Why has the O’Higgins report not yet been published?
It is now two weeks since the report landed on the desk of the Minister for Justice and still no sign of it.
The report is the outcome from the O’Higgins Commission of Investigation, chaired by former High Court judge Kevin O’Higgins. It was established to investigate a series of cases of alleged garda malpractice in criminal investigations in the Cavan/Monaghan division.
These came about following complaints from Sergeant Maurice McCabe, who had served as station sergeant in Bailiboro, Co Cavan.
The report is important on a number of fronts. In the first instance, Alan Shatter was forced to resign as Minister for Justice on foot of the scooping report that preceded O’Higgins, conducted by barrister Sean Guerin.
Mr Shatter has called for the immediate publication of O’Higgins to finally remove, as he sees it, a stain on his reputation that was delivered by Guerin.
Sergeant McCabe is in the same boat to some extent. Since 2007, he endured ferocious opposition to his lonely stance from within the force. It has been acknowledged that he and his family have suffered enormously because he pursued the complaints within the force when he felt they weren’t properly addressed, and then he pursued another legal route outside the force to have the matter addressed. He is understood to want the whole thing finally out in the open.
The former garda commissioner Martin Callinan is another awaiting the publication. Other members of the gardai who were involved in the cases, and senior officers who conducted the internal investigation into Sergeant McCabe’s complaints are also waiting to have a cloud lifted from their conduct.
On the face of it, there seems to be little reason to prolong the agony. The day after Frances Fitzgerald received the report, she brought it to cabinet, which argreed to refer the matter to the Attorney General. The only possible impediment to publication would be the prospect of interfering with any future criminal case. Such a possibility is very remote. All of the criminal cases under review are historic, dating from 2007 and 2008. All have been dealt with through the system. The matter at issue is how they were dealt with. Irrespective of any outcome, none of them will be re-entering the criminal justice system.
Apart from the implications for those who are involved in the matter at issue, there is another, more pressing reason for publication. In the vacuum that exists, elements of the report have been leaked out to sway public opinion one way or another.
This is standard fare in scenarios such as this. First impressions tend to be the most lasting. O’Higgins runs to 360 pages and if the report follows a trend of a careful judicial balancing act, there may well be something positive for all concerned parties.
Anybody listening to Morning Ireland and the News At One on RTE Radio 1 yesterday would have heard a of the report. The station’s crime correspondent, Paul Reynolds, has had sight of the document and he delivered extensive coverage.
Both segments were preceded with a headline that the report has stated allegations of corruption within the force were rejected by O’Higgins. Mr Reynolds contributions placed at least as much emphasis on what appears to be criticism of Sergeant McCabe as it did on the transgressions that the sergeant had complained about. The casual listener might have concluded that the complaints now sound like much ado about a few errant and inexperienced grands of ordinary rank. An impression might also linger that McCabe blew the whole issue out of proportion, despite the best efforts of more senior officers to diligently address his concerns in a manner befitting a professional police force.
It will indeed be a major surprise if such an impression survives publication, but we simply don’t know until everything is out in the open.
What we do know is that those who hold positions of power tend to be well practiced in the art of spinning in a vacuum.
The most cogent example of such spinning in recent times was that performed by Enda Kenny and his entourage just ahead of the publication of the Fennelly interim report last September.
Fennelly was briefed with examining the circumstances surrounding the departure from office of former commissioner Callinan in April 2014. There were accusations – based on credible evidence – that Enda Kenny had sacked the commissioner without due process or cause. If such an accusation was proved it would have ended Kenny’s political career.
Fennelly delivered his report to the Taoiseach on September 30. The following day, hours before publication, Mr Kenny announced that he was confident of vindication.
He then issued an electronic statement at 5.22pm, attached to a copy of the report. The statement proclaimed his innocence.
“I welcome the report’s clear and unambiguous finding that the question of removing the former commissioner from his position was not even discussed,” Mr Kenny said.
“The report confirms that the former commissioner decided tdo retire, and that he could have decided otherwise.”
This was a spun version of what was within the report. Fennelly’s conclusions were much more nuanced. Yet Mr Kenny got out his version of the truth first. And guess what? The reporters couldn’t access the attached report to find out the full truth because the system broke down.
Half an hour later, Mr Kenny went on the Six O’Clock News to re-affirm his innocence with selective reference to Fennelly before Bryan Dobson could have even got his teeth into the report.
IT was days before proper analysis of the report demonstrated that Kenny’s claim of vindication was highly qualified.
Something similar may be going on now in the absence of the publication of O’Higgins. Only publication will tell whether all is as honky dorey as some media reports are claiming. In the meantime, the full truth is suffering in a vacuum.
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