Sir Basil Kelly: Judge who presided over one of the biggest IRA 'supergrass' trials
Hyfler/Rosner
IRA 'supergrass' trials
Friday, 12 December 2008
One of the most dramatic episodes in the life of Basil
Kelly, a High Court and then appeal judge in
NorthernIreland, and indeed in the eventful history of the
province's legal system during the recent Troubles, came in
August 1983. Presiding over one ofthe biggest IRA cases ever
to come before the courts, Kelly was equipped with certain
extras, which included a bullet-proof vest and SAS
bodyguards. In court he was flanked bytwo vigilant police
officers armed with M1 carbines.
It was a huge "supergrass" case, with the one-time IRA
member Christopher Black giving evidence against almost 40
alleged former associates. Those who were present recall an
atmosphere of almost electric hatred as a packed court room
held the judge and the police and, in poisonous proximity,
scores of republicans ranged in the dock and public gallery.
No one doubted that Basil Kelly was a marked man: the IRA
had already assassinated a number of legal figures,
declaring them to be part of what republicans in those days
called "the British war machine". Earlier that year they had
killed Judge William Doyle, gunning him down as he left
church after mass. Some years earlier they had shot and
killed one of Kelly's close friends, the magistrate Martin
McBirney. A few years later they would use a landmine to
kill the senior judge Maurice Gibson and his wife.
On this occasion, Kelly handed down sentences of more than
4,000 years' imprisonment to 22 people after one of the
longest trials in UK legal history. He sentenced one leading
republican to almost 1,000 years in jail. Years later the
majority of those convicted were to be freed on appeal as
senior judges registered their view that the "supergrass
system" was offensive to human rights and unsuited to
Northern Ireland. No one who witnessed the court proceedings
of the time was left in any doubt that this was one of the
battlefields of Northern Ireland's long undeclared war, and
that judges were very much in the front line. Basil Kelly
lived to the age of 87: if the IRA had had its way his death
would have come many years earlier. Instead, he outlasted
them.
Kelly was one of the mainstays of the legal system for much
of the conflict, handling many of the high-profile cases.
The veteran court reporter Ivan McMichael described him as
"a wonderfully colourful character, with a confident manner,
superb delivery, and above all elegance". He was a
Protestant and a Unionist but not a bigot, enjoying
friendships with many Catholic lawyers. "I suppose nearly
all judges are establishment types," one nationalist
advocate said. "But Kelly had a great sense of justice and
he was very independent. He was old-style, liberal,
paternalistic."
He came from Monaghan in the Irish Republic, but in the
1920s his family moved across the newly delineated border to
Belfast, where his mother ran a small bakery in the east of
the city. He attended Methodist College in Belfast and went
on to study law at Trinity College, Dublin. Called to the
Bar in 1944, he took silk in 1958 and became senior
prosecutor in the counties of Armagh, Fermanagh and Tyrone.
In the 1960s he went into politics, becoming a Unionist MP
at Stormont, the devolved government of the day which was
dominated by the Ulster Unionist Party. Politics was not an
arduous business in those days. He comfortably won a
by-election in Mid-Down and then held it in two succeeding
elections. These were even more comfortable victories since,
as was not unusual then, he was returned unopposed, the
sectarian certainties of the time meaning that there was
little point in non-Unionists standing against him.
He, like some other Protestant lawyers of the time, was
viewed as going into Stormont not because of any
particularly burning political beliefs but primarily to
advance his legal career. He would regale audiences with
tales of how his father had fought off republican attacks on
their Monaghan farm. But in private he would cheerfully
admit - to friends who included Catholics - that his
displays of Unionist staunchness were exaggerated for career
effect.
Political advancement duly came in 1968 when he was
appointed Stormont Attorney-General. In the Unionist
spectrum of the time he was a modest, non-risk-taking
moderate, supporting the cautious reforms of leaders such as
Prime Minister Terence O'Neill. But first O'Neill and then
Stormont itself were swept away by a mixture of civil rights
agitation and increasing violence. The cabinet papers of the
time, released in recent years, often show him advocating an
even-handed approach. But he was very much a secondary
figure, scarcely featuring in the political memoirs of that
era.
When Edward Heath abolished Stormont in 1972, Kelly returned
to private practice, at which he was particularly
successful, and in the following year he was appointed a
High Court judge. "He was a model of how a judge should be,"
according to a friend and contemporary. "He was detached,
courteous, and he listened to everything that was said to
him. He was very industrious and conducted trials very
fairly".
His trials included high-profile Troubles cases which in
Northern Ireland were heard in special non-jury courts. He
locked up republicans and loyalists, and did not spare
soldiers and army agents. He handed down murder convictions
in the case of two Scots Guards who in 1992 shot an unarmed
Belfast youth in the back, claiming they believed he had a
bomb; they were subsequently released and reinstated in the
army. He jailed for 10 years Brian Nelson, an agent who had
been placed by military intelligence inside a loyalist
paramilitary group, saying that on occasions he crossed the
line between criminal participation and lawful
intelligence-gathering.
Over the course of the Troubles the anti-terrorist laws were
tightened on various occasions. Kelly sometimes disapproved
of such changes, in particular restrictions on the right to
silence. He made his views plain enough in legal circles.
But he was no rebel and in public exercised his own right to
a judicious silence.
Kelly served as a Lord Justice of Appeal of Northern Ireland
between 1984 and 1995. He received various legal honours and
was knighted in 1984. But his political past is said to have
ruled him out of contention for the highest offices,
including that of Northern Ireland's Lord Chief Justice. A
colleague explained: "The baggage he carried was his
background as aformer Unionist Attorney-General. This
effectively excluded him from becoming LCJ - not on any
grounds of ability, but because it would have caused a
furore."
One of his best-remembered cases concerned military
personnel but was a crime of passion rather than
Troubles-related and was thus heard before a jury. It
featured a woman soldier who slit the throat of her lover's
wife in a wood and then maintained they had been attacked by
a deranged killer. Those observing the case said that the
veteran judge had been utterly charmed by the defendant and
developed a tendresse towards her. "The word is that he fell
in love with her," a legal source last week recalled with a
smile, "and was so taken by her that he summed up very much
in her favour".
Kelly posed to the question to the jury: "Can you conceive
of a girl of her background sharpening a knife and carrying
out this vicious act of killing if she had not taken leave
of her senses?" When she was found guilty of manslaughter on
the grounds of diminished responsibility, he said she had
not been in "her right mind" when she carried out the attack
and imposed a sentence of just five years.
This caused a considerable stir since time she had already
spent behind bars meant she could be freed within a year. He
told the defendant: "You will still be a young woman when
you are released from prison. I hope that you will find some
degree of happiness which has eluded you so far." The
authorities regarded the sentence as much too lenient for a
killing which had a fair degree of premeditation and
preparation. The Crown had the sentence reviewed and it was
increased from five years to nine.
The episode was remembered as an indulgent aberration
uncharacteristic of the career of such a steady judge. Basil
Kelly was, in any event, not regarded as a harsh man. "A lot
of judges had a reputation for dishing it out," a veteran
barrister commented, "but Basil certainly wasn't one of
those". He retired as a judge in 1995.
David McKittrick
John William Basil Kelly, judge: born Monaghan, Republic of
Ireland 10 May 1920; called to the Bar, Inn of Court of
Northern Ireland 1944, Bencher 1968; QC (Northern Ireland)
1958; MP (Unionist) for Mid-Down, Parliament of Northern
Ireland, 1964-72; Attorney-General for Northern Ireland
1968-72; Privy Council (NI) 1969; called to the Bar, Middle
Temple 1970, Bencher 2002; a Judge of the High Court of
Justice in Northern Ireland 1973-84; a Lord Justice of
Appeal, Supreme Court of Judicature, Northern Ireland
1984-95; Kt 1984; Privy Council 1984; Chairman, Council of
Legal Education, Northern Ireland 1989-93; married 1957
Pamela Colmer (one stepdaughter); died Berkshire 5 December
2008.