DNA and Diplock: A Recipe for Injustice

By Martin Galvin

The appalling vista opened with incompetence not malevolence. A credentialed English scientist subjected the Irish suspects to indisputable forensics tests, which registered positive for explosives. Word was quickly passed to crown constables, who proceeded with a confidence borne of incontrovertible scientific proof that they had guilty Irishmen to beat into confessing. The English judge termed the evidence the most overwhelming he had ever heard, and commended the constables for their conduct. Regrets would be later voiced that a death sentence was not authorized by law. It would be almost a decade before the indisputable scientific tests were proven absolutely wrong and the case would become widely recognized as a miscarriage of justice. Sixteen years would pass before the British would free the “Birmingham Six”.

Now fears are being voiced that “Birmingham Six” style justice is about to be meted out to South Armagh Republican Sean Hoey, with suspect DNA evidence being the lynchpin of the framework, in a trial that will unfold even as the British and Ian Paisley demand Sinn Fein backing for the British courts and constabulary.

FRAMEWORK

The “Birmingham Six” case is today cited as a classic example of a miscarriage of justice, grounded upon flawed scientific evidence. No premeditation was suggested. The six Irishmen, residing in Birmingham, boarded a train and played cards in a newly varnished club car as they journeyed to a ferry which would take them to Ireland. Having Irish accents they were detained and asked to undergo simple scientific tests by top forensics man Frank Skuse. He quickly informed constables that these Irish suspects had handled explosives. His tests, he believed, were incontrovertible. Constables proceeded to beat confessions out of these Irish suspects, convinced there was absolute scientific proof that these were the right Irishmen. Defense testimony that a false positive could have been triggered by the varnish or the playing cards would be rejected and ridiculed sneeringly, by the English judge presiding. Only later, when the truth began to emerge, did the British make a calculated decision to continue to jail innocent men rather than release the embarrassing truth about Britain’s vaunted justice, by admitting that these Irishmen were tortured and framed. Only later did the “Birmingham Six” framework move from incompetence to malevolent cover-up and concealment of injustice.

TAUNTS

At its inception, the crown prosecution of Sean Hoey may prove to be much more sinister. Before he was charged and interned by remand, Mr. Hoey was picked up in raids on his home. Such raids afforded the British constables ample opportunity to seize simple items such as combs, toothbrushes, eating utensils and clothes from which Mr. Hoey’s DNA could be extracted. As early as 1999, constables, including specifically one whose name is believed to be Ann Nugent, taunted Mr. Hoey with boasts that it would be an easy matter for the PSNI to plant DNA evidence in order to charge and convict him. Sean Hoey believed that these were hollow taunts and threats designed to intimidate him. For Mr. Hoey, moving beyond the pale of British jurisdiction from Jonesborough to Dundalk or Ravensdale, meant but a few minutes and few miles. He remained in South Armagh until his arrest approximately three years ago. Friends suggest that Mr. Hoey may well be guilty of two things, namely trusting in his innocence and underestimating the crown’s willingness to frame an innocent Irish Republican.

IMPUNITY

Nugent’s threats about planting DNA evidence became more sinister in light of cases in which the PSNI was proven to have done just that in order to frame suspected Republicans. In the best known case, two men Mark Carroll and Martin Brogan were arrested in South Down. Amidst press conferences and headlines, they were pronounced guilty of having explosives said to be found miles away in the sole possession of someone never charged. DNA evidence was heralded as indisputable proof and the men’s protestations of innocence were ignored.

Aidan Carlin, from the office of solicitor Kevin Winter took the unexpected step of visiting the forensics lab and reviewing the forensics file in depth. In scenes which seemed taken from the script of the film “In the Name of the Father”, Mr. Carlin found and copied by hand, notes from the forensics staff detailing that items had been unsealed for contamination and the scientists had been instructed to change their findings to inculpate the suspected Republicans and delete references to the British agent who actually possessed the explosives.

Apparently the forensics staff was concerned about being scapegoated in the event that this blatant frame-up came to light, and wrote memos to exonerate themselves. They need not have worried. When Mr. Carlin returned to review the file, the memos had been removed at the direction of the crown prosecutor. No servant of the crown would be prosecuted, dismissed or even demoted for this blatant attempt to pervert justice and frame innocent men. The crown was sending a clear message. You may plant evidence against selected Republican suspects with impunity. No new safeguards were introduced. Having failed to frame Martin Brogan and Mark Carroll and others the British could have decided on a policy of “never again”. Instead the British seem to be saying “if at first you don’t succeed try, try again”. Sean Hoey seems to be the next try. A visit by Aidan Carlin to the forensics lab disclosed notes instructing laboratory staff to be on guard in case he would appear and to limit conversation and access to the file. If the crown had legitimate irrefutable evidence what had they to fear?

CONVEYOR BELT

The British have resorted to a number of means to keep the Diplock Court conveyor belt, running smoothly. For years confessions extracted under brutal beatings at holding centers like Castlereagh, comprised the evidence in eighty percent of the political cases. When this strategy became untenable, because of the outcry from Amnesty International, and human rights campaigners, the British shifted to supergrass show-trials where one paid perjurer gave scripted evidence against many suspects. Forensics evidence in cases like the “Birmingham Six” or that of another South Armagh man Danny Mc Namee have been occasionally tried. Mr. Mc Namee whose conviction was quashed after it was shown that British experts claimed the same fingerprint belonged to both him and another individual to support charges of bomb-making, may be assisting the defense.

TELLTALE

DNA has a number of advantages. It may be easily gathered at any house raid. It leaves no telltale signs such as visible injuries on a beaten suspect. Most people will not understand or question ostensibly incontrovertible scientific data, in a way that a confession under torture is immediately understood. If the British can establish a precedent by jailing Sean Hoey based upon fabricated DNA evidence, who will be next and how many others will follow?

STACKED

This case will be fought vigorously. Many people believe that the charges should not have survived the committal hearing and that there is not even a case to answer. By charging Sean Hoey with virtually every action undertaken by the Real IRA including Omagh, the British feel they have stacked the deck so high that no Diplock Court judge will have the independence or courage to acquit.

There are political implications, as well. The British and Ian Paisley are demanding full Sinn Fein backing for the crown courts and constabulary. Will the party give such an endorsement to the British courts and constabulary who are even now seeking to frame Irish Republicans? Will the party expose and fight injustice on the same terms that human rights campaigners who may not have endorsed the IRA , fought miscarriages of justice in the past? There is much at stake in the dock of the British Diplock Court. The verdict may well be an indictment of British justice and those who endorse it.

Urgent Appeal