There may be a simple explanation for Des O'Malley's directive of October 7th, 1970, to claim privilege over the original statement of Col Michael Hefferon during the Arms Trial. But serious questions remain for him to answer on at least one other issue.
First the privilege claim. The file on which privilege was to be claimed is S7/70 in the files of the Department of Justice. It is a huge file running to hundreds of pages and containing almost 50 documents, one of which is Col Hefferon's original statement. It is obvious from the content of the file that there was no intention to claim privilege over everything in it.
For instance, a bulky section of the file contains the Book of Evidence, which was made available to the defendants in the Arms Trial in June 1970.
Among the other documents in this file are a legal opinion on the claim of privilege (that would have been privileged anyway), a beautifully hand-written version of the statement of Jim Gibbons, which was contained in typed form in the Book of Evidence, and documents concerning one of the defendants, Albert Luykx. (It was the partial revelation of the contents of one of three documents that led to the abandonment of the first Arms Trial.)
Also in this file are transcripts of telephone conversations taped by the then Secretary of the Department of Justice, Peter Berry. Some of these conversations had to do with how the £100,000 voted by the Dail for the relief of distress in Northern Ireland was spent.
There is a suspicion that the reason privilege was claimed on the whole file was because of these transcripts and other documents related to the money. For reasons not apparent to me, there was particular sensitivity over the money issue - Peter Berry is revealed as talking about an "abyss". So it could be that the point of the privilege claim over the whole file had nothing to do with the unedited statement of Col Hefferon but was meant to divert the Arms Trial from getting into the messy business of where the money came from.
It may well be that the decision to edit the Hefferon statement was taken not in the Department of Justice but elsewhere. That Peter Berry did notations on the margins of Hefferon's statement is not surprising for his notations are in the margins of several other documents in the file.
Berry did a memorandum for the prosecution team which revealed his suspicions that the conspiracy to import arms went far beyond the defendants and included Gibbons and possibly even the then Taoiseach, Jack Lynch. So it is unlikely he would have wanted to narrow the scope of the prosecution, quite the reverse.
The issue that Des O'Malley should be invited to address has to do with a secret meeting he had with Charles Haughey on September 9th, 1970. O'Malley was Minister for Justice at the time and Haughey was a defendant in the Arms Trial, which was to begin less than two weeks later.
The two had met by accident at Tralee races a few days earlier. When O'Malley returned to the Department from his holidays on September 7th, he told Peter Berry of his plan to meet Haughey two days later in Kinsealy. Berry was appalled at the idea and tried to prevail on O'Malley not to go through with the arrangement. O'Malley relented but only to the extent of arranging for the meeting to take place at O'Malley's office at Leinster House.
Following the meeting, according to an account that Berry wrote later, O'Malley returned to the Department and said Haughey had asked him whether Berry, who was to give crucial evidence against Haughey in the Arms Trial, could be "induced" or "directed" or "intimidated" into not giving evidence or changing his evidence.
O'Malley has since confirmed meeting Haughey and has not disputed Berry's version of what happened. He has never explained, however, why he went to that meeting or what he was doing conveying to Berry the request by Haughey that he withdraw his evidence.
It could well be that he was merely relating to Berry what had transpired at the meeting and in no way intended to be the conduit of an attempt to suborn a witness. It is surprising though that he did not inform Jack Lynch of what had happened and of the query made by Haughey.
So the question to Des O'Malley is not just "what were you doing meeting Charles Haughey in secret less than two weeks before the start of the Arms Trial and then communicating to Peter Berry a request to withdraw his evidence?" but "why did you not tell the Taoiseach of the meeting and of the query made by Mr Haughey?" What were you up to?
In a gushing little book on O'Malley by Dick Walsh, published in 1986, O'Malley is quoted as "explaining": "If these matters required explanation from anybody, it wasn't me." Later, in an interview with Walsh, he is quoted as saying: "It's a matter of opinion [whether it was right or wrong to have met Haughey]. I suppose, in retrospect, I would not have met him, but it's easy to say that many years after the event. I am sure more serious errors of judgment have been made, both by me and by others, than that particular one."
And there Dick Walsh left the issue.
