Sunday 20 January 2019

Sword of Justice needs to be sharpened

The politicians are using grandiose words about whistleblowers. But we need action

By Tom Halliday
By Tom Halliday
Gene Kerrigan

Gene Kerrigan

It's now five months since we found out that the Garda Commissioner, Noirin O'Sullivan, made a very serious allegation against whistleblower Sgt Maurice McCabe.

It was false.

Last Thursday, the Minister for Justice unloaded half a tonne of bullshit on to the floor of the Dail.

Frances Fitzgerald spoke of disclosures by other gardai. She said it's important that they be properly dealt with. In solemn tones, she spoke of how there must not be a "rush to judgment".

Left-wing TDs had complained that whistleblowers make claims and nothing happens, meanwhile those making the claims are victimised.

Fitzgerald took the high ground: "I am the minister charged with defending the principles of justice that are fundamental to our society." And she would not "set aside those principles in this or any other case".

Because "due process" is so, so, so important.

Just so we're clear, no one asked Fitzgerald to set aside "the principles of justice". The minister spoke as though she personally stands atop a Mountain of Justice, her Sword of Truth slashing away at the hordes of justice-haters who threaten to engulf our vulnerable nation.

The Minister for Justice is an administrator. Budgets and process. Her job isn't about "the principles of justice that are fundamental to our society".

Fitzgerald said it was important that "a procedure be put in place in order that such claims can be properly assessed and that the people who are the subject of such claims will have a chance to respond to them".

She spoke of having to consult the Attorney General, in order to "put in place" a "procedure" to properly assess such claims. "There will be no delay."

So, the procedure must be put in place. In the same speech, she said: "There is a clear procedure outlined as to how allegations - protected disclosures - should be dealt with."

The procedure exists and she has to put the procedure in place.

This is nonsense. Every word of it. She's using waffle appropriate to a judicial framework to excuse a procedural failure.

There are management and political decisions to be made to ensure the proper working of an existing policing structure. Fitzgerald, Enda Kenny and the rest of them have failed to do this job - and Fitzgerald last week dressed herself in the grandiose armour of the courtroom.

It's as though justice is denied unless every management decision is run through some undefined, but sacred, judicial process and is made "beyond a reasonable doubt".

Every time a garda whistleblower alleges mismanagement - or worse - it's as though it's happening for the first time. The minister has to go off and polish her Sword of Justice while she consults with someone or other about something or other.

There's no need for this. All the bullshit, the posing, is about running in circles, to give the impression of doing something. And the days and the weeks and the months drift on, and if we get far enough away from the original problem it will become indistinct, and we begin to assume it somehow solved itself while we weren't paying attention.

Let us remind ourselves of the allegation that Commissioner O'Sullivan made against Sgt McCabe.

The sergeant's claims involved mishandled cases, including murder and assault. He revealed problems about the day-to-day handling of matters that damage our lives. If gardai such as McCabe don't alert the us to such faults, they will never get fixed.

Mr Justice Kevin O'Higgins assessed the McCabe case, and whether his claims were properly responded to. In the course of this, Colm Smyth, the barrister representing O'Sullivan and other gardai, told Mr Justice O'Higgins: "I have instructions from the Commissioner, judge ... my instructions are to challenge the integrity of Sgt McCabe and his motivation."

The judge asked: "The integrity?"

O'Sullivan's lawyer replied: "His motivation and his credibility in mounting these allegations of corruption and malpractice."

Again: "This isn't something I'm pulling out of the sky, judge, I mean I can only act on instructions."

Smyth said "the evidence will demonstrate" McCabe's failings. That evidence allegedly consisted of sensational statements by two gardai who claimed McCabe admitted to them that his allegations arose out of malice.

If credible evidence of this existed, McCabe's admission would demolish his claims, totally discredit him and place him in a perilous position.

McCabe had become wary of efforts to entrap him and had begun recording conversations. The recording of the meeting with the two gardai was on an old phone. It took him hours to find it.

When he produced this evidence, the alleged statements about his confession appear to have evaporated.

Now, Smyth didn't invent this. No lawyer would. He was acting on instructions from Commissioner O'Sullivan. We don't know why she came to issue these instructions.

Later, Smyth said the "integrity" bit was an error on his part, but to this day - as far as we know - O'Sullivan has not withdrawn the claim her lawyer raised on her instructions about McCabe's "credibility" and "motivation".

Although five months have passed, we don't know what the hell was going on. All of this came into the public domain - and then, in that peculiar fashion in which public controversies are left unresolved, it kind of withered away. Other things happened, bits and pieces of other controversies grabbed our attention and the O'Sullivan scandal slipped away down the memory hole.

And today there are other whistleblowers, fresh controversies, and the minister waffles about putting procedures in place, consulting the Attorney General - all very busy, running around, wielding the Sword of Justice, fundamental principles on which our civilisation rests - bullshit, all of it.

Was Commissioner O'Sullivan misled. If so, by whom? There may be an innocent explanation for what - with our limited knowledge - appears to have been an aborted attempt to mislead Mr Justice O'Higgins and damage Sgt McCabe. Or that might be a misreading of the whole business.

Once this controversy arose, one might think that O'Sullivan would have been taken out of her management role - without prejudice - and the evidence assessed at a political level. As it was, she continued to preside over the force after her own lawyer, on her instructions, made a groundless assertion about the motivation of a whistleblower whose position was vindicated by Mr Justice O'Higgins.

Selective confidential garda information is strategically leaked to the RTE crime correspondent; a TD who backed Maurice McCabe - Clare Daly - was arrested on a drunken driving charge that did not stand up, was handcuffed by the side of the road and taken to a garda station. A range of gardai fed gossip to favoured journalists.

In such circumstances, we need firm political decisions, not waffle. Every statement should be taken on affidavit. And any garda who has ever had a single, independent passing thought should ensure their every conversation with other gardai is recorded.

Sunday Independent

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