Afraid of Gardai
Recommendations of previous reports of the Morris Tribunal have been ignored. The political establishment is in denial at the scale of corruption and indiscipline there is within the force. Michael McDowell has protected his flank by the publication of a new disciplinary code but he continues to deny the scale of the problem. By Vincent Browne
On 2 July 2004, Mr Justice Freddie Morris, chairman of the Morris tribunal, made the following observations in his first report:
• The combination of corruption and negligence which characterised the relevant period in Co Donegal could easily occur again under different circumstances but, obviously, in a different way.
• Garda headquarters should take a more active role in the management of divisions. There can be no basis upon which headquarters can be entitled to see themselves as merely receivers of information. They are online managers (an obvious serious critique of senior Garda management, including a critique of the present Garda Commissioner).
• Garda headquarters never raised a query as to how an investigation (into explosives finds) was proceeding. (At this stage it said "Commissioner Conroy is not to be faulted".)
• An Garda Síochána is losing its character as a disciplined force.
• Ultimately the gradual erosion of discipline within An Garda Síochána is a developing situation that will, sooner or later, lead to disaster.
• It took sometimes days of relentless cross-examination by counsel on behalf of the tribunal to approach anywhere near the truth of the events relevant to the terms of reference.
• There was a clear failure on the part of various members of An Garda Síochána to account for their actions while on duty when appropriate enquiries were made of them by senior officers.
• It is clear members of An Garda Síochána adopted a thoroughly uncooperative manner with my investigators.
• It is completely unacceptable that any individual member of the Garda Representative Association should see itself as mandated to prevent the uncovering of the truth (about the conduct of members of the force).
• The tribunal is of the view that every member of An Garda Síochána should be immediately obliged to account for any action taken by him or her as a member (of the force).
• What is vital is to bring back the concept of the truth both to internal and external relations within An Garda Siochana.
• The tribunal cannot come to the conclusion that the Donegal division is a statistical blip
• The system of promotion (within the force) too often produces people who do not bring to the task the requisite level of enthusiasm, commitment and ability.
The Minister for Justice, Equality and Law Reform, Michael McDowell, did nothing about these observations and recommendations. Neither was there even a Dáil debate about that first Morris report which conveyed a devastating critique of the Garda.
In obvious frustration, in his second report, dated 19 May 2005, Morris repeated in an appendix all of his recommendations from the first report. Not one of the recommendations had been implemented in the interim. On 17 August last, the next three Morris reports were published, having been made available to the Minister for Justice, Equality and Law Reform on 1 March 2006.
The last of these reports, that into the arrest and detention of seven persons at Burnfoot, repeats the essence of the observations made in the first report (see panel).
However, because (for legal reasons) publication of these last three reports were delayed, for five months, Michael McDowell has had an opportunity to protect his flank against yet further criticisms of not having acted on previous recommendations. He has now published draft disciplinary regulations for An Garda Síochána which go somewhere near implementing the recommendations made over two years ago.
However, there is no sense of a crisis concerning An Garda Síochána. Michael McDowell repeatedly refers to the disturbing evidence of Garda impropriety "in Donegal", as though that is the problem.
Furthermore, he remains protective of the present Garda Commissioner, Noel Conroy, who, as an assistant commissioner in charge of the division at headquarters dealing with crime and security, had a direct responsibility for failing to oversee what was going on in Donegal at a time when the bogus explosives finds were taking place.
Meanwhile, none of the spokespersons for the opposition parties have grappled with the scale of the crisis within An Garda Síochána, especially with the culture of concealment. It is because of a political apprehension about being seen to be "anti-Garda". ?
Recommendations once again
Observations in the Tribunal's fifth report are mainly a repetition of previous observations – illustrative of how little has been done.
Of the gardaí serving in Donegal, it cannot be said that they are unrepresentative or an aberration from the generality. All of them were trained as gardaí and served under a uniform structure of administration and discipline that is standardized throughout the country.
In the tribunal's opinion, proper discipline has been lost within An Garda Síochána. Without a management structure being restored to the Garda, one based on strict compliance with orders and on immediate accountability, their is an extreme danger that what the tribunal has reported on in Donegal will be repeated – and that such conduct will multiply if allowed to go unchecked.
The tribunal is convinced that there is a substantial core of gardaí who view police work as a vocation and who act within the law and for the good of the people of Ireland. (He then went on to name some of the Garda witnesses who impressed him.)
Then there are Gardaí who need direction and discipline. Even if discipline and proper direction were to be effective, the tribunal would remark that there are those who would never be suitable for any policing task.
There has to be discipline in the Garda. It is not a playground for the mischievous.
The tribunal remains stunned by the findings of fact that it has had to make. The tribunal has been staggered by the amount of indiscipline and insubordination it has found in the Garda force. There is a small, but disproportionately influential, core of mischief-making members who will not obey orders, who will not follow procedures, who will not tell the truth and who have no respect for their officers.
Management has to be based on trust. It also has to be based on checking and the reasonable possibility that managers will be strictly called to account. Trust and leadership are qualities that ensure the proper direction of any organisation. It is imperative to select those who can display these qualities with energy for the Garda force to move forward. The tribunal reiterates that many officers meet those criteria.
Any careful reader of the prior reports of this tribunal can note the damage that can be done by infirm leadership. The tribunal has already made recommendations in that regard and will not repeat them.
It is wrong to suggest that the people of Ireland are getting value from every garda employed by them. This report, together with the other four reports of this tribunal, is a sure testament to that. Discipline is necessary to bring out the kind of energy and optimism to make a real difference.
The tribunal has now made specific recommendations in five reports. It has reiterated, in these last paragraphs, its optimism for the restoration of morale within the Garda through fair but stern measures of discipline.
Ardara 'explosive device'
The discovery of an explosive device at an MMDS mast on 19 November 1996 triggered a litany of farcical events. As with the Burnfoot and silver-bullet reports, Sergeant John White was the central figure of the inquiry into the Garda investigation of a Donegal arson attack.
Although there is no definitive proof that White planted the crude explosive device at the mast, Morris found that it was planted at the sergeant's behest.
The explosive find was used by White to justify the arrests of innocent people under Section 30 of the Offences Against the State Act, which permits gardaí to detain suspects for up to 48 hours.
Hugh Diver and his now-deceased brother, Anthony, were involved in the protests against the erection by Cable Management Ireland of a mast behind the home of their sister and brother-in-law. On 7 November 1996, property on the site owned by Telecom Éireann was damaged in an arson attack and White, a former member of the murder squad, was drafted in from nearby Carrick to investigate.
White soon suspected, wrongly, that the Divers were the potential arsonists and proceeded to try to prove his suspicions.
On 19 November, he came to the site and found the explosive device strapped to the mast. He claimed he had been called as there was something happening at the mast but the tribunal concluded he went out of his own accord.
Superintendent Denis Cullinane, who arrived at the scene, was quickly convinced it was a bomb and called in the army bomb-disposal squad.
However, there was no effort by White, who was in charge of the inquiry, to take any witness statments from those present or to make any notes about this extraordinary escalation of the mast protest. There was no attempt to preserve the purported crime scene.
At Ardara Garda station, White took a teaspoon of the powder and tried to ignite it outside the back door. Although it failed to ignite, he declared to his colleagues that it was an explosive device. On foot of this information, Cullinane signed the necessary forms for White to arrest his suspects and search their houses under the Offences Against the State Act.
Before the raids, some unknown person left a crate of poitín outside the home of Hugh Diver, who used the homemade brew for medicinal purposes.
When White and other gardaí arrived, they went straight for the crate of poitín in his cellar. The night before the raids, Hugh and Anthony Diver received phone calls, again from an unknown person, asking to meet them the next day in Dungloe. A garda told the Morris tribunal he heard White saying the men would have a sleepless night.
It later emerged that a large quantity of fireworks were seized by gardaí months earlier and stored in Glenties Garda station. Two gardaí told the tribunal they had suspicions that the device on the mast had been made using the seized material.
The tribunal found there was no reliable way for members of the force to pass on their suspicions to more senior officers and that White had the device planted to effect the arrests under Section 30 of the Offences Against the State Act
The silver bullet
Although Jack White was not proven to have organised the attempt to set up Mark McConnell and Michael Peoples for a serious crime of threatening a man with a silver bullet, the Morris report into the incident once again implicates him on several counts. It also raised serious questions about the willingness of the Garda, both locally and nationally, to place crediblity on the claims of Bernard Conlon, a man with a lengthy criminal record, over two men, McConnell and Peoples, with no criminal history. (Between 1981 and 1994 there were 15 convictions recorded against Conlon.)
When he met White outside Frank McBrearty's nightclub in July 1997 to complain that he had not been served a meal during his night out, despite paying for one, the garda saw an opportunity to turn the heat still further on the innocent Raphoe family.
Conlon agreed to be "found on" the premises a month later when gardaí raided Frankie's nightclub. He then agreed to become a witness in one of the 300 prosecutions of McBrearty and his extended family.
Morris concluded that White and Garda John Nicholson had concocted the plan to use Conlon to damage the McBrearty's. Conlon, a man of low intellectual ability, was open to the promise of money, Morris said.
Conlon also claimed White asked him to make up a story that he was visited at his home by two men, McConnell, a cousin of Frank McBrearty junior, and his friend Michael Peoples, in 1998. He said the men threatened to use a silver bullet on him if he gave evidence in the prosecution case against the McBreartys.
It later transpired that McConnell was with members of the legal profession in Donegal on the night in question. State prosecutor Superintendent Kevin Lennon tried to prevent lawyers for the McBrearty's from cross-examining Conlon during the district-court hearings in the liquor-licensing case in 1999. The tribunal concluded that Lennon, White and Nicholson had conspired to suppress details of Conlon's criminal past from the court.
Conlon also falsely claimed he had been bribed by a private detective, William Flynn, who was hired by Frank McBrearty senior to establish the cause of Richie Barron's death and to clear his sons' name.
Although Conlon said White and Nicholson had particpated in these various deceptions, the tribunal found that his evidence was not credible due to his previous history and bad character.
However, the tribunal found that White had lied in his evidence, had set up Conlon before the after-hours raid on McBrearty's pub and had also assisted, with Nicholson, in the falsification of expenses claimed by Conlon for his various trips to the Donegal courts to give evidence against the McBreartys.
Nicholson was convicted of offences related to the falsification of expenses although John White was acquitted by direction of the judge in the Donegal District Court. He has described the Morris's findings in his latest three reports as "perverse".
Burnfoot Travellers' site
On 23 May 1998, a shotgun was found at a travellers' encampment in Burnfoot, Co Donegal. Its discovery was used as a justification for the arrest of seven travellers as part of a Garda investigation into the murder of Eddie FitzMaurice some three weeks previously.
Because of the discovery of the firearm, Sergeant John White and his Garda colleagues arrested the travellers under Section 30 of the Offences Against the State Act which allowed them to hold the suspects for up to 48 hours.
A number of those arrested complained that they were subjected to systematic racial abuse from members of the Garda while in custody. Mr Justice Morris found that none of the travellers staying in Burnfoot had anything to do with the death of Eddie Fitzmaurice.
He also concluded that the shotgun was placed in the camp by White on the day before the search party arrived. He based this conclusion on the evidence of White's colleague, Detective Garda Thomas Kilcoyne, who claimed to have witnessed White planting the shotgun.
In a statement to Chief Superintendent Walter Rice and Detective Superintendent Tadhg Foley, two senior members of the Carthy inquiry team, Kilcoyne outlined the events on the night before the dramatic discovery of the shotgun.
On Friday 22 May 1998, White told Kilcoyne that a team investigating the FitzMaurice murder would be arriving from Swinford to search the site.
"The site was to be searched and a number of arrests were to be made... On Friday evening, after all the arrangements had been made, I was in Ballybofey with Sergeant White when he told me he had a sawn-off shotgun that he was going to place at the caravan site in Burnfoot..."
White then drove with Kilcoyne to a lock-up store he had in Gortahork and went inside. "He returned with a sawn-off shotgun... Sergeant White suggested we test it to see if it worked. It worked and was very loud...We then drove on into Burnfoot. He parked the car up on a road beside the Garda station, out of sight of the main road... When he got to the edge of the farm buildings, approximately 150-200 yards from the [travellers'] site, I felt sick. I felt like a criminal... he stepped into the shadows of the buildings. When he emerged I knew he had planted the gun... I accompanied the search team and the planted gun was found in the vicinity where I last saw Sergeant White with it. No other gun was found. Seven people were arrested under Section 30 of Offences Against the State Act as a result of that firearm being found. My moral dilemma was that I was involved in planting the gun..."
Kilcoyne received immunity from prosecution and gave evidence against White at the Morris tribunal and in a criminal trial. Last month, White was acquitted by a jury on firearms charges in the Donegal Circuit Court. A significant quantity of evidence went missing before the trial. In his report on the Burnfoot raid, Morris accepted the evidence of Kilcoyne and concluded that White had planted the gun and cartridges in order to effect the arrests under Section 30 of the Offences Against the State Act.