Four men coerced into ‘confessing’ terrorist crimes, Police Ombudsman concludes

Michael Toner, Stephen Crumlish, Gerard Kelly and Gerald McGowan had been charged with the murder of soldier Lieutenant Stephen Kirby in Londonderry in 1979.

The men also signed statements admitting involvement in a number of punishment shootings in the city in January and February 1979.

They 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 for Northern Ireland 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 Lt Kirby, who was shot dead by the Provisional IRA at Carlisle Terrace in Derry/Londonderry on February 14, 1979.

Following their ‘confessions’ the Director of Public Prosecutions (DPP) 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.

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.

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 said she had been 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 DPP directed that none of the 14 officers investigated about the allegations should be prosecuted.

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

Mrs Anderson 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 Lt Kirby, and two statements made by the same men implicating then in a punishment shooting on February 18, 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 (PPS) 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”.

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

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

The four men had been each been detained at the RUC’s 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.

“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 1979 Bennett Report (Judge H. G. Bennett QC, ‘Report of the Committee of Inquiry into Police Interrogation Procedures in Northern Ireland).

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, she said.

“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.”

Mrs Anderson was, however, unable to conclude on a number of the allegations made by the four men.

These included that they had been threatened by police and told that members of their families would come to harm if they did not sign confessions.

Ten police officers interviewed in relation to these allegations denied any wrongdoing, and other members of staff at Strand Road custody suite stated that they had not seen any mistreatment, and would have reported it if they had.

Similarly, she was unable to conclude on allegations made by two of the complainants that police had threatened alibi witnesses.

In June 2012, a file of evidence was sent to the PPS regarding the ten former officers who had been interviewed on suspicion of perverting the course of public justice. In March 2014, the PPS directed that two of them should be prosecuted for the offence.

However, in December 2014, after a discrepancy was discovered in evidence disclosed by the Police Ombudsman’s Office, the PPS offered no evidence against the two officers and the court acquitted them of the charge.

This prompted the then Police Ombudsman, Dr Michael Maguire, to commission an independent review of the Police Ombudsman’s procedures for disclosure to the PPS.

The review was conducted by a former senior officer from the then Independent Police Complaints Commission (for England and Wales).

He concluded: “Taking a purist view there was no failure in disclosure. There was no attempt to conceal material from the prosecution nor the defence. No innocent defendant was unjustly convicted. However, the fact remains that former RUC officers were charged with offences that could never be proved to a criminal standard and they stood in jeopardy for eight months.”

The officer added: ‘Taking a more rounded approach I conclude that whilst legal, the approach to disclosure left much to be desired.’ He stated that the investigation had been under-resourced and referred to the ‘significant challenge’ of beginning an investigation 25 years after the events in question.

The former Police Ombudsman also referred the matter to the Police Service for Northern Ireland (PSNI) and no action was taken by police against any member of Police Ombudsman staff.

In 2019, the PSNI settled civil claims taken by the four complainants in relation to the ill-treatment and abuse they stated police officers had subjected them to during their detention in 1979. The men received undisclosed sums.

Assistant Chief Constable George Clark stated at the time that there had been “significant shortcomings” in the treatment of the four men, but added that the PSNI had implemented “strict human rights compliant policies and procedures… to ensure that its custody facilities and investigative processes comply with the highest possible standards.”

The Police Ombudsman said her investigation had been protracted and complex, adding: “The investigation of complaints about historical matters is challenging due to the passage of time and unavailability of relevant witnesses and often missing documentation.

“Examination of this material would have assisted my investigators in a fuller assessment of the interview processes and may also have identified further lines of inquiry.”