Fred Holroyd in America The British government has been trying to extradite James Smyth from the USA. Ken Livingstone MP is among the witnesses called by Smyth’s defence. Having testified, Livingstone suggested they call Fred Holroyd. Fred was duly summoned to America and testified. Ken Livingstone had an adjournment debate in the House of Commons on 17 December, 1993 on the subject of the attempted extradition of Smyth. Livingstone commented in the Commons:
‘The British government, however, were unable to question him because, although they had been given a week’s notice, they claimed they did not have enough time to prepare detailed questions. They had no rebuttal to the evidence of Fred Holroyd. Given that the row has gone on for 20 years it is completely unacceptable for the British Government to say suddenly that they did not have time to prepare questions to challenge his evidence. I believe that Fred Holroyd finally got his day in court. The British Government had no case to answer the charges that he has made for years, for which he has been rubbished and his reputation smeared by the British press.’ (Hansard, 17 December, 1993, column 1466)
The Minister of State for Northern Ireland, Sir John Wheeler, replied, adding new disinformation.
‘The Hon. Gentleman referred to the allegations of a Mr Fred Holroyd. Her Majesty’s Government had 48 hours notice, not a week, of Mr Holroyd’s appearance before the court in San Francisco. He gave evidence and he repeated and embellished those allegations which he had made over a number of years and which are certainly now well known and in the public domain.
Rather than having his day in court, I am afraid Mr Holroyd departed from it. Before the Government could cross-examine him and call witnesses to refute some of his extremely serious allegations, he claimed he had a more important engagement elsewhere. He decided to leave San Francisco rather than to face cross-examination. The judge, in her wisdom, accordingly struck Mr Holroyd’s evidence from the court records.’ (Hansard column 1466 and 1477)
In response to this, Fred Holroyd contacted the Smyth legal team. A statement from the Federal Public Defender of the Northern District of California was sent to Fred Holroyd on January 13, 1994, ‘to set the record straight as to your testimony in the Jimmy Smyth case.’
‘Despite the fact that I had notified the government that I would be calling you as a rebuttal witness within the time limit established by the court, the government attorney claimed that he was not prepared to cross-examine you after we had completed your direct [examination]. He also claimed that he needed you to produce documents in your files in England for him to be able to effectively cross-examine you. This argument was completely specious as he was well aware that you had already provided the British government with your files concerning wrongdoing in Northern Ireland during your tenure there and it was they who had refused to return them to you.
‘Although there was no question that I had complied with the notice requirement, the judge agreed to give the government almost a week to prepare for your cross-examination and asked that you return to England in the interim to collect the documents that you have which support your testimony on direct. She further ordered that the government would be allowed to call three additional witnesses to rebut your testimony. This was surprising to me as, under the rules, because we have the burden of proof in Mr Smyth’s case, we were supposed to have the final word. It is my belief that the judge made these rulings because she realized how devasting your testimony was to the British government, and bent over backwards to be fair to them. After making the rulings, the judge gave you the option of going home to England to collect the documents and returning to San Francisco the following week to be cross-examined, or of going home, where you had business commitments that week, and not returning.’
‘For a number of reasons, we chose the latter. First, I appreciated that we had already imposed on your time and did not want to impose any further. Second, I was unwilling to have you come back when it meant that the government would then be permitted to call another three witnesses (whose testimony was entirely predictable) and have the final word in the case…..’
‘Under the Federal Rules of Evidence, which were employed at Mr Smyth’s hearing, when a person is not subjected to cross-examination the finder of fact cannot rely on their testimony on direct [examination] in reaching his or her decision. Thus, it would be improper for Judge Caulfield to cite your testimony in her decision in Mr Smyth’s case.’