The O’Higgins report says any disciplinary proceedings against gardaí, which might conceivably arise out of his investigation, ‘would not be helpful’, writes Cormac O’Keeffe
The way in which the O’Higgins report was released to the public again belies official claims of a new era of openness and transparency in justice and policing.
This reality is reflected in the opening pages of the O’Higgins report, eventually published at noon yesterday. Mr Justice Kevin O’Higgins says the compliance with the “obligation” to provide documentation by the gardaí was “unsatisfactory”.
He says the fact these documents were readily available at Bailieboro Garda Station — “the epicentre of this investigation” — made this failure “disappointing and difficult” to understand. The former High Court judge says while there was not “a deliberate lack of co-operation”, the commission “expected better” from An Garda Síochána.
Sergeant McCabe is, the judge tells us, the “central figure” in the commission’s investigation.
On one hand, he could not heap greater praise: He is dedicated; committed; a person who has done the public service in highlighting investigations where people were “not well served”.
The judge notes that all the events had been “extremely stressful for him and his family over a long period of time”.
Mr O’Higgins states: “Sergeant McCabe impressed the commission as being never less than truthful in his evidence, even if prone to exaggeration at times.”
Regarding Sgt McCabe’s complaints, he says “some have been upheld”, especially those in relation to the quality of the investigations. “Other complaints”, he says, had been proven to be “overstated or exaggerated”.
“Some were unfounded”, some of which had been withdrawn.
The judge says that some people “wrongly and unfairly” have cast aspersions on Sgt McCabe’s motives.
“Sergeant McCabe acted out of genuine and legitimate concerns and the commission unreservedly accepts his bona fides,” the judge states.
He had shown courage and was “a man of integrity”.
The judge concentrates his criticisms of the whistleblower in relation to allegations of corruption against the then commissioner Martin Callinan, Assistant Commissioner Derek Byrne (who conducted an internal investigation of his complaints) and his local superiors, Chief Superintendent Colm Rooney, Superintendent Michael Clancy; and an implied allegation against Supt Noel Cunningham.
In all cases, the commission finds “those hurtful complaints unfounded”. Supt Clancy, the subject of numerous allegations by Sgt McCabe, is “exonerated of any wrongdoing”.
The commission is critical of aspects of the internal investigation by Assistant Commissioner Byrne and Chief Supt Terry McGinn.
“The commission considers that there was a corporate closing of ranks”, though it adds this was not done “consciously or deliberately”.
The judge compliments both Assistant Commissioner Byrne and Chief Supt McGinn and says that “very considerable resources” over two years went into investigating the complaints.
Elsewhere, the commission states the Byrne/McGinn report and the review of it by Deputy Commissioner Nacie Rice were “deficient”.
In contrast to the Guerin report, the O’Higgins report finds no fault with the former justice minister Alan Shatter in how he handled the matter.
The judge sandwiches his examination of failings in Bailieboro with some context. He says it would be “quite wrong” to view his findings as indicative of the general quality of policing in the area. He says the commission heard evidence of, “and accepts that there was”, much good work performed.
The report outlines in detail the failings of the eight investigations Sean Guerin SC had recommended in his initial review of McCabe’s complaints and two wider issues on Pulse incidents and general policing in Bailieboro district.
“The commission found many instances where the gardaí failed in the performance of their duties,” says the report. “These failures would probably have been avoided if principles of personal responsibility, communication, supervision and performance management had been applied.”
The report says there were five probationers (just-appointed gardaí) per regular unit at Bailieboro and that in some units there was only one experienced garda available.
It says poor communication between probationers and sergeants was both their fault, but that ineffective supervision lay at the door of sergeants.
On top of that was the lack of an inspector: “It is probable that many of the matters that are criticised by this commission would not have occurred or would have been rectified at an early stage if there had been an inspector at Bailieboro.”
The commission says the conditions at Bailieboro were “deplorable” and that this was known to Garda management for a long time.
Again, the judge hammers home: “However, those conditions were not the cause of the deficiencies and failures in the investigations found by this commission. They were due to the failures of individuals to carry out their duties properly.”
He adds: “The failures were at a human level and caused by poor individual performance and, in many instances, by poor supervision.”
There are few cases where the failings are as stark as in that of Jerry McGrath, who murdered Sylvia Roche Kelly while on bail for a “savage assault” on Mary Lynch in Cavan and, separately, on bail for attempted abduction of a child in Tipperary.
What makes the Kellys experience of the gardaí all the more painful is an 18-month wait by her husband Lorcan to a response to his letter asking why his wife’s killer was on bail.
Amid all that was a worrying entanglement of Sergeant McCabe in the case, which the whistleblower thought was an attempt by some gardaí to implicate him.
The judge says this “cannot be safely said”, which, unsatisfactorily, leaves a lingering doubt.
Concluding, the judge says he hopes the report will enable gardaí in the area to “put the unhappy events” behind them, which is a curious choice of words, given the McGrath case alone.
The judge talks of the gardaí “learning lessons where appropriate” and reminds them of their solemn declaration as gardaí.
Then, he ends: “Bearing the foregoing in mind, and in the very particular circumstances pertaining, the commission considers that the institution of any disciplinary proceedings, which might conceivably arise out of the findings, would not be helpful.”
He does not expand on his reasoning here, nor does he balance what might be helpful, with what might be just.
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