Wednesday, December 20, 2017

Justice Ministers Kevin O'Higgins to Charlie Flanagan: from Decency to Decadence

Kevin O'Higgins Minister for Justice 1922-27

Charlie Flanagan, Minister for Justice and Equality June 2017 - ?

Introduction and Summary

Diarmaid Ferriter has an article on the history of the Department of Justice in the Irish Times on 2 December - to show the background to the current Scandal/Hysteria
Department of Justice has History of Dismissing Challenges

The article is behind a paywall but Ferriter  stresses the huge challenges faced by the State in its early years - and the role of the Dept of Justice and its first Minister Kevin O'Higgins.

... In most of these tasks civil servants played a key stabilising role and also generated much power for themselves. As JJ McElligott assistant secretary of department of finance in 1923 saw it, one of the advantages of the inexperience of O'Higgins and his colleagues and the distraction of the Civil War was that it allowed civil servants to get on with State building without too much political interference.

It is no harm to remember this heritage in light of the turmoil witnessed this week. A viable democracy and effective Civil Service emerging in the most difficult of circumstances were two of the main achievements of that era. Another enduring legacy of that period was excessive centralisation, too much power in the hands of individual civil servants and contempt for those who sought to expose wrongdoing or ask troubling questions.

On the assassination of Kevin O'Higgins in 1927, Ferriter writes:

O'Higgins was one of the most intriguing characters of the Irish Revolution and the subsequent counter-revolution  of which he was in the vanguard. Shot dead by three IRA men acting independently on his way to Mass in 1927, he is often regarded as the uncompromising "hard man" of Cumann  na nGaedheal in  the 1920s. In many respects he was, but he was no unthinking militarist with a lust for blood, and even during the Civil War was anxious legal normality take the place of martial law.

HOWEVER

 "There are no real rules of war", O'Higgins insisted, in defending the execution of anti-Treaty Republicans: "The safety and preservation of the people is the highest law." The attempt to dehumanise his Civil War opponents was propagandist caricature and ignored the sincerity and depth of their feelings of betrayal; just as he, in turn, was caricatured as a man whose heart had turned to stone. It had done nothing of the sort. In his colleague Eoin MacNeill's memoir of these fervid years, finally published last year, MacNeill recalled how he witnessed the assassination of O'Higgins in 1927. As MacNeill cradled him, O'Higgins told him "I want you to say that I forgive my murderers".

This was all the more remarkable given that four years previously during the Civil War, O'Higgins had buried his father after Republicans killed him during an attack on his house......

Compare that to the behaviour of the current Minister for Justice who slandered former Sister of Mercy Nora Wall in the Dail in 2009 and who is now trying to blame his own civil servants for his political problems!
Justice Minister Charlie Flanagan and Former FG Chair Phil Hogan Vs George Hook and Nora Wall

Resignation of Tanaiste (Deputy PM) Frances Fitzgerald 28 Nov 2017

Frances Fitzgerald succeeded Alan Shatter as Minister for Justice after the latter was forced to resign in May 2014  and held the post until June 2017 when she was appointed Tanaiste. She was then succeeded by Charlie Flanagan as Minister for Justice. Notably Shatter himself had been  forced to resign in a bogus "scandal" that was linked to the Sergeant  Maurice McCabe whistleblower affair. A report to the then Taoiseach (Prime Minister) by Sean Guerin  into allegations made by McCabe claimed that Shatter had "not heeded" McCabe's voice. HOWEVER in May 2016 the O'Higgins Report concluded that Shatter, as Minister for Justice, had taken a personal interest in McCabe's complaints and allegations, had dealt with them appropriately, promptly and reasonably and that there had been a failure by McCabe to respond to letters sent by Shatter and his officials to McCabe's solicitors. Typically, this vindication was of no obvious benefit to Shatter - who had also lost his Dail  seat in the February 2016 General Election. Nor did it seem to do McCabe any harm!

Alan Shatter's political career was effectively ended by a fake scandal that was based on  the allegations made by Sergeant Maurice McCabe. I strongly suspect the current Charleton Tribunal will vindicate Frances Fitzgerald conduct when she was Minister for Justice, just as Mr Justice Kevin O'Higgins vindicated Alan Shatter. But will it make any difference? Fitzgerald was forced to resign because she allegedly knew about "smears" being used by the Garda high command in 2015 when they were defending themselves against allegations made by Sergeant McCabe in the course of the investigation by Mr. Justice O'Higgins.  In two recently discovered emails, from 2015, when she was justice minister, Fitzgerald was warned about “aggressive tactics” being deployed against Sgt McCabe by the Garda leadership. But what did these "smears"and "aggressive tactics" consist of? Why nothing more than the perfectly normal tactics used by defense lawyers when they are faced with false allegations against their clients. In addition to clearing Alan Shatter, Mr Justice O'Higgins concluded that claims of corruption made by Sergeant McCabe against five of his superiors - up to and including Garda Commissioner Martin Callinan - were false. It appears that the "aggressive tactics" of Garda management were both justified and successful! So why then was Frances Fitzgerald forced to resign?

The problem is that politicians - on all sides - insist on treating Maurice McCabe as a sacred cow, a secular saint who can do no wrong. This has continued even after the publication of the O'Higgins Report. As reported in an article by Senan Molony, Taoiseach Leo Varadkar said in the Dail on 21st November:

"I want to say Sgt McCabe is somebody who I have had dealings with. I met him when I was minister for transport, tourism and sport when he made allegations relating to penalty points. He is one of the bravest people that I have ever encountered in public life and he is somebody who has been very much wronged by the State on a number of occasions because of his bravery and because of his willingness to shine a light into some dark places."

Frances Fitzgerald  had expressed similar unconditional support for the whistleblower. This placed her and the Government in a ludicrous dilemma where the Opposition expected them to prevent Sergeant McCabe's Garda colleagues and superiors from defending themselves against false accusations made by the whistleblower.  Any attempt to do so was seen by the Opposition as "aggressive tactics" and "smears"!

 [ As also reported by Senan Molony, Labour Party leader Brendan Howlin said:
The legal strategy was designed to fundamentally discredit Sgt Maurice McCabe and subvert the course of justice, a matter of enormous importance. This good man could have been destroyed.’ He added: ‘At the same time the Garda commissioner [then Noirin O'Sullivan] was instructing her lawyers to discredit Sgt McCabe, she and the Tánaiste [Frances Fitzgerald] were publicly lauding him. ‘The strategy was fundamentally dishonest.’]

Following the fall of Frances Fitzgerald and the political destruction of Alan Shatter, the current Minister for Justice Charlie Flanagan is now firmly in the firing line. It is useless to  expect him to do the decent thing and criticise Sergeant Maurice McCabe. Clearly he is going to throw his civil servants to the wolves in an attempt to save his own political skin!

Charlie Flanagan (and PM Leo Varadkar) Vs Their Own Civil Servants

Charlie Flanagan has publicly supported Sergeant Maurice McCabe as did Frances Fitzgerald when she was Minister for Justice, not to mention Taoiseach Leo Varadkar who supported Fitzgerald until the media and political pressure to dump her became impossible to withstand. Flanagan and Varadkar are the likely next targets of this witch-hunt and they have no intention of questioning the credibility of Sergeant McCabe. Accordingly they need to provide the witch-hunters with other scapegoats. Unfortunately the leader of Fianna Fail Michael Martin, is taking the view that Fine Gael's difficulty is FF's opportunity and piling on the pressure.

Jennifer Bray Deputy Political Editor of The Irish Daily Mail wrote on 30 November:
After a fortnight that saw one minister and a senior civil servant quit, another minister apologise to the Dail  and the Taoiseach forced to correct the House record twice, Mr Varadkar's position has weakened and Mr Martin is demanding major reforms in how this Government works - particularly within the harshly criticised  Justice Department. [My emphasis] ......

An independent group will be established to implement the recommendations of the Toland Report, which was published in 2014, and found there was a 'deferential relationship' towards the gardai in the department. The group will review the specific relationship between the department and the  gardai. ..
Mr. Varadkar has said that an external inquiry will investigate how key emails about the treatment of whistleblower Maurice McCabe were mot among the 230 documents sent to the Charleton Tribunal, which is inquiring into the treatment of the Garda sergeant. And after twice correcting the record of the Dail,the Taoiseach has said: 'I will be holding the department and its senior officials to account to ensure that neither I nor any minister nor any member of the Dail is ever put in that position again.' .....

The Taoiseach said that the 'change and implementation group' is to review the culture in the department and make recommendations, particularly in light of the evidence of a secretive culture, and a failure to provide accurate information to the Oireachtas. ...

Justice Minister Charlie Flanagan also this week apologised for his role in the saga. He said he was 'shocked and frankly, horrified' that there were records in the department that should have been provided to the tribunal. He said it has been ''a major challenge at every step to obtain complete information in a timely manner', adding: 'Indeed on a few occasions recently, information has been provided by me, to the Taoiseach, and then to this House, which has proved subsequently to be inaccurate. This is completely unacceptable and I wish to formally apologise to the Taoiseach, to you Ceann Comhairle, and to the House'.

TRANSLATION: Senior Civil Servants in Department of Justice are to blame for the fact that our Minister for Justice and our Prime Minister refuse to challenge the credibility of a 'whistleblower', several of whose allegations have already been found to be false by the Report of the O'Higgins Commission.of Investigation


Three Inquiries Now in Progress (December 2017)

There now appear to be three different inquiries in process centered on the Department of Justice and the Gardai all resulting from the allegations of Sergeant McCabe - he whose conduct must never be criticised!

  • One is the Disclosures Tribunal chaired by Mr Justice Peter Charleton of the Supreme Court.to investigate alleged smears against Sergeant McCabe (by senior Gardai whom he wrongly accused of corruption!).  I think this is due to report around Easter 2018. 
  • A review of the email 'scandal' ordered by the Taoiseach to ascertain why certain emails now deemed relevant for the Disclosures Tribunal were not discovered earlier by senior civil servants in Department of Justice. This review was originally supposed to be carried out by the Secretary General of Dept of the Taoiseach but - following the usual media outcry - it has been given to an "independent" barrister - senior counsel Michael Collins. The deadline for the completion of the review has according been moved from the end of 2017 to 19 January 2018.
  • There is also a "root and branch" investigation into the functioning of the Justice Department which has been agreed between Leo Varadkar and Fianna Fail leader Michael Martin,following the recent controversies. According to the Irish Times on 28 November, Leo Varadkar said that:  An independent change and implementation group [My emphasis] will review the department’s culture particularly in light of “evidence of a continued siloed and secretive culture and a failure to provide accurate information to me and the Oireachtas”. The group would “appropriately structure” the relationship between the Garda and department to ensure accountability and better performance.
When Varadkar talks about a "continued siloed and secretive culture", this is a reference to the Toland Report on the Dept of Justice published in July 2014. Senior civil servants regard the Report as  superficial and misguided. Its publication led to the resignation of then Secretary General Brian Purcell and the extreme difficulty in getting a replacement for him. Noel Waters was supposed to take over as temporary caretaker for a few weeks until a new Secretary General could be appointed. However no credible candidate emerged over the next two years and Waters reluctantly accepted the poisoned chalice in October 2016. Now Waters has also resigned and the Toland Report is back on the agenda with a vengeance!
In an Irish Times article on 30 November  Colm Keena quoted the views of senior civil servants on Toland:
...... Richard Moore, who spent three years with the department as press officer for [Fianna Fail Justice Minister, 2008-11] Dermot Ahern, said he would describe the department as being “protective of rather than deferential to the Garda”. In his experience working in five different departments, the senior staff in the department “are among the best I came across”. His experience was of a high standard of competence and an ability to deal with the crises that are inherent in the work of the department. “There was no headless chicken stuff when I was there.”

Another senior political source said his experience was the direct opposite of what the Toland report said about the department’s relationship with An Garda Síochána. The Toland report was “superficial and unsubstantiated” with very little evidence produced for what was in essence “a series of assertions. In my experience there was no silo mentality,” according to this source. [My emphasis]

Colm Keena remarks that Toland also noted that “one of the key strengths” of the department was the “willingness, flexibility and can-do attitude of many of its loyal staff”. Unfortunately this is something that is unlikely to survive a politically motivated onslaught by our Taoiseach and Minister for Justice, both interested in diverting media attacks away from themselves and towards their civil servants.

FINALLY My Predictions for 2018


Of the three inquiries currently in progress, I think it is likely that:

  • Mr Justice Peter Charleton (Disclosures Tribunal) will conclude that senior Gardai did not conduct a "smear campaign" against  Sergeant Maurice McCabe during the course of the O'Higgins Commission of Investigation, but simply defended themselves against the false allegations of corruption that he had made against them.
  • Regarding the email inquiry, senior counsel Michael Collins will find that there was nothing untoward about the late location of certain emails for the Disclosures Tribunal. At most he will find that civil servants in Dept of Justice were overwhelmed by the volume of work generated by numerous Parliamentary Questions.
  • The REAL disaster will occur  in relation to the "Change and Implementation Group" which is likely to demand that the recommendations of the Toland report be fully implemented in spite of the fact that they are impractical. This is likely to damage the ethos of the Department of Justice and make it difficult to attract and retain high-performing senior civil servants - including a credible new Secretary-General!

Obviously Justice Minister Charlie Flanagan does not have the moral stature to stand up for his civil servants in the face of ignorant or malicious criticism. He will agree to implement any "reforms" in order to save his own political skin!

Saturday, December 2, 2017

The Sergeant and The Secretary-General: Can We Trust Our Civil Servants?

Noel Waters - former Secretary General Dept of Justice and Equality


Sergeant Maurice McCabe - Whistle-blower Extraordinaire

Introduction and Summary

Since 2014 the Garda Whistleblower Scandal - mainly centering on Sergeant Maurice McCabe - has resulted in the resignation of two Ministers/former Ministers of Justice (Alan Shatter in May 2014 and Frances Fitzgerald now on 28 November ), two Garda Commissioners (Martin Callinan in March 2014 and Noirin O'Sullivan in September 2017), two Secretary-Generals of the Department of Justice and Equality (Brian Purcell in July 2014 and now Noel Waters on 28 November). The reputation of Taoiseach (Prime Minister) Leo Varadkar has been weakened as has that of the current Minister for Justice Charlie Flanagan. Charlie Flanagan has been forced to apologise in the Irish Parliament to one of his chief critics Alan Kelly TD. and  retains his position largely because nobody wants an election before Christmas. (Also the opposition have already got their pound of flesh following the recent resignations of Frances Fitzgerald and Noel Waters!) 

The effect of the allegations made by Maurice McCabe has been extra-ordinary - not least because the report of the O'Higgins Commission published in May 2016 found that many of his dramatic allegations were false - a point I covered in my recent article "Sergeant Maurice McCabe and 'Corrupt' Garda Officers. For example

(i) The report cleared the former Garda Commissioner Martin Callinan of an allegation of corruption made by Sgt McCabe regarding the alleged placement of a senior officer on a promotion list. The allegation had no foundation
.
(ii) Complaints of corruption made by Sgt McCabe against Assistant Commissioner Derek Byrne, Chief Superintendent Colm Rooney and Superintendent Michael Clancy were all found to be hurtful and unfounded. Sergeant McCabe also made allegations against his immediate superior Inspector Noel Cunningham– later promoted to superintendent. These were also dismissed and categorised as “unjustified criticism".

(iii) Claims of corruption in investigations. The report found no evidence of garda criminality or corruption, but found junior gardaí were allowed investigate cases without sufficient supervision from more senior officers..............

MY QUERY:How is it possible for anyone to mistakenly accuse FIVE superior officers - and some colleagues - of corruption?


The Current Position:

In February 2017 the then Minister for Justice, Frances Fitzgerald set up a "Tribunal of Inquiry into Protected Disclosures", sole member Mr Justice Peter Charleton, Judge of the Supreme Court. This is to investigate whether former Garda Commissioners Callinan or O'Sullivan or other senior Gardai, contacted the media or otherwise tried to discredit whistleblowers who made disclosures of wrongdoing - mainly Sergeant Maurice McCabe but also Garda Keith Harrison. Also to investigate if senior Gardai attempted to use false allegations of sexual abuse to discredit Sergeant McCabe or Garda Harrison.

On 30 November Mr Justice Charleton published an Interim Report which dismissed the allegations made by Garda Keith Harrison in the  strongest terms. An article in TheJournal.ie is headed
 'This is utter nonsense': How Justice Charleton eviscerated Garda Keith Harrison's claims 
with subheading
"Unequivocally, confidently, and often brutally, Charleton has dismissed the claims made by Harrison"

On 2 December the Irish Independent carried a short article headed "The TDs Who Backed Keith Harrison" and named them as Labour TD Alan Kelly, left-wing Independents Clare Daly and Mick Wallace and Sinn Fein TD Pearse Doherty. All have also supported Sergeant Maurice McCabe. (For example see article in the Irish Times on 20 February 2017 Mick Wallace: To change An Garda, get rid of its hierarchy ).


The Current Problem - Desperate Politicians Targeting Civil Servants

Politicians, members of An Garda Siochana and senior civil servants are being targeted by an out-of-control media bent on whipping up hysteria and bringing down any prominent citizen. However the politicians are not just victims of hysteria. Several of those caught up in the current witch-hunt are left-wing and 'liberal' types who were very happy to use the media against their own perceived enemies. Now they find to their horror that they themselves have become prey for the monster they helped to feed! The reaction of Justice Minister Charlie Flanagan and Taoiseach Leo Varadkar is to blame their civil servants - who are forbidden by law to engage in politics and therefore have great difficulty in defending themselves. 

[The targets of these previous witch-hunts have been either Catholic clergy and religious or 'reactionary' journalists. However the influence of the Catholic Church in Ireland today is less than zero and the number of Irish journalists with viewpoints opposed to the 'liberal' consensus is also very small. One response  of 'liberals' is to turn on each other but for politicians, it is also tempting to blame their civil servants!]

Alan Shatter claimed in 2009 that the Catholic Church was implicated in the murder of a 10 year old girl in 1970. He demanded - and got - a high level Garda inquiry lasting a year,  into his false allegation. 

Charlie Flanagan slandered Nora Wall in the Dail (Irish Parliament) also in 2009 - repeating an allegation in respect of which she had received libel damages from the Sunday World in 2002. 

Leo Varadkar and Frances Fitzgerald supported the witch-hunt against journalist Kevin Myers a few months ago - and approved of the fact that he had been fired by the Sunday Times. 

Alan Shatter's political career has since  been terminated - and that of the others adversely affected - by the type of media hysteria that they themselves had endorsed when it suited them to do so. Now the politician-survivors want to present the media mob with other targets!


Resignation of Secretary General Noel Waters on 28 November

When the previous Secretary General of Dept of Justice Brian Purcell stepped aside in July 2014, following criticism of his Department in the 'Toland Report', he hinted that he did not agree with the findings of that Report. His reluctant successor Noel Waters went  a lot further when he told Minster Charlie Flanagan of his decision to resign. An article in the Irish Independent by Shane Phelan on 29 November is headed Departing Justice Boss Makes an Unprecedented Attack on Taoiseach

It is indeed unprecedented for a senior civil servant to make an attack on politicians but this is this is what Noel Waters has done in defense of his own staff in the Department of Justice. 

The departing secretary general of the Department of Justice fired a parting shot at TDs and the media as he retired yesterday with immediate effect. Noel Waters defiant email to colleagues notably came within hours of Taoiseach Leo Varadkar making a speech in which he described the department as "dysfunctional". Mr Waters ...claimed that much of the criticism voiced in the Dail and the press had been "unwarranted" and that he expected the department to be vindicated by an external inquiry......His decision came after much criticism of the department's failure to disclose emails to the Charleton Tribunal when it sought information earlier this year.

Mr Varadkar announce he was ordering an external inquiry into why important emails "were not found and therefore not sent on" to the tribunal. This inquiry will report before Christmas. If the emails were deliberately withheld from the tribunal, something the department denies, it would amount to a criminal offence. The emails revealed Ms Fitzgerald had been told of the "aggressive stance" then Garda Commissioner Noirin O'Sullivan's legal team was taking against Sergeant Maurice McCabe at the O'Higgins Commission.

Mr. Varadkar also said the Government was accelerating reforms already in train, and was planning "radical action to restore public confidence in the Department of Justice".

But in his letter to colleagues, Mr Waters claimed the department had been to "a barrage of unwarranted criticism in recent days and most particularly today. I want to assure you that in so far as is humanly possible, this department has sought at all times to act appropriately, upholding the law and the institutions of the State" he said. "Many of the claims about how the Department has acted that have been made in the media and the Dail are not true, and I am confident that the processes that the Taoiseach has announced will show that to be the case".

While the above headline highlights the role of Taoiseach Leo Varadkar, the  article on top of the same page  is headed  'I Missed Significance of Email at Centre of Row,' Admits Flanagan and features our current Justice Minister disclaiming personal responsibility and blaming his own officials. I suspect that  is the more likely cause of Noel Waters resignation!

Extracts from the latter article by 'Group Political Editor' Kevin Doyle:
Justice Minister Charlie Flanagan admitted that he "missed the significance" of the email at the centre of the controversy that brought the Government to the The under-fire minister told the Dail last night [28 November] that he was "shocked and frankly horrified" that documents in the possession of the Department of Justice had not been handed over to the Charleton tribunal. He poured blame on officials in his department saying it was "a major challenge at every step to obtain complete information in a timely manner, indeed on a few occasions recently, information has been provided to me, to the Taoiseach, and then to this House, which has proven subsequently to be inaccurate. ". .....

Fianna Fail leader Michael Martin told the Dail the current row "must be the nail in the coffin of the secrecy and silos in the Department of Justice. Yes there must be a fundamental change in the culture of that Department, but Government must also take responsibility and take legitimate questioning by the Opposition, not as partisan grandstanding all the time.. Over the past three weeks the Government has taken too dismissive an attitude to Opposition members who raised very important and profound questions," he said.

As part of the reforms being planned for Justice, TDs are to be given an opportunity to sit down face to face with the senior officials to ask questions........

MY COMMENT: 
There is a discussion on the politics.ie website regarding the topic  "Charlie Flanagan Next" and at one point I tried to summarise as follows:
The basic issue is fairly straightforward. Sergeant Maurice McCabe claimed that FIVE of his superiors were corrupt - all the way from the Inspector who was his immediate boss right up to Garda Commissioner Martin Callinan. These claims were found by the O'Higgins Commission to be false and it was inevitable that the Gardai were going to contest them. But at the same time politicians, like the then Justice Minister Frances Fitzgerald, felt obliged to treat Sergeant McCabe as a paragon of virtue and truth. There was an obvious contradiction there. The way to avoid this in future is for claims by Whiste-blowers to be treated in the same way as any other allegations of wrong-doing. This means they are NOT to be automatically accepted OR rejected from the word go!

The politicians - including Taoiseach (Prime Minister) Leo Varadkar and current Justice Minister Charlie Flanagan - have tried to iron out the contradiction and evade responsibility by accusing their civil servants of failing to supply them with accurate information. One result of their behaviour is that it will be very difficult to find anyone of suitable caliber to replace Noel Waters as Secretary General of the Department of Justice. His predecessor Brian Purcell was obliged to step aside in similar dubious circumstances in 2014. Noel Waters was originally supposed to fill the position on  a temporary basis for a few weeks until a new Secretary General was appointed but  no suitable candidate emerged to accept the poisoned chalice. So who on earth is going to accept it now?


Sunday, November 26, 2017

Sergeant Maurice McCabe and "Corrupt" Garda Officers


Sergeant Maurice McCabe - Whistle-blower Extraordinaire

Introduction and Background

[As there are numerous actors in this drama I have highlighted in red those who have already resigned and in pink those who may be forced out in the near future]

According to the Wikipedia article on Garda Whistleblower Scandal
"In 2014, material revealed by two Garda Síochána (Irish police) whistleblowers, Maurice McCabe and John Wilson, as well as the handling of the material and of the whistleblowers, led directly to the resignation of Ireland's then Minister for Justice and Equality, Alan Shatter. It was also part of the background leading up to the resignation of the Garda Commissioner, Martin Callinan. It was also part of the reason for the retirement of his successor [as Garda Commissioner] Nóirín O'Sullivan."

This summary fails to mention the fact that the Secretary General of the Department of Justice Brian Purcell was also forced to resign in 2014 after the then Minister for Transport Leo Varadkar said his Department was "not fit for purpose" and the new Justice Minister Frances Fitzgerald failed to support him. Leo Varadkar and Frances Fitzgerald are now respectively Taoiseach (Prime Minster) and Tanaiste (Deputy PM). The former is facing a demand from the opposition that he sack the latter - or else- for her alleged failure to deal with an alleged campaign of intimidation by Garda officers against Maurice McCabe. 

Meanwhile the present Minister for Justice Charlie Flanagan has accused Labour Deputy Alan Kelly of carrying out a "smear campaign" against himself. This allegation is rich considering Flanagan's own previous behaviour - as detailed in this blog. However there is little doubt that IF Leo Varadkar is forced to drop Fitzgerald, then Charlie Flanagan will become the next target for political liquidation!

It should be noted that in 2009 the then TD Charlie Flanagan slandered Nora Wall in a speech to Dail Eireann (Irish Parliament). Similarly, prior to becoming Minister for Justice Alan Shatter had thrown his weight behind an allegation that the Catholic Church was implicated in the murder of a 10 year old girl in 1970. AND only a few months ago, both Leo Varadkar and Frances Fitzgerald had placed themselves at the head of the mob that slandered journalist Kevin Myers by describing him as a Anti-Semite and a Misogynist!  

As the old saying goes - Curses are like chickens: they always come home to roost!


The Findings of the O'Higgins Report

A commission of investigation was established in February 2015 to investigate and report on certain matters relative to the Cavan/Monaghan Division of the Garda Síochána (Irish police). Mr Justice Kevin O’Higgins was the Commission’s sole member. The Commission arose from the report of May 2014 from Mr Sean Guerin, SC, to the Taoiseach (Prime Minister) concerning allegations made by Sergeant Maurice McCabe. The then Minister for Justice Frances Fitzgerald officially published the report on 11 May 2016.

A detailed account of the O'Higgins Report is contained in an article by RTE crime correspondent Paul Reynolds  dated 9 May 2016 headed "Report: McCabe Dedicated But Prone to Exaggeration". In my opinion that is a very charitable description of Sergeant McCabe!

In Brief:


(i) The report cleared the former Garda Commissioner Martin Callinan of an allegation of corruption made by Sgt McCabe regarding the alleged placement of a senior officer on a promotion list. The allegation had no foundation

.
(ii) Complaints of corruption made by Sgt McCabe against Assistant Commissioner Derek Byrne, Chief Superintendent Colm Rooney and Superintendent Michael Clancy were all found to be hurtful and unfounded. Sergeant McCabe also made allegations against his immediate superior Inspector Noel Cunningham– later promoted to superintendent. These were also dismissed and categorised as “unjustified criticism".


(iii) Claims of corruption in investigations The report found no evidence of garda criminality or corruption, but found junior gardaí were allowed investigate cases without sufficient supervision from more senior officers.


(iv) The former justice minister Alan Shatter was also completely vindicated in the report. The commission of investigation found that Mr Shatter, who was the subject of an unprecedented, hate-filled campaign, did indeed take Sergeant McCabe's allegations "very seriously" and his actions on the matter were "entirely reasonable and appropriate". (Note: It was actually the publication of the report by Sean Guerin SC in May 2014 that caused the resignation of Alan Shatter - not testimony by Sergeant McCabe.)


MY QUERY:How is it possible for anyone to mistakenly accuse FIVE superior officers - and some colleagues - of corruption?


There is no need for conspiracy theories in relation to this 'scandal', no need to imagine senior Garda management setting up a smear campaign against Sergeant McCabe. Apply 'Ockham's Razor'to the problem; this is the explanatory principle developed by the Franciscan philosopher William of Ockhan several centuries ago i.e. 'among competing hypotheses, the one with the fewest assumptions should be selected'. (Or 'if there are two alternative explanations, the simpler one is most likely to be true'.) 


Sergeant McCabe made himself extremely unpopular with his superiors and his Garda colleagues by falsely accusing them of corruption. Justice O'Higgins assumed that he was mistaken rather than malicious but in practice this makes little difference to the people affected by his false allegations. But why should they - or any other Gardai, or the Minister for Justice - engage in a secret conspiracy to damage Maurice McCabe's reputation when he did it all by himself?


Article by former TD and MEP Gay Mitchell in Irish Independent on 27 November

The article is called "Varadkar has golden opportunity to show leadership mettle and stand up to Sinn Fein"

"To this day I do not know why Alan Shatter, a conscientious and able justice minister was pushed from office. Two Garda commissioners have also departed. We have now lost to premature retirement the secretary general of the Department of Justice. Ms Fitzgerald's "offence" seems to be that she saw an email about which she was required by law to not intervene, even if it had registered with her. She obeyed the law."

Gay Mitchell believes that Sinn Fein want another official decapitated and that Fianna Fail feels obliged to assist for fear of missing out on the publicity. He concludes correctly that "the tail is wagging the dog". However I don't think that this analysis goes deep enough. 

Basically the problem does not lie with Sinn Fein or Fianna Fail or with any politician. The problem is that nobody is questioning the bona fides of Sergeant Maurice McCabe - certainly not the media and consequently not politicians or the public either. It's not a question of citizens thinking - well Sergeant McCabe has made some serious mistakes but in general I support him. People seem to be  unaware of the most basic facts about this fake scandal - because the media have arranged it that way. The public seem to view Maurice McCabe as a lone hero who is fearlessly defying the might of vicious and powerful politicians. The opposite might be closer to the truth!

Saturday, November 18, 2017

Tom Humphries and Judge Karen O'Connor: Too Light a Sentence?

Tom Humphries


Judge Karen O'Connor

The funny thing about outbreaks of hysteria is how quickly they come to an end.  It's not really a positive factor however - more like a breathing space so that the media can prepare itself to launch the next one. It now looks like David Walsh is NOT going to lose his job with the Sunday Times for giving a character reference to the court. It may not be a CRIMINAL offence for his employer to fire him.

HOWEVER I suspect that an employer who did so in such circumstances, could be sued and the employee might well be awarded exemplary and punitive damages.

The OTHER issue that seems to have run out of steam is the denunciation of the judge for giving what was described as too light a sentence. There were several articles by journalists suggesting that the Director of Public Prosecutions Claire Loftus was likely to appeal the sentence and demand a tougher one.  However even at the height of the hysteria Shane Phelan wrote in the Irish Independent that "opinion is divided in legal circles as to whether such an appeal would lead to a different outcome". 

TRANSLATION: There isn't a hope in hell that an appeal by the DPP would result in an increased sentence. However if the media were still denouncing Judge Karen O'Connor, my guess is that the DPP would go ahead anyway just to appease the mob!

Barrister Tom O'Malley, who is senior law lecturer at NUI Galway had a detailed article in the Irish Independent on 28 October entitled "Why the Judge in the Humphries Case Got It Right"

The key parts of Tom O'Malley's article are here:

...The maximum sentence for the defilement offences to which Tom Humphries pleaded guilty was five years imprisonment. The judge clearly ranked these offences high in the scale of gravity because she set the headline sentence at four years for each (an element of her decision that has been largely ignored in media comment). Having given due credit for mitigating factors, notably the guilty plea, his medical condition and remorse, she arrived at a final sentence of two and a half years. ......

The statement made by Judge O'Connor when sentencing Mr. Humphries shows that she approached the case with great care. She took account of the aggravating as well as the mitigating factors (as reflected in the fact that she adopted a headline sentence close to the maximum for the defilement offences) and noted that he had not entered a guilty plea until a relatively late stage. She dealt in detail with the impact on the victim and in saying that one might have some sympathy for the offender's present situation, she stressed that this was not to be interpreted  as condoning in any way his criminal conduct.....

I predict that the sentence will stand. At this stage the DPP will probably not even try to appeal it, because the media and the mob have moved on to other things!


Tom O'Malley is a Senior Lecturer in Law in NUI Galway, a member of the Irish Law Reform Commission and a practising barrister specialising in judicial review



Wednesday, November 8, 2017

Tom Humphries: Can an Employer Fire a Person who Gives a Character Reference for a Convicted Sex Offender?

David Walsh - Chief Sports Writer Sunday Times



Donal Og Cusack - former coach Clare Hurling Team

David Walsh and Donal Og Cusack were subjected to savage criticism in the media because they provided the court with character references for Tom Humphries after he had been convicted of having sex with a 16 year old girl. Cusack stepped down from his position as coach to the Clare senior hurling team while journalists demanded that the Sunday Times provide a statement regarding their chief sports journalist David Walsh. (The obvious idea was that the ST should fire him.)

The following is an extract from a discussion on the Politics.ie website

Originally posted by Prof Honeydew 24 October 2017
I gave a character reference once for a fella I knew both personally and from work. He asked me himself to put in a word for him. The prosecution made out he was a callous scheming criminal swindling grannies out of their savings but, from what I knew of him, it appeared he'd got out of his depth and started making stupid reckless decisions in the belief that everything would work itself out. I would have considered him a friend and I still do but he was one of these guys who'd jump into something without ever figuring out what he was getting into.

I asked his solicitor afterwards did my statement make any difference and he said it didn't. My mate got a stretch that was in the middle of the range his barrister had expected.

On another matter, I knew Tom Humphries a bit because I work in the same line of business. In my opinion, he was the best Irish sports writer I ever came across - original, observant, knowledgeable, colourful, good insight and easily the best stylist in a branch of literature which has developed cliche into an art form. And unlike many of the prima donnas who occasionally venture down to the sticks when there isn't a match that Sunday in Croke Park, he'd engage with the local grunts if asked. It wasn't all one-way with him in contrast to some others who'd milk you for local information and give nothing in return.

The level of vitriol being thrown at David Walsh is disturbing. He was always quite open about Humphries being a friend of his and hasn't jumped on him just to suit the storm whipped up by others in what is a very bitchy sector of the media. I can't say the same of Donal Og Cusack who, not for the first time, appears to have changed his tune so as not to derail his media image.


Reply by borntorum to Prof Honeydew

I agree with you that Humphries was a superb writer. However he had an increasing tendency towards self-indulgence, and the anti-rugby bigotry became really tiresome as the years went on.

I also agree that the vituperation heaped on Walsh is over the top. I suspect there’s a bit of schadenfraude involved from those journalists who might be jealous of the Walsh’s esteemed reputation (which he himself has not been slow to burnish)


Posted by Prof Honeydew 25 October 2017
I didn't contribute to this thread until yesterday. It came across as one of those where the facts didn't matter and, if they did, they were interpreted in such a way as to support whatever hangup monopolising the poster's view of the world. There isn't much point in adding to a discussion where everybody's mind is already made up.

Condemnation orgies are a fact of life on P.ie but this one took another turn when the theme moved on to denouncing those who provided  character references for Tom Humphries. That's going into guilt-by-association territory, the McCarthyism turned on anyone who doesn't fit in with the narrative decided by those dominating public comment. Much of it was based on a lack of understanding of the role character references play in the legal system.

As someone who actually supplied a character reference in a criminal case (and, no, I'm not someone famous or well-known), I posted what my experience of it was. As probably the only poster on this thread who knew him, I added my own impression of what dealings I had with Humphries in order to show why David Walsh may have held an opinion not quite in tune with the wolf-pack intent on demonising him.

Reply by Myself (AKA Kilbarry1) to Prof Honeydew
A general question. What would happen if a man lost his job because he provided such a character reference - a procedure that is provided for in Irish law? I would say he could be entitled to exemplary and punitive damages from the employer. But let's go a bit further.

Suppose a witness gives evidence in a highly controversial criminal case where the mob want the accused to be convicted - but this guy's evidence tends to exonerate the accused. (Let's take it for granted that his evidence is honest.) Suppose his employer then fires him.  In addition to punitive and exemplary damages in a CIVIL Court, the employer could find himself facing criminal charges for attempting to pervert the course of justice. And saying that "My customers hate this guy and insisted that I fire him" won't serve as a defence!

Could an employer face criminal charges for firing an employee who provides an honest character reference in court?  I'm not at all sure because a character reference is a lot less important than giving evidence under oath, but it's worth discussing the issue.

Reply by Gurdiev77 26 October 2017
The Icelandic government has recently been brought down by a similar circumstance. As I understand it, the PMs father wrote a character refence for a covicted paedophile. This apparently is part of the process of rehabilitaion after conviction in Iceland.

I dont know whether that relates only to sex crime or to all crime. But evidently the nation feels very strongly about it.

Reply by Me to Gurdiev77
One must always take public opinion into account and said opinion might go against the letter of the law. In this day and age, it wouldn't surprise me if a jury refused to convict an employer who fired a man who had given honest evidence in court. Because some jurors might be more concerned with virtue-signalling than applying the law!

There's a very interesting article on this subject in the Irish Times on 25 October quoting a leading barrister Michael O'Higgins SC. He said that giving a character reference in a criminal case is NOT an error of judgment, is  part of the court process and does NOT condone the actions of the accused.
http://www.irishtimes.com/news/crime-and-law/barrister-defends-use-of-court-references-after-humphries-case-1.3268178

“You’re not in any way condoning the activity, you’re not in any way making any disparaging comment about the abused person, you’re not showing a lack of sympathy,” he told RTÉ’s Morning Ireland. “You’re simply highlighting one particular, one discrete aspect of the case, namely that the person has done other good things and a court is entitled to take that into consideration.

“There’s no error of judgment. You’re giving a view of a person in a very narrow and very well defined circumstances, you’re not in any way saying what they did was right, or correct, on the contrary.  “The idea that anyone would think that giving a reference is an error of judgment in circumstances where they are expressly indicating they’re not condoning the criminal behaviour, but simply pointing out other aspects of the person’s character, because character is a rounded thing, I think that’s grossly misconceived.” ........

“People who criticise references don’t understand the sentencing process which is that the prosecution outlines their case against the accused and its the function of the defence to highlight such points as may go to mitigating the sentence. “Of course, if you have an otherwise unblemished character, if you can point to good things that you might have otherwise done in your life, I pose the question rhetorically:What could be wrong about highlighting that?”

Mr O’Higgins expressed concern that people would not give references if they thought they were going to be “excoriated” for doing so. “There’s no question that a person would not want to give a reference in these circumstances if they’re going to be excoriated for it and if their action is going to be misinterpreted as in some way or other showing a lack of support for an abused child or showing some support for the actions of the abuser, but a reference doesn’t do either of those things.”

MY COMMENT: Perhaps it's time to launch a witch-hunt against Michael O'Higgins SC -  for telling inconvenient truths that the mob doesn't want to hear?

Perverting the course of Justice?

Originally Posted by GJG on 7 November 2017
Perhaps you don't realise that criminal charges can only flow from an offence against the criminal law. What statute are you referring to that you think is being breached?

Reply by Myself to GJG
I think I answered that above. Perverting the course of justice is a serious crime. I see from a UK website that this includes "intimidating or threatening a witness or juror in a case "

So an employer who fires an employee for giving honest evidence in a court case could be jailed e.g. the accused is unpopular with the public but the employee has witnessed the events and gives evidence that the accused is likely innocent. So the employer fires him in order to appease the mob who want the accused found guilty. I am almost certain that this would constitute the crime of attempting to pervert the course of justice and an employer could face prison time for doing that.

My main question relates to an employer who fires an employee because he gave an honest character reference for a person who had been convicted of a crime.  It's not the same thing as "intimidating or threatening a WITNESS". Would it come under the heading of "perverting the course of justice"? I don't know. The question is worth discussing in the light of the thuggish attacks on David Walsh and Donal Og Cusack - including obvious attempts to get the Sunday Times to fire David Walsh.

Further Reply by Myself to GJG
Perverting the course of justice seems to be an offence under common law rather than statute law. This is from an Irish Times report of an extradition  from Ireland to the UK involving someone accused of this offence.
Extradition granted to face charge of perverting course of justice
http://www.irishtimes.com/news/crime-and-law/extradition-granted-to-face-charge-of-perverting-course-of-justice-1.769980

Counsel for the Minister [for Justice] said that if the same activity was carried out here, it would amount to the same offence as that contained in the warrant, that is, perverting the course of justice contrary to common law.

The IT report also indicates that the offence carries a maximum penalty of life imprisonment. Presumably THAT would only come into play if an attempt was made to intimidate  a witness, juror or the judge himself. Maybe  a lesser penalty should apply to a criminal [employer] who ONLY tries to intimidate someone who supplied a character reference??

Reply to Me by fellow
It’s worth posing the question. However, neither Walsh nor Cusack gave evidence. They wrote letters and I wonder what the status of those is. The judge did take them into account.

Perverting the Course of Justice? [2]

Objections by GJG
....The statute in Ireland was incorporated in an act (not looking it up at this hour); it does remain a common law offence in the UK. In both, the offence is clearly limited to acts likely to influence the outcome of actual or potential legal action. An action that takes place after the legal action clearly cannot meet that test.

  So someone who threatens to fire an employee if they don't give the right evidence is clearly guilty. Someone who fires them without warning in pique afterwards is not. ....
 ........The key here is whether the employer did something with a view to influence the outcome of the trial. Actions post-trial might be evidence of the nature of pre-trial behaviour (firing someone might prove that an earlier threat was serious), but nothing after the trial can be an offence in this case.

 My Reply to GJG
This is from a UK website "Human Rights in Criminal Justice" and of course it refers to your normal witness in a trial - as distinct from a character witness like David Walsh or Donal Og Cusack. However it includes threats NOT intended to influence the course of the trial, made AFTER the trial, and threats made by persons other than the defendant. It may come under the Police and Criminal Evidence Act 1984 and the maximum sentence is 5 years so it's NOT the law relating to perverting the course of justice (for which the maximum sentence is life imprisonment). It seems to envisage physical threats but I suspect that firing an employee because the employer didn't like his evidence could also come under this heading.
https://www.lawontheweb.co.uk/legal-help/human-rights-in-criminal-justice

Freedom from witness intimidation
"Witness intimidation can have a significant effect on the course of a trial – however, any harm or intimidation visited upon a witness before, during or after trial is illegal. If you have been called as a witness and you do fear intimidation, the prosecution can apply to have your written statement serve as your testimony, preventing your need to appear in court before anyone who could intimidate you.

 "If it is found that intimidation was used by the defendant, or a party on behalf of the defendant, and the court accepts that this intimidation may have genuinely affected the outcome of the case, the court has the power to order a re-trial.

 "Intimidation isn’t always designed to affect the course of the trial – a defendant could attempt to intimidate a witness after a trial has ended, contacting them or following them once they leave prison, and sometimes even contacting them from inside.

 "The maximum penalty for witness intimidation is 5 years in jail, depending on the severity of the intimidation and the effect that it had on the outcome of a legal case."

 There are probably similar provisions in Irish law to protect the "normal" witness in a trial. In view of the hysteria promoted by the media, it might be a good idea to extend this protection to character witnesses also. Otherwise many people will be afraid to give this kind of testimony.