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McDidwell: zeal for Garda reform dwindled after McDowell’s departure

The PD Justice minister was a reforming minister who reacted positively to each new Morris report. His successors have dropped the ball

            “Regrettably the Tribunal… has come to the conclusion that An Garda Síochána is losing its character as a disciplined force… Ultimately the gradual erosion of discipline within An Garda Síochána is a developing situation that will, sooner or later, lead to disaster”.

Morris Report, 2 July 2004

For old hands who remember previous Garda tribunals, there are a lot of familiar faces down in Dublin Castle these days, inquiring into the latest Garda deviance to reach the point where calls for public inquiries can no longer be postponed or ignored.

The tribunal chairman, Peter Charleton, on secondment from the Supreme Court, was previously the lead for Frederick Morris’s inquiry into Donegal gardaí, his last gig as a senior counsel before his elevation to the High Court.

Two of his own barristers, Pat Marrinan and Kathleen Leader, both served time at Morris too. Marrinan, this time working for the tribunal itself, represented the Garda Commissioner and numerous individual officers (up to 95 by one count), while Leader worked for the tribunal itself. A third tribunal barrister, Diarmaid McGuinness SC, didn’t feature at Morris, but he represented the Garda Commissioner at the Barr and Smithwick tribunals.

And there are other familiar faces from a decade ago to be seen in George’s Hall. Desmond Dockery is there for the Association of Garda Sergeants and Inspectors. At Morris, on behalf of the Garda Representative Assosiation, he put forward the case for the hapless Detective garda Noel McMahon, who in his spare time enjoyed planting fake explosives caches in rural Donegal, which he would later “find” in order to further his career.

Later in the year, Dublin solicitor Brian Gallagher may make an appearance. His legal partner in the firm of Gallagher Shatter, former justice minister Alan Shatter, has a clear interest in the tribunal’s proceedings. Back in the day, Gallagher represented Adrienne McGlinchey, the daughter of Donegal senator Berrnard McGlinchey, whose whistleblowing about the aforementioned fake explosives finds set a surreal tone for Morris’s first module, before the tribunal moved on to the McBrearty family and their dogged and tenacious determination to clear their names after being wrongly accused of murder.

Listening to the evidence, it is likely that several of the great legal minds will turn on occasion to how much has changed since the Morris tribunal first sat 14 years ago, and on the things that seem not to have changed at all. And, although he did not work as a barrister during Morris, Smithwick or Barr, from his front-row seat where he sat during the first module looking at some of the complaints from Sergeant Maurice McCabe, former attorney general and justice minister Michael McDowell too must have wondered why there was another Garda tribunal.

With each new Morris report, McDowell continued the same pattern, welcoming the report and its recommendations, and announcing relevant reforms. There was to be a new Garda disciplinary code, new protocols on the handling of confidential informants, video and audio recording of all interviews in Garda stations as a matter of course, and new training in improved interrogation techniques.

McDowell was attorney general when the Morris and Barr tribunals were set up in March and April 2002 respectively, shortly before the general election of the same year. As Minister for Justice in the 29th Dáil Éireann, he moved the motion to establish the Smithwick tribunal two years later, on 23 March 2005. By then, the first Morris report had already landed on his desk, and the second was only weeks away. Several more would follow, the last in October 2008.

By the time of the first Morris report in July 2004, the Garda Síochána Bill (2004) was already well in train, making its way through the Oireachtas. Michael McDowell was upbeat at the press conference welcoming publication of the report, even as it outlined incompetence, gross negligence and corruption within the force. A Chief Superintendent and a Superintendent might have resigned on publication of the first report, with another fired by the cabinet, but the Minister could point proudly to his new reform bill, which he had described as the defining piece of legislation for his term of office, and promise a better future.

The Garda Síochána Act was an impressive piece of legislation. It replaced the old, toothless Garda Complaints Board with a new Ombudsman Commission, established the new office of the Garda Inspectorate, which would review policing and make recommendations based on best international standards and practices, and featured several other innovations such as the introduction of a Garda Reserve.

Five years earlier, the bill would have been enthusiastically welcomed for what it was, the most far-reaching and radical reform of policing in the history of the State (and arguably, since the establishment of Royal Irish Constabulary in 1836). But timing is everything, and the Act came on the heels of an even more radical piece of policing reform, when the Royal Ulster Constabulary was effectively dismantled and rebuilt as the Police Service of Northern Ireland in the wake of the Patton Report.

Next to Nuala O’Loan, who was building a reputation for political independence, the proposed Garda Ombudsman Commission looked like a diluted version of a superior product. No one was quite sure what to make of the planned Inspectorate, which seemed to be designed to carry out the functions that might elsewhere be assigned to an independent policing board, while allowing the Government to retain control of policing. In Northern Ireland, a major reform involved explicitly separating policing from intelligence gathering. An Garda Síochána retained an intelligence role, however, even though the blurring of intelligence and policing functions had contributed to many of the scandals emerging in Donegal.

Justice Frederick Morris, whose recommendations were scandalously largely ignored.

When the second Morris report was published in 2005, the judge pointedly included, as an appendix, a word-for-word reproduction of the recommendations chapter from the first report, a year earlier.

Despite this, and calls for the government to take a step back and beef up some of the provisions of the Garda Síochána bill, McDowell ploughed ahead, and it became law in the Summer of 2005.

With each new Morris report, McDowell continued the same pattern, welcoming the report and its recommendations, and announcing relevant reforms. There was to be a new Garda disciplinary code, new protocols on the handling of confidential informants (now rebranded in management-speak as Covert Human Intelligence Sources), video and audio recording of all interviews in Garda stations as a matter of course, new training in improved interrogation techniques, and an overhaul of the ways in which confidential intelligence reports were assessed and managed.

The final reports went to Dermot Ahern. The contrast with McDowell could not have been starker. Instead of a press conference, there was an emailed press release from the Department of Justice. The press release selectively highlighted critical comments made by Justice Morris about Labour TD Brendan Howlin and Fine Gael MEP Jim Higgins, who had brought confidential information to the then Justice minister John O’Donoghue in June 2000.

In May 2007, the voters decided they preferred John Gormley to Michael McDowell, and the Greens replaced the Progressive Democrats as Fianna Fáil’s coalition partners. The late Brian Lenihan took over the Justice portfolio, and it was to him that the sixth Morris report was delivered in April 2008. It detailed the treatment (and mistreatment) of ten people in Garda custody during the investigation into the hit-and-run death of cattle dealer Richie Barron, wrongly treated by gardaí as a murder.

Lenihan chose to publish the three-volume report on the same day Brian Cowen was elected Taoiseach, effectively burying it. The Minister claimed he had no choice in the timing, as he was legally obliged to publish it within fourteen days of receiving it. Opposition TDs disagreed.

“Minister Lenihan received a copy of the report from the tribunal on April 24 and could have published its findings at any stage of the last two weeks”, Fine Gael justice spokesperson Charlie Flanagan said. “But it looks like Minister Lenihan and his Government were deliberately trying to bury the findings of this report”.

Meanwhile Labour spokesman Pat Rabbitte called the timing “calculated and cynical”, and Sinn Féin spokesperson Aengus Ó Snodaigh said the Government wanted to “bury” the report. Cowen reshuffled his cabinet, moving Lenihan to Finance, so the final reports went to Dermot Ahern. The contrast with McDowell could not have been starker. Instead of a press conference, there was an emailed press release from the Department of Justice. The press release selectively highlighted critical comments made by Justice Morris about Labour TD Brendan Howlin and Fine Gael MEP Jim Higgins, who had brought confidential information to the then Justice minister John O’Donoghue in June 2000. The press release, issued hours before the reports themselves, were pretty much the only thing journalists had to talk about in the first news bulletins and evening drivetime shows that day, and the selective emphasis in the first hours framed much of the public impression of the final reports.

Whatever criticisms might be levelled at McDowell’s handling of garda reforms, there was a palpable sense after his departure of a foot being taken off the pedal, as reform slowed down. Ministers Brian Lenihan and Dermot Ahern were not reformers. Alan Shatter took too much on trust from senior gardaí and Frances Fitzgerald spent her time putting out bush fires. It could be argued that other issues took precedence in the following years, as the Celtic Tiger bubble burst, but whatever the reason, the force began to drift again.

In the closing days of the Morris Tribunal’s evidence, in late 2007, there were already whispers among journalists of a new Garda scandal brewing in the Cavan-Monaghan division, with the potential to be every bit as shocking as Donegal. The following year, as the last of the Morris reports were being published, an unassuming sergeant in Bailieboro garda station, Maurice McCabe, went to the confidential recipient with details of cases he believed had not been properly investigated in Co Cavan.

Garda HQ and the Department of Justice have shown they lacked, and continue, to lack the nous, and the appetite, for reform.

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