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Thursday, May 12, 2016

O'Higgins report: Accountability for public and victims of crime now the key challenge

The O'Higgins report into how Gardai investigated complaints made by whistleblower Maurice McCabe raises serious concerns of accountability within the force, argues Michael Clifford. 

On page 27 of the O’Higgins report, the retired judge has this to say about how the gardai initially investigated complaints by Sergeant Maurice McCabe.
“There was a corporate closing of ranks,” O’Higgins reports. It’s as close as he came to using the phrase “cover-up”. But, in keeping with the tame tone of the report, he goes on to qualify the statement. “The commission does not consider that this was done consciously or deliberately. There was no question of bad faith.”

How exactly a corporate closing of ranks could occur except deliberately is not explored. But one way or the other, the characterisation of how the force deals with its own shortcomings goes to the heart of the cultural problems within An Garda Siochana.
When Maurice McCabe made his complaints about investigations in the Cavan Monaghan region, two senior officers were appointed to investigate. The report they compiled is key to everything that occurred afterwards, from McCabe’s relentless pursuit of the matter to the resignation of Alan Shatter and the establishment of the O’Higgins commission.

Assistant commissioner Derek Byrne and chief Superintendent Terri McGinn conducted the internal investigation. Initially, concerns were expressed about the appointment of Byrne on the basis that he had previously worked in the northern division. In that capacity he would have been the direct superior of some of the senior officers against whom McCabe made complaints.
These concerns were expressed by then assistant commissioner Noirin O’Sullivan. However, she got over her concerns in a decision that O’Higgins describes as “curious”.

The Byrne/McGinn investigation lasted nearly two years. It upheld some of McCabe’s complaints, and not others. Following the completion of the report, chief superintendent Colm Rooney circulated a letter in the northern division.
“The investigation concluded that there were no systemic failures identified in the management and administration of Bailieboro garda district. A number of minor procedural issues were identified. On further investigation at local level no evidence was found to substantiate the alleged breach of procedures…I would like to congratulate all members who served in Bailieboro district during the period in question…The findings of the Assistant Commissioner vindicate the high standards and professionalism of the district force in Bailieboro.

Some might characterise the letter as a “nothing to see here folks, move along”.
The Byrne/McGinn investigation cited in the letter left a lot to be desired. Throughout the O’Higgins report, elements of the investigation are commented on leaving one to question how robust it was.
In one case, the two senior cops failed to locate a statement from the victim of an alleged sexual assault. They were told it wasn’t available.

“I accepted the evidence that was presented to me,” Byrne told the commission. “I never challenged it…the mistake I made, I accepted everything that was done, and really for me personally I am disappointed I didn’t look for the statement.”
Obtaining a victim statement is pretty high up on page one of basic police procedure.
Byrne/McGinn described the original investigation as merely “shabby”, but O’Higgins concluded: “they relied on the file….which did not contain a detailed account of the incident.”

In another case, Byrne/McGinn’s report made a “significant omission” about “the most serious breach of garda practice,” O’Higgins concluded. Byrne was asked at the commission why McCabe wasn’t asked about specifics in that case.
“It would have been quite simple to phone Sergeant McCabe and say what do you mean by this,” Byrne was asked.

“Yes, absolutely, that is correct,” he replied, although he never did pick up the phone.
Then, there was the case of the men who filled a vinegar bottle with urine in a fast food restaurant, and only for the quick thinking of the owner, a young boy may have ingested the urine. The investigating gardai were found not to have dealt properly with the victim in this case, the restaurant owner. The case was not investigated properly.
Byrne/McGinn fired some of the blame back at McCabe. Their report stated: “While Sergeant McCabe was aware that the investigating gardai behaved inappropriately towards the injured party, he did not take any immediate action himself or bring this matter to the attention of the district officer.”

O’Higgins begged to differ. He reported: “In fact, almost immediately after becoming aware of the matter and probably the very next day, Sergeant McCabe went to visit the injured party. He apologised for the misinformation given …he also informed her of her right to complain. He acted promptly and commendably.”
Another case involved major shortcomings in investigating an assault outside a public house. O’Higgins found that the Byrne/McGinn report “summarised the deficiencies in the garda investigation with considerable understatement” which failed to “express the egregious nature of the failures of the (original) investigation.”

In that case, O’Higgins noted: “It is not surprising that Sergeant McCabe was sceptical of the findings of the Byrne/McGinn report concerning this incident.”
Those were some of the shortcomings in Byrne/McGinn, a report compiled by two of the most senior officers in the force.
The report was completed in 2010. A five page summary of its findings into 22 complaints was handed to McCabe in the Hilgrove Hotel in Monaghan. He wasn’t given any opportunity to challenge or question any of the findings. Rooney issued his letter on foot of that report claiming all was well in Bailieboro.

O’Higgins found that both then commissioner Martin Callinan and then minister for justice Alan Shatter were entitled to rely on the Byrne/McGinn report as the final word on McCabe’s complaints.
At that meeting in Monaghan, McCabe presented Byrne with over 200 Pulse records which McCabe said illustrated how all these cases were not dealt with in a manner that should have led to prosecution.
Byrne took possession of the Pulse records and passed the matter onto to deputy commissioner WI Rice. He handed over 600 of the files back to the Cavan/Monaghan division, a decision that O’Higgins does not take issue with.

However, once back in the division, a number of the files were altered in a manner “consistent with an attempt to excuse the failure to prosecute,” according to O’Higgins. In effect, the cases were updated on Pulse to show why no prosecution had occurred.
Some might class this as a corporate closing of ranks. McCabe believed such practice was “corrupt”, but O’Higgins found what had occurred was just “troubling” and “unsatisfactory”.
Had the report been compiled in a befitting manner, that would have been the end of the whole affair.

In many ways, the Byrne/McGinn report echoed another internal garda investigation, that of assistant commissioner John O’Mahoney, who in 2013 investigated complaints by McCabe and John Wilson about wholesale abuse of the penalty points system.
O’Mahony never interviewed McCabe or Wilson and his final report was accepted without question by Alan Shatter. Perceived shortcomings in that report prompted McCabe to continue his effort to expose that malpractice and ultimately he was vindicated when further investigations unearthed major shortcomings in both the system and the O’Mahoney report.
Similarly, the O’Higgins report exposes shortcomings in the Byrne/McGinn report.

In both cases, it took McCabe’s persistence to follow the matter until he received a satisfactory investigation that examined all the issues in a professional manner.

The culture of senior garda officers erasing penalty points at will for friends and colleagues has now been dealt with properly as a result of McCabe’s persistence. Tackling the wider culture within the force to ensure accountability for the public, and particularly for victims of crime, will be a lot more difficult to address.
Michael Clifford