Double Jeopardy

Tonight The Pensive Quill features guest writer Martin Galvin who draws attention to some important points in the case of Gerry McGeough

Gerry McGeough must soon face a Diplock version of “double jeopardy” courtesy of the crown. On Friday, March 2nd, the Tyrone Republican will be kept in his Maghaberry cell, awaiting word of the first of these two judgments, by two sets of British judges. A victory in either proceeding will likely free Gerry McGeough to return to his wife Maria and four young children. A double defeat will likely mean at least another year of imprisonment in that Maghaberry cell for McGeough, and gift the crown with another legal precedent for jailing other Republicans.

McGeough’s double jeopardy will begin this Friday; with the judgment on his judicial review. The issue here is narrow.

Under the terms of the Good Friday deal, Republicans jailed for pre-1998 IRA actions should be entitled to early release upon serving two years. McGeough served nearly 8 years, for IRA activities, first in a notorious German bunker prison and then in American prisons.

The British say they need not count these 8 years, since the sentences were not served in British prisons nor imposed for IRA   membership or McGeough’s part in a 1981 gun battle with an armed member of the British Ulster Defense Regiment. These were the allegations for which he was arrested at the polls in 2007 and jailed in February 2011.

McGeough’s solicitors countered with more than a dozen comparable cases, where Republicans were credited with time served in other jurisdictions by a legal device termed a Royal Prerogative of Mercy (RPM). They produced some of these pardons as exhibits in support and contended that McGeough was treated differently only because he left Sinn Fein and had campaigned as an Independent Republican in 2007.

There was a further twist. McGeough recounted that while still a member of the Sinn Fein Ard Comhairle, he was briefed by Gerry Kelly on the progress of negotiations with the British about his own case and the cases of other on-the-runs (otrs). McGeough said Kelly finally congratulated him that he was covered by British pledges of no arrests for the pre-1998 acts and was free to return to Tyrone without fear.

Kelly now denies it. However it is undeniable that after years of staying out of the six counties, McGeough promptly began to visit Tyrone filed for planning permission on a house and made public preparations to settle there with his family. He enrolled his children in school and completed his move. A few years later he campaigned visibly and openly as a candidate for election as an Independent Republican against endorsing the crown constabulary. Hardly the actions of a veteran Republican wanted by the British, unless as he says, he was given absolute assurances that he was no longer on the run.

Sinn Fein has said that under the Weston Park terms, the crown agreed that those wanted for pre-1998 IRA actions including, Gerry McGeough, would not be pursued. No one from the party took the witness stand when this issue was raised during the earlier abuse of process hearing, and his solicitors were forced to resort to testimony from loyalist William Smith. Gerry Kelly‘s solicitor did send an affidavit, at the end of all proceedings, to deny that he gave McGeough any assurances while agreeing McGeough should be covered under Weston Park.

If McGeough prevails Friday, early release would be mandated, albeit under license like those used to jail Marian Price and Martin Corey. If he loses it will foreclose one path to freedom for McGeough and also be pocketed by the British as an important precedent to be wielded against others.


APPEAL

McGeough will then, within days, be brought to the High Court for a judgment on his appeal. Here a number of issues have been raised. There is a preliminary question of an abuse of process issue. McGeough lodged an abuse of process application, challenging the quarter-century delay in bringing charges, including the 8 years where he could have been held simply by lodging an extradition warrant.

The issue was referred to Crown Judge Coghlin, soon after he refused to grant an application by the McCabe family directing prosecution of the RUC members who killed Nora with a plastic bullet in July 1981.  Too much time had passed, he said. Any charges against the RUC would be a clear abuse of process and inevitably dismissed.

However Coghlin measured time differently in the case of Gerry McGeough, for an incident which occurred on June 13, 1981, only weeks before Nora McCabe was killed.

Time and delays here must be no obstacle. He excluded representatives from British-Irish Rights Watch and Committee for the Administration of Justice. British pledges at Weston Park or during negotiations with Gerry Kelly need not be honored. Every delay was McGeough’s fault. He was somehow blamed that no extradition warrant was filed or that no attempt to arrest him was made at his home or at campaign events and debates, unlike blameless RUC member’s colluding in a cover-up of Nora McCabe’s murder. The appeals court must decide whether to rubber-stamp this hypocrisy before considering the trial testimony.

The trial evidence was such that only a Diplock Court would entertain much credit. A fictional novel that McGeough authored was read out into the record because it included a description of an IRA attack on the UDR. Similar accounts once featured routinely in AP/RN.

A political asylum application filed in Sweden, confidential and protected under international law, was obtained and used in evidence against him.

There was no identification witness. McGeough was forcibly stripped and photographed after his arrest. Photos of an old wound were displayed as the crown speculated that it might possibly be a bullet wound and could possibly have been suffered during this attack.

A bullet fragment obtained from Monaghan Hospital was introduced. There was no forensics or DNA link to McGeough. The smashed fragment may or may not have been the same caliber fired by then UDR member Sammy Brush.

A key Garda witness, known as the “The Badger”, was described by former MI6 officer Fred Holroyd as someone with ties to British intelligence. When cross-examined on these links with British intelligence the “Badger” refused to answer.

If the appeals bench reverses or remands for a new trial on any or all of these grounds, it will likely mean release on bail.

If both rulings go against McGeough it will be at least another year in Maghaberry, for this father of four young children, on now 31 year old charges.

Ernie O’Malley in writing one of the classic works of Irish Republican literature took the title from an old saying that “it is easy to sleep on another man’s wound.” Sadly, there may well be some among the wider Republican community today who would find it easy to sleep on Gerry McGeough’s two years.

23 comments:

  1. Martin,

    good piece with solid information that will be of benefit to readers

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  2. One would have thought that during the surrender talks, qsf would have asked that those unionst stalwarts ie,.the diplock judges like Coghlin would be retired to the lodges.then after watching wee Barra Mc Grory head of the pps praising supergrass trails I had this picture in my head of the gaols filled again with people like Gerry,this place is really a circus without the sand and as for "moving on" its more like round and round we go !!

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  3. AM

    Double jeopardy already established case law in NI.

    Is Gerry Kelly and SF stating for the record that no agreement was reached in regard to the 'on the runs'?

    If no agreement was reached then Gerry Kelly and SF should make that clear to all those who have returned to their homes because they are ripe for arrest and prosecution.

    That is not the word SF are spreading on the street which would make one believe that Gerry Kelly and SF did successfully negotiate a deal on the OTR's.

    Gerry can't have it every which way --one of SF's versions is a lie.

    Tiarna

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  4. Martin
    "The British say they need not count these 8 years, since the sentences were not served in British prisons nor imposed for IRA membership or McGeough’s part in a 1981 gun battle with an armed member of the British Ulster Defense Regiment. These were the allegations for which he was arrested at the polls in 2007 and jailed in February 2011.

    McGeough’s solicitors countered with more than a dozen comparable cases, where Republicans were credited with time served in other jurisdictions by a legal device termed a Royal Prerogative of Mercy (RPM). They produced some of these pardons as exhibits in support and contended that McGeough was treated differently only because he left Sinn Fein and had campaigned as an Independent Republican in 2007."...........

    1st, there should be no Diplock Courts.

    2nd, Gerry is covered by the GFA of 1998.

    3rd, Gerry Kelly is a two faced piece of lying crap, well taught by the other lying manipulating cronies for a British Salary The Leader decided on a 26 county Seat, Vacated for him of course.

    If there is a God, then Please let his light shine on the two Brit Diplock Judges and Set Gerry McGeough Free; to join his Wife and Children, to be allowed to run under whichever ticket he wants as an MLA.

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  5. Looking at this from the otherside of the Atlantic, it seems the Brits have waited decommissioning to recriminalise republicanism.

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  6. Marty,

    that was amazing what Barra McCrory said. And apples are said never to fall far from the tree. Not so here. His late father fought against these trials with determination, fortitude and great dignity. I have to agree with Raymond McCartney on his criticiasm of Barra's view. Although SF opted to back a police force that it knew would use such a dubious and utterly discredited tactic.

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  7. Andre,


    there is no doubt that they are seeking to criminalise republicanism: one reason they strategically moved to uncouple SF from republicanism and thus ensure its acquiescence.

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  8. Marty/Am

    My thoughts exactly re: Barra and his father Paddy.

    Andre/AM

    Given the confusion of Gerry Kelly's denials in the McGeough case regarding any agreement on the otr's one can also conclude in the absence of any amnesty it that Sinn Fein may have conceded or overlooked the Criminalization issue leaving it standing intact as the Brits so decide.

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  9. Effectively SF as move away republicanism. I was astonished to read the following in the BBC. Even in Quebec, where nationalist politicians are satisfyied with the present "etat de fait" (still being part of Canada without any clue on how to be independent) They would not be caught saying that:
    " Mitchel McLaughlin paid tribute to the generosity of spirit of the Queen and former Irish President, Mary McAleese.

    He was speaking on an Alliance motion calling on ministers to ensure that an upcoming decade of centenaries would be marked in an inclusive way.

    These include the Ulster Covenant, the Easter Rising, the War of Independence and the establishment of NI.

    Mr McLaughlin said his party would participate in events, including those reflecting the unionist tradition.

    "We have a bit of unlearning to do," Mr McLaughlin said."

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  10. Andre,

    when we were young volunteers we would sit and listen to this type of discourse emitting from the Sticks and we would greet it with a mixture of amazement and disdain that republicans would reach such a nadir in their trajectory. We would often say if we start going that way and waffle like that we are not rolling over no matter who in leadership tries to sell it and package it with bows.

    But republicanism as we know it is very vulnerable to the Stick virus. Scratch many within it deep enough and you find that overthrowing systems they calim to oppose is not what they are about, but rather being in that system. They resent the oppressive policies of the state because they are not at the levers operating the repression. It is not repression per se they oppose but are miffed by the fact that they are not the oppressors.

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  11. itsjustmacker,

    It was not essential from the SF point of view to have McGeough removed from the scene. He was an articulate critic of the party but ultimately it could have dealt with his critique.

    In my view the Brits slapped down SF when they took McGeough off the scene. They made the point that 'we are the daddy here and we call the shots.' In one swoop the Brits removed an articulate critic of British policing in the North, told other critics to keep their heads beneath the parapet or their past would be turned over, and it told SF just how powerless it was to do anything about it. The slaves were invited to kneel and kiss their chains. And how they bent

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  12. Tiarna,

    I think what we see in all these matters is the playing out of the Brit victory and the republican defeat. A while back Adams said that the PIRA campaign was the only campaign that succeeded. Which shows he is absolutely confident that there are fools out there he can tell anything to and they will swallow it.

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  13. From Helen McClafferty:

    Gerry's attorney will file for another Appeal.

    If you remember, Gerry HAD an Appeal hearing on November 16, 2012 which has not been ruled on YET but Gerry's attorney has to Appeal again?

    The vindictiveness of the British government in this case, driven by the bigoted DUP's insistence that McGeough remain in prison, is beyond hypocritical. Gerry wounded a UDR man - Sammy Brush in 1981 during the height of the troubles. British soldiers are walking around scott free who murdered innocent Catholic civilians in cold blood throughout the years of the troubles.

    I could also say more about the lack of leadership on the part of Republican political parties north and south, but I'll end here FOR NOW!

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  14. From Helen McClafferty:

    Over twenty-years ago, Seamus Treacy, the Diplock Judge involved in this Judicial Review decision, sat beside me in a German court where, in a special observer role capacity, he briefly represented a fellow Irish Republican during our trial there.

    At the time, German defense lawyers greatly admired Treacy whom they perceived to be a dedicated young Catholic Barrister struggling on behalf of the politically oppressed against the corrupt British Diplock judicial system and its military machine in the six-counties.

    Time really does change!

    Meanwhile, I am witnessing this on-going legal circus as it continues to highlight the absurdity and hypocrisy of the ‘pardons issues’ and all that is entails.

    P. S. Gerry said, in wake of today's decision and ongoing injustice of this whole issue, the following biblical passage is especially befitting...Zechariah 7:9-14

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  15. Anthony. Helen todays outcome was disapointing to say the least,the old saying that castle catholics are more unionist than the unionists is so very true,

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  16. As has been said before todays outcome in the Gerry Mc Geough case really shows the one sided hypocrisy that passes for the justice system here, when we see those paras who murdered the 14 in Derry /Ballmurphy,etc the RUC who murdered Nora Mc Cabe never even arrested never mind charged the continuing internment of Marian Price while uvf thugs who beat a doorman to pulp with axes walk free then one wonders if it really is a sham that masquerades as a peace process or is just the brits taking stock before they really put the boot into the nationalist community, and to think qsf surrendered those weapons when we may really need them,

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  17. Surely the penny must drop soon in the wider nationalist community, the GFA emperor has no clothes!

    The brits are pulling all the strings in the courts and with the puppets in Stormont.

    Anyone with a history of republican activity no matter how long ago is risking internment without trial if they don't keep their heads down, mouths shut and toe the line.

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  18. From Helen McClafferty:


    People have been inquiring about the decision on Gerry's Appeal?

    Gerry's attorney does not know if the Diplock Judge will now rule on Gerry's Appeal from last November? That would mean that his attorney would have to try to Appeal the decision on the Judicial Review and it could take months before he could get the new Appeal hearing through.


    When you think of all the British soldiers and Loyalists who murdered innocent Irish Catholics in cold blood and they have never been brought to trial or charged with these offences, which the British government themselves have acknowledged to be fact, it seems so pointless to continue to incarcerate McGeough on 31 year old charges, especially since Gerry supported the peace process and still does.


    Gerry's wife called me this morning and is extremely upset over the decision. She doesn't understand why the British government and the Unionist are driving the continued incarceration of her husband, especially when he was supposed to be covered under the Weston Park Accord and the GFA like other Irish republicans who served with him at that time. Maria McGeough, for those of you who don't know her, is from Spain and has no family in Ireland. English is her second language. She is struggling to raise her 4 children on her own in Tyrone.


    It it weren't for the kindness and generosity of others, especially individual members and divisions of the AOH in the United States, how could Maria and the children survive?

    It makes me very angry to see this continued injustice, especially under these circumstances. IT MAKES NO SENSE.

    We need to seriously redouble our efforts with the Free Gerry McGeough campaign and I am reaching out to each and every one of you to PLEASE, regardless of political party affiliation, to do your part to support Gerry's immediate release.


    Thank you

    Helen McClafferty,
    Chairperson
    Free Gerry McGeough Campaign
    www.freegerry.com

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  19. Rory "surely the penny must drop in the wider nationalist community"in some cases it would be 30 pieces of silver a cara!!

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  20. Helen hon you know I have the utmost respect for you and the sterling efforts you have made to highlight this present injustice to Gerry Mc Geough,but hon you keep telling us how much Gerry supports this "peace Process" well so much for his support it has got him diddly squat, Marian Price on the other hand does not see this "peace process" as such, but as a farce and she is now interned for that, but at least she has maintained her republican principles,and she wont bend the knee, Gerrys support for the so called" peace process" to me says that he accepts the outcome of qsf,s surrender and their role in administering brit rule here,without labouring a point hon but this "peace process"which promised so much but delivered sfa to these communities except to a few cronies and the elite is beyond a joke and maybe its time for one and all to call a spade a spade, qsf have been screwed and in turn they are trying to screw this community, its time to tell them to enough is enough..Gerry,s support for peace is sound but this "process" is nothing more than prefidious albion at their usual work.and as we have seen peace without justice for all is a non starter here,

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  21. Well, that most venerable invisible GOD, did not listen to my Prayer, My Heart sincerely goes out to Gerry and his family.
    As i knew all along, Adams and Co. have no say in anything, they thought they were bringing the brits down!; or ; as others believe, Myself included, It was all one big massive scam. In my honest opinion, I believe they have been working for the brits all along; and; they know were i live, and, i take no crap from anyone, Gerry and his MI% can go and + f themselves, it proves that they could do nothing, because, if they could have, the first thing they should have secured was an amnesty for everyone, including OTR's no matter which countries gaol they were in, also it should have been stipulated that all politcal prisoners were released irrespective of the ,"So Called Offence", But, alas, the brits wrote the So Called GFA, what was good about it?, except for Adams and Co, and I will predict, He will never be charged with anything. As Helen Said , What Gerry said about ;"...Zechariah 7:9-14", I call it a conumdrum, the reason is, the bible can never be wrong, WHY:, It contradicts itself, written by man for man.
    To Gerry, His Wife and Children, I hope this is resolved very very soon, and that, All those still incarcerated shall be set free, OR, Be Broken Out.
    Am
    I would have to agree with you on that one, But, Think for one moment about all the crap the have created to those who disented against them, now, you know what i mean by that, thats why you have my utmost respect, because you stood up for yourself and your family against the tyrants followers abuse.

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  22. Helen

    You posted this as part of your articulate words in support of Gerry and his wife and children.

    "When you think of all the British soldiers and Loyalists who murdered innocent Irish Catholics in cold blood and they have never been brought to trial or charged with these offences, which the British government themselves have acknowledged to be fact, it seems so pointless to continue to incarcerate McGeough on 31 year old charges, especially since Gerry supported the peace process and still does.

    Now, I will support any POW in this day and age, But I have to speak my mind, and, Please excuse and rebut me, if i am wrong, "Gerry ran as an idependant because he dissaproved of the GFA, Im sorry i had to correct you on this, But, Gerry and his family have my whole hearted suport, as all incarcerated POW's have.
    I have the utmost respect for everything you are doing to Get Gerry Free, You are what is called a Republican.

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  23. Statement from Maria Jose McGeough, March 2, 2012:

    My four children have the right to a legitimate peace. The Irish and British government agreed to apply the Weston Park Agreement. Now they can not go backwards in their steps. Peace in Northern Ireland is at stake. Sinn Féin should be at the forefront of these requirements and should verify that both governments accomplish this agreement. We have been waiting for too long. We have suffered too much so far. Peace must come to all the Irish who are willing to support it. Political differences should not be punished. It is necessary for the immediate release of my husband Gerry McGeough. I need to have my children's father at home.

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