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THE ARMS TRIAL

SUTHERLAND WAS CALLED TO THE BAR IN 1968, and devilled – ‘devilling’ being the period of training that every new Irish barrister has to undertake – under senior barrister Harry Hill along with another ambitious young barrister called Michael Moriarty. Aged thirty-seven at the time, the dapper Hill had a reputation as being one of the finest barristers in the Four Courts. A keen cricketer, who never married, he had a predilection for good food and fine wine.

Sutherland picked up more than the law from his master. About a year after Sutherland had begun practising at the Bar, Fr Noel Barber asked Hill how his former pupil was doing. ‘Too well. I worry about him,’ he replied. A couple of years later, Fr Barber reminded Hill of his concern and he replied that he was wasting his time worrying. ‘Sutherland was going to the top.’

Hill would serve as Master of the High Court between 1984 and 2006, while Sutherland and his former master would remain close friends until the latter’s death in 2006. ‘Harry Hill never compromised his principles, or his opinions. He disliked above all posturing, cant and hypocrisy,’ Sutherland wrote in an appreciation that appeared in the Irish Times. ‘He sought to hide his light under a bushel, but what drove him fundamentally was personal relationships, sport and the Bar, probably in that order. Those who knew him know what a man of true quality he was.’[1]

Sutherland quickly established himself in the Law Library, the regulatory and representative body for barristers. David Byrne, who was called to the Bar in 1970, two years after Sutherland, and would also become attorney general (between 1997 and 1999) and a European commissioner (between 1999 and 2004), says that from the beginning Sutherland was ambitious, hard-working and very determined to be successful. ‘He was excellent. He was a charming, clever man and he had a capacity to make and keep friendships. He minded his friends. He just had that way with people that was very attractive, and as a consequence he was able to build a practice in the Law Library fairly quickly. He’d a very good style in court.’ Nicholas Kearns observed: ‘He [Sutherland] was born with ambition. He was like a heat-seeking missile. No matter what he did he was always going to do well. He was a formidable rival and competitor in court and outside it. If he couldn’t go around a problem he would go through it.’

Sutherland soon built up a lucrative civil law practice, helped in no small part by his father’s insurance business. Insurance defence work would have been the holy grail among barristers. There was much less work around for barristers in the 1970s than there is today, but equally there were many fewer barristers. ‘If you had connections with the law your start would be a lot speedier, and Peter’s father had been involved in the insurance industry. So that gave him a running start, because he would have gotten work in the personal injury area and work from insurance companies. That would have been a good help to him. And then of course he had a wonderful network of friends and people that he knew from school, from rugby and all of that. He was an excellent networker. He identified and made friends easily,’ another colleague from that era said.

According to former colleagues, Sutherland had a good court presence. In the Law Library there is a distinction between advocates and lawyers. Lawyers tend to be more academic, with an interest in how laws are formulated and how they relate to each other. Advocates are more drawn to the theatre of the courtroom and the gladiatorial nature of cases. Sutherland was very much an advocate. ‘Peter would have been much more interested in fighting the case, looking after the client and so far as you can, making sure that you win,’ says Byrne. ‘Therefore, if you were to divide barristers into advocates and lawyers, he would have been in the advocates camp. That isn’t to say he wasn’t a good lawyer. He was of course, but advocacy was his strong point and that isn’t surprising given his later career. He had great ability on his feet.’

John A. Costello, a former Taoiseach, gave a speech at the Law Library annual dinner in the early 1970s. Byrne recalls that, in making reference to the growing number of young barristers in attendance, Costello said, ‘You might be wondering what are the successful characteristics that are necessary to have a successful career at the Bar.’

‘I remember him saying you should fight every case as if it was your own and never write to the newspapers. They were the two bits of advice he gave.’ Sutherland would have followed those precepts without a second thought, says Byrne. ‘I’m not saying Peter was the only one who did that. That’s what barristers did for a living – it was their job. But Peter was quite relentless and had a lot of skill in how he would go about that.’ He was a formidable advocate. ‘You knew, doing a case against Peter, that everything and anything would be used against you for him to win that case.’

Nial Fennelly, a Supreme Court judge between 2000 and 2014, was a colleague of Sutherland at the Bar and acted with him on a number of cases. ‘I can’t remember him being on cases that made huge advances in law. He wasn’t on the human rights side of things like the late Donal Barrington [the former Supreme Court judge].’ But, says Fennelly, ‘He had a reputation of being very forceful as a barrister. He was always popular and well liked, but he was forceful and even aggressive as a young barrister making his way. He made a name from an early age at the Bar.’

The Law Library often appears a highly competitive environment, one that is riven with egos. A number of colleagues from that era say that Sutherland was one of the most competitive of all. Indeed, some of his tactics were legendary. One case pitted him against John Quirke, who would later become a High Court judge. They were good friends, but when Sutherland entered a courtroom friendships were left at the door. He and Quirke were appearing on opposite sides in a dispute between a landlord and a tenant, in a case heard in the Circuit Court by Noel Ryan. At one point, while the expert witness was giving valuations and evidence in the witness box, Quirke was on his feet, holding in his hand a report which he claimed vindicated his client, the landlord, and waving the report about with ever-increasing vigour.

The theatrics were getting too much for Sutherland. He leaned across, grabbed the report out of Quirke’s hand and sent it in the direction of the nearest bin. ‘The judge’s response was amusement and he didn’t admonish him. There was no row about it. Peter wouldn’t have done it out of aggression; it was more of a playful act. He got away with a lot of things by reason of his own charm, yet at the same time he would use his charm to get away with a lot of things,’ says David Byrne.

Alan Dukes, a former Fine Gael finance minister, recalls that even though Sutherland wore his ambition on his sleeve, his self-deprecating sense of humour had a disarming effect. Dukes recalls one story Sutherland told him about when he appeared before Judge Frank Roe defending a woman accused of shoplifting, not long after Sutherland’s less than successful attempt to win a seat in the 1973 general election. The defendant claimed that she was unable to feed her children because she had no home. ‘Frank Roe asked the woman would it help if she had a house. She said yes. He pointed his finger at Peter and said, “That man might be able to help you because he is a failed politician.”’

One of the first cases that gave Sutherland a national profile was the so-called Arms Trial. The backdrop to the case was the flare-up in troubles in August 1969. Since the establishment of Northern Ireland, Catholics in the province had been treated as second-class citizens, while state-orchestrated gerrymandering – until 1968 the system of property ownership had conferred greater voting rights on the Protestant population – had ensured that Catholic communities were politically under-represented. The nascent civil rights movement across Northern Ireland in the late 1960s demanded equal voting rights, among other basic conditions. The ‘Battle of the Bogside’ in Derry in August 1969, when residents of one of the most deprived areas in western Europe engaged the security forces in a week-long stand-off, is regarded as one of the seminal moments in the onset of the Troubles.

The ensuing violence was the worst that had erupted even by the turbulent standards of Northern Ireland. Simmering tensions mutated into a widespread and open conflict between the Catholic community and the forces of the state. As skirmishes escalated, the Loyalists’ response was one of implacable resistance, and they turned on their Catholic neighbours. Nationalist communities were displaced and many were forced to seek refuge south of the border. For the first time, the Troubles had become a hugely emotive and political issue in the Republic. Although the exact details remain controversial and unresolved, the Irish government’s response was to trigger a chain of events that would change the political landscape in the south.

Jack Lynch was then Taoiseach of a Fianna Fáil government. He set up a cabinet sub-committee to monitor events in Northern Ireland and co-ordinate a contingency plan in the form of emergency relief and assistance. The sub-committee had a budget of IR£100,000. Charlie Haughey, then Minister for Finance, and a future leader of Fianna Fáil and Taoiseach, took charge of the sub-committee alongside Neil Blaney, Minister for Agriculture. Deciding that there had to be a military component to the Irish government’s response, the pair enlisted the help of military intelligence to formulate a plan. Captain James Kelly, originally from Bailieboro in County Cavan, was instructed to liaise with a number of defence committees established by nationalists in Northern Ireland, and meetings took place from October 1969 onwards. It has been established that senior members of the Irish Republican Army (IRA) – an illegal paramilitary organisation – were in attendance.

Who knew about the meetings, and the decisions that were subsequently taken, became a constitutionally loaded question. In early 1970, Captain Kelly made contact with groups in Hamburg, Germany, with a view to importing arms. He was sent to Hamburg that April to organise a shipment of guns, earmarked for nationalist resistance groups in Northern Ireland, to the Republic via Dublin airport. Coincidentally, Jack Desmond – the father of Dermot Desmond, a businessman who would strike up a friendship with Sutherland in later life – was the customs officer in charge at the airport.

Peter Berry, then Secretary General of the Department of Justice, and éminence grise of the Irish state, had become aware of the scheme, which he described as a subversive plot. He ordered that the arms be impounded upon arrival at Dublin airport. When Liam Cosgrave, the leader of Fine Gael, the main opposition party, learned about the smuggling operation, he demanded a response from the government.

Lynch publicly sacked Haughey and Blaney. Both men, along with Captain James Kelly, Belfast Republican John Kelly, and Albert Luykx, a Belgian national who had acted as an intermediary in the deal, stood trial in May 1970 on charges of illegal arms smuggling. Sutherland, who had just turned twenty-four, was retained as a junior counsel on Captain Kelly’s defence team, under senior counsel Tom Findlay. There was initial surprise in the Law Library at the choice of Sutherland: his speciality was civil law and he did not have a reputation as a criminal lawyer. He did however have a relationship with Fitzpatrick’s, the firm of solicitors who represented Kelly.

To the outside world Sutherland would also have seemed politically an odd choice for Kelly’s defence team. He had a deep antipathy to paramilitaries of any hue, and one of the early factors attracting him to politics was his opposition to Haughey and all he stood for. However, there is a long-standing tradition in the Law Library to retain barristers from ‘the other side’.

Patrick Connolly, the future attorney general, acted for Haughey, with a young Dermot Gleeson, who would also go on to become attorney general, as his junior counsel. Captain Kelly’s defence was that he was not a rogue operator and had not acted outside legal channels. His case was that Jim Gibbons, Minister for Defence at the time, had been apprised at all stages of the work of the cabinet sub-committee, including the intention to import arms. Captain Kelly had been following orders at all times, it was argued. Gibbons denied that he had been aware of the plot. Crucial to Kelly’s defence was the evidence of Colonel Michael Hefferon, the head of Army Intelligence at the time.

When, a few years before his death, Sutherland put together his private papers, they included extensive writings about the Arms Trial. According to Sutherland’s account, Hefferon was regarded by the prosecution team as a significant witness in support of their case. However, the opening statement by Seamus McKenna, senior counsel for the prosecution, outlining the nature of the state’s case, had a profound effect upon him. Hefferon met Frank Fitzpatrick, solicitor for Captain Kelly, and told him that Kelly was innocent of the charges and that he could not with a clear conscience give evidence to support a case to the contrary. Fitzpatrick conveyed this conversation to McKenna in the belief that it would halt proceedings. Instead, according to Sutherland, it changed the prosecution’s stance towards Hefferon and the deployment of what had been intended as their strongest witness. Hefferon had headed the original witness list. But as the first trial progressed he was held back and was only called as the twenty-first witness, long after Gibbons had given evidence. Nevertheless, as Sutherland recalled in his account of the trial, ‘his contribution was crucial to the tenor of the case’. Sutherland continues:

Hefferon’s evidence to the first trial (28 and 29 September 1970) confirmed that: The State was engaged in training [Northern Ireland] civilians from Derry in the use of arms at Dunree (something Gibbons had emphatically denied in the Dáil on 9 May 1970). There was an active military policy for the defence of minority population in the North (as articulated by Jack Lynch’s broadcast on 13 August 1969 and elaborated in the Army directive of 6 Feb 1970).There was a specific and explicit Government directive relating to the preparation and training of the Army for incursions into Northern Ireland. When the prosecution attempted to indicate that no such directive could be located, Hefferon was very precise as to where copies were available within military files and was able to affirm that he had had the contents of that directive confirmed to him by serving staff officers (at this point Hefferon was retired from service).

Hefferon also said that: Captain Kelly was acting at all times as a serving army officer and in an official capacity. Captain Kelly was acting on orders from the Minister for Defence who was aware of his activities. Both Minister Gibbons and possibly Minister Blaney had promised arms to representatives of the Northern Defence committees. Any arms would remain at all times in a designated place and under the control of Captain Kelly and the army until a decision was made and orders given as to their disposal.

There were two trials. The first trial collapsed because of allegations of bias. The second trial would eventually collapse because of a number of flaws in the prosecution’s case, including contradictions in testimony given by Haughey and Gibbons. But that was not the end of it for Captain Kelly, nor for Sutherland. The government tasked the Public Accounts Committee of the Irish parliament to investigate the IR£100,000 spent by the cabinet sub-committee. According to Suzanne Kelly, a prominent tax lawyer and daughter of Captain Kelly, Justin Keating, then a Labour Party TD, privately told Kelly that the Public Accounts Committee had been told that its remit of looking into the money was a political fig leaf. Its real purpose was to rerun the trial, except this time it was to deliver a guilty verdict.

This time Sutherland represented Captain Kelly pro-bono. According to one former colleague, anything that Sutherland did, ‘he did with all the might of a front row forward’. The first real example of this was that Public Accounts Committee. The junior barrister cross-examined Gibbons, who was by then Minister for Agriculture, with an intensity and robustness that effectively derailed the case against Kelly.

When the second trial commenced Hefferon had been dropped from the prosecution case as a witness. His original statement remained in the book of evidence and the State justified not calling him on grounds of unreliability. He was eventually called as a ‘bench witness’ by Mr Justice Henchy during the second trial.