Serious questions arise from this murder most foul

It is doubtful if anyone will ever be convicted for the murder of Donna Cleary and questions arise about the death in Garda custody of Dwayne Foster. By Vincent Browne

The murder of Donna Cleary was shocking but how likely is it that anybody will be convicted of that murder and how, as Michael McDowell has claimed, is that murder a "watershed" in the way that countless other murders have not been?

First on the likelihood of a conviction for murder. From what we know at the time of going to press, the Gardaí would be able to prove who it was that was refused entry to the 40th birthday party at Coolock in the early hours of Sunday 5 March, but it is not clear they would be able to prove who it was that showed up subsequently. Certainly it may be difficult to prove who of the people that showed up fired shots into the house, killing Donna Cleary and it would be difficult to sustain a contention that there was a common design on the part of those who showed up to kill or seriously injure someone at the party.

So, on the basis of what we know so far, there could be grave difficulty in securing any convictions for murder or even manslaughter. This, inevitably, will or would lead to another crime alarm. But is it seriously suggested or would it be seriously suggested that we impute to everyone in a group of people, that turned up at a house protesting at being denied entry to a party, an intention to murder someone at the party, (that is if it could be established that the people who were denied entry to the party were the same people who showed up subsequently)?

There is then the question of the other death in this case, that of Dwayne Foster. It appears Dwayne Foster was a drug addict and was also suffering from throat cancer.

According to Gardaí, he was arrested at 11pm on Sunday 5 March. At 3.00am the following morning he was feeling unwell and a doctor was called to attend to him. Over five hours later, at 8.30am he again complained of feeling unwell and a doctor was called again. At 5.30pm, according to Gardaí, he again complained of feeling unwell and again a doctor was called to the station. A few hours later, at 8.00pm the doctor arrived and he decided Dwayne Foster should be moved to Beaumont Hospital.

At 9.00pm he arrived at Beaumont Hospital and was given medication for his drug addiction and treated for the throat cancer. He was discharged from the hospital within an hour of arriving there.

On his return to Coolock Garda station he was again interviewed by Gardaí and at some stage during this time he consulted with his solicitor. Just before midnight he went to bed, according to the Gardaí.

At 2.30am on the morning of Tuesday 7 March, a Garda who checked him in his cell found him to be unresponsive and with blood on his face. The Gardaí say the assumption was that he had been bleeding from his nose. He was then taken back to Beaumont hospital and there pronounced dead.

Somebody or some institution has serious questions to answer about this.

Either something very serious happened to Dwayne Foster after he had been returned to Coolock Garda station, having been to Beaumont Hospital on the evening of Monday 6 March or else he was very seriously ill while at Beaumont Hospital and the seriousness of his illness was undetected there. Certainly the speed with which he was discharged from Beaumont Hospital – within a hour of arriving there – is surprising. This must have been the quickest turn-around anybody visiting the hospital has experienced since the hospital opened.

The Gardaí have announced an internal investigation into this. The announcement calls attention to the inadequacy of the legislation setting up the Garda Ombudsman Commission. In Northern Ireland the police Ombudsman is automatically involved in an inquiry when somebody dies in police custody or when just released from police custody. Here not so. A complaint must be made. But who is entitled to make a complaint since the primary complainant, Dwayne Foster, is dead? And because of the social background of Dwayne Foster (working class Dublin) and the suspicion he was involved in the murder of Donna Cleary, there are unlikely to be intense public demands for an independent inquiry into his death.

The demands for further repressive legislation and a tightening of the mandatory prison sentences regime because of the awful and shocking circumstances of the killing of Donna Cleary are entirely misguided. Increased penalties for this form of criminality that caused the murder of Donna Cleary are irrelevant (and note: we are not saying that the persons arrested in connection with that incident were involved in the killing). Nobody who engages in such criminality is deterred by the sanction that may follow. The major deterrent for them is the likelihood of being caught and the fact is that for many murders, outside the ambit of domestic murders, the detection rate is poor. The most salient measure to deter major crime would be to improve the detection and conviction rate.

The mandatory sentencing requirement is just plain wrong and, arguably, unconstitutional. Judges want and should have discretion to make the punishment fit the crime. They should not be required to impose a set sentence when in their view the interests of justice require a lesser sentence.

As for watershed? What watershed? Why is the killing of Donna Cleary worse that the killing of many innocent people over the years? Just another excuse for a crime panic.p