Kerry Babies Case: Motion.

Mr. Ferris

I move:

That it is expedient that a tribunal be established for inquiring into the following definite matters of urgent public importance—

(1) The facts and circumstances leading to the preferment, on 1 May 1984, of criminal charges against Joanne Hayes, Edmund Hayes, Michael Hayes, Kathleen Hayes and Bridie Fuller, Dromcunnig Lower, Abbeydorney, County Kerry in connection with the death of an unnamed male infant and subsequent events which led to the withdrawal of those charges at Tralee District Court on 10 October 1984;

(2) related allegations made by Joanne Hayes, Mary Hayes, Edmund Hayes and Michael Hayes in written statements to their solicitor on 23 October 1984 and by Kathleen Hayes in a written statement to her solicitor on 24 October 1984 concerning the circumstances surrounding the questioning and the taking of statements from those persons on 1 May 1984;

(3) any matters connected with or relevant to the matters aforesaid which the tribunal considers it necessary to investigate in connection with their inquiries into the matters mentioned at (1) and (2).

Minister for Justice (Mr. Noonan,

Limerick East): I thank Senator Ferris for moving this motion. On Thursday last I announced in the other House that the Government had decided that a tribunal should be established to carry out a sworn judicial inquiry into what has become known as the “Kerry babies” case. In accordance with the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979, this decision can be implemented only if both Houses of the Oireachtas pass a motion that it is expedient that such a tribunal be set up. The Dáil yesterday passed a motion in identical terms to that now before this House and, if this House also passes the motion, we can proceed with the setting-up of the tribunal as proposed.

As I said in the other House, I do not think it necessary or appropriate to attempt to go into any great detail about the factual background to this proposal, especially since it is precisely to establish as far as possible what that factual background is that the tribunal will be appointed if, as I hope, the proposal is approved by this House today.

As Senators will be aware, in formally proposing the motion I made a statement in the other House yesterday. That statement, apart from dealing with some pertinent matters relating to the tribunal, attempted to put the issues involved in the terms of reference in perspective and because of the importance of the issues I propose to repeat the statement in substantially the same terms for the benefit of this House. I trust that Senators will accept that it is better that I should proceed in this way rather than that I should make changes in that statement — changes that would not, in any event, affect the substance of it — solely for the sake of saying the same thing in slightly different terms.

As Members of the House are aware, some issues of substantial public importance have arisen in the case and, for that reason, the Government consider that it is essential that every possible effort is made to establish the truth of what occurred. An investigation was ordered by the Garda Commissioner and, as I said yesterday, he had made the decision that an investigation was necessary before any public controversy arose. As is well known at this stage, the investigation that was carried out did not succeed in resolving the conflicting versions of the events that have been given on both sides. This was not the fault of the two experienced senior officers of the force who conducted the investigation. Their inquiries were both entirely impartial and as thorough as circumstances allowed.

However, because of certain comments that have been publicly made during the last week or two, I thought it necessary to emphasise yesterday — and I wish to do so again now — that the Garda investigators did not have the powers that this tribunal will have. On the contrary, since they were carrying out an investigation against a background of allegations that included allegations of conduct that might, if supported, justify criminal proceedings, they were subject to all the constraints that apply in such cases. That is the system under which we operate and the same problems would have faced any other investigation, whether from within the force or not, unless armed with the exceptional powers which the law gives to a tribunal such as is now proposed to be set up.

The internal Garda inquiry had to be undertaken. It was an essential first step and even if there had been no need to embark on it for the purposes of investigating the possibility that evidence might be obtained that would sustain a criminal charge — and there was such a need — the internal inquiry would have separately justified itself by the fact that the results, including many statements taken by the investigators, will be available to the tribunal.

But there are, as I have said, conflicting versions of events and those conflicting versions have not been resolved. Accordingly, there is a need to resolve them, or at least to endeavour as far as possible to resolve them, by testing under oath in a public forum the veracity of what is being said. It is only in that setting, where people can be examined on oath and subjected, as necessary, to cross-examination that there is now any realistic hope of getting at the facts. That is what the tribunal will do. It will have the power to compel the attendance of witnesses, to take evidence from them on oath, to compel the production of documents — in fact it will have all the powers of the High Court to enable it do its job properly. Likewise, witnesses appearing before it will enjoy the same immunities and privileges as witnesses before the High Court.

I wish to say a few words about the terms of reference of the tribunal. Care has been taken in drawing up the terms of reference to ensure that they are sufficiently wide to enable it to cover all relevant aspects of the issues involved in the case. In examining the facts and circumstances leading to the preferment of charges against the members of the Hayes family of Abbeydorney, the tribunal will necessarily have to concern itself with the manner in which the investigation into the death of the baby found at White Strand, Cahirciveen was carried out by the Garda Síochána. Then there are the specific allegations of the Hayes family of ill-treatment during the period they were questioned by the Garda — questioning which led to the making of statements by members of the family. Finally, there is what might be termed the "catchall" provision in paragraph (3) which will enable the tribunal to go into any connected or relevant matter not specifically alluded to in paragraphs (1) and (2). Assuming this motion is agreed by this House, I will proceed quickly to the next step which will be the formal appointment of the tribunal by order or warrant under my hand. The tribunal will be asked to report to me. It will then be free to organise its procedure as it sees fit.

As the House will be aware, Mr. Justice Kevin Lynch, judge of the High Court, has agreed to constitute the tribunal and the President of the High Court, Mr. Justice Finlay, has agreed to make the arrangements necessary to release Mr. Justice Lynch as far as may be necessary from other duties. I would like to express my thanks again to Mr. Justice Lynch for agreeing to act and to the President of the Court for his co-operation.

A number of points arose in the other House yesterday that I feel I should refer to because they may be amongst the matters that some Members of this House may want to raise and have discussed. Some of them are important. The most important is perhaps the question of whether the tribunal should be specifically invited in its terms of reference to make recommendations. There are, certainly, occasions where it would be appropriate and highly desirable that a tribunal should be invited to make recommendations, but I am afraid that this is not one of them.

In saying that, however, I want to make it quite clear that my reasons for this view have nothing to do with not wanting to listen to any views the tribunal might have. It is rather that I do not think it necessary. If the inquiry should establish that one or more members of the Garda Síochána failed to observe proper standards, it is primarily for the Garda authorities to take the necessary action and they are in the best position to judge what action is appropriate. Obviously, if a question of criminal charges arises, it will be a matter for the DPP to decide whether charges should be brought. Likewise, if disciplinary matters arise it will be up to the Commissioner to act. Beyond that, questions of taking action for the future may arise but that will, I suggest, follow logically and be self-evident from the findings of the tribunal. If, for example, it emerged that proper standards were not observed in the questioning of members of the Hayes family in the Garda station in Tralee, the question of adequate safeguards for persons in Garda stations will arise. In this respect I might remind the House that we have over the past year, in the context of the Criminal Justice Bill, given this question very careful and painstaking consideration. In the course of that debate we looked at the Ó Briain report which made certain recommendations in this regard. We noted that many of those recommendations had been implemented and others were being implemented. We discussed many safeguards that the Criminal Justice Bill itself proposed. I outlined my proposals for further safeguards including tape-recording and a statutory code of practice governing the treatment of persons in Garda stations. Then there is the forthcoming Bill on a new complaints procedure.

Quite frankly, in the light of all of this, I do not see the need for giving this tribunal a specific power to make recommendations in relation to possible safeguards. Of course that is not to say that if there are obvious lessons to be learned from the findings of the tribunal touching on matters that are not already covered in the Criminal Justice Act or to be covered in the proposed regulations, they will not be taken into account. Of course they will.

The tribunal is concerned essentially with what happened. It will, I hope, be clear from its findings what should be done for the future. It will be a matter for the Garda authorities and for me as Minister to see to it that action is taken, but I repeat my view that it is not necessary to give the tribunal power to go into this and I do not propose to give the tribunal power to make recommendations for those reasons.

Another matter of importance that arose concerns the publication of the story of this case initially in a certain Sunday newspaper. Compliments have been paid to the journalists who "broke the story" and I believe not unreasonably so as they undoubtedly performed a public service in highlighting the facts. But the suggestion has also been made that, were it not for its publication, a grave miscarriage of justice might have occurred. I want to reject that suggestion absolutely. Nothing could be further from the truth.

The fact is that the charges against the members of the Hayes family were withdrawn in Tralee District Court on Wednesday, 10 October. The story was not published until the following Sunday, 14 October. It followed that no possibility of a miscarriage of justice arose or was averted by publication of the story. The story emerged from the fact that the relevant authorities had in fact decided to withdraw the charges and not the reverse.

I referred in my statement yesterday to the question of legal representation before the tribunal and the related question of legal costs because these are matters in relation to which questions have already been asked. I should like to repeat what I said then. The tribunal is empowered to authorise the legal representation of any person appearing to the tribunal to be interested. It may also refuse such representation. This is the effect of section 2 (b) of the 1921 Act. It is therefore a matter for the tribunal and for it alone to decide who should be represented. Likewise, the 1979 Act authorises the tribunal to direct that the costs of any person appearing before it should be paid by any other person, including the State. It may so direct where, having regard to its findings and other relevant matters, it considers it equitable to do so. Thus, there is a clear legal framework there — a framework that has been used and has proved satisfactory in other inquiries such as the Whiddy and Stardust inquiries — to deal with the question of legal representation and the related one of costs.

Because the only issue before this House is the motion, some other matters affecting the Garda Síochána which have recently been the subject of publicity are not relevant. On that account I do not propose to refer to any other case or cases except to say in passing, as I made clear yesterday, that I realise that this present case is not only one that has caused concern. As I have already said, all of those other cases have been dealt with or are being dealt with. One at least — the Shercock case — is now sub judice in relation to one of its participants and we should not discuss it. While there have been other cases, it is also right and necessary that the proposal before the House should be seen in its true perspective. I would argue very strongly that its true perspective is not to be found just by looking at one or even at a number of cases where things have or may have been wrong but by looking at the record of the Garda Síochána day in, day out over the years. That record speaks for itself.

What I said yesterday bears repeating. Since the foundation of the State the Garda Síochána have had a role vital to the maintenance of the institutions of democracy. The force have served this State outstandingly well and will, I am in no doubt at all, continue to do so in the future. Its members have done so frequently at great cost to themselves. Since 1970, 11 members have been murdered. Last year we had two such cases and this year another one. Many members place their own safety at risk day after day in the defence of the community. These are stark facts of life and we need to remind ourselves of them from time to time and especially now.

Whatever the outcome of this inquiry may be — even if the result is unfavourable to one or more members — it should not cause us for one instant to forget what we owe to the force. Moreover, as I have previously made clear, the Commissioner shares fully, as indeed he has conclusively proved by his actions in this and other cases, my own commitment to ensuring that if and where remedial action is called for, remedial action will be taken. That, at the end of the day, is perhaps the most important point of all and is a major reason why I have no doubt whatsoever that the force will come through this difficult period without lasting damage.

Mr. Lanigan

We welcome the fact that this inquiry is to take place but we regret the necessity for it. I sincerely hope that never again will we have the names of any family mentioned before this House relating to any commission of inquiry. There is absolutely no doubt that the public at large feel there is a necessity to get to the bottom of the problems which have arisen in Kerry. It is essential for everybody concerned — the family, the Garda Síochána and the totality of the public.

I regret that over the past few months this case has come so much to the fore in the media. I suggest on a personal basis that I have never seen a more unethical or immoral programme than the "Today Tonight" programme which covered this case. I have never seen anything as bad and I have never heard so many comments about this particular programme in which a family were brought before the public and denuded of their dignity. I sincerely hope we will never see anything of that nature again.

I am glad that the Minister mentioned that if there were improprieties with the Garda force, these improprieties would be dealt with. I sincerely hope that at the end of the day there will be no cover-up, that whoever is at fault in this case will be brought to justice and that justice will be given to the family concerned in this case. I do not intend to delay this debate any further. Enough has been said about this case and the sooner the better the tribunal is set up and the judge gets down to his deliberations.

Mr. Deenihan

I welcome the setting up of the tribunal for the judicial sworn inquiry into the Kerry babies' case. The inquiry is welcomed not only nationally but also locally in north Kerry where, as Senator Lanigan has already pointed out, there is great concern among the community about the allegations made. The sooner a thorough investigation is carried out the better, both for the Hayes family and the Garda as a whole.

The inquiry should be held in Tralee courthouse and the local people should be allowed to sit in on the proceedings.

Mr. Ross

I also welcome very strongly the setting up of this independent inquiry. I welcome it not so much because the Garda as a whole need investigation but because to the people it is symbolic that gardaí are not above the law. The setting up of an independent inquiry of this sort, whatever the issue — I do not want to speak about this specific issue — will quell public disquiet about the position of the Garda.

I am glad that the Minister for Justice has not taken this decision too lightly. Very often the wrongdoings of gardaí are highlighted and it is very easy for the media to pick on certain cases and specific instances where the gardaí undoubtedly commit wrongs. It would be unrealistic for anyone in this House to say that the Garda are a 100 per cent perfect body who do no wrong. That would be unrealistic, but it would also be unrealistic to cast all the gardaí as bad because of specific cases and the one specific case which we hear of now.

I am glad the Minister for Justice said that we should get things back into perspective and compare this with the good that the Garda do in the community. We are once again debating the evil that gardaí have possibly done but, as the Minister for Justice quite rightly said, they are the only people who have stood between us and anarchy since the foundation of the State. If we have a few instances like this which are highly distasteful, it is absolutely right that they should be inquired into but it should be remembered that several members of the Garda have been murdered and that gardaí day in, day out are in permanent physical danger or in danger of their lives. We should have a sense of balance in saying that while there are wrongs there is also a large amount to thank the Garda for. I believe that the setting up of this inquiry will help in reassuring the public and it is in the interests of the Garda themselves.

Mrs. Robinson

I, too, welcome the setting up of this inquiry and the appointment of Mr. Justice Lynch who will chair the inquiry. I am not entirely convinced, however, by the Minister's comments on why the motion does not include a specific proposal that the tribunal be enabled to make recommendations and I would like to refer in some detail to the reasons I would have welcomed the framing of the motion in terms of enabling the tribunal specifically to make recommendations. That would have been in line with the previous motions of a comparable sort establishing tribunals of this kind.

Resolutions of both Houses on 6 and 8 March 1979 established the Whiddy Island inquiry. The terms of the resolution were as follows:

That it is expedient that a tribunal be established for—

1. inquiring into the following definite matters of urgent public importance:

(1) the immediate and other causes of, and the circumstances of and leading to, the explosions and fires on and in the vicinity of the ship Betelgeuse and the jetty of the terminal of Gulf Oil Terminals (Ireland) Limited at Whiddy Island, Bantry, in the County of Cork on the 8th January, 1979.

(2) the circumstances of and leading to the loss of life on and in the vicinity of the ship and jetty on the 8th January, 1979,

(3) the measures, and their adequacy, taken on and before the 8th January, 1979, on, in the vicinity of and in relation to the ship and at, in the vicinity of and in relation to the terminal to prevent, and to minimise and otherwise to deal with—

(a) fires and explosions of the kinds aforesaid, and

(b) the occurrence of circumstances of the kinds that led to the loss of life aforesaid;

There was a second part of the resolution which was framed as follows:

2. making such recommendations (if any) as the Tribunal, having regard to its findings, thinks proper.

I would have felt that this was an occasion where it would have been very appropriate and very helpful to have that addition to the motion as it stands, enabling the tribunal to make any recommendations which it might wish to do, having regard to the findings it might make.

Before turning to the reasons why I think this is particularly appropriate in relation to the inquiry into the Kerry babies deaths or the circumstances surrounding them, let us look at how the tribunal which was ultimately established to examine the Whiddy Island tragedy exercised those powers. Chapter 23 of the long report compiled by the tribunal under the chairmanship of Mr. Justice Declan Costello is devoted to recommendations and it begins with an introduction explaining the scope of the recommendations. This is highly relevant to the possible scope of the tribunal which we are setting up now because at paragraph 23.11 of the report the tribunal explains why some of the recommendations go into matters subsequent to the Whiddy Island inquiry. The introduction states:

Some of the Recommendations which follow, if found to be acceptable, can be implemented by means of Regulations under the Dangerous Substances Act, 1972.

It was submitted by Counsel instructed on behalf of the Attorney General that the adequacy or otherwise of the Dangerous Substances (Oil Jetties) Regulations, 1979, did not form part of the considerations of the Inquiry being undertaken by the Tribunal because the resolutions passed by the Houses of the Oireachtas referred to the establishment of a Tribunal which would inquire, inter alia, into “measures, and their adequacy”, taken on or before the 8th January, 1979. As the 1979 Regulations came into force after that date it was submitted that their “adequacy” could not be considered by the Tribunal.

The Tribunal considers that as it can make any recommendations which it thinks fit having regard to its findings, it has power to make recommendations on means of strengthening the statutory control and supervision of oil terminals even if such recommendations will involve the amendment and extension of the 1979 Regulations. The Tribunal did not understand Counsel for the Attorney General to submit otherwise.

There was an example where a tribunal of inquiry was established and following its establishment regulations were passed in an area which was broadly being examined by the tribunal of inquiry. Because the tribunal of inquiry was specifically enabled by the resolution of both Houses to make recommendations it felt it was empowered to, and did make recommendations in relation to the 1979 regulations. This is a clear example of where it is expressly helpful when establishing the tribunal of inquiry to ensure that there is an enabling clause. Obviously, if the tribunal does not see fit to make any recommendations that is a matter for the tribunal. At the same time in this extremely important area it would seem very desirable that there would be the expressed power and capacity in the tribunal to make whatever recommendations it saw fit in the body of the report. If one looks at the model of the Whiddy Island tribunal there were 45 recommendations made by the tribunal of inquiry, a number of which recommendations have not yet been implemented, but they are nonetheless as part of the output and public record of the tribunal.

Similarly, two years later, in February 1981, there were resolutions establishing the tribunal of inquiry into the Stardust tragedy. The approach was a similar one. The resolution was divided into two parts, the first part saying that it is expedient that a tribunal be established to inquire into the following definite matters of urgent public importance and then setting out the immediate circumstances of the Artane fire. The second section is as follows:

...making such recommendations as the Tribunal, having regard to its findings, thinks proper in respect of the statutory and other provisions in relation to fire prevention, and means and systems of emergency escape from fire, their adequacy and enforcement and any other matters that the Tribunal considers relevant.

The Stardust inquiry was enabled to and did exercise the power to make recommendations.

The Minister when introducing these resolutions referred to the question of whether or not the tribunal should be enabled to make inquiries. I would submit that his arguments on this are not in fact entirely convincing. The Minister gives as his main argument that if there are to be criminal charges that is a matter for the DPP; if there are to be disciplinary measures arising from the inquiry that that is a matter for the Commissioner. There is no argument about that, but what we are concerned about in establishing this inquiry is to look closely at the detail of what happened in relation to the incidents surrounding this particular case and to enable the tribunal to draw broad conclusions or inferences from that and, if the tribunal sees fit, to make recommendations arising from that.

The distinguished chairman of the tribunal will be a judge of the High Court and he will be perfectly aware of which is the appropriate body to pursue the possibility of any criminal prosecution or to pursue any disciplinary measures that may follow. But the tribunal itself should have a role to play in relation to the deeper and the longer-term consequences of what happened in and surrounding the events in Kerry which are the subject matter of this inquiry.

I turn now to the subject matter in order to develop in a little more detail why I feel the tribunal should have the power to make recommendations. The motion refers, first of all, in paragraph (1), to the facts and circumstances leading to the preferment on 1 May 1984 of criminal charges against a number of members of the Hayes family in connection with the death of an unnamed male infant and subsequent events which led to the deplorable charges at Tralee District Court. Paragraph (2) relates to the related allegations made by members of those families in written statements to their solicitor concerning the circumstances surrounding the questioning and the taking of statements from those persons on 1 May 1984.

In themselves, those terms of reference are broad enough to allow a very detailed consideration of all the circumstances but I would have hoped that the House, in passing this motion and enabling the establishment of the inquiry, was not just concerned about what happened in relation to the Hayes family and the members of the Garda with whom they came into contact in County Kerry on certain dates. It is surely also of the utmost importance that we have an understanding of the kinds of pressures which persons can be subjected to by being brought into a Garda station in the light of what actually happened in this particular case and in a broader sense what may be the effect on persons being interrogated while being detained in Garda custody. I should have thought that the fact that a tribunal of inquiry is being established, which is a very elaborate, very costly, and a very time consuming process, means that we must give it the power to look very closely at what is the effect on an ordinary citizen, on a man or woman or young person, of being brought in and questioned in a Garda station. Therefore, in looking at what happened in relation to the Kerry incident the tribunal could also avail of any research or any examination which has taken place of the possible effects of interrogation in detention and the effects of being kept for sustained periods without perhaps knowing what the outcome is going to be and where there is constant questioning.

In this regard the tribunal — I ask the Minister to respond specifically to this and to say if this will be possible — I hope would be able to look at the research that has, for example, been carried out by Amnesty International into the potential effect of periods of detention, of sustained periods of interrogation on persons. This is the kind of empirical research which we very badly need. We need to know what are the potential effects of bringing people into custody and the effect of prolonged questioning of a person in isolation from others whom the person may know are in the Garda station, and the putting of certain matters to the person. It is not enough, in my submission, to resolve some of the factual issues in the Kerry case that may go some way towards explaining how detailed statements were made by members of a family in relation to the alleged murder of a baby which it appears for scientific reasons, among others, they were not in a position to have carried out or to have any part in. That appears to be the situation. As yet we do not know definitively what the result of the outcome of the inquiry will be.

It is not enough to know just the nitty-gritty of what happened in the Garda station in Kerry. If we are establishing a tribunal of inquiry it should also be in a position to assess what the potential effect can be, why it is that it is possible for a person, after a certain period of that kind, to make what appears to be completely false statements. That just does not happen in one isolated case down in County Kerry. That is a potential danger. Nor does it always happen to anybody taken in for questioning by the Garda; of course not, but in so far as there are potential risks, in so far as the process can be disorientating, can be an occasion of very considerable pressure on the individual, these are the kind of things that we must know about if we are to provide the adequate safeguards and the necessary measures to ensure that there will not be a repetition of the incidents in Kerry.

Another cause of concern about the terms of reference here is that they are to too great an extent narrowly focused on the circumstances surrounding the Kerry babies deaths. It is proper that that would be the subject of the inquiry but it is extremely important in establishing a tribunal of inquiry that the tribunal be able to come forward with recommendations and with conclusions from the inquiry which have a broader and longer-term implication.

The Minister referred to the fact that there has been considerable debate in both Houses of the Oireachtas in the context of the debate on the Criminal Justice Bill on this whole area of the safeguards which would be considered to be necessary and desirable for persons detained in Garda custody. He also said that there would be a further opportunity for both Houses to consider this area and these issues in the context of the Bill establishing an independent complaints machinery and also the draft regulations under section 7 of the Criminal Justice Act. That is true, but there again the debates that have taken place in both Houses have not looked in a detailed and structured way at the effect of periods of detention on people who are unaccustomed to a Garda station. It is slightly different in the case of the hardened criminal who might be well aware of all the surrounding circumstances of being detained and who may be very clever and very cute about saying absolutely nothing and who may be able, in fact, to play the system for all that person is worth.

I am concerned about the ordinary citizen in the circumstances, as one understands them, of the members of the Hayes family who find themselves in a Garda station being questioned by gardaí whom they never knew before or met before and the effects that that has, apart from any possible allegations — and I understand there have been some allegations of other types of pressure being used — or can have on persons if they are kept for a long period and what kinds of pressures build up which might run the risk of inducing them to sign statements which contain matter which is completely untrue and unfounded but which they sign simply in order to get out of the pressure and the feeling of being trapped within the Garda station while they want to get home out of it.

It is extremely important that we ensure that the tribunal of inquiry will look closely and in detail at all of these aspects. I think it would be very beneficial if the tribunal of inquiry, having looked closely at these aspects and having — we hope — inquired into the research that is being carried out — I have mentioned the research by Amnesty International and there are other bodies carrying out research into the effect of detention and interrogation on persons and I think this information should be available to the inquiry — if then, in coming to certain conclusions, the tribunal decides that it wishes to make recommendations it should surely feel empowered in the same way as the Whiddy Island inquiry felt empowered, to make recommendations which might relate to legislation or regulations adopted subsequent to the establishment of the inquiry.

This is where the Whiddy Island inquiry is a very pertinent one to look at. It is a very good model for the establishment of this inquiry because, as I have said already, Mr. Justice Declan Costello in his report construed the terms of the resolution and the part of it which empowered the tribunal to make recommendations as including the capacity to make recommendations in relation to regulations which were passed after the events and after the establishment of the inquiry itself. That is something which could be of very real value here because the Minister has said that the next stage in relation to this inquiry is that he will make the necessary order establishing it and presumably the tribunal will then start to sit in January and will start to hear evidence and then it will ultimately report in a period after that. It might be hard to assess at this stage how long it will take to hear the necessary evidence and have time to make its assessment. It may very well be that at that stage the regulations under section 7 of the present Criminal Justice Act — it is hard to call it the Criminal Justice Act because we are used to calling it the Criminal Justice Bill——

Mr. Noonan

(Limerick East): It was signed.

Mrs. Robinson

Yes, I know. I am naming it correctly. Under section 7 of the Criminal Justice Act these regulations may well be passed and may have been the subject of positive resolutions before both Houses of the Oireachtas but this tribunal, having looked very closely and in detail at one particular incident and the circumstances surrounding it and also looked at research which is available into the effects of detention, or circumstances such as these in Garda stations, might well make recommendations for further improvements in the regulations or, if the regulations that are still in draft, for additions to the draft regulations. Why are we closing that off? Why are we not saying this is why it is worthwhile establishing a tribunal of inquiry? There is no doubt that most evidence in relation to the Stardust inquiry was very expensive. By the time all legal costs are paid and all the time of the legal profession involved is taken account of, a tribunal of inquiry is a very elaborate process.

I believe it is extremely welcome that this elaborate process is being invoked and is being established to inquire into the incidents in Kerry. I do not think that it should be a short-term, narrow focus into what happened during certain days and weeks in County Kerry. It should be established with a view to learning from that what the medium and longer-term lessons are and that can only happen if the tribunal is empowered to make recommendations. Given the fact that the Whiddy Island tribunal had to affirm its authority to make recommendations I urge the Minister to look again at this. I do not think it would be the end of the world if the Minister were to decide to amend this motion and take it back to the Dáil, as amended, and give the tribunal power to make recommendations.

It seems to me that this would be one way of allaying the unease and the broader fears which exist and indeed there has been very widespread public concern about what happened in County Kerry. But the concern is a broader one than that and it will require that the tribunal have the authority and that it be enabled, if it sees fit, to make more long-term recommendations in order to ensure that we have adequate safeguards in our law and in our regulations for the protection of persons to ensure that there cannot be any future incidents such as happened in Kerry and which give rise to widespread public concern.

I urge the Minister to reconsider the possibility of enabling the tribunal specifically to make recommendations. It is very important that it have that power because of the vital concern about this whole area in view of the fact that we have passed the Criminal Justice Act and relatively shortly, presumably, we will see the Minister bringing into operation the relevant sections of it which allow for Garda detention. In those circumstances it seems to be strangely shortsighted not to wish to have the independent assessment of this tribunal in its recommendations. I do not accept that this is covered by paragraph (3). Paragraph (3) says that the tribunal can look at any matters connected or relevant to the matters aforesaid which the tribunal considers it necessary to investigate in connection with their inquiries into the matters mentioned at paragraphs 1 and 2 —"Which the tribunal considers it necessary to investigate". If that can be interpreted as being broad enough to allow the kind of inquiry that I have been talking about, where the tribunal can examine the research that exists at international level into the effects of periods of detention, and if the tribunal can, in interpreting paragraph (3) make recommendations within its report, perhaps it is not necessary to have a specific amendment.

I am concerned lest an issue might arise in the course of the deliberations of the tribunal and it might be put to the tribunal by counsel for the Attorney General that the tribunal could only examine events immediately surrounding the Kerry incident and could not look beyond that for a better understanding of what happened in Kerry and what lessons we can draw from that.

Unless the Minister is able to assure us very positively that this is covered by the present motion then we are missing an opportunity at a time when it is vital that this inquiry discharges the full task of inquiring into, drawing any conclusions from and making any necessary recommendations on the incidents that happened in Kerry earlier this year.

Professor Hillery

We support the motion to establish a tribunal to hold an inquiry into the "Kerry babies" case. The motion is a necessary response to issues of considerable public importance and also a response to public disquiet caused by this case. I have a very high regard for the Garda. The great majority of gardaí carry out their duties within the rules. I want to pay tribute to them for the way they carry out their important work.

I fail to understand why the tribunal, as proposed, does not include an express power to make recommendations. I quote from the terms of reference of the Whiddy case which says "making such recommendations (if any) as the tribunal, having regard to its findings, thinks proper". That is worded in a general way but it would meet our disquiet in this case. Similarly, in the case of the Stardust inquiry the presiding judge was empowered to make recommendations. Both tribunals requested the judge to make recommendations.

The Minister may argue that if there are criminal matters arising out of the report of inquiry the DPP can deal with those matters and also if there are disciplinary matters arising out of the report the Garda Commissioner can deal with those. What about the issues that fall into neither category? What about issues that may arise with regard to the conduct of investigations and the treatment of people in custody? These are the issues — the third category if you like — that we debated at great length in the course of our discussions over many days on the Criminal Justice Act. It is self-evident that there is considerable concern about the independence of the proposed complaints procedure. The judge in this tribunal will be in the best position to make recommendations and not the Department of Justice or the Minister for Justice, with respect. We want the presiding judge in this tribunal to have the power to make recommendations.

Lest the Minister regards the Whiddy model for making recommendations as too broadly drawn, could I suggest an amendment confining the terms more narrowly as follows:

To make recommendations in connection with the matters investigated as may appear appropriate, including recommendations as to the treatment and interrogation of persons in custody and the conduct of criminal investigations by members of the Garda.

I previously expressed concern that the complaints procedure and the safeguards were not published simultaneously with the Bill. I felt that there was something of a pig-in-the-poke nature in discussing the Bill without seeing the essential ingredients of the complaints procedure and of the regulations.

It is very much in the interest of this House and in the interest of the public to approach the matter along the lines I have suggested and to empower the judge in this tribunal to make recommendations.

Mr. Ferris

I support this motion. It is true that the House has welcomed the decision by the Minister to set up the tribunal of inquiry into the Kerry babies case. We do not welcome the reason for the setting-up of the tribunal but we welcome the fact that the Minister has taken it upon himself to do so. I think in the light of public opinion it was imperative that the Minister take this action. In joining in the general welcome, it would be remiss of me if I did not express my disappointment that the internal Garda inquiry which has taken place failed to get to the bottom of the case. This case has caused considerable public anxiety. Everybody admits that there were areas of coincidence surrounding the case. Accepting that there were areas of coincidence where a baby was found obviously murdered and a mother was discovered afterwards to have given birth to a baby, the Garda proceeded with their inquiries along those lines.

It is obvious from information available that the normal, accepted procedures do not appear to have been followed in this case, the procedure of collating evidence and checking on blood types, and other procedures that would be expected by normal law-abiding citizens to be taken by gardaí in the course of their inquiries. We will not know until the inquiry is complete how innocent people confessed to something they had not done.

It is appropriate that a public tribunal with the powers written into this motion should be set up to ascertain all the facts. I hope for the safeguarding of the Garda and the confidence people have in them that when the full facts are known in this case, the public will be reassured that they can depend on an element of justice when they find themselves in an investigatory procedure such as this. Nobody has any sympathy for the hardened criminals who get pulled in quite often and know all the rules and regulations and how to overcome them, but when innocent people are involved it is frightening to think that by some process of investigation confessions can be got from people who as we know, were proven to be innocent.

We also know of the other baby who, apparently, was murdered and we are aware to date that some guilty person is still free and has not been brought to justice and has not been subjected to any questioning. I would like an assurance from the Minister — no doubt he will give it — that an investigation into the case of the second baby is proceeding and if that baby was murdered, as the evidence indicates, the criminal will be brought to justice. If that case is not seen to be pursued actively people will lose confidence due to the fact that we are now concentrating our efforts on an innocent person who had been charged while a person who is guilty has still not been charged. Do I take it that investigations are still going on and that the Garda in Kerry have not being frightened off from what should be their duty by the fact that an error might have been made in this particular case? It worries me that an unfortunate baby was brutally murdered. It is in all our interests that somebody is brought to justice for that crime as quickly as possible.

I would like to say a few words on the points that have been made by Senator Robinson and Senator Hillery and just act as Devil's advocate to the Minister. The Minister said that the tribunal will be asked, by the terms of this motion, to report to him. What is the difference between reporting to the Minister and recommending to him? The Minister has proved by his actions recently that he is a Minister who is prepared to act in delicate cases, in areas of controversy. I have no doubt whatever that if a report comes to him from this tribunal that necessitates action in the House of the Oireachtas he will take such action.

I am not sure how long this tribunal will sit but if the new Bill setting up an independent complaints commission and all those other procedures have been passed before the tribunal have completed their inquiry and if recommendations come from the tribunal surely it will strengthen the hands of legislators if they feel that action is necessary. I have no doubt that if the results of the tribunal indicate that action is necessary the Minister will take it. I hope if recommendations are made that they will strengthen the hands of legislators. I accept the Minister's reasoning that if certain findings from this tribunal indicate that there should be criminal charges brought, that the necessary action will be taken by the DPP or if disciplinary action should be taken by the Commissioner that that will follow.

The Minister also said that the question of taking action for the future may arise but he suggests that this would follow logically and would be self-evident from the findings of the tribunal. I also accept the Minister's statement that in the course of setting up the safeguards in the Criminal Justice Act, tape recording and all the statutory code of practice governing the treatment of persons in Garda stations will be accounted for. The Minister stated that if there are any obvious lessons to be learned from the findings of the tribunal touching on matters that are not already covered in the Criminal Justice Act, or to be covered in proposed regulations, that action would be taken.

I concur with the arguments that Senator Robinson and Senator Hillery made, that if recommendations come from this tribunal it would make it obligatory on the Minister, any future Minister or, indeed, the Houses of the Oireachtas, to take action in areas that we felt would not already be covered. I have no doubt that the Minister has looked at all the implications in this and I look forward to his reply. Those are my sentiments. I can see no reason why the tribunal would not have the power to make recommendations.

I see nothing wrong with the principle of the tribunal recommending to the Minister if they consider action is necessary. Perhaps the Minister considers that already he has sufficient powers to act on the findings without a specific recommendation. If that is the situation, then it is as well to have it on the record of this House. Then at some future date, if matters arise in this area, we will be able to point to the fact that in this House there was a commitment that if action was necessary in this area — outside areas already covered in the ordinary criminal code or disciplinary code in the Garda Síochána — the Houses of the Oireachtas would be empowered to point to this debate and say there was an assurance given by a Minister that if any other action was necessary he would take it. The public will expect us to take action.

It is important that we make a constructive submission to the Minister in relation to the setting-up of this tribunal. It should deal with the whole principle of the detention of people by the Garda for questioning. That does not take from the importance of the inquiry dealing with the Kerry babies situation which has caused widespread disquiet and regret. I am sure the ordinary rank and file members of the Garda are as upset as anybody else in the country that these things should happen. It is appropriate that the Minister has taken the courage to set up the tribunal. I have expressed concern that the evidence that should have been available did not come through the normal internal Garda process. I believe the Garda would have come out better in this particular case if that had happened.

Mr. B. Ryan

I do not think any of us could take issue with the need to do what is contained in the motion. Bearing in mind that the Minister in this House and in the other House and, at various stages, the entire senior officer corps of the Garda Síochána, have told us that they had no power until the Criminal Justice Act was passed to detain people for questioning it is somewhat intriguing that in the terms of reference of this judicial inquiry no specific reference is made to the circumstances under which the people named in this motion were actually brought into Garda custody. The circumstances of their making a confession are mentioned. I would have thought, since were told that it was a fundamental basis of the need for a large part of the Criminal Justice Bill that no such power existed, that the actual decision of the Garda and the manner in which they brought four people, who apparently are innocent, into custody and questioned them at length, would be part of the investigation.

It appears — I will go through a number of things about this judicial inquiry — to those of us who perhaps do not share the Minister's credulous attitude to the activities of a section of the Garda that there are a number of question marks. The first is were these people in lawful custody in the first place or were they in fact held in unlawful custody by the Garda at the time? I assume that under paragraph (3) something can be done there. It seems extraordinary, in the light of the fuss that was made about the lack of such powers on the part of the Garda, that no reference was made in the terms of reference for this tribunal of inquiry to the fact that the people were apparently under the impression that they were in custody for questioning, which is something we were told the Garda could not do. Apparently they did.

Mr. Noonan

(Limerick East): It is in the first line of the terms of reference.

Mr. B. Ryan

It could have been put in in much more explicit detail if the Minister intended it to be considered. With respect, the terms of reference that I read could possibly mean that but given the fact that I am a good deal more suspicious of a lot of these things the fact that it could possibly be read into it does not necessarily mean that it will be.

We have to be thankful for progress. I am very glad that this tribunal of inquiry is being set up. I would hate to interpret it otherwise. I suppose we can recognise progress when it is made but there are various aspects of what the Minister has to say that profoundly disturb me. One of these is the fact that the Garda could not resolve the conflicts of opinion. My experience in the past, when I have asked senior Garda officers to investigate complaints, is that they never have any problems in resolving conflicts of opinion because the investigator always believes the gardaí. I can give the Minister a long list of examples in which the final outcome of any investigation that I asked about was: "The gardaí deny the allegation, therefore, we do not see any point in pursuing it," or words to that effect. Presumably, the reason there is a further investigation in this case is not because of the difficulty in resolving conflicts of evidence but because the public concern is at such a level that we have to do something to resolve those complaints. Therefore, I suppose we are making progress. There are many other areas in which I could give the Minister a long list of complaints, going back to a famous murder case in Cork in the middle seventies in which complaints about the treatment of persons in custody, made by an eminent solicitor, were never even replied to not to mention investigated.

It appears to me that the major difference here is the level of public concern, not really the fact that a conflict of evidence could not be resolved. Secondly, the circumstances that are now unfolding would seriously inhibit any innocent person from making allegations against the Garda. My sympathy goes out to the people named in this motion who will be subjected to the most rigorous and public cross-examinations because of statements they made. By and large, not judging the circumstances under which they made certain confessions, most people will accept that innocent people were being charged with an offence they could not have committed, yet the consequences for all of them will be a harrowing experience of severe cross-examination by some of the most eminent legal people in the country. These are vulnerable, ordinary innocent people who simply felt they were suffering an injustice. They will suffer enormously, irrespective of the outcome of this inquiry.

This leads on to the central question that has been raised on a number of occasions, that is the absence of any provision for the inquiry to make recommendations. The fact that the Minister does not think this inquiry needs to make recommendations is all very well and he may well be quite satisfied with his own judgment in these matters, his own perceptions and his own understandings, but it is entirely another matter to decide that the tribunal does not need powers to make recommendations. They are two very different things. It is not up to the usual quality of the Minister's logic and powers of argument to suggest that the Director of Public Prosecutions or the Garda Commissioner will take the necessary action. That is not at all an adequate reason for saying that recommendations cannot be made.

There is the extraordinary suggestion that questions of taking action for the future will follow logically and be self-evident. If matters of this nature were both logical and self-evident we would not have had the intense debate on the Criminal Justice Bill, regrettably, now the Criminal Justice Act, that we had in both Houses for the last 18 months. Because certain matters were not either logical or self-evident we had an intense debate. The issues that arise are precisely the issues in regard to which what should be done is not self-evident.

I regret having to say I have some questions about what are the real reasons for excluding recommendations from this. One of the suspicions I have is that there is a fear abroad that this investigation might make recommendations which might sound suspiciously like those parts of the Ó Briain Report that were not incorporated in recent legislation, particularly the right to have and the insistence on having a third party present during Garda questioning. The second thing is that it would be very difficult to proceed with legislation for a complaints procedure and the proper care of persons in Garda custody if we were awaiting the outcome of a tribunal which has the power to make recommendations. It is conceivable that the fact that the tribunal will attempt to state things clearly will be open to the interpretation, by the Minister and the Government, that the tribunal and the regulations cover all the conclusions adequately, whereas specific recommendations for future behaviour will be much more difficult to ignore.

On another occasion Senator Michael Higgins described the minimalist approach, to minimise the damage to the institutions of the State and at the same time have the minimalist sense of justice being seen to be done. That is the only conclusion I can come to from what is a most inadequately argued case for not having recommendations from the Minister in view of the level of public concern that is evident in regard to this case. The Minister has this extraordinarily naïve attitude in regard to how certain sections of the Garda operate. It is probably on the basis of the advice he gets. I have complained to senior officers and to the Garda Commissioner about what I would regard as racist remarks about the travelling people by a senior Garda officer. To suggest that the Garda Commissioner knew what was the appropriate action to take is being extremely charitable to him since his final conclusion was that he did not see the programme and he could not comment on it.

I do not believe that senior Garda officers necessarily know what is the appropriate action to take because they often feel that the appropriate action to take, as was evidenced in the fingerprints case recently, is to minimise the damage rather than deal with the injustice. I would respectfully suggest that what we are liable to get out of this inquiry is a couple of innocent junior gardaí becoming official scapegoats.

It is quite possible, if there are conclusions which are unfavourable to the Garda, that the conclusions will be couched in such a way that it will be a couple of junior gardaí who will suffer rather than that a detailed analysis of the procedures under which the Garda are managed would be produced and on which recommendations could be made for future progress. It is unfortunately a minimalist approach.

The Minister has, to some extent, trivialised some of the questions that other people have raised. He talked about the suggestion that if it had not been for the newspaper reports there would have been a miscarriage of justice and produced a very conclusive statement of facts that the case had been withdrawn before the matter came to the public's attention. Technically he is correct. It would not be appropriate to use the term "miscarriage of justice" but a profound injustice would have been done to the people in question if it had not been for the publicity given to this case.

We have no evidence to suggest that if it had not been for the publicity that the media gave to this case anything other than an internal Garda inquiry would have taken place. I hasten to add, as evidence of my suspicions that nothing else would have happened, that as in the case of Nicky Kelly the examination of the allegations was cursory. It was the minimum that could be done to say that an investigation was carried out.

I do not share the Minister's benign view of the way the Establishment operates to protect itself in society. While I would not oppose this motion I do not share the optimism of many people that this will get to the root of not just this case but the problem with the Garda that is widely perceived, that the standards that are being practised by a large minority of members of the Garda Síochána are below those that the community are entitled to expect and that the people most wounded by the inadequacy of Garda standards are those who compose the remainder of the Garda force who suffer more than anybody else from the inadequacies of some of their members.

When it comes to the crunch the Establishment almost invariably believes itself. In this case the wording of this motion is such as to ensure that any damage that is done to the Establishment — in that I include the law enforcement agencies — will be minimal and will not be able to suggest that there are any fundamental inadequacies in the way the Garda do their business. It is regrettable that a Minister whom I have, to my embarrassment on some occasions, commended before for his ability to argue a case, has left himself open to an accusation of a fundamental lack of logic and thought in the way he justified the terms of reference of the tribunal of inquiry. I appeal to the Minister to ensure that the best possible recommendations, and possible future planning and decision-making for the Garda, be assisted by the tribunal and that the terms should be amended to include recommendations as to the future because that really is the core of public concern on this issue. There are two things. How and why did it happen and secondly, how can we prevent it happening again? Leaving the second entirely to the conclusions of the Minister and the Garda Commissioner on the basis of the facts as established is to me entirely inadequate and leaves as many questions unanswered as the present situation does.

Mr. Durcan

I am sorry I was not here when this debate commenced but I was detained on my way here. Nevertheless I have listened with interest to the comments that have been made by other Senators. I also have had the opportunity of reading the Minister's speeches here today and in the Dáil yesterday.

We are discussing the establishment of a tribunal under the Tribunals of Inquiry Acts, 1921 and 1979. We have before us a pretty specific motion. We are not discussing the establishment of a commission which will examine every aspect of the operation of the Garda Síochána. We are discussing a specific case. I find it difficult to agree with the logic of certain Senators who are suggesting that the scope should be far broader than that. We are discussing a very bizarre and Agatha Christie-type case and one which requires the ability of somebody like Agatha Christie to resolve it. It is something very specific. The procedure available to us is a satisfactory one. The establishment of statutory tribunals in this country has been used for very specific matters and matters of public concern. The Whiddy disaster and the Stardust disaster are two recent examples of that. Statute, in effect, provides for the establishment of an inquiry conducted by the High Court, presided over by a High Court judge, an inquiry with the power of subpoena, with the power of discovery; an inquiry which gives to witnesses the privilege which witnesses would normally have in High Court proceedings. Furthermore, the 1979 Act gives to the tribunal the discretion to award costs in favour of a party to the tribunal.

So far as the Kerry babies' case is concerned it is only right and proper that this case should be examined and investigated by a tribunal of this nature. It is also right that we appreciate the fact that this case came to light at a time when the Houses of the Oireachtas were debating amendments to the Criminal Justice Bill, which, in effect, dealt with the issue as to whether certain controversial provisions of that legislation should come into effect until a Garda complaints procedure was in existence.

At the very same time the courts were considering another case in which criminal charges were preferred against gardaí arising out of the death of Mr. Matthews in a Garda station in County Cavan. The public, who, on the one hand, had been expressing concern about the lack of powers which the Garda had and who were expressing concern at the fact that the Garda appeared to be unable to cope with our criminal problem, on the other hand, were suddenly faced with two situations which suggested to them that the Garda were operating in a very improper fashion. Both of these cases, in the manner in which they were publicised at that time, very clearly gave the impression to the public that the Garda throughout the length and breadth of this country in the broad investigation of crime were acting in an improper way.

Media headlines can often give an improper view of what is happening. This evening's Evening Press, which I picked up on my way here, has a headline “Lawyers lash rogue Gardaí”. That headline caught my attention as I was passing by a newsstand. That is the kind of headline that casts a reflection on the entire Garda force and draws the public attention from specific cases and gives the impression that improper things are happening in broad practice. It is that conflict, on the one hand, the impression that is conveyed to the public that the Garda are across the board acting in an improper way and on the other hand, the concern that the public have that the Garda should have increased powers, which really is an issue when we are debating this today.

It is against that background that this motion and the need to establish this tribunal is considered. It must also be considered on the basis of the very specific allegations which have been made in this case. Obviously something happened which has not yet been explained, despite an internal Garda inquiry. These Garda inquiries operate in a very narrow way. The people who conduct them do not have the powers necessary to compel attendance of witnesses or to extract the evidence that can be required to give a conclusive result. Nevertheless, despite the internal inquiry, which has been inconclusive, serious allegations have been made. It is only right and proper that the Minister for Justice and both Houses of the Oireachtas should establish a tribunal to allay public fears with regard to that issue.

It is very important that this opportunity be used, in so far as it relates to a specific case, to help to restore confidence in the gardaí. The Minister in the Dáil yesterday referred to the services the gardaí have given to the State since its foundation and since their establishment. That is something that we accept. The Minister also said other things in his speech which give cause for concern. He said in the Dáil yesterday:

I am not to be taken as implying that I necessarily accept that every person involved was justified in extending to the two Garda investigators only the particular degree of co-operation which was in fact extended.

Then the Minister makes this curious comment, having stated the obvious:

I am not commenting at all on that.

The Minister went on to say:

There are, as I have said, conflicting versions of events and those conflicting versions have not been resolved. I hope that the establishment of this inquiry will resolve those conflicting versions.

The terms of reference have been criticised by some Members of this House and also by some Members of the other House. The terms of reference simply impose on the tribunal the obligation to establish the reasons for the preferring of charges in the first case, the reason for the withdrawing of these charges, secondly and related allegations by the Hayes family. More importantly, the third term of reference states:

any matters connected with or relevant to the matters aforesaid which the tribunal considers it necessary to investigate in connection with their inquiries into the matters mentioned at (1) and (2).

"Any matters connected with it" is pretty specific, but "any matters relevant to the matters aforesaid" would seem to me to be pretty broad. I do not agree with the criticism of the terms of reference No. 3, that it is narrow. There is a broad term of reference there and I believe that the tribunal of inquiry, having heard the evidence, will be entitled to look at the matter in a broad way on the basis of that phraseology.

This was a most bizarre saga. It is a saga which has caused a lot of concern to the people and a lot of concern to the Garda. From the point of view of restoring public confidence in the Garda and from the point of view of giving the Garda the reassurance which they need, this inquiry should be established. I fully support the motion before the House.

Mr. Fitzsimons

My contribution will be very brief, not because I do not feel strongly about this matter — I do, as I believe most people do — but there is not much of a constructive nature that I could add to what has already been said. I welcome the decision to establish the tribunal. It is very important for the Hayes family, a decent, hard-working family, who were brought into this unfortunate situation. It is very important for Joanne Hayes, a young lady whose private life has been made public, and presumably will be made more public during the course of this tribunal. It is very important for the Garda who have very serious charges to answer. I do not see how they can answer those charges.

I should like to refer to a few of the aspects that have already been dealt with such as the failure of the internal Garda investigation. It is difficult to understand how a body like the Garda whose job it is to investigate all these things internally and who had all the evidence at their disposal, could fail to find the solution.

Investigation by interrogation was referred to during the debate on the Criminal Justice Bill. The fears expressed by many people seem to have been justified in this case — where Joanne Hayes told the Garda that she had placed the body of her own baby in a certain place and they did not bother to go to see if that was so. The ill-treatment and the pressure by the Garda in getting those decent people to sign confessions to a crime which they could not have committed and the signing of those statements with such graphic details have been covered and I shall not go into them again but I do say that this case and the Shercock case and many other cases have cast a gloom over the Garda Síochána. As Members have said on this motion and during the discussion of the Criminal Justice Bill, the Garda Síochána is a body of which we may all be proud.

Recommendations were made by different people as to what could be done to improve the Garda Síochána such as better recruitment and better training. I subscribe to all of these. Those members of the Garda Síochána who are not fit to be in the force for whatever reason should be taken out of it, whether it is excessive zeal or enthusiasm or whatever. They have no place in the force.

I pay tribute to the media for their exposure of this case and many other cases and their eternal vigilance. The Minister did say that the suggestion was made that were it not for the publicity regarding this case a grave miscarriage of justice might have occurred but he rejected that suggestion absolutely and said nothing could be further from the truth. He went on to say that the charges against members of the Hayes family were withdrawn in Tralee District Court on Wednesday, 10 October. The story was not published until the following Sunday, 14 October.

Most people would feel that the investigation must have taken a considerable time. It certainly was not carried out in those four days and there would be a suspicion in my mind, and I am sure in many people's minds, that it was well known that this investigation was being carried out by the media, by the papers and that perhaps there are some people who would still believe that were it not for this exposure by the media this case might not have ended in this way. We have so many other situations where we could use our imagination and wonder was justice done.

Finally, I would like to speak about the decision not to include recommendations in the terms of reference of the tribunal. I think it is a mistake. The tribunal should have been asked to make recommendations. At least if not asked to make recommendations the tribunal should have been allowed to make recommendations if they felt that these were necessary. I understand they are debarred from making recommendations, because the Minister said: "I do not propose to give the tribunal power to make recommendations for those reasons". I think that is a mistake.

Mr. O'Leary

I would like to support the motion and to express my thanks to the Government and to the Minister for setting up a tribunal to investigate this matter. I consider the terms of reference to be adequate, and consequently I will refrain from any further comment until the result of the inquiry is debated in this House.

Mr. Magner

I regret the fact that the tribunal, as Senator Fitzsimons said, is unable to make recommendations, because in inquiries of this nature such as Whiddy and Stardust where there has been loss of life it has been standard practice and procedure that the tribunal would be empowered to make recommendations, and in the so-called Kerry babies case it is a fact that lives have been lost. It strikes me as being a defect that the Minister and the Government do not see their way to allow the tribunal to make recommendations.

I welcome the fact that this tribunal of inquiry is being set up. I also welcome the fact that where members of the Garda have been involved in breaking the laws that they are sworn to uphold they have been brought to justice. I do not accept that there is a general lack of confidence on the part of members of the general public in the Garda Síochána as a force. There is concern about a minority of people who should never in the first place have been admitted to the Garda. There is concern about the admission procedures even now, that people who may be physically suitable are psychologically unsuited for the role they have to play in society but I do not accept that there is a general lack of confidence in the Garda as a law-keeping force in this State. I do believe that people are disturbed at the apparent frequency in which members of the Garda are involved in breaking the law which they have sworn to uphold.

Public confidence in the Minister for Justice is well placed. Since he took office he has demonstrated that as far as he is concerned as Minister for Justice in this Government, the rights of the citizen are paramount and there is nobody above the law. The Minister as the office holder in this particular case adds to the feeling I have expressed that there is no general lack of confidence in the Garda as a force or in the Minister as Minister for Justice but there is, as I said, some disquiet about certain elements within the Garda. There are people who ought not to have been members in the first place, being psychologically unsuited for the position they now have.

Senator Fitzsimons mentioned a number of the facts in relation to the Kerry babies case, and it certainly struck me that incompetence of a very high order would be the minimum charge you could lay against members of the force who investigated that case. This inquiry will suspend the 2,000 inquiries that there are at the moment among ordinary members of the public pending the report the tribunal will give to the Minister. People will want action — let us have no doubt about that whatsoever — whether it is taken by the DPP or the Garda Commissioner. The Minister cannot and will not be allowed by the public to escape the inescapable fact that action will have to be taken in this case when this report is through. Nobody can be whitewashed, nobody ought to be whitewashed. It is without doubt that if the people involved in this case are not guilty of serious crimes, they are guilty of gross incompetency at the very minimum, and I would sincerely hope that there will be no attempt whatsoever, irrespective of rank, to minimise the consequences for any person who is adjudged by the tribunal to have failed in his or her duty in relation to the investigation and prosecution of this case. I support the inquiry. I support the motion. I am unhappy about the fact that the Government did not see their way to allow the tribunal to make recommendations.

Mrs. McGuinness

Like other Senators, I support the motion for setting up this inquiry and the tribunal that is to carry it out. The Minister has acted perfectly rightly in doing this and in accepting that the internal Garda inquiry was not sufficient, not alone that it was not sufficient to deal with the actual justice or injustice of the matter but that it was not sufficient to deal with the most important factor that justice was not seen to be done, that there was public confidence involved. The Minister in setting up this tribunal is responding to a definite feeling of public lack of confidence not, as has been said, in the Garda force as a whole but that there are things going on that should not be going on and particularly in view of the atmosphere of the passing of the legislation contained in the Criminal Justice Bill that we should be presented with situations where the very fears that many of us have expressed about the questioning sections of the Criminal Justice Bill appear to have been justified by what has been going on.

One of the things that one cannot help feeling in looking, for instance, at the story as it has appeared in the media about what is known as the Kerry babies case is that when the lady involved did give what later turned out to be a truthful account of what she had done about her own child, this was not investigated but she was pressured into confessing to something else. One cannot help feeling that this is the sort of pressure that occurs if there is a limited amount of time in which a person can be questioned in a Garda station. The gardaí are not going to waste that time in investigating things outside the Garda station; they are going to use that time to keep on applying pressure in order to get an admission of some sort. That is the kind of fear that I would personally have expressed all along about the idea of people being able to be kept for a period of time in a Garda station for questioning.

It is with all the more pleasure that I welcome the setting up of this tribunal and the appointment of the very learned judge who is to head it. I would support its setting up.

Like other Senators, including Senator Magner, I am sorry that the tribunal does not of itself have power to make recommendations. A Leas-Chathaoirligh, you will be aware of what can happen where committees or tribunals are not empowered to make recommendations and the difficulties that may arise, and I would not like to see this kind of situation evolve. Perhaps the tribunal may be allowed to have opinions and make proposals, as was another well-known committee. It would finish off the thing better if the tribunal was allowed to make recommendations, and I would suggest that the Minister might amend his terms of reference so to provide.

Minister for Justice (Mr. Noonan,

Limerick East): First of all, I would like to thank the Senators for their contributions here. Some of the contributions tended, in my opinion, to prejudge the situation. It inhibits me quite a lot from dealing with anything in great detail because now that the tribunal is being set up we have to approach it in an open manner and I do not think we should proceed on the basis that facts which have not been established by the tribunal have actually been established.

I would like to thank Senator Lanigan for his general welcome on behalf of his party for the tribunal. Senator Deenihan asked specifically where the inquiry would be held. This is a matter which is essentially up to the judge. It would be only speculation on my part, but I would imagine that he would sit in Tralee at least for part of the time, so that evidence could be taken from people who are based in Tralee or near Tralee. I would also envisage, and again it is speculation, that he would sit in Dublin because it would convenience himself in drawing up his report and establishing whatever conclusions he arrives at. That is a matter for the judge himself but that would be the usual manner in which a tribunal such as this would be conducted.

I would like to thank Senator Ross for his supportive statement and for putting the question in perspective and putting the difficulties in respect of certain incidents in perspective of the records of the Garda Síochána as a whole.

Senator Robinson in a major contribution referred to the Whiddy Tribunal and the Stardust Tribunal. The only precedent in my area of responsibility that I am aware of is an inquiry in 1967 which dealt with the death of a person in Garda custody in the Bridewell in Cork. The terms of reference of that inquiry are along the lines of the terms of reference that I put forward here, and they did not include a specific term of reference that recommendations should be made.

In Whiddy and Stardust we were dealing with highly technical matters about which ordinary people have no particular knowledge. The tribunal had its professional assessors in those cases, people who are technically competent. In that case all the matters that could arise from the tribunal were examined and certain recommendations were made.

In the case here, as I said in my introductory remarks, the same need does not arise for specific recommendations. In a sense Senator Robinson, if you listen carefully to the remarks she made more clearly than I could, explained why it probably would not be appropriate to have a specific term of reference dealing with recommendations. She argued that the tribunal should examine matters relating to questions of human psychology in vaccuo. She argued that reports available, research available, should be made known and that people who conducted the research should come to the tribunal and should make recommendations based on their professional expertise about the effects of questioning people in isolation or in company. Certainly these areas might be appropriate areas of investigation, but this tribunal is to establish the facts in a specific set of circumstances. The kind of things Senator Robinson has argued for would be more appropriate for a general inquiry into the areas she suggests if such a general inquiry was thought desirable. We have looked at many of these situations in the context of the Criminal Justice Bill.

If the conclusions of the tribunal indicate that criminal charges should be prefered that is a matter for the DPP and it is not appropriate for the tribunal to recommend that criminal charges should be preferred. It is a matter of Garda discipline. The Commissioner is the disciplinary officer. He has statutory obligations as well as statutory powers to act in this situation.

If it is a question of something having occurred in a Garda station in Tralee that should not have occurred then it will be self-evident from the report that if an abuse was perpetrated the abuse should stop. I do not think we need anything more than a very strong report from the judge in that particular instance. I do not see that the case which Senator Robinson makes stands up, especially when we consider that we dealt with matters of safeguarding people in Garda custody when we debated the Criminal Justice Act. Also, we should not forget the Ó Briain report, where Judge Ó Briain and the two people who sat on that tribunal with him were specifically empowered to recommend safeguards for the treatment of people in Garda custody.

I have committed myself to this House and to the other House that we would have two pieces of legislation, statutory safeguards to govern the treatment of people in custody. Both Houses will have every opportunity to debate these safeguards in full. We have also the question of an independent complaints procedure, again a piece of legislation which will go through all stages.

If the tribunal, as I expect it will, makes a very, very full report, the conclusions in that report will certainly recommend themselves to us in a particular way and if action is needed to be taken then action will be taken. I share the concern expressed here by every Senator. But there were two dead babies in Kerry. We should not proceed as if there was only one. If we are to cry for dead babies we should cry for all dead babies and we should not proceed on the basis that we know everything, because if that is the case we do not need the tribunal. The tribunal is being set up to establish what happened and the terms of reference are certainly specific enough on the one hand and wide enough on the other hand to give the judge absolute freedom with the powers of the tribunal, the powers to subpoena witnesses, the powers to cross-examine witnesses and the powers to look for documentation. He has the powers there and I hope he will come up with the answers to the questions that we want answered.

If the report on this case which the judge will present to me requires particular action then there will be particular action. If the conclusions of the tribunal in a particular case give rise to a situation where we can move from the particular to the general and the general solutions are necessary arising from the specific case, then I will not be averse to acting in that case either.

In the light of Senator Robinson's contribution I would like to say that very frequently coming into the Dáil or the Seanad Senators and Deputies proceed as if the Minister was bringing in a train onto which they would hook various carriages. That is fine as far as it goes provided the engine of the train can carry the load, and in this instance we are giving a judge a specific job to do. He has all the powers within the terms of reference and within the law governing tribunals of this sort to do that specific job. I do not think we can ask him to take on other jobs which might make it difficult for him to do the specific job we are asking him to do and to do it in an expeditious way so that we can have a report in the short-term rather than in the long-term, because the public are concerned and will continue to be concerned until a report is presented to me and until that report is made available to the Houses of the Oireachtas and to the public.

Various other Senators contributed along the same lines. Some Senators asked specific questions. I think I have answered them in my initial remarks. Senator Ferris in particular asked what would be the situation of the judge and what would the procedure actually be. Once the Seanad passes this motion I will proceed to set up the tribunal by order or by warrant. The judge will make a report and the tribunal will make a report and the findings will be submitted to me. The conclusions of the report will be the basis for action. I do not think it is necessary to go into the semantics of the difference between a report and recommendations arising from the report.

I do not think there is anything further that I should say at this point. I would like to thank the various Senators for their contributions. I share the concern of Senators. I thank the Senators for their general support, and if certain Senators see things in a different light that is inevitable and I do not think there is any point in commenting on that today.

I hope the tribunal will work expeditiously. I certainly have every confidence in the eminent judge who will constitute the tribunal and I wish him every success in his difficult task. I look forward to an expeditious report. If action is necessary on foot of the conclusions of that report then there will be action.

Question put and agreed to.

Seanad Éireann díospóireacht - Wednesday, 12 Dec 1984

Kerry Babies Case: Motion.

Seanad Éireann díospóireacht -
Wednesday, 12 Dec 1984