Eddie Molloy: 'We must not take a backward step by stopping healthy dissent in Garda force'
All judges are concerned to establish the truth in the cases that come before them, but truth, and more so its polar opposite, lying, is so troubling to Mr Justice Peter Charleton that he felt compelled to write a scholarly book about lying and its disastrous consequences for individuals, institutions and nations.
In the preface to 'Lies in a Mirror: an Essay on Evil and Deceit' (Blackhall Publishing, 2006), he discloses that: "The patterns of evil that I have observed over 25 years of practice as a lawyer ultimately became so troublesome that I had to try to make some sense of what confronted me every week." Chapter 1, 'The Dynamic of Evil', begins: "There is a lie behind every crime."
The Morris Tribunal, in which he served as a senior counsel, was under way for four years when his book was published. So it is no surprise that his searing experience of rampant lying to Judge Morris resonates throughout his Disclosures Tribunal Report. He sees the similarities and is dismayed that so little has changed in the meantime. "This tribunal has been about calling the police force to account. The Morris and O'Higgins tribunals were about the same thing. Central to these inquiries has been the truth."
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There is much more to the findings of the Disclosures Tribunal than the vindication of Maurice McCabe. Like Morris, Charleton exposes a persistent, deep-seated malaise in the fabric of An Garda Síochána with ramifications far beyond the particular case.
In 'Lies in a Mirror', he explains the dynamic of evil. An individual or group is firstly framed by a lie that they are a threat to the institution or society, for example Jews in Germany; "legitimate targets" in Northern Ireland; CNN, the press in the US; or, in this case, "disgusting" whistle-blowers in An Garda.
The consequences of spreading these lies are that they legitimise ostracisation, persecution or worse. Some of Maurice McCabe's colleagues joined in the campaign of innuendo and vilification, treating him as a pariah; Garda unions hesitated to support him; and when it came to the Disclosures Tribunal, of 430 senior officers invited to tell what they knew, only two came forward. Such chilling consequences then act as a warning to anyone else who might dare to speak up.
People who challenge the prevailing culture serve a redemptive function in organisations, as explained in 'Lies in a Mirror'. Organisations trapped in the myth of their own goodness, and the corresponding badness of those who challenge and hold them to account, have lost the capacity for reflection. In the Disclosures Report, Charleton says: "The gardaí offered no criticism of themselves."
He emphasises that: "A cultural shift requiring respect for the truth is needed." The size of this challenge was highlighted by the cultural audit of An Garda Síochána, which I oversaw with Prof Mary-Rose Greville of TCD in May. The lowest score on the assessment of compliance with the Code of Ethics was "speaking up and reporting wrongdoing" (a score of 5.5 out of 10). Behind this headline, "there is a lack of support for colleagues when they speak up" (5.3); "nor are colleagues treated fairly when they do" (4.8).
A good start, therefore, to breaking the strangle-hold of the inherited cultural web is the appointment of an outsider as the new commissioner. Any reformer, however, will encounter a significant cohort of senior people whose malign influence is at the root of the endlessly recurring policing scandals. These people will not just roll over. They have too much to lose. They will linger on in the shadows, only to emerge again, stronger than ever when the fuss over this latest explosive report dies down.
Therefore, the commissioner needs the freedom and resources to transform the apex of An Garda, ensuring that, for a start, those holding the top 60-80 posts possess the right mix of professional, technical and managerial skills and, crucially, exhibit a genuine personal commitment to the Code of Ethics. By July this year, only 40pc of gardaí had agreed to sign up to the Code of Ethics.
The Morris, O'Higgins and Charleton tribunals are "about calling the police force to account" but, as noted, tribunals have had negligible impact on An Garda. The Commission on the Future of Policing in Ireland, of which I was a member, addressed this intractable problem and, in a minority opinion, Dr Vicky Conway of DCU and I disagreed with the majority of members on how best to hold An Garda to account.
The presenting problem was that Gsoc, which investigates complaints against gardaí, was ineffective due to weak underpinning legislation, inadequate resources and complaints-handling processes that were designed to fail. The Garda Inspectorate had produced 11 reports containing hundreds of recommendations that were ignored by An Garda. That is until the Policing Authority came along and began, probably for the first time in the history of the force, to breach the walls of resistance to external scrutiny and accountability.
At public meetings and in private, the Authority demanded explanations for failure to implement specific recommendations, for example regarding civilianisation, and forcefully challenged wildly bogus Garda statistics about penalty points and breathalysers. The work of these oversight bodies, including the thoroughly professional, forensic scrutiny of An Garda by the Policing Authority was dismissed in the Commission's report, The Future of Policing in Ireland, as reflecting merely a "blame culture that needs to be swept away".
The real problem all along has been that the design of all three bodies was flawed from the outset. Then, instead of fixing the obvious weaknesses, the majority Policing Commission recommendation on accountability is to neutralise the pesky Policing Authority and replace it with a statutory "internal" supportive board, similar to the boards of State bodies like Bord na Móna or Enterprise Ireland, and that this "internal" board would report to the Department of Justice.
Last Wednesday, Commission chair Kathleen O'Toole and three other Commissioners who were invited to appear before the Oireachtas Justice Committee defended the majority opinion.
When Matthew Elderfield came to Ireland to clean up the mess after the failure of banking regulation, he said what was needed was "invasive scrutiny and effective sanctions". We still don't have that in banking, hence within a year of the catastrophic collapse of the banks, we had the tracker mortgage scandal.
All banks have boards comprised of the great and good who are proposed for membership of the "internal" Garda board. Furthermore, I don't believe even the banks would characterise their boards as "internal".
Mr Justice Charleton wearily concludes his Disclosures Report: "It has been a dreadful struggle to uncover what may have gone on behind closed doors." The majority recommendation of the Commission on the Future of Policing would close these doors even tighter, just when the Policing Authority was beginning to prise them open in pursuit of transparency and accountability.
If implemented, this recommendation would be a backward step in efforts to exorcise the culture of suppressing healthy internal dissent, lying and cover-up that has bedevilled An Garda Síochána for decades.
- Dr Eddie Molloy is an independent management consultant and member of the Commission on the Future of Policing in Ireland