The words “truth” and “justice” abounded this week, but it is doubtful if either will be honoured or vindicated.
On Monday, the family of Sgt Maurice McCabe issued a statement calling for a public inquiry: "We are entitled to the truth . . . justice can follow in its wake." On Wednesday, Fianna Fáil leader Micheál Martin said his party would abstain in the vote of no confidence because Fine Gael had not blocked an inquiry with the powers required "to establish the truth and provide justice".
History would suggest there is little likelihood of that happening, and that getting to the truth of Garda conduct and misconduct and achieving justice is a tortured process. The Department of the Taoiseach helpfully provides a list of 31 tribunals from 1925 to 2005, and states clearly that "it is not a function of tribunals to administer justice; their work is solely inquisitorial".
We are entitled to the truth . . . justice can follow in its wake
Property developer Tom Gilmartin used a more memorable description in 1998, at the time of the tribunal into planning matters, when he said tribunals "are about as useless as tits on a bull". But that, too, is wide of the mark.
No perfect model
It is easy to rubbish tribunals because of their inordinate length, cost and manifold interruptions, but it is impossible to come up with a perfect model that guarantees an impartial investigation while protecting the rights of individuals.
Tribunals have uncovered matters of vital public interest and have told us much about the way this country was misgoverned and the many victims of that, but they do not usually lead to legal repercussions for the perpetrators of wrongdoing. There are those against whom damning findings have been made who have continued to thrive in the political, business and policing worlds.
The 1921 Tribunal of Inquiries Act specified that a tribunal should be set up “for inquiring into a definite matter . . . of urgent public importance”, but the extent to which they remain focused enough on a “definite matter” is open to question.
The actions of the gardaí have long been the subject of tribunals. Perhaps the most poorly named was the investigation into the 1984 "Kerry Babies" case. It is entirely understandable that most people assume this tribunal was about Joanne Hayes, whose experiences brought into the open a common problem historically but one that was rarely discussed – infanticide – after the body of a baby with multiple stab wounds was found on a beach in Cahirciveen, Co Kerry.
However, the tribunal of inquiry was, at least in theory, not primarily about Hayes, but about the circumstances that led to criminal charges against her (later dropped), allegations of Garda ill-treatment of the Hayes family, and any other “connected and relevant” matters considered necessary by the tribunal.
The Kerry Babies case was one of the most emotive episodes in modern Irish history, evoking sympathy and anger about the dissection of a woman's private life by an all-male inquiry. It revealed many things, including intimidation, perjury and the sexual mores of a hidden Ireland.
Still, the tribunal did not answer the most obvious question: how did detailed statements from the Hayes family, identical in details that were known to be false, come to be taken? It was no wonder the Hayes family preferred to call it the “Kerry Garda Case”.
The tribunal report concluded that Hayes family members had perjured themselves and also rejected the family's allegations of ill treatment by gardaí. Justice Kevin Lynch, who presided over the tribunal, maintained that the Hayes family gave "free and voluntary" confessions that were false. He also concluded that Joanne Hayes gave birth to a baby boy, who she then killed by suffocation and blows to the head, witnessed by her family, a finding unsupported by forensic evidence. No charges came in the tribunal's wake.
Throughout this saga, certain gardaí demonstrated a determination to cling to the veracity of their versions of events even when forensic information challenged their assertions. Not for the first or last time, the force closed ranks – and in doing so showed scant regard for those who legitimately questioned their methods and the consequences of those methods.
Myth into facts
When, in 2005, Judge Frederick Morris issued his second report into Garda corruption in Donegal in the 1990s, he referred to "the ability of hatred to transform myth into facts". It seems that was also at play in Kerry in the mid-1980s, and much of what we already know suggest that similar mindsets go to the heart of the Maurice McCabe case.
Certain gardaí demonstrated a determination to cling to the veracity of their versions of events even when forensic information challenged their assertions
Carol Coulter, former legal correspondent of this newspaper, argued in 2003 that tribunals hear "a long recitation of evidence about events that rightly arouse indignation, but which is likely to be still going on long after the indignation has faded". A tribunal into the current scandal will probably illuminate much. But it is equally likely, especially given its wide scope, that much will remain hidden, contested and denied, without legal consequences, leaving "justice" ill served.