Times5Mar2002

5 March 2002

The case of Christy Walsh

By Bob Woffinden There is mounting concern in Ireland over the failure of the second appeal in the case of Christy Walsh. Regarded by many of both sides of the border as a significant miscarriage of justice, the case was referred to appeal in March 2000 by the Criminal Cases Review Commission (CCRC).

However, the appeal was rejected and this month Walsh's lawyers also failed in an attempt to take it to the House of Lords.

The case raises several issues about the administration of justice at the highest levels in northern Ireland. The appeal court judgment, delivered by Lord Carswell, the Lord Chief Justice of northern Ireland, appears at odds with recent judgments given in England by the House of Lords and Lord Woolf, the Lord Chief Justice, and also appears to impugn the integrity of the CCRC. In June 1991, Walsh, a Catholic from the Falls Road, was stopped by soldiers in an alleyway in Lenadoon, west Belfast.

The leader of a four-man patrol said that Walsh took a glass jar out of his right-hand pocket, which he was told to place on a low wall. The jar contained half-a-pound of Semtex explosive.

Walsh was tried in a Diplock (non-jury) court in Belfast. He was found guilty by Judge Petrie QC and sentenced to 14 years' imprisonment. His appeal was dismissed in 1994, and he was released in 1998 after serving seven years.

Walsh, who had no previous convictions nor any history of association with terrorist organisations, has always maintained his innocence. His defence was that he was never in possession of the coffee-jar bomb; it must have been placed on the wall by someone walking ahead of him. The "man in front" was an issue at the original trial.

Evidence was given at trial that there were traces of explosive on Walsh's left hand. There was, however, no other scientific evidence - no fingerprints, no fibre evidence, nor explosives residues on Walsh's clothing.

The CCRC referred the case back to appeal on the grounds partly that one of the soldiers made a fresh statement conflicting with his trial evidence and partly that new witnesses came

forward in 1996 in response to an appeal in the Irish News.

According to their new testimony, there had been someone walking through the alleyway ahead of Walsh.

For the new appeal, there was additional evidence from Dr John Lloyd, who said that the supposed explosive on Walsh's left hand had been detected using methods that were "wrong and improper" and that the "explosive" could have been a household substance found in foam-rubber.

The appeal was heard in June 2001. Judgment was given seven months later, on 11 January 2002; no explanation was given for the lengthy delay. In the meantime, however, the House of Lords had considered the case of Donald Pendleton which had previously been dismissed by the appeal court (having been referred there by the CCRC).

The Lords said that the only tribunal of fact was the original trial jury: "trial by jury does not mean trial by jury in the first instance and trial by judges of the Court of Appeal in the second The Court of Appeal must not intrude into territory which properly belongs to the jury". In the Pendleton case, the Lords held that "the Court of Appeal strayed beyond the true function of review and came perilously close to considering whether the applicant, in its judgment, was guilty". The Lords quashed the conviction and ordered the release from prison of Pendleton.

In the Walsh case, however, the appeal court judges not only assessed the new evidence for themselves, determining that it was "false", but went further, stressing that it "undermines" the remainder of Walsh's case. This therefore appears to be in direct conflict with the Pendleton judgment, even if it is unclear exactly how that applies in a non-jury situation.

Carswell LCJ did find that the original trial judge had misdirected himself in drawing an adverse inference from Walsh’s original answers in police custody, and that this may have denied him a fair trial under Article 6 of the Human Rights convention. Lord Woolf had previously held that "if a defendant has been denied a fair trial, it will almost be inevitable that the conviction will be regarded as unsafe". Carswell, however, decided that the Walsh case "in our view constitutes an exception to the general rule".

Carswell LCJ also ignored the inconsistencies in the soldiers' statements, saying "the CCRC reinterviewed in depth the soldiers we could not regard it as a desirable practice for witnesses to be re-interviewed after a trial by defendants' solicitors to see if their evidence has varied in any respect". He therefore appeared to suggest that the CCRC could be equated with defence solicitors.

In fact, the re-interviewing of the witnesses was carried out for the CCRC by the Metropolitan Police.

Nigel Broderick, Walsh's solicitor, said, "I admire the way in which Mr Walsh and his family have persevered in their attempt to establish his innocence. I will do everything I can to bring that day closer." Broderick is preparing an application to the European Court of Human Rights.