The conviction of Osgur Breatnach in connection with the Sallins mail train robbery 50 years ago has been certified by the Court of Appeal as a miscarriage of justice.
The three-judge court said on Tuesday that the Director of Public Prosecutions (DPP) did not dispute that Breatnach, now aged 75, who at all times denied any involvement in the robbery, had “no hand, act or part” in the March 1976 robbery “which implies actual innocence”.
There was also no dispute from the DPP that evidence from another man, John Fitzpatrick, constituted a newly discovered fact, Judge Isobel Kennedy said when delivering the court’s decision on Tuesday.
There was also evidence, in a previous affidavit from the attorney general more than 30 years ago concerning the case of a co-accused, Nicky Kelly, that, if a decision was being taken at that stage whether to prosecute Kelly or his co-accused, they would not be prosecuted.
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In light of all of those factors, the judge said the court was satisfied the threshold to grant a certificate of a miscarriage of justice was met.
The court awarded Breatnach, who was in the packed court with family members and supporters, his legal costs.
Breatnach was tried over the Sallins robbery with Kelly and another man, Brian McNally, who died last month. A sum of IR£200,000 was taken during the robbery, later claimed by the IRA. All three men were convicted by the non-jury Special Criminal Court in 1978.
Breatnach served 18 months of his 12-year sentence before his conviction, and that of McNally, were quashed on appeal in 1980 because the Court of Criminal Appeal was not satisfied their statements were made voluntarily.
All three men claimed the confessions were concocted and they were forced to sign them after beatings by a Garda unit known as the Heavy Gang, whose treatment of prisoners in custody became the subject of an Amnesty International report in 1977.
Outside court, Breatnach, flanked by his solicitor Kevin Winters and Irish Council for Civil Liberties executive director Joe O’Brien, said he had attended 83-year-old McNally’s funeral six weeks ago.
McNally was “also a victim of the miscarriage of justice” but had not lived long enough “to even witness the measure of vindication I received today”.
“Like me and Nicky Kelly, we have all been accepted by the DPP as not having any hand, act or part in that crime,” he said.
“False alleged ‘confessions’ were coerced through brutality and torture.”
Breatnach suffered health damage, including post-traumatic stress disorder, and his and his family’s lives had been destroyed, he said.
Calling for an independent public inquiry into the actions of the State and its agents, he said: “We are entitled to an inquiry under international and European law as well as under our own Constitution.”
“The public are told it is an historic case. It is not historic. It is current and unresolved. There is unfinished business.”
His call for a public inquiry was supported by O’Brien, who said while it “has finally been recognised a miscarriage of justice had occurred”, the Government “still refuses to investigate the grievous wrongs that were committed against the men”.
In court earlier, when seeking the certificate, senior counsel Patrick Gageby, for Breatnach, said they had provided detailed evidence about the activities of the Garda Heavy Gang.
When quashing Breatnach’s conviction in 1980, the Court of Criminal Appeal held the trial court was not entitled to be satisfied his statements were voluntarily made. It also noted the “inexcusable” fact that Breatnach was denied access to a solicitor while in Garda custody.
In this case, there was “no mere technicality or slip up”, and “nor was it mischance by just one Garda”, counsel said.
His side was relying on his client’s factual innocence and a newly discovered fact.
That fact concerned evidence from a man, John Fitzpatrick, who had been arrested and questioned about the robbery in 1976, and who claimed he was forced to sign a statement concocted by gardaí amounting to a confession, but who was never charged.
At a press conference in October 1983, after Breatnach’s conviction was quashed, Fitzpatrick said he had new evidence casting doubt on the convictions of the Sallins men and produced sworn affidavits from three people stating he had spent the night of the robbery with them in a house in Castleconnell, Co Limerick.
This called into question a statement signed by Fitzpatrick, which he alleged gardaí had forced him to sign, implicating himself in the robbery. There were also two alleged verbal statements amounting to confessions, also attributed to Fitzpatrick, contained in statements by four gardaí.
Gageby said there was a later review by the DPP in relation to the Kelly case who, with advice of the Attorney General, concluded it there were “very substantial question marks” over any and all of the convictions. The review concluded would be unlikely, if a decision was being made to prosecute, they would be prosecuted.
During his detention, Breatnach claimed he was taken to an underground tunnel running from the Bridewell Garda station to the Four Courts. While in the tunnel, he claimed he was slapped, punched, kneed and banged against the wall.
He claimed his arms were held while gardaí slapped him, shouting that guns and mailbags had been found and telling him to agree with their account of the part they alleged he played in the robbery. He claimed he suffered further assaults after he was taken to a locker room. He ultimately signed a statement confessing to involvement in the robbery.
Kelly, who had fled the jurisdiction during the trial, was convicted in absentia. He returned from the US to Ireland in 1980, after his co-accused were freed, but lost his appeal against conviction. He remained in prison until he was released on compassionate grounds in 1984, 37 days into a hunger strike. He was granted a presidential pardon in 1992, two years after all three men received civil settlements.
