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Sunday, May 22, 2016

Judges likely to avoid findings with political fallout

These days there would be precious few judges who would instinctively protect An Garda Síochána from scrutiny. Whether or not the same open, robust approach would inform big decisions that would have major repercussions for the executive is a matter of conjecture.

IN November 1985 the monthly current affairs magazine Magill ran a stark headline: “We Say The Judge Got It Wrong”. The story it referenced was what was known as the Kerry Babies Tribunal, which examined how four members of the Hayes family from Abbeydorney could have, while in garda custody, admitted to a murder they couldn’t have committed.

The tribunal chaired by Judge Kevin Lynch exonerated, to a large extent, the gardaí of any wrongdoing. His main criticisms were of a “slipshod” investigation, following the discovery of a baby’s body near Cahirciveen.
Magill’s reporter, the peerless Gene Kerrigan, sat through 82 days of evidence and found the judge’s relatively tame conclusions at variance with the evidence. Kerrigan’s report forensically went through the evidence and showed where the judge’s conclusions were inexplicable.

Ireland was a different country in the 1980s. Authority wasn’t really challenged, which rendered the Magill position quite explosive. What would have been really explosive would have been a tribunal report that drew some far-reaching conclusions about the culture within the gardaí, as evidenced by the whole affair. But that would have required a mindset that was obviously beyond the late Judge Lynch.

Roll it on nine years and the publication of the Beef Tribunal report into export credit insurance. The tribunal, chaired by Judge Liam Hamilton, sat for more than three years. During its hearings, a government fell when two of the witnesses, Albert Reynolds and Dessie O’Malley, clashed in their evidence.
The tribunal report was relatively tame, more or less exonerating Reynolds, who had been a central figure in the affair when he had been Minister for Industry. Most observers suggested that Judge Hamilton had simply avoided apportioning commensurate blame to culpable individuals.
When the report was published in 1994, Reynolds was Taoiseach, and Hamilton president of the High Court. Any serious criticism of Reynolds might have seen the president of the High Court responsible for the ejection from office of the Taoiseach. A few months after Hamilton delivered his report he was promoted to chief justice by the Government.

Fast forward to last year. The Fennelly report, chaired by retired Supreme Court judge Niall Fennelly was examining the departure from office in April 2014 of the garda commissioner Martin Callinan. The main issue was whether he was ‘pushed’ by the Taoiseach, a scenario that would have made Kenny’s continuance in office untenable.

The matter centred on Mr Kenny dispatching the secretary general of the Department of Justice to Mr Callinan’s house to inform him of Kenny’s “concern” over various Garda controversies.
Fennelly reported: “The commission accepts the Taoiseach’s assurances that he did not, by sending Mr Purcell to visit the commissioner, intend to put pressure on the commissioner to retire.” But he also stated that the way things were done, such an outcome “was likely to be interpreted as doing just that” by Mr Callinan. In other words, he had reason to believe he was getting the heave-ho, but the judge believed Mr Kenny when he said it wasn’t meant like that.

Some might regard Judge Fennelly’s interpretation of events as Jesuitical. After all, a retired Supreme Court judge, schooled through a long career in the separation of powers, would be highly sensitive about responsibility for the probable resignation of a serving Taoiseach.
Now leap to the recent publication of the O’Higgins report into alleged garda malpractice. Eight days ago this newspaper published a story detailing events behind the closed doors of the commission. At the outset of the commission’s hearings, counsel for Garda Commissioner Nóirín O’Sullivan indicated that his instructions were to attack the integrity and motivation of Sergeant Maurice McCabe, who blew the whistle on malpractice in the force.

The evidence against McCabe’s character, the commission was told, would be presented by two gardaí to whom McCabe allegedly revealed that he was motivated in bringing his claims by a grudge against a senior officer.
Then, hey presto, McCabe produces a recording of the meeting in question.
There was no mention of a grudge.

It would have involved at least two garda officers misleading a statutory inquiry, including the possible commission of perjury. And it would have involved the character assassination of another officer, whom the commissioner had lauded publicly. All of this would have been done on the instructions of the garda commissioner, albeit presumably on the basis that she was misinformed about the event in question. If that whole affair — effectively an aborted attempt to bury McCabe — made it into the final report, it may well have precipitated a political crisis.

Judge O’Higgins would not be a popular figure around Government Buildings.
For the second time in two years, a government may have been forced to move against a garda commissioner. What would such an appalling vista say? That the wrong candidate was given the job of reforming the force? That the force was unreformable? That the Taoiseach’s judgement was up for grabs?
Judge O’Higgins may have a valid reason for not including in his report an incident that appears to be a shocking reflection of the culture in the force. But such a reason is far from obvious.
There is a certain pattern to be discerned in some judicial inquiries. The standard of work done is usually high and fairness towards individuals tends to be observed without fear or favour.
But when it comes to pointing the finger in a manner that may have major political repercussions, robust, unequivocal conclusions do not appear to feature.

This may well be down to an instinctive reluctance to stray across the separation of powers. Judges guard their independence from government fiercely, and such an instinct may well inform an overly cautious approach when they find themselves sitting in judgement of the executive with the prospect of major political repercussions. Of course there may also be a judicial reluctance to point the finger at anybody who would suffer the most grievous consequences. An inquiry, after all, is not a court of law.
The country has moved on in 30 years. Would a Kerry Babies-type tribunal come up with a result similar to the original inquiry today? Perhaps not.

These days there would be precious few judges who would instinctively protect An Garda Síochána from scrutiny. Whether or not the same open, robust approach would inform big decisions that would have major repercussions for the executive is a matter of conjecture.
Michael Clifford