McBrearty questions remain following huge settlement
The huge settlement in part of Frank McBrearty Junior's action against the State in no way concludes the McBrearty issue. In the first place there are numerous further claims on his and his family's behalf still outstanding. But there are two other serious issues as well.
The first concerns the issue of legal fees. The McBrearty family were known to have been the victims of a large scale abuse of their constitutional rights at the time that the Morris Tribunal was established. There was no question of the McBrearty family being in the dock. They had no reason not to cooperate with the Tribunal or in any way mislead the Tribunal. They were in a unique position as witnesses. There was a special and compelling case for the State to underwrite their legal expenses. The State refused to do that.
It was not as though the State never guarantees to pay the legal expenses of witnesses. Indeed the State did precisely that in the case of a large number of gardaí, superintendents, chief superintendents and others, against whom serious findings were made by the Morris Tribunal. Not alone that but it was anticipated that serious findings of improper conduct would be made against some of these at the outset of the Tribunal's enquires. Nevertheless their legal expenses were guaranteed by the State right from the word go and no questions asked.
This was done through the device of having counsel representing the Garda Commissioner also represent these Garda Síochána officers. In the event the Garda commissioner did not apply to the Tribunal to have his legal costs discharged but of course the State picked up the tab, so it made no difference. But here was a case where the State guaranteed, from the outset, to pay the legal costs of one set of witnesses at the Tribunal, many of whom were known to have lied to a previous inquiry and therefore likely to lie again to the Morris Tribunal (which of course many of them did), while the witnesses who were known to have been abused and who had no motivation to lie were denied a similar guarantee.
An interesting feature of the inquiry established by Michael McDowell, Minister for Justice, Equality and Law Reform, into the death of the 14-year-old Clonmel boy, Brian Rossiter, having been in Garda custody, is his guarantee to the Rossiter family to pay their legal expenses. Why, if it is possible to make such a guarantee in the Rossiter case was it not possible in the McBrearty case. One suspects because there was and remained a prejudice against the McBreartys.
But there is another and more serious issue. At first the McBreartys were suspected of having been responsible for the death of Richie Barron in October 1996. However in February 2002 the gardaí relented and acknowledged the obvious that Richie Barron had not been murdered by the McBreartys or anyone but had been killed in a hit and run car accident. The inquiry had been re-designated in the Garda computer system from a murder enquiry into a hit and run inquiry. Three months later the Dáil debated the terms of reference into the affair and in the course of the entire debate on those terms of reference the Dáil was never informed that the Garda no longer believed Riche Barron was murdered. The suspicion that the McBreartys had been involved in a murder was allowed remain.
A few months later at the inquest into the death of Riche Barron the inquest was not told the Garda no longer believed (if they ever did) Richie Barron was murdered. The McBreartys were not informed of the re-designation until a year afterwards.
The question arises who knew of this re-designation? Did the then Attorney General, Michael McDowell, know and if he did know why did he not ensure the Dáil was informed? Ditto the then Minister for Justice, Equality and Law Reform, John O' Donoghue. If they were not informed, why so? Did the Garda Commissioner know and if he did why did he not inform the Department and Minister for Justice?
If we had a proper Oireachtas committee system one of these could enquire into these questions. But we don't and instead we have to rely on a tribunal to do so. The Morris Tribunal should be invited to extend its enquiries into thee areas as well.