asked the Minister for Justice the action he will take arising out of the Kerry Babies Tribunal Report; and if he will make a statement on the matter.
Written Answers. - Kerry Babies Tribunal Report.
21.
Limerick East): I am glad to take this opportunity to place on the record of the House the special thanks of the Government and myself to Mr. Justice Lynch for the comprehensive report that he has produced and for the long period of concentrated attention that he devoted to the work of the tribunal. His dedication to the task was widely recognised. Over and above that, his capacity to assimilate, and to recall as needed, the details of evidence given throughout the long hearings attracted admiring comment from observers on several occasions and obviously would have been, and undoubtedly was, brought fully to bear also when he came to write the report. We in the Government are most grateful to him.
There is one other preliminary point that I believe should also be placed on the record of the House. It concerns some, though only some, of the criticisms that have been directed at this or that comment or conclusion in the report. I would emphasise that some of the criticisms that have been directed at points in the report clearly are legitimate expressions of a point of view based on a study of the report. More than that, some of them — in my view at all events — can be useful contributions to general public awareness of various problems. Others again are what one might decribe as criticisms with an ideological slant and, since they are readily identifiable as such, people will evaluate them accordingly, agreeing or disagreeing with them on their own terms, and no comment from me is necessary. On the other hand — and this is the point of my comment — there have been a number of highly publicised criticisms for which there is no possible justification and which are, I regret to say, liable to confuse and mislead the public. In that context, because of the impact of television as a medium, I think it necessary to refer in particular to the fact that the tribunal's report was the subject of some seriously erroneous and misleading statements in a television programme over the last weekend.
I do not propose, nor would it in my view be at all appropriate, for me to proceed to go into detail either in defence of the report or in refutation of various criticisms of the kind I have mentioned; but it is, I believe, necessary to say something to put Deputies — and, I hope, the general public — on their guard. I will therefore mention in this context two, but only two, points that arose in this particular television programme.
I am informed that it was said by one contributor that the tribunal's report overlooked an important point in a pathologist's evidence and that that statement was not corrected by any of the other contributors present who, because they were presumed to have read the report, were liable to be taken by the viewing public as acquiescing in it. Apparently there is even some reason to think that it was that statement that led one member of the public to telephone the station to criticise the judge. The fact, however, is that the evidence that was said to have been overlooked is expressly referred to in the report and, even if it had not been, there would have been no ground for the assumption that it was overlooked by the judge.
The second point from that programme that I pick as an example is where, as I am informed, it was said that the judge had overlooked particular evidence of a forensic scientist from my own Department. Again, there is no justification for such a conclusion. The particular item of evidence was of a negative character and related to a time well after the relevant events. The reasonable and indeed obvious inference to be drawn is that the judge's evaluation was that that evidence proved nothing whatsoever of any significance and that that was why he did not refer to it in a report which, of necessity, had to exclude references to numerous pieces of evidence given to the tribunal.
While I am at the stage of referring to that particular programme, I think it right to refer also to another point in which a suggestion seriously hurtful to the reputation of an identifiable member of the Garda Síochána and of that member's wife was broadcast. That was that the particular garda might have invented the account of offensive telephone calls concerning which that member had given sworn testimony and which were part of a campaign which the garda's wife in particular was a victim. I think it should be enough that I invite attention to the point and that the wrong done will be put right.
I now turn to my own reaction to the report. I shall comment in a few moments on certain references to members of the Garda Síochána. For the most part, however, I regard the report as speaking for itself and, as I have already indicated, I have no doubt that it is neither necessary nor desirable that I should engage in any detailed analysis of it. However, some comment is called for and I believe that, as the person who proposed to the Dáil the establishment of the tribunal, I should begin by going back briefly on one point that was already before the House, namely, the reason for the setting up of the tribunal. This is necessary because of various recent allegations that the report fails to do what it was set up to do.
One could express essentially the same point in various ways and the report itself describes in one particular way the background to the decision to set it up but I think the way I would prefer to restate the position is to say that, as far as I am concerned, I asked the House to set up this tribunal because of a combination of two reasons — not, may I emphasise, because of either one by itself but the combination of the two:
First, that there were in existence certain statements that had been made by members of the Hayes family confessing to involvement in a crime, statements which the evidence strongly suggested could not be true; and
Second, that various members of that family had said, and said publicly and on more than one occasion, including notably on the occasion of a television programme, that they had made those statements against a background that included physical assaults — in other words, criminal misbehaviour — by various members of the Garda Síochána.
The situation was one where grave and specific allegations against identifiable gardaí were made against a background of what seemed to be potentially supportive independent evidence in the form of the signed statements, evidence that, on its face, was sufficient to make it both possible and necessary to have the matter fully investigated. Thus, the issue that faced the tribunal cannot be reduced to a question of how the statements came to be signed. The accusations that were made about assaults were at the core of the matter and one of the central points, and in many people's eyes the central point, that has emerged from the tribunal is that those allegations were shown to be unsustainable. Indeed at least one of the most serious ones was effectively withdrawn even in the course of the giving of evidence. So the fact is that on this, the original core of the case for the tribunal, the gardaí were vindicated.
It is necessary to recognise, therefore, that that public vindication of the gardaí was made necessary as a direct result of the actions of people who, for their own reasons, chose to make such allegations, though they may well have had no real appreciation of the seriousness of what they were doing. The vindication of the gardaí in relation to those allegations was, of course, made possible only through a public investigation and disclosure of the extraordinary background which explained an otherwise inexplicable set of developments. Whatever views one might have as to whether certain lines of questioning were at all necessary, it is clear that the tribunal would have faced serious difficulty if it had insisted on imposing restrictions on what counsel could pursue and, on a more general plane, it is, I think, unfortunate that there should have been public criticism of the tribunal for decisions that were unavoidable in the circumstances.
It is also regrettable that, despite the obvious fact that the key to the riddle emerged only as a result of protracted cross-examination of witnesses under special legal powers given by law to a tribunal of this kind and the equally obvious fact that no other lawful way of approach would have produced it, we still have people making critical references to the fact that an internal Garda investigation armed with no legal powers whatsoever was unable to do so.
Although I have stressed that the accusations of assault that were made against members of the force were central to the decision to set up the tribunal, I am not in any way to be taken as accepting suggestions that have been made that the tribunal's report did not address the question of how in fact statements that contained large amounts of material that was both wrong and damaging to the person concerned came to be made. Far from accepting such suggestions, I feel obliged to ask if the people making them read the report at all or, if they did, did they make any attempt to understand it. The report addresses precisely that question at considerable length and in relation to different witnesses and it offers conclusions.
Of course, anybody is free to disagree with the conclusions — but not to say that the questions are not addressed. And I would suggest that, if a person is being reasonable in approaching such an issue, certain points should be kept in mind. First, the judge heard all the evidence, saw all witnesses, whereas it is obvious that some of the people disagreeing have not even read the report. Secondly, and particularly to those who have read it, I would commend a dictum of another famous investigator, Mr. Sherlock Holmes, to the effect that when the impossible has been excluded, that which remains, however improbable it may seem (to some), must contain the truth.
As I have said, the gardaí have been vindicated on the major issue. The report, nevertheless, discloses very clearly that there were serious deficiencies in the investigation. Those deficiencies manifested themselves not only in things done or not done, as the case may be, but in attitudes of members at various points. The Commissioner has informed me that, in the interests of the force, he has considered it right and indeed necessary to transfer from their present posts most of those who were assigned to the investigation from the technical bureau.
In case what I have said might be misinterpreted, may I emphasise that that is not a disciplinary decision, though I would equally emphasise that decisions on discipline, as on transfers, are made by the Commissioner and not by me.
The Commissioner has further informed me that his decision is fully in accord with a policy that he has already for some time now been implementing in relation to specialised units generally. With the exception of a small number of jobs involving very specialised skills that require a long period of training and probably unusual aptitudes, it is and for some time now has been his policy to ensure that members are rotated at intervals. Thus, for instance, specialised training on drug abuse is now widely spread among the force and there is now no question of people being left for many years in special drug squads. I may say that I am entirely happy that that is the right policy.
There is one other substantial point that has caused some public comment. Part of that comment has taken the form of a suggestion that the report puts forward a double standard of truthfulness expected of witnesses, with a lower standard being acceptable from gardaí.
I as Minister cannot, of course, lay claim to any special competence as compared with anybody else in the matter of interpreting a report which is there for all to read, but I must say that I do not interpret the report as being in any way an acceptance of a lesser standard from the gardaí. As I see the situation, the judge was dealing with the credibility of various witnesses in the situation in which they found themselves and the distinctions that are now being attributed to the judge do not take account of the contexts in which he was speaking.
The evidence from members of the Hayes family to which he was referring concerned straightforward objective issues of fact about which there could be no doubt. For instance, was the baby born in the house or in a field? Did gardaí punch members of the family or not?
However, while the gardaí similarly had to give evidence of matters of objective fact, that was not the evidence the judge was speaking of. The evidence he was speaking of was basically of two kinds, namely, what was the state of mind of members of the force at various points of an investigation that took place a good part of a year earlier or, alternatively, which particular hypothesis out of several possible ones members of the force believed to be the true one and how firmly did they believe it. In both types of situation there is a substantial subjective element and what I believe the judge was indicating was said solely in relation to an area where there is inherently a fair measure of subjectivity rather than what one might call a black or white choice.
It is, in my view, plainly wrong to try to interpret a report from a High Court judge in a way that involves attributing to him unnecessarily a view which it is inherently improbable that he would hold and which I personally have no doubt whatsoever that he does not hold. Equally it is, I believe, unnecessary for me to labour the point that neither the Commissioner nor I would accept for a single instant any suggestion — if such were to be made — that members of the force could be entitled to treat their sworn evidence otherwise than with the utmost seriousness. Indeed the only problem I have about saying that at all is that I would not be prepared to accept that any member of the force, acting as such, would be entitled to disregard the truth even if what is being said is not on oath but only in the normal course of duty. I do not think that we need — or should — accept any less strict approach than that and I am glad to say that I am wholly satisfied that the Commissioner is equally committed to that view.
Once again, I express my thanks to the judge for his report.