Published Date: 10.06.2022

A Police Ombudsman investigation has concluded that four young men arrested in Derry/Londonderry in 1979 were treated unfairly and made ‘confessional’¹ statements which were not voluntary according to the standards of the time.

The men made a complaint to the Police Ombudsman’s Office that the confessions were fabricated and that the interviewing officers had perverted the course of justice.

Police Ombudsman Mrs Marie Anderson said that the four – three who were then aged 17, the other 18 – were subjected to a “coercive and oppressive atmosphere” and not given an opportunity to have legal representation before signing a total of 21 ‘confessional’ statements.

The statements related to five terrorist incidents including the murder of a 22-year-old soldier, Lieutenant Stephen Kirby, who was shot dead by the PIRA at Carlisle Terrace in Derry/Londonderry on 14 February 1979.

The men – Michael Toner, Stephen Crumlish, Gerard Kelly and Gerald McGowan – also signed statements admitting involvement in a number of punishment shootings in the city in January and February 1979. They have always protested their innocence and in December 1998 were acquitted by the former Lord Chief Justice and found not guilty of all charges.

Following their ‘confessions’ the Director of Public Prosecutions directed that the four men should be prosecuted. On the third day of their trial in October 1980, all four failed to appear having absconded to the Republic of Ireland. They later stated that they did not believe they would receive a fair trial.

Local MP John Hume and the Bishop of Derry Edward Daly were among those who had voiced concerns about the decision to prosecute. There was extensive alibi evidence and the confessional statements were the only evidence of the men’s involvement.

After absconding, the men were arrested by police in the Republic of Ireland, but were later released when no extradition requests were made by the RUC. They remained in the Republic until the Director of Public Prosecutions withdrew the charges against them in December 1998.

The men each stated that police actions had deprived them of a family life as they had been unable to attend important family events such as weddings and funerals during this period.

In 2003, the men made complaints to the Police Ombudsman’s Office alleging that they were subjected to mental and physical abuse during their time in custody.

They complained that the ‘confessional’ statements were fabricated and obtained by oppressive and coercive means including physical and mental ill treatment, and alleged that police had threatened them and told them that family members would come to harm if they did not make confessions.

They also alleged that they were denied access to legal representation or family support, that alibi witnesses were mistreated and threatened, and stated that they had only agreed to make statements as they were frightened and wanted to be released.

They also claimed that their arrests and detentions had been unlawful, and alleged that they had been subjected to physical abuse including being punched, kicked, slapped, having their hair pulled, and being grabbed by the neck and thrown off chairs.

The Police Ombudsman was unable to investigate the allegations of physical abuse as these had previously been investigated by the RUC’s Complaints and Discipline Branch. In March 1982, the Director of Public Prosecutions directed that none of the 14 officers investigated about the allegations should be prosecuted.

EVIDENCE CONSIDERED

As part of the investigation, Police Ombudsman investigators examined all available relevant police documentation, commissioned forensics and linguistics tests on the original ‘confessional’ statements, and obtained accounts from some 25 witnesses.

They included 10 former police officers, who were interviewed under criminal caution on suspicion of Perverting the Course of Public Justice. All 10 denied any wrongdoing.

Mrs Anderson examined the law and standards set out in Home Office guidance and Judges’ Rules that were applicable to police officer conduct in 1979. She said she was satisfied on the basis of the evidence that the men’s ‘confessional’ statements had been obtained unfairly, and that they had not been voluntary in the sense described in the Judges’ Rules.

She referred to evidence from two linguistic experts commissioned during her investigation to examine the 21 ‘confessional’ statements. The experts concurred that there were issues which called into question the integrity of four of the statements.

These included two statements made by Mr Kelly and Mr McGowan which implicated them in the murder of Lieutenant Kirby, and two statements made by the same men implicating then in a punishment shooting on 18 February 1979.

An expert stated that in both cases the men’s statements were ‘too similar to have been produced independently’. He said this supported the men’s allegation that police had told them what to put in the statements.

Another expert, commissioned after the Public Prosecution Service directed the Police Ombudsman to obtain a second opinion, supported these findings. He found the initial conclusions to be ‘entirely appropriate,’ and stated that the linguistics evidence ‘cast serious doubt on the independence of the statements and on irregularities in the reporting of them’.

The original statements were also submitted to Forensic Science Northern Ireland for ESDA² testing, a technique to examine indentations in documents which can assist when seeking to establish the chronology and credibility of a document. The tests found no irregularities in the documents.

However, Mrs Anderson identified a number of other factors which led her to conclude that the ‘confessional’ statements had been obtained unfairly and not freely given.

NO ACCESS TO LEGAL ADVICE

They included that the young men were not provided with access to legal advice before making ‘confessional’ statements or being charged.

The Police Ombudsman noted that although suspects at the time had no statutory right to a solicitor during their interviews, a core principle set out in Judges’ Rules for the detention and questioning of suspects was that: ‘every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor’ provided that it did not cause unreasonable delay or hindrance to ‘the processes of investigation or the administration of justice.’ A key principle in the Rules was that confessions should be free and voluntary.³

‘I am of the view, given the ‘immature  age’ and vulnerability of these young men, added to the serious nature of the offences, that an opportunity to access legal advice ought to have been afforded to them during their detention at Strand Road RUC Station,’ said Mrs Anderson. ‘I have been unable to establish a rationale as to how this may have delayed or hindered the police investigation’.

Mrs Anderson noted that two of the four statements identified as ‘problematic’ by linguistics experts had been recorded in the early hours of the morning after protracted interviews. This practice was the subject of qualified recommendations in the Bennett Report.⁴

The four men had been each been detained at Strand Road Police Station for between two and three days, during which they had each been interviewed between seven and 12 times each, and for total durations ranging from 12 hours and 45 minutes to 22 hours and 35 minutes.

Mrs Anderson also criticised the practice of allowing suspects to speak with each other during their detention. Although standard police practice at the time, Mrs Anderson pointed out that it was not provided for in the Judges’ Rules.

On two occasions police allowed suspects to meet to confirm that one had made a statement implicating the other.

‘Whether by design or not, I am of the view that this had a profound effect on the coercive atmosphere generated during the interviews and the subsequent securing of ‘confessional’ statements,’ said Mrs Anderson.

“Taken together, the prolonged and repeated nature of the interviewing, the immature ages of the four young men, their inexperience with law enforcement, and the absence of access to legal advice or other support made them susceptible to compliance with those in authority.

“I am of the view that these factors had the cumulative effect of creating an oppressive and fearful environment in which they made ‘confessional’ statements. It is my view that the ‘confessional’ statements were not obtained fairly, but by coercion and/or oppression.”