The Kerry Babies Tribunal report was controversial, divisive, and raised more questions than answers. Law expert Vicky Conway, as part of a book project, speculated as to what might happen were a judge asked to consider at this point in time whether there should be a fresh tribunal. The following is an edited extract.
IN SETTING up the Kerry Babies tribunal, Mr Justice Kevin Lynch was tasked with determining what did in fact occur, where the truth lay between the differing accounts provided by the Hayes family and the investigating gardaí.
Once satisfied with what did happen, Mr Justice Lynch was also tasked with determining whether what did happen is what should have happened, ie whether the actions of those involved were within the parameters of the law.
I determine that two aspects of the tribunal are problematic: The procedure adopted and the findings of facts made.
With respect to my colleague, and being conscious not to apply current standards, I have identified five problematic features of the approach and procedure adopted in the course of the hearings.
First, in his opening address to the Tribunal Mr Justice Lynch stated: “Insofar as one can seek an analogy with a trial, it has some similarity to a civil action by the Hayes family for damages against the guards.”
This is a direct and inappropriate comparison to an adversarial system, and I am concerned that this statement may have prompted parties to the proceedings to adapt their presentation of evidence and their general approach to proceedings accordingly.
In other instances, adversarial language is used: In the report, Mr Justice Lynch refers to Joanne Hayes as the “wrongdoer”.
I have an overarching concern that the tribunal deviated from a strictly inquisitorial approach and can only be described as, at least on occasion, adversarial.
Were Mr Justice Lynch applying accusatorial standards, this would substantially affect decisions as regards the procedure of the tribunal as well as his findings.
I will now address other procedural concerns which are problematic in themselves but also substantiate my conclusion that Mr Justice Lynch applied an inappropriately accusatorial standard.
Second, the tribunal spent substantial time on the theory of superfecundation. This was the theory that if Ms Hayes had sexual intercourse with two men in a short space of time, she could, in theory, have become pregnant by both and borne twins of different fathers.
This was the basis for the Garda’s continued pursuit of the Hayes family after it had been established that the two babies had different blood types (from May to October 1984).
This theory was first raised as early as day three of the tribunal but was not dismissed until day 72. Dr Patrick Lincoln showed that Ms Hayes could not have carried a child with the Cahirciveen baby’s bloodgroup.
In the meantime, the issue was repeatedly discussed, almost as if the tribunal’s task was to establish whether it could have occurred, despite the fact that the DPP had discounted it.
The question focused on was whether Ms Hayes had had sex with two men, and not, as the terms of reference required, why the gardaí clung to such an improbable theory, to the point that they failed to explore other avenues.
Mr Justice Morris, when considering police misconduct in Donegal, discussed this as “tunnel vision” which “can fuel a drive to suspect certain individuals while ignoring evidence that has the potential to exonerate them”.
The approach Mr Justice Lynch adopted and permitted in relation to this particular issue was adversarial: Gardaí sought to justify it as a valid line of inquiry while Ms Hayes’ credibility was repeatedly questioned.
There was substantial discussion of who the second father might be, even though the man the gardaí suggested, Tom Flynn, was not in the jurisdiction at the relevant time.
This speculation was raised in the initial days of the tribunal but not accurately eliminated until the 32nd day, by which time the theory that Ms Hayes had another partner had become a valid line of inquiry.
I accept a certain amount of relevance to this evidence; it established suspicion on the part of gardaí that justified the initial questioning of Ms Hayes and her family.
However, prior to the tribunal’s establishment, the DPP had accepted that Ms Hayes had not killed the Cahirciveen baby. Why Mr Justice Lynch allowed this line of questioning to feature so prominently throughout the tribunal is difficult to understand.
The relevance warranted this issue being raised, but it should have been addressed in full early on in proceedings and dismissed. In the inquisitorial system the gathering of evidence and the calling of witnesses is the tribunal’s responsibility.
It must therefore bear the responsibility for these delays which diverted the tribunal’s attention away from the central concern of the terms of reference: Why gardaí continued this line of inquiry despite an abundance of evidence indicating otherwise.
Instead we see statements from Mr Justice Lynch: “There were times when we all thought she had twins.”
Not only did this approach divert attention from what should have been the tribunal’s focus, but it also directed unnecessary attention to private matters of Ms Hayes’ sexual history.
My third concern centres on the nature of questioning of Ms Hayes. She was questioned for five days, the longest that anyone had spent on the stand in Ireland up to that point.
She was asked over 2,000 questions. She was quizzed at length about intrinsically private issues: A previous miscarriage, about the size of blood clots, about previous sexual partners, about her menstruation, about her contraceptive practices.
The impact on her was clear: She was visibly upset throughout this questioning and broke down on several occasions. Others were questioned at length about her private life: A gynaecologist was questioned about the size of her uterus and her breasts. The relevance of this level of detail to the terms of reference is not clear.
The tribunal’s response when Ms Hayes experienced difficulties merits consideration. One morning she left the stand hyperventilating, vomiting, and shaking in what her doctor described as a state of “acute anxiety”. She had to be sedated.
Nevertheless, she was required to return to the stand that afternoon and answered questions with closed eyes and a slurred voice. Friends were concerned she would take her own life that evening.
Proceedings were suspended twice; however, Justice Lynch stated on one occasion where he refused to suspend proceedings: “If I rise now I’ll be rising every five minutes. Which is better, sooner or later?”
Mr Justice Lynch did not reflect on Ms Hayes’ difficulties at all. Indeed the only mention of Ms Hayes’ questioning in the report is to comment that she was asked about her garda interrogation ‘in a quiet and sympathetic way’.
Ms Hayes was not fit to be questioned at this time. For reasons of credibility of the evidence presented to the tribunal, she should not have been questioned in this way. Such private details were not relevant and the form of the questioning was inappropriate.
I reiterate that Ms Hayes was a witness, assisting the tribunal in inquiring into whether Garda misconduct contributed to her making a false confession. At no point does the tribunal recognise that the matter at issue was the death of Ms Hayes’ child. She was not on trial for this and so a certain degree of sensitivity should have been shown toward her as she discussed her loss.
The tribunal expressed sympathy to the wife of a garda who was at the centre of proceedings who miscarried during the course of the tribunal, describing her as “far more gravely wronged than any member of the Hayes family”.
When protesters gathered to display their support for Ms Hayes, Mr Justice Lynch determined that this constituted “serious and unwarranted harassment” of gardaí, and that the protests were “grossly improper”. This expression of compassion to professional police officers, in the face of what Ms Hayes endured, was inappropriate.
I conclude that the nature of the questioning of Ms Hayes was inappropriate and indicative of a broader problem with the focus and orientation of the tribunal. I apologise to Ms Hayes on behalf of the judiciary for the ordeal she experienced over the course of that week.
Fourth, proceedings focused to an inordinate degree on whether Ms Hayes had a propensity to lie.
Again, given that the truth of her testimony needed to be determined, some questioning as to her credibility was permissible. But this is not what happened.
Lawyers for gardaí asked her colleagues if they expected such lies from Ms Hayes, had they “reckoned how cunning she could be”? This questioning did not aim to establish whether Ms Hayes was credible, but whether others realised the extent of her lying.
When asked to intervene, Mr Justice Lynch replied that he would not “limit unduly the bounds of language used”.
Psychological evidence was presented that Ms Hayes was a liar, though no such efforts were made against those she accused of lying: The investigating gardaí. These questions as to her creditworthiness contribute to a palpable sense that Ms Hayes was on trial and that this was an accusatorial format.
A final point concerning procedure is that the tribunal report is surprisingly free from legal detail. Indeed, the report does not consider the standards against which Garda conduct was being evaluated.
To some extent this is a product of the time. Legislation regulating the Garda conduct in cases of infanticide and concealment of birth or the treatment of suspects in custody was negligible, nor was case law well developed.
In conclusion, I find that in respect of the issues identified herein the tribunal adopted inappropriate, at times defective, and accusatorial procedure. Not only did this cause unnecessary distress and hardship to Ms Hayes and her family, but it may have altered the totality of the evidence presented to the tribunal.
At the very least, it calls into question the “objective justifiability” of the evidence forming the basis of the tribunal’s conclusions.
The tribunal’s findings
Early in his report, Mr Justice Lynch commented on the relationship between Ms Hayes and Mr Locke. He levels much criticism at Ms Hayes as he deems her to be the “main or dominant force in the liaison”.
Mr Justice Lynch makes numerous judgments as to her character; she was “well aware” he was married but “allowed herself and indeed, encouraged herself to develop an overriding infatuation… entertained foolish dreams”.
He stated that she was “anxious to become pregnant by him”. No evidence was presented to substantiate this conclusion.
Ms Hayes’ testimony was that she “just happened to fall in love with him” and Mr Locke confirmed that he too was in love with her.
Rather than simply accepting the existence of an extramarital relationship, Mr Justice Lynch constructed Ms Hayes as calculating. This finding as to her character is unsubstantiated.
What overshadows the tribunal’s main findings is the credibility of Ms Hayes and her family. This determined what was found in relation to both what happened to the babies but also how gardaí treated the family.
They had admitted that they have made false confessions: The tribunal should have been concerned with why that had happened. This is not substantially examined.
Before even investigating the family’s allegations, Mr Justice Lynch determined that following the birth, “the whole family embarked on a planned deception of the neighbourhood”.
The wording is laden with culpability. Rather than recognising something terribly distressing had occurred in the family home, that their failure to reveal the truth may have been motivated by a wish to retain privacy, and fear of a prosecution for concealment of birth, Mr Justice Lynch presents them as devious and conniving.
He barely acknowledges that Ms Hayes claimed gardaí threatened that her child would be placed for adoption, the family farm would be sold, and her mother would be prosecuted for murder.
Part IV of the report is concerned with the Hayes family’s allegations. This section begins with a particular emphasis on the female members. The findings within this chapter are unreflective of the complexity of the situation and are problematic when contrasted with the chairman’s sympathetic analysis of the credibility of the garda witnesses.
The statements and testimony of the Hayes family are inconsistent. It was appropriate for Mr Justice Lynch to attempt to find the truth between these accounts. However, in his efforts to find that truth, Mr Justice Lynch reaches unsubstantiated findings to corroborate his overarching conclusions.
For instance, when considering the conflicting accounts presented by Mrs Hayes (Joanne Hayes’ mother) to the gardaí, he concludes “Mrs Hayes invented this new evidence to try to corroborate the case that Joanne Hayes had gone outside and had had the baby outside in the field”.
A motive that fits with his analysis is presented without reference to any supporting evidence for this conclusion or the conditions of the detention.
By contrast, when Ms Hayes alleges that investigating gardaí did not read her statements back to her, Mr Justice Lynch describes this as a “totally unnecessary, totally useless, and totally obvious lie”.
His reason for concluding that this was such an outlandish lie was that “Whatever the gardaí might do, they would not be so ridiculously stupid as not to read over a statement before getting the interviewee to sign it”. Again, there is no basis for making such a judgment of the gardaí concerned.
Ms Hayes is described as lying on the witness stand, but again no allowance is made for her mental and physical state during this questioning, that it related to her child’s death, and that she may still have feared prosecution for concealment of birth, if not infanticide. The context of the evidence is not made relevant, as would be proper in an inquisitorial tribunal of inquiry.
The tribunal report then assessed the credibility of the gardaí but concerned itself not with whether gardaí perjured themselves but whether they had elevated “honest beliefs or suspicions into positive facts”.
This appears a more sympathetic analysis. Acknowledging gardaí made problematic statements, Mr Justice Lynch concluded: “They are not barefaced lies on the part of the gardaí (as regrettably is the case with members of the Hayes family) but they are an exaggeration over and above the true position, or a gilding of the lily, or wishful thinking elevated to the status of hard fact.”
Why this differentiation between forms of untruth for gardaí but not for others?
A matter consuming a great deal of the tribunal’s time was the manner of the baby’s death on the farm.
Mr Justice Lynch determined that the reason the Hayes family lied about the Cahirciveen baby was to cover up for the wrong doing on the farm. Mr Justice Lynch determines that Ms Hayes killed the baby, stating that she choked him to stop him crying and hit him on the head with a bath brush.
Not only are these conclusions unsupported by specific evidence but the available evidence is contradictory: the State pathologist specifically stated that the baby was not hit on the head with the bath brush.
To find that Ms Hayes was responsible for her child’s death was insupportable and will unquestionably have been most hurtful for Ms Hayes.
What is not disputed is that many members of the Hayes family made a false confession. Because it found the family had and continued to lie, and that the motive for this was to cover up wrongdoing on the farm, the tribunal did not examine Garda methods adopted in these interrogations in depth.
The family alleged the Garda interrogators threatened that children would be taken into care; that the dead children would haunt them; that they would lose their home and farm; that they would be charged with murder; that they were physically abused and told to pray; and that they were never told they were not under arrest and could leave at any time.
With hindsight and knowledge of more recent instances of Garda misconduct, it is perhaps easy to say the allegations made do not sound particularly incredible. Mr Justice Morris documented similar misconduct by gardaí in the Donegal division in his inquiries.
But even without hindsight, there were valid reasons to be cautious of the Garda testimony. The terms of reference necessitated exploration of why gardaí did not examine other possible explanations. The tribunal should have asked why, once the blood test results were known, gardaí continued to pursue Ms Hayes, rather than re-examining the case and exploring other possibilities.
This tunnel vision continued to be evident at trial where gardaí giving evidence continued to maintain that Ms Hayes had twins, despite all the scientific and forensic evidence that disproved these theories. This tunnel vision and unwillingness to explore other possibilities should have been a more substantial area of focus for the tribunal.
I find Mr Justice Lynch made unsupported findings of facts regarding the credibility of the Hayes family, the credibility of the gardaí, the cause of death of the baby on the farm, and the treatment of the Hayes family during interrogation, among other things.
The significance and impact of these findings for those involved must not be underestimated. I am alarmed that for over 30 years, the official public record has stated that Ms Hayes caused the death of her child and lied deviously afterwards.
I recommend it be recognised that these findings cannot be substantiated and should not be considered to have lawful authority. I add a further apology to Ms Hayes on behalf of the judiciary that these findings were made; at a time when she should have been supported through her grief she was labelled responsible. I can only imagine the hurt this caused.
I conclude the tribunal’s procedure was inappropriate and that Ms Hayes deserves a State apology for her treatment at the time. I have gone to great pains to ensure I am not unduly critical of Mr Justice Lynch, given the landscape of Ireland at the time, but the insensitivity displayed is difficult to justify even in that context.
I conclude that many of Mr Justice Lynch’s findings lacked substantiation and, as far as it is within my power to recommend it, should no longer be considered to have lawful authority.
What is perhaps most striking in re-reading the report, transcripts, media coverage, and subsequent statements, is the extent to which Joanne Hayes was not listened to at the original tribunal. Whether she had any involvement in the death, Ms Hayes was still a recently bereaved mother.
She had requested that allegations of Garda abuse be investigated, but the law at the time did not provide a mechanism for that beyond internal inquiries. She had not sought a tribunal in the first place. She was clearly significantly traumatised by her experience of giving evidence at the tribunal.
The report brands her a liar for reasons that are not evidenced. Since its publication she has repeatedly refused to discuss the case and has actively sought to prevent any dramatisation of the events in film.
Unless witnesses voluntarily recant their evidence from the original tribunal, the evidence that would be examined by a new tribunal would likely not be very different. We can hope a new inquiry would apply proper procedures and be more sensitive and focused in its approach. That is not to say, however, that it would not be traumatising for those concerned, or that it would reach any more satisfactory conclusions. Were the Hayes family adding their voice to calls for a review, I might conclude differently.
To conclude, while I find there is a case for a new inquiry to be held and there is a public interest in establishing the truth, I am unconvinced as to urgency and insufficiently satisfied that a preferable outcome could be reached as to warrant putting the Hayes family, and in particular Ms Hayes, through such an ordeal again.
Edited extract from ‘Northern/ Irish Feminist Judgments: Judges’ Troubles and the Gendered Politics of Identity’