of IRA volunteer Kevin Brady when the routes of the cortege and the soldiers converged. Micky ventured over to peer at the fate being meted out to the corporals who by now were in the hands of Brady's comrades. He ended up in jail for it. Common purpose, Judge Carswell told him and two others who stood mesmerised in the dock beside him. And Carswell's judicial purpose was to dish out a common life sentence as a deterrent to those who might innocently gaze.

Because they could not force open the petrol cap the two men opted to turn back, seeing no point in continuing their journey. On the return route they ran into a PSNI roadblock, situated just over a mile from Newry on its border side. The cops searched the car and found the radio. Martin Brogan refused to answer any questions. 'Republicans don't.' He is very open about his republicanism and his dislike of the peace process. 'But opposing the peace process is not illegal.' True, otherwise the DUP would be in jail rather than in the mouth of government.

Forensic capes were put on both men who were forced to look away from the car, preventing them observing what the PSNI were doing at the vehicle. After being detained on the road for about an hour they were arrested and taken to Lisburn PSNI station. 15 minutes passed in the detention room when a cop came in and threw the coat that had been seized from Martin Brogan on the table. The item of clothing had obviously been contaminated in between times and the only reason for it being thrown into the room, in Brogan's view, was so that the forensic people would come along and bag it, without taking note of the fact that it had been out of the owner's possession for over an hour. A devious legal by-pass that would dupe the unwary. The forensic team dutifully traipsed in, performed their swabs and took DNA. On completion of this they bagged the clothes and the men were banged up in the cells.

Mark Carroll realised shortly into a questioning session with his PSNI interrogators that the cops seemed determined to fashion a case where none existed. When they insisted 'about a hundred times' that he had no valid reason to stop the car at a lay-by as his petrol cap was fully functioning, he knew they were lying. Their claims to have repeatedly tested it and to have found nothing untoward were false. Forensic scientists in their eventual report pointed out that the cap did not respond to remote control signals and could only be opened manually. Furthermore, his interrogators' claims that his work cap was a balaclava, convinced him that the cops just wanted 'to make the evidence fit.'

In the course of a day matters took on something of a Kafkaesque twist for Carroll. He found himself charged with possession of explosives. He was stunned. The PSNI claimed to have found a bomb in a car a mile and a half from where they were arrested.

They knew that we had nothing to do with any bombs. I simply didn't know what they were talking about. As for the radio, I knew nothing about that. Martin picked it up because I decided to stop at the lay by to check on the petrol tank cap. They said it was linked to the car in which the bomb was found. It was just too fantastic to be true. But here we were going to jail over it.

Martin Brogan's experience began to shed light on an otherwise impenetrable event.

On my way to an interview the following day I passed a man I later found out to be Kevin Patrick Byrne. I now know him to be a British agent. A Sinn Féin councillor actually named him as a British agent. Myself and Mark were charged but Byrne was not. Byrne was the last known owner of the car in which the bombs were found. He went through the interview process like the rest of us. He was released and has not been seen since. It later transpired from a pulled forensics report that there was explosives traces on Byrne's clothes and my own.

The Down Democrat would later report that a 'British agent' was driving the car in which the bomb had been seized but that he had been released five days later. Kevin Winters, the solicitor representing the two accused said that 'from the documents we saw, another person existed who had been forensically connected to the explosives recovered but who had been released without charge.' That old spectre that has long haunted policing in the North had eluded whatever efforts Patten had made to exorcise it. Justice was to be flagrantly breached in the police drive to protect their agents and conceal their illegal activity from public view.

Nevertheless, if Brogan was the unwitting victim of an illegal police trap how then, if he innocently pulled into a lay-by and only fortuitously stumbled across items which the law would deem as 'being useful to terrorists', could he have traces of explosives on his clothing? His answer was disturbing. Not least of all because his legal team rather than himself was making all the running on the matter and its work formed the substance of his allegations. While he waited on remand in Maghaberry Prison one of his legal representatives had visited Carrickfergus forensic laboratory where he met with Gerry Murray, Collette Quinn and Ian Fulton, all senior forensic officers.

After the meeting Gerry Murray gave the case file to Aiden and indicated the presence of a brown envelope clearly marked 'do not open.' Anything that helped in our case was contained in that brown envelope. Murray put it back in the case folder. I have come to the conclusion that Murray realised that the British Army had tampered with the forensics by opening sealed forensic bags and contaminating the contents, and that he was now being asked to submit a false forensic report on me. Not happy with this, Murray has left a paper trail, which was discovered by Aiden Carlin. Aiden picked up the hint and this was the first thing he went to when he opened the folder. Fortunately, he ignored the instruction and opened the envelope. He then began to copy the thing verbatim.

When I spoke with Aiden Carlin he confirmed what Brogan had said. After the meeting Gerry Murray had indeed handed Carlin the case file containing the brown envelope. And while it carried on its exterior a directive that it should remain unopened, the legal rep felt legally obligated to unseal it in the interests of disclosure because the number of the case file of Brogan and Carroll, '4981/02', was clearly stamped on it. For those who remembered the Guildford four case, only by opening such an envelope was the solicitor Gareth Pierce able to establish the withholding of evidence vital to the defence, and which ultimately led to the acquittal of all those who had been wrongly and malignly convicted. One of the items copied by Carlin was a memo from Gordon McMillan, a senior forensic officer, to all forensic staff claiming that:

On 25 Nov I sent a message to business managers informing them that an army search organisation had been involved in the examination of items in relation to case 4981/02, that had not yet been delivered to the laboratory. This examination involved them opening bags in the exhibits room of Newry Police Station and rubbing a gloved hand over the surfaces of the contents, in this case items of clothing.

Another item assiduously transcribed by Carlin was a letter from Gerry Murray which stated:

On 19/06/03 at 15.00 hours I met Detective Chief Inspector Derek Williamson PSNI, Ardmore, Newry, at FSNI to discuss my statement of 8/4/03 in relation to case number 4891/02. Detective Chief Inspector Derek Williamson requested that I prepare a modified statement, omitting a number of sections from the original statement. He provided me with a copy of my original statement with the relevant sections highlighted.

Carlin also found a fax from Detective Williamson to Mr McMillan, a senior scientific manager, which clearly shows the lengths to which the senior PSNI member was willing to go in his bid to manipulate the evidence. The fax outlined the circumstances of Brogan and Carroll's arrest. It described Brogan as 'a very senior member of the Real IRA.' The fax further claimed that the case was 'highly significant and serious in nature.' What possible inference were the forensic investigators to draw from this other than a negative view of the accused? Williamson was clearly trying to steer the forensic investigation away from any semblance of legality, contaminating the 'neutrality' of science with prejudice.

Murray, to his credit, added that he was submitting both the true report and the altered one

If Brogan's legal team felt it had uncovered something seriously deficient in the police approach to the case it was to soon realise that what had been stumbled on was just the tip of the iceberg. According to Aiden Carlin he discovered evidence that was even more damning not only of the police and army but also of the office of the Director of Public Prosecutions.

Two weeks after the initial visit to the Carrickfergus forensic office I made a further trip, this time in the company of an independent forensic expert, John Gillespie, from Keith Borer Consultants. The whole security procedure had changed in the time that had elapsed since my previous visit. Furthermore, when I opened the case file the brown envelope was missing. But a memo from Gerry Murray, dated the day of my first visit, stated that he had removed the envelope on the direction of Glen Irwin of the DPP. Irwin's reasoning was that the envelope did not pertain to the case of Brogan and Carroll. But this was blatantly false as their case number was on the envelope.

At end of that meeting Aiden Carlin asked Murray for the memo from Gordon McMillan regarding the army search team. Murray said that the army search organisation at Ardmore had interfered with protocol but would volunteer no more. Gillespie commented to Carroll after the meeting that although he had met Murray many times he had appeared very on edge on this occasion. Gillespie in his report said that while there may have been forensic traces on Brogan they did not link him to any bomb. There was no forensic on Carroll at all. He ultimately obtained bail and in November last year both he and Brogan were acquitted. This was only after their legal team made an application to the high court for full disclosure, forcing the prosecution to cut its losses and run. No evidence was offered against either man and Lord Justice McCollum found them both not guilty.

A week prior to the acquittal I went to the courthouse and spoke with Martin Brogan's wife Oonagh. She was clearly resentful at the injustice in the case and spoke of the burden her family had been placed under as a result of the falsification of evidence. She had been left at home with six children aged 7-14, one of whom had autism and epilepsy. While the public focus is often on the prisoner who is a victim of state corruption, the family of the person imprisoned is left to suffer anonymously, regarded for the most part as inconsequential and incidental to the sordid business that visited such a predicament on them.

In the wake of the acquittal, Newry Council voted 19-4 in favour of writing to the police ombudsman, Nuala O'Loan, in response to Sinn Féin's Martin Cunningham having raised concerns. He pointed out that there was a plot involving the PSNI, the DPP and the British Army to manufacture evidence against the two arrested men. 'There has been a sinister plot to fabricate and alter evidence and I have no doubt it was done with the blessing of those in the highest echelons of the security forces.' Martin Brogan, however, insists that up until the men's acquittal Davy Hyland was the only Sinn Féin councillor showing any interest in this case at all. 'The other Sinn Féin councillors did not want to know. They know me and dislike the fact that I have spoken out against them since they have become state republicans.'

Ultimately, this is a narrative about systemic malpractice that goes to the heart of policing and prosecution procedures in the North of Ireland. It is about the employment of agents and the continuous cover-ups employed to protect them while they walk free to stalk the streets despite clearly being in possession of bombs while others against whom not one shred of evidence is eventually offered, are held in prison. It seems that the only thing that really changes in these matters is the name of the agent. Brian Nelson, Freddie Scapatticci or Patrick Byrne come and go but the backdrop of systemic malpractice forges on unabated. Earlier last year, Judge Denise Kennedy stopped the trial of Belfast man William James Nelson after alleged DNA evidence linking him to a robbery was found not to exist. This came on the heels of Nuala O'Loan being asked to examine a claim made by a leading forensic scientist, Ann Irwin, that PSNI members had attempted to coerce scientists into 'covering up' mistakes made in police investigations. She insisted that this was a practice going back many years. In her evidence to Lord Justice Nicholson at the trial of Tyrone man Noel Abernathy she outlined how the PSNI had asked her to collude in covering up the fact that materials for forensic examination had already been open to contamination by its failure to implement the proper procedure for handling the evidence. Nicholson told Abernathy, had he have been convicted he would have went to prison for thirty years. How many have languished in prison because other forensic scientists kept stum?

The DPP, PSNI and British Army have all colluded in falsifying a case against two South Down men. Were it not for the diligence of their defence team both men could now be in the opening months of thirty-year sentences. Are Glen Irwin of the DPP and Derek Williamson of the PSNI along with members of the British Army search team at Newry to be hauled before the courts accused of perverting the course of justice? Or will the powers that be do yet another Brian Hutton on the matter? British efforts to suppress the Cory Report and subvert the Barron Inquiry suggest that they shall. The RUC is dead - long live the RUC.

Urgent Appeal