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Ireland's political and cultural magazine
3 8 Nov/Dec 2016
POLITICS
Morris’s most important recommendation – to set up
an independent authority to oversee the force was set
aside until it was forced back on the political agenda in
the wake of the recent Garda Commissioner Martin Calli-
nan resignation, though allegations of nepotism and
impropriety dog his successor Noirín O’Sullivan. The
Fine Gael-Labour government established a new Cabinet
Committee on Justice Reform to be chaired by the Taoi-
seach which has moved slowly but has led to changes
that provide that the Garda Commissioner is to come
under GSOC's remit; the time limit for lodging complaints
with GSOC has been extended to 12 months; and its
investigative powers have been extended.
Then, of course, there is the case of Maurice McCabe
– another Garda with an apparently good record of ser
-
vice. McCabe was the whistle-blower who brought the
practice of deleting penalty points to the public’s atten
-
tion. It was a serious charge but one which was met with
defensiveness rather than outrage. McCabe made seri-
ous charges against colleagues in the Cavan/Monaghan
area, including that they framed innocent people for
crimes, failed to investigate serious crimes including
sexual assault and hijacking, published details of a
victim of domestic abuse on social media, were often
drunk at work and managed very poorly. The force itself
reacted by making both his personal and work life diffi
-
cult for McCabe, while the ostensible political
oversight provided by Minister Alan Shat-
ter appeared somewhat deficient.
It is also worth remembering that
the exposure of malpractice by
McCabe was not just limited to pen-
alty points. As the Irish Examiner
noted: “other cases involving seri-
ous assault, burglary, drug crimes,
and serious motor offences such as
dangerous driving were also altered to
give the impression that such incidents
had been dealt with in a proper manner”.
The story was characterised by the infamous
line: “if Shatter thinks you’re screwing him, you’re fin-
ished”, which was delivered by Oliver Connolly, the
‘confidential recipient’ appointed to support whistle
-
blowing within the Garda. Significantly, the McCabe
story also highlighted the friendly relationship between
Shatter and Garda Commissioner Martin Callinan – one,
it appeared, which was quite conducive to ensuring that
McCabe’s “disgusting” claims were sidelined.
Last month, the Government appointed Judge Iarf-
hlaith O’Neill to review four reports from within the
Garda on the treatment of whistleblower Maurice
McCabe. Clare Daly has told the Dáil he has failed to
request material from Garda whistleblowers in his
review. He is due to report shortly.
Interestingly, the confidential recipient system was
called into question by another Garda whistleblower,
John Wilson. Wilson brought information to Connolly
regarding apparent misuse of the Pulse system and its
targeting of Ian Bailey, a suspect in the Sophie Toscan
du Plantier case. He claimed that the amount of atten
-
tion focused on Bailey was disproportionate to his status
in the investigation and that “it is totally inappropriate
for police to be scrutinising citizens without good cause”.
Wilson further suggested that such attention would
likely have to have been assigned from a high level. Con-
nolly, however, did not reply to his contact, surprising
Wilson who saw him as “an honourable and decent
person”. Wilson had a dead rat tied to his door for his
efforts.
Connolly was yet again implicated in the warning off
of gardaí bringing claims to him. Fianna Fáil TD John
McGuinness revealed that he had been contacted by a
female Garda alleging sexual harassment and that part
of Connolly’s response to the Garda in question was that
“the last man who used the service was now washing
cars in Navan”.
And that's without mentioning the recent strike and
dysfunctional Garda Representative Association.
In the interests of rats and car-washers everywhere,
by common consent, the Garda Commissioner should be
rendered accountable to a streamlined Garda Ombuds-
man, and the Ombudsman should have powers to
conduct investigations on its own initiative.
The Judges
Nor are the Judiciary proper gatekeepers. All district
judges should be barred from social interaction with the
police. Failure to apply international principles for judi-
cial appointments and the flouting of independent
recommendations means in substance we
have a narrow judiciary with far too
defined ties to political parties.
In 2014 an unnamed judge of the
District Court who has been accused
by the former garda, John Wilson, of
seeking to interfere with his efforts
to blow the lid on the widespread
cancellation of penalty points to the
benefit of people with influence or con-
nections with the force. The judge, who
has previous form in making controversial
statements about witnesses and solicitors in his
court, criticised Wilson, a family friend, for raising the
issue with TD, Clare Daly, whom he described as “a
bitch” and whose arrest on a drink driving offence he
described as “karma”. The beak was allegedly furious
that Wilson had revealed publicly that another contro
-
versial judge, Mary Devins, had penalty points
terminated, asking “what had she ever done to any
-
body?”. The judge made outrageous and unrepeatable
comments, according to Wilson, about whistleblower,
Maurice McCabe.
The great American jurist Jerome Frank, who also was
a trial judge, wrote a provocative and brilliant text called
'Law and the Modern Mind' (1930). He argued that the
outcome of a court case was not so much derived from
the application of rules as from such factors as the preju-
dices of the trial judge. Now Frank did not mean
prejudices in a totally negative fashion but in the sense
of the presuppositions and cognitive bias that a judge
brings to a case.
“A man's political or economic prejudices are fre-
quently cut across by his affection for or animosity to
some particular individual or group, due to some unique
experience he has had. (…) Those memories of the judge,
During the hearing
Mr Justice Zaidan
told Clare Daly
TD to "stand up
straight", perhaps
a push too far
under our delicate
balance of power
between judiciary
and legislators
Clare Daly TD
Nov/Dec 2016 3 9
while he is listening to a witness with such a twang or
cough or gesture, may affect the judge's initial hearing
of what the witness said…..
At one time any reference to judges or judicial activity
in the Oireachtas or by any politician was frowned upon.
Recently latitude is afforded in parliamentary and public
debate. Independents 4 Change TD Clare Daly’s made a
speech in the Dáil in late October criticising how a minor
speeding offence, which she admitted to, had been dealt
with by a District Court judge earlier in the day. Daly
labelled Judge Desmond Zaidan’s decision to issue a
warrant as “ludicrous” and claimed he was “causing
huge problems with regard to the administration of jus-
tice” more generally.
She claimed the judge singled her out for a bench war-
rant after she left Naas District Court three weeks ago.
Earlier that day she was fined €300 for the speeding
offence and was accused of showing a “total disrespect
for the law” by Judge Zaidan.
The judge said he issued the warrant because Ms
Daly’s solicitor did not offer a reason for his client leav-
ing the court.
He also accused her of abusing the court process by
changing her plea to not guilty while “not having the
courtesy to tell the courts why”.
During the hearing Mr Justice Zaidan told the TD to
"stand up straight", perhaps a push too far under our
delicate balance of power between judiciary and
legislators.
During a Dáil debate on judicial appointment last
month, Clare Daly attacked the judge claiming her case
was an example of the “outrageous decisions” taking
place in the courts. It was left to the Green Party leader,
Eamon Ryan, to express concern at TDs mixing personal
experience of the judicial system with their role of legis
-
lating. But issues of the separation of powers, as we
have seen with the recent judgment on Brexit from the
High Court of England and Wales, are too esoteric for
most of today’s thrusting majoritarian politicians.
Addressing Daly’s general well-taken criticism that no
formal mechanism exists at present on foot of which a
person can ventilate a complaint against a judge, The
Association of Judges in Ireland (AJI) called for the estab-
lishment of a judicial council: “the AJI supports in
principle the recent call by the Chief Justice for the prom-
ulgation of a Judicial Council Bill in early course and for
the establishment of a judicial council”.
Currently members of the public have no forum to
make complaints about the judiciary. The judicial council
has been promised for over 20 years but has yet to be
legislated for. The signals are the council may contain
too many insiders.
Then there is the question of financial compromise. It
is basic to principles of the rule of law and fair proce-
dures, and the rule against bias, that judges should not
hear cases in which they are compromised. It has been
upheld many times by the Irish Courts and is apparent
in a very old case when Lord Cottenham was chastised
and rebuked for hearing a case in which, as you then did,
he had shares in a canal company.
This case is like a dangling sword over much of the
judiciary mired in debt and financial speculation and yet
some continue to hear cases involving banks. This is not
only not acting as a gatekeeper: it is a violation of the
rule of law at its heart.
The Supreme Court recently pulled its punches in
deciding that Judge John Cooke should not have sat in
the High Court in a case involving CRH, a company in
which he held a valuable share.
In November 2012, the opposing party in the case,
Goode Concrete, objected to his hearing any further mat-
ters, saying it had learned from its own inquiries some
months earlier he had a CRH shareholding in December
2010 valued at some €135,000.
Judge John MacMenamin stressed the court’s judg-
ments were not to be seen in any way as a reflection on
the integrity of Judge Cooke who “has served with dis
-
tinction” in the Irish and European courts. Judge Adrian
Hardiman said he believed Judge Cooke behaved with
“absolute propriety” and the allegation of objective bias
was “a contrivance” designed to get rid of three adverse
decisions against Goode. Despite the deference and unc-
tion, Goode’s judgment was overturned and the case
assigned to another judge.
The Irish Times is so deferential to the judiciary that
the report of the case is still headed ‘Supreme Court
allows Goode Concrete appeals in CRH case on grounds
of alleged bias’. It can’t accept that a successfully upheld
complaint against a judge could rise to anything more
substantial than an allegation. Another institution that
keeps the gate ajar.
I have lost too many cases against the State that would
have been won in other jurisdictions to consider our judi-
ciary proper guardians. However despite longstanding
political intervention in their appointments, at least,
once appointed, they offer a measure of independence.
The same cannot be said of the most senior Garda. And
neither body is properly supervised. No-one guards the
Irish guards.
Perhaps as the longstanding victim of a colonisation
that necessarily confounded confidence in authority, Ire-
land has been understandably loth to bestow power on
guards and guardians, and those guardians concomi-
tantly uncomfortable exercising such powers as are
delegated to them. As a result, propriety and oversight
will never flow from our political culture, they must be
zealously legislated for.
Currently members of the public have no forum to make
complaints about the judiciary. The judicial council
has been promised for over 20 years but has yet to be
legislated for. The Supreme Court recently pulled its
punches in deciding that Judge John Cooke should not
have sat in the High Court in a case involving
a company in which he held a valuable share
Supreme Court
