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ABOVE
SUSPICION
Programme title: Above Suspicion
Production number: 04/0702
Transmission date: February 23 2004
Reporter: Trevor Birney
Producer: Ruth O'Reilly
OPENING TITLES
REPORTER:
When two under car booby-trap bombs were found during this police operation, it was hailed as a victory in the fight against the Real IRA for the newly installed Chief Constable.
HUGH ORDE/CHIEF CONSTABLE (at the scene)
We're talking about another major success. Massive police resources have been put into this operation and, as you can see.
REPORTER:
But then days before two men were due to go on trial over the find, the charges were inexplicably withdrawn. Tonight Insight uncovers how forensic evidence was compromised in this case and a scientist pressurised in another in bids to get dissident republicans behind bars.
MARTIN BROGAN:
They were even willing to sacrifice a man who has no political view to get me.
REPORTER:
Why were the police and a lawyer in the Director of Public Prosecutions office trying to hide forensic evidence about the man who should have been their prime suspect?
KEVIN WINTERS:
Q) How relevant was that information for you?
A) It was critical to the case, highly relevant and we needed to see it.
REPORTER:
And how can the forensic science agency, once the world leader in its field, be protected?
EUGENE GRANT QC:
I think there is potential for continued objective criticism of our system, which is unnecessary, developing - I'm not saying it's prevalent at the moment, but developing. There's a potential for miscarriage and there are undoubtedly going to be continued strike-outs. That's the future unless there is a focus on developing independent centres.
TITLE BAR: ABOVE SUSPICION
REPORTER:
The news headlines were dominated by the results of last November's elections on the day these two men walked free from court. They had been charged over 14 months earlier with possession of explosives. Martin Brogan had spent the whole period in custody; Mark Carroll had been given bail after eight months. Their trial was imminent. But suddenly the charges were withdrawn.
MARTIN BROGAN (November 28 2003):
Q) How does it feel today, Mr Brogan?
A) Oh, it feels great, it feels great altogether.
Q) Are you associated with any organisation, Mr Brogan?
A) I am not associated with any organisation, although I'm a republican and I make no apologies for it.
KEVIN WINTERS (November 28 2003):
My clients were charged in September last year and removed from their families in a manufactured prosecution designed to send them on their way to a lengthy prison term. They want to return to their families and to try to restore some lost time with them.
MARTIN BROGAN (sit-down interview):
Well, it makes a mockery out of the politicians that are saying at the minute and probably in the future that everybody is going to be accountable. This might very well be the case. You and me may be accountable, but the DPP’s office are accountable to nobody.
MARK CARROLL:
A nightmare. I just couldn’t believe what was happening. I thought at the Police Station they were going to find out the truth of the story and let us go, that’s what I reckoned. And next thing you are in Maghaberry, nobody was telling me nothing. So I hadn’t a clue at all what I know now, so I just, what could I do? I had to wait until the truth came out and that’s what has happened now today.
REPORTER:
But nine weeks earlier, the trial of this man, Noel Abernethy, also raised serious questions about how dissident republicans were being pursued. He was acquitted of the attempted murder of two policemen and a voter. They were wounded in the gun attack on a polling station in Draperstown in 2001. At his trial, Anne Irwin, a forensic scientist with 20 years' experience told how police incorrectly presented Abernethy's clothes to test for gunshot discharge - also known as CDR. But they pressed her to do the examination anyway.
COURTROOM RECONSTRUCTION:
1) Barrister (reading from notes): … requests were made piecemeal and, as a result, some evidence was lost. They then tried to retrieve the situation by asking the lab to compromise its science and ignore cartridge discharge residue contamination issues. Involvement of the lab at an early stage with the full facts would have smoothed the process and maximised the evidence recovered. (Addressing Mrs Irwin) Mrs Irwin, is that a note made by you?
Mrs Irwin: It was, yes.
FADE TO BLACK
Mrs Irwin: They were not aware that once an item had been opened outside the CDR suite, it cannot be examined for CDRs
Judge: And when that was explained to them, did they stop pressing you?
Mrs Irwin: They continued to press.
Judge: Some people regard that as proper because there might well be members of a laboratory who would give way to pressure. Obviously you didn't, but were you concerned by the fact that they continued to press you?
Mrs Irwin: I was. That's why I made the note.
REPORTER:
Unlike the Abernethy trial, the events that led to the collapse of the case against Martin Brogan and Mark Carroll were never heard in court. But Insight has been given access to key documents and in them there’s evidence of police making what appear to be extraordinary requests of forensic scientists.
KEVIN WINTERS/SOLICITOR:
Defence Lawyers as a matter of routine will examine forensic exhibits and will instruct an Independent Forensic Person to examine those exhibits in order to have a full assessment of that evidence. In this case we did instruct a Forensic Person to examine materials that examination didn’t take place on the day it was supposed to and a member of staff was given access to materials. (05:05)
REPORTER:
This visit to the Forensic Science lab took place in late October. Winters' clerk, Aiden Carlin looked at the Brogan/Carroll file belonging to Dr Gerry Murray, one of the agency’s most respected scientists. There he found an envelope marked, “Do not open.” [Pause]. It contained a letter drafted by the scientist recording a meeting with the Senior Investigating Officer in the case, Derek Williamson. That letter detailed how Williamson requested that Murray delete parts of his report and even presented him with a proposed new statement.
KEVIN WINTERS:
I couldn’t believe it. What he told me was startling and I asked him twice was he sure what he’d actually read. And he insisted that that was the case. So I told him to make a very detailed note of what exactly he had seen because I felt at that stage that there was every chance that upon a return the material might not be there. (07:07)
REPORTER:
Winters' fears were well founded. Carlin returned a week later to find the envelope and its contents gone from the file. But the trail hadn’t run cold. Instead, he discovered Dr. Murray had jotted down details of a conversation he’d had just that morning. It was with a senior figure in the office of the Director of Public Prosecutions, Glenn Irwin. He had told Dr. Murray to remove the envelope - its contents did not relate to the Brogan/Carroll case. It was a stunning development for the two men’s legal team.
The defence seized on its discovery, accusing the prosecution of abuse of process. They asked the DPP for full disclosure of the Dr. Murray material. They were preparing to subpoena witnesses for a hearing into the affair. Top of the list was the DPP’s office, Glenn Irwin and DCI Williamson. Two weeks later at a hearing in the Crown Court, the DPP announced it was withdrawing charges against Brogan and Carroll.
KEVIN WINTERS:
Q: And did the Crown explain why they were withdrawing the charges?
A: There was no explanation to the court. (11:18)
REPORTER:
So what were the DPP and Police so keen to cover up? To unravel that we need to go back to Brogan and Carroll’s arrest.
UTV LIVE HEADLINES, SEPTEMBER 18, 2002
PAUL CLARK/KATE SMITH:
Tonight on UTV Live: the Chief Constable says lives have been saved without a doubt after two bombs were intercepted near Newry …
REPORTER:
Mark Carroll and Martin Brogan were in this Vauxhall Corsa. Police alleged they were scouting for the car containing the bombs. Brogan, who was described in court as a leading player in the Real IRA, had a walkie-talkie radio matching the one found in the bomb car. On top of that, Marigold gloves were found in his coat pocket. He claimed he’d found them moments earlier when they’d pulled into a lay-by.
MARTIN BROGAN:
I went to the toilet at the time. And while I was at the toilet I spied gloves and a radio. And I lifted them, being the inquisitive sort of fellow I am. I took them back to the car and I put the gloves in my pocket and the radio I put at my feet.
REPORTER:
As for the bomb car, police claimed it had been abandoned…. the driver had apparently fled the scene. But they did later arrest a third man, Kevin Patrick Byrne, and like Brogan and Carroll he was swabbed for traces of explosives, but Byrne was released without charge.
MARTIN BROGAN/MARK CARROLL:
Q) Did you know this man Byrne?
A) No I didn’t know Kevin Patrick Byrne.
Q) Mark, did you know Kevin Patrick Byrne?
A) No, I have never heard of him before in my life.
REPORTER:
However, Byrne was central to the case. Dr. Murray reported finding traces of explosives on Brogan’s coat and the marigold gloves. Carroll was clean. However, crucially, Dr. Murray did find explosives on samples taken from Byrne’s hand, fingernails, trousers, shirt and jacket. Those were the details DCI Williamson wanted deleted and which Glenn Irwin of the DPP believed did not relate to the accused.
KEVIN WINTERS:
Q) How relevant was that information for you?
A) It was critical to the case, highly relevant and we needed to see it.
REPORTER:
Insight approached the police but they would not comment, citing an investigation by the Police Ombudsman.
REPORTER:
In a statement issued through UTV solicitors, a spokesman for the DPP said there were proceedings presently in the Divisional Court which may or might have a bearing on the matters raised in this programme. In those circumstances, the spokesman said, the Director of Public Prosecutions Sir Alastair Frasier considered it inappropriate to comment. However he added that actions taken by a member of his staff were entirely proper and in accordance with law and practice. But while Brogan and Carroll were acquitted, the case still continues. This man, Seamus Doherty, who is from Derry, was charged over the same police operation. His DNA was allegedly found on components of the booby-trap bombs. Doherty’s lawyers have no doubt Kevin Patrick Byrne was driving the bomb car and is, in fact, an informer.
PADDY MacDERMOTT/SOLICITOR:
I don’t see any other reason why the police would be anxious to distance him from the scene or from the evidence. There is no other possible explanation.
REPORTER:
The Real IRA is known to be heavily infiltrated by the security forces. But there are bound to be questions about allowing an informer to be so immersed in a terrorist mission in the first place - and then having him virtually erased from the records, only to pursue his alleged accomplices.
PADDY MacDERMOTT:
Well the police officer … he substituted what he wanted to go in there for what Dr Murray had already written. And the gist of that was not entirely to remove any evidential link between the informer and the device. But it was to make it a much weaker evidential link, so that it would appear to any of the informer's colleagues who read that report, that there was a reason - a valid reason - for him not being charged at the time … So it was quite a sophisticated attempt to distance the alleged informer from the crime or from the scene.
KEVIN WINTERS:
Any proper system of Justice should not rely on luck. It should be an objective presentation of all relevant evidence and all parties to the Courts both Prosecution and Defence should have equal access to relevant evidence.
REPORTER:
The DPP and police would argue that legislation allows informers to be concealed in some circumstances but there are questions about how it was done here. The Criminal Justice Review which reported more than three years ago sought to clarify the roles and relationships between the different legal agencies. But some legal principles are already clearly set out.
PROFESSOR JOHN JACKSON/ CRIMINAL JUSTICE REVIEW PANEL:
Well the general principle is that the prosecutor needs to disclose … any information material to the prosecution case supporting it or undermining it. It may be, however, in the course of that that there is some sensitive information maybe the names of informants or whatever that they may not wish to disclose. Now in that situation, if that evidence is nevertheless material, the DPP or the prosecutor ought to go to the court and get a ruling from the court as to whether the information should be disclosed or should not be disclosed on the grounds. If not to be disclosed, that’s a matter of not to be disclosed in the public interest. But the principle here really is that it is for the courts to make that judgement and its no longer the case that prosecutors can judge in their own cause whether sensitive information should or should not be disclosed.
REPORTER:
Of course, it is possible for a judge to authorise concealment of an informer without the defence ever knowing about it - although there's no indication that this happened in the Brogan/Carroll case. But even if it did, is it appropriate for a forensic scientist to be drawn into the dark world of informants? Forensic science usually provides the indisputable facts of a case. That means it must always be impartial and above suspicion. Jim Thorpe lectures in forensic science in Scotland and has looked at the Brogan and Carroll case.
DR JIM THORPE/UNIVERSITY OF STRATHCLYDE:
I was surprised, very much so, because we had a report apparently being edited and material removed and that is something that in forensic science we basically do not do unless, well, we just don’t do it … I personally don’t understand it … Over here, the only time I have been asked to edit a report was actually in court, it was by the judge and it was to prevent prejudicing the possible future trial of a missing accused. I assume that somewhere behind this there was some very sound reason, but why was it done by DPP and not by application to the judge for some formal public interest indemnity? Why was the pressure applied to the scientist?
PADDY MacDERMOTT:
The police were really trying to cover their agent's back, as it were … I am sure it happens in other cases and we never know anything about it and we never hear anything about it. So on this occasion it has come to light and it has cast a very, very grave shadow over this case and indeed over all the prosecutions which involve forensic science.
MARION PRICE/IRISH REPUBLICAN PRISONERS' WELFARE ASSOCIATION: Well there's a lot of disquiet because a lot of men are saying, you know, a lot of men would protest their innocence and would feel they didn't get a fair hearing in court and that evidence against them has certainly been tainted, if nothing else.
KEVIN WINTERS:
Q) What is your behaviour in these cases right off at the very start when you become aware that there is a forensic science angle?
A) We are looking at forensic evidence immediately and we’re retaining Experts to examine the quality of that forensic evidence immediately. We’re looking access to the Forensic Science Lab and we’re looking to have our own Experts gain access and look at the materials.
REPORTER:
Insight put the issues raised in this programme to Forensic Science Northern Ireland. In a statement issued through the Northern Ireland Office, the agency insisted it was an independent organisation. And it maintained that it had not been subject to what it termed "improper pressures" from any of its customers to change or withhold evidence. [Pause]
The importance of forensic science in obtaining terrorist convictions was underlined when the IRA exploded a 3,000 lb bomb at the FSNI’s lab in South Belfast 11 years ago. Since then, the scientists have shared premises with the police at Seapark near Carrickfergus, and that's been criticised by a parliamentary watchdog.
MICHAEL MATES MP/NORTHERN IRELAND AFFAIRS COMMITTEE:
Well the most important thing is that the Forensic Science Agency is seen to be independent and that its evidence, therefore, is credible and reliable. The perception is that it is in an area which is run by the Police Service in Northern Ireland militates against that. I am sure they are perfectly independent. But most important of all is that it is thoroughly unsuitable accommodation for them. A tobacco factory is not exactly the place where you would carry out some of the most sensitive and important tests to lay crimes at the door of the perpetrators.
REPORTER:
On top of this, the police provides 95 per cent of the forensic scientist’s work. Members of the Criminal Justice Review panel say the future of the agency can only be secured through greater independence.
PROFESSOR JOHN JACKSON:
The idea behind the Forensic Science Agency is that it carries out tests on behalf of the prosecution or the defence - anybody that comes to it, but in carrying out those tests it must be seen to be doing that independently. And the Review was anxious to ensure that that position was maintained and considered that there was, in the Northern Ireland context, possibly a problem; that inevitably there are so many cases where the Forensic Science Agency acts for the Police because, when it comes to a matter of detection, the Police are the body that are going to come to the agency first to carry out tests. And in that context it was necessary to ensure that you didn’t get too cosy a relationship being established between the Police and the Agency and there was a need, therefore, to bring in expertise from outside Northern Ireland to oversee that.
EUGENE GRANT QC/CRIMINAL JUSTICE REVIEW PANEL:
In my view, and indeed the view of the Review, was that we should try to aim to establish a Centre of Excellence. If you have an independent Centre of Excellence that’s harmonising with other centres in the two islands and beyond, then you can be assured of not just the confidence of the prosecution and investigators in crime vis-a-vis access to facilities, but also building up the confidence of defence experts and the confidence of defence teams. And once you establish a well-resourced Centre of Excellence that should follow.
Q) If the status quo is allowed to remain with the Forensic Science Agency sitting in Carrickfergus … and that defence lawyers aren't given access to forensic material right at the outset, what is your prediction?
A) I think there is a potential for continued objective criticism of our system which is unnecessary developing - I'm not saying it's prevalent at the moment - but developing. There's a potential for miscarriage and there are undoubtedly going to be continued strike-outs. That's the future unless there is a focus on developing independent centres in the way the review envisaged.
REPORTER:
The first building block of a conviction is the proper collection of evidence at the scene. Noel Abernethy was acquitted because police mistakes exposed critical exhibits which could have linked him to the shooting to potential contamination.
But there was another more sinister aspect to the Brogan-Carroll case. A memo, also found by Aiden Carlin in Dr Murray's file, detailed how soldiers at Newry Police Station had opened a bag of clothing taken from the suspects and rubbed a gloved hand over them. The agency refused to examine the contents. This incident is clear evidence that security forces crossed the line to get the suspects behind bars. And it forms the central plank in the attempts by Seamus Doherty’s lawyers to have his case thrown out of court.
PADDY MacDERMOTT:
Somebody had Mr. Doherty’s DNA from August 2002 prior to this device being found and somebody had malicious intentions, they were out to get Mr. Doherty and they conspired to set up to plant his DNA on this device. Mr. Doherty said that from the word go. What may have seemed a fantastic theory and one which no court would countenance … when it has come to light that statements had been re-written, that exhibits had been opened, tampered with and closed again without disclosing this to anybody, that is no longer a fantastic theory. That theory carries some significant weight.
REPORTER:
The Doherty case might yet shed some light on the discovery of the booby-trap boms outside Newry in September 2002; what happened in the exhibits room of Newry Police station and at Forensic Science Northern Ireland. His lawyers are bringing a legal challenge against the DPP for pursuing the prosecution against him. It's the first time permission has been granted for a judicial review of a decision taken by the Director of Public Prosecutions.
REPORTER:
Conclusions have enevitably been drawn from these cases about the lengths to which the authorities will go to pursue hardliners. Dissident Republicans see an old agenda being pursued in a new dispensation.
MARION PRICE:
Oh, I think there’s that attitude with them that we can do what we want with these people because they don’t support the Good Friay Agreement. Basically, we can treat them whatever way we want and nobody’s gonna say too much about it. I think that there is a degree of truth in that. I mean, for instance, in Martin Brogan’s case, I mean, that was a blatant that that man, that the authorities were trying to fit him up and yet there wasn’t a politician who said anything about it.
MARTIN BROGAN:
Well, in my own case - certainly not in Mark’s case, because Mark is apolitical - he has no political point of view - and they were even willing to sacrifice a man that has no political view, to get me … And the Police and all have the go-ahead to do this, to plant evidence and to contaminate coats and whatever to get these men off the streets. That's exactly what it's about: to get all opposition, all Republican opposition to the Good Friday Agreement silenced, but it’s not going to happen like you know. Because there are people there that will not be silenced.
CLOSING TITLES
PRODUCTION CAPTION
For Peace Justice & Human Rights
