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Judging the Guards

Judges and the Garda let our society down: make the Garda Commissioner accountable to the Ombudsman, and establish a Judicial Commission.

Quis custodiet custodies? Pompous and all as it sounds, in my view, it’s the fundamental question for Ireland. Who watches over those who safeguard our democracy and our rights – our ‘guards’? Our democracy and our society is dysfunctional: those entrusted with the power to discharge positions responsibly are not fit to. If only because they are supposed to be standard-setters, the most egregious failures are in the area of justice – the Garda and the Judiciary, and the related government department, of Justice.

The Gards

Why has it not been fully digested that for over 30 years the police were tapping telephone conversations between client and solicitors, particularly in police stations?It is now suspected that at least 2,800 non-999 calls were monitored, in 23 Garda stations from 1980 to 2013. It’s legal to record conversations that include yourself, but not those that do not.

The government ordered an inquiry into the abuses but the Fennelly Commission, which is due to report shortly, said it is beyond its power to carry out a full search of 13 years’ of recordings that are on tapes and that it will look at samples only.

I cannot accept that Ministers for Justice Shatter, McDowell, Lenihan, Ahern, O’Donoghue – and their bureaucrat minions– did not know of this.

A former detective sergeant brought forward complaints about the practice but after pursuing internal mechanisms he claims he was “isolated, bullied and harassed” after doing so, and took action against the State.

Let us be absolutely clear. Justice officials and government ministers have been criminals. Or if they have not been, they have some pretty dynamic explaining to do. From Morris to Smithwick to Fennelly to O’Neill, the joke is that the only Judge not to have been asked to look into Garda delinquency is the one from Wanderley Wagon.

The fundamental problem with the police is that they do not know what they are doing. On a very basic level they do not know what it is to conduct an investigation. In Templemore, where I have lectured, they are trained largely not to investigate but to assume guilt. In this process they think singularly and exclusively about getting a result, oblivious to any lives they are damaging. They will often then distort, embellish and manufacture what they deem to be evidence. I do not want to blame them exclusively: in this respect, they are merely a product of our non-educational results-focused system.

In my view the police are a fifth column, a dangerous, certainly subversive force in our democracy. The great Adrian Hardiman made an entirely similar point in the JC case, detailing the critical findings of tribunals of inquiry into Garda conduct and recalling recent “deeply disturbing developments” in relation to the force and its oversight.. “If the ordinary citizen were provided with a defence of ‘I didn’t mean it’ or ‘I didn’t know it was against the law’, then many parts of the law would become completely unenforceable ».

Between May 2007 and November 2009, 111 complaints about alleged Garda violence and intimidation were submitted to the Garda Síochána Ombudsman Commission – established in 2005 and invested with more public hope than legislative power – by campaigners opposing Shell’s Corrib Gas Project in Kilcommon Parish in north west Mayo. A 2007 human-rights hearing conducted by the US-based Global Community Monitor, was told by Ed Collins, an American-born local resident of how he had “been beaten, assaulted, kicked, choked, punched… kicked and battered since day one”. One alleged Garda assault left him with a knee so badly damaged that for a considerable period he was confined to a wheelchair, unable to walk. Betty Noone told of seeing gardaí drag a woman to the side of a road – “…she tried to get up, and as a third Garda left her… he kicked her”. John Monaghan, a former Irish Press journalist told of how a Garda had threatened to rape his wife. He has an audio recording – that he says is of this incident.

Another recording shows how sergeant James Gill joked about raping two female protesters who had been arrested. But the Garda Ombudsman found that no action could be taken against him as he had retired. He had also exercised his right to silence throughout his questioning and “largely gave a ‘no-comment’ interview” to them. Not one of the accused gardaí was disciplined.

The Ian Bailey case currently wending its way to the French courts has aired serious allegations that gardaí considered paying someone in order to frame Bailey for murder.

Details of suspected drunk-driving involving Gardaun-friendly TD Clare Daly were leaked to the media by gardaí, only for the blood test to prove negative. Garda also leaked details of how her companion Mick Wallace TD was stopped and cautioned for using a mobile phone while driving. The normally scrupulous then-Minister for Justice revealed this, casually, during a ‘Prime Time’ debate with Wallace and is, naturally, being sued.

Meanwhile, the Fennelly Commission is investigating whether calls recorded in Bandon Garda Station about Bailey disclose unlawful Garda contact.

In 2009, then-Justice-Minister, Dermot Ahern, declined to explain why the state dropped a case against a presumed Garda informant, Kieran Boylan, caught in possession of €1.7m worth of cocaine and heroin while on bail. The Director of Public Prosecutions (DPP) informed the courts he would not pursue the case. An investigation in May 2013 by our weak Garda Ombudsman into the affair concluded with no evidence established of any improper conduct by gardaí. It was later revealed that gardaí had disrupted the Ombudsman’s investigation.

In 2014, the Ombudsman disclosed there had been a security alert at its office arising from a suspicion that gardaí were bugging the office due to its investigation into this affair.

All this in a constitution of democracy.
The Smithwick and Barr tribunals investigated Garda behaviour. The findings were shocking:; someone in Dundalk Garda station allegedly colluded with the Provisional IRA in the murder of two RUC officers; gross Garda incompetence resulted in the shooting to death of mentally fragile 27-year old John Carthy in Abbeylara, County Longford.

Worse, because the problems it outlines are endemic and unresolved, are the events that led to the Morris Tribunal. Frank Shortt, a chartered accountant was the victim of a shocking abuse of power on the part of a superintendent and a Detective Garda in Donegal who engaged in a conspiracy to concoct false evidence against him which in turn resulted in perjured garda evidence being given at his trial for allegedly permitting drugs to be sold in his pub in County Donegal in 1992. That perjury procured his conviction by a jury. What followed as a consequence for the plaintiff was a tormenting saga of imprisonment, mental and physical deterioration, estrangement from family, loss of business, and despair. As a High Court Judge put it, “the plaintiff was sacrificed to assist the career ambitions of a number of members of the Garda Síochána”. The debacle led to the Morris Tribunal.

That investigation’s second module looked into the death of cattle dealer Richie Barron which the judge described as “an extraordinary shambles”. “There is evidence of willful blunders, gross negligence, laziness, emotionally wrong-headed rushes to judge people as guilty and a determination by some parties to ensure that, even if there was no evidence, that the suspicions formulated were going to stick and stick permanently ».

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 Callinan 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 Taoiseach 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 service. McCabe was the whistle-blower who brought the practice of deleting penalty points to the public’s attention. It was a serious charge but one which was met with defensiveness rather than outrage. McCabe made serious 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 difficult for McCabe, while the ostensible political oversight provided by Minister Alan Shatter appeared somewhat deficient.

It is also worth remembering that the exposure of malpractice by McCabe was not just limited to penalty points. As the Irish Examiner noted: “other cases involving serious 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 finished”, which was delivered by Oliver Connolly, the ‘confidential recipient’ appointed to support whistleblowing 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 Iarfhlaith 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 attention 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. Connolly, 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 Ombudsman, 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 judicial 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 connections 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 controversial judge, Mary Devins, had penalty points terminated, asking “what had she ever done to anybody?”. 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 prejudices 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 frequently 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, 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 justice” more generally.

She claimed the judge singled her out for a bench warrant 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 leaving 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 legislating. 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 establishment of a judicial council: “the AJI supports in principle the recent call by the Chief Justice for the promulgation 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 procedures, 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 matters, 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 judgments were not to be seen in any way as a reflection on the integrity of Judge Cooke who “has served with distinction” 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 unction, 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 judiciary 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, Ireland has been understandably loth to bestow power on guards and guardians, and those guardians concomitantly 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.

David Langwallner