Kerry babies tribunal report presents Government with dilemma

Deeply flawed findings cannot be allowed to stand

It is easy to understand the Government’s dilemma in trying to decide what to do about the report of the Kerry babies tribunal following the Garda apology to Joanne Hayes and her family. Compensating them for the “awful stress and pain” caused by the investigation into the death of the baby found stabbed on White Strand in Cahersiveen in 1984 will be extremely difficult to calculate.

The report, with its now widely disputed findings, cannot be unwritten without another full-scale inquiry, which nobody wants after all these years. Nor can it be left to stand as it is, in the light of the apologies from the Garda and Taoiseach Leo Varadkar.

The main criticism of the report by the late Judge Kevin Lynch as the sole member of the tribunal is that it failed to answer the question that everybody expected it to answer – how did four members of a family confess in detail to something they did not do? How did the details of the murder of the stabbed baby find their way into “voluntary” statements supposedly taken down accurately by members of the Garda? And how did the gardaí involved explain this discrepancy once it became clear that Joanne Hayes had had nothing to do with the stabbed baby?

As the tribunal progressed the gardaí involved were not really required to provide any explanations other than to deny that there was any ill-treatment of the family. Such explanations as they proffered insisted that the confessions were true in detail and that Hayes had twins, one of which was stabbed in the same way as the baby on the beach and disposed of in the way described by her brothers’ and sister’s confessions.


Guilty consciences

The judge dismissed this explanation and, in essence, offered his own – whatever pressure there was on the Hayes family was internal, a result of guilty consciences about the fact, as he concluded controversially, that Joanne had choked her baby to death after giving birth in her bedroom.

In his only public response to the widespread criticism that followed publication of his report, Lynch accused the media of misinterpreting its contents and running a campaign to discredit it and himself. He said he had to endure totally unwarranted and snide attacks, much of which were grossly untrue and defamatory, in a written response to Magill magazine following a lengthy analysis of the tribunal by Gene Kerrigan.

The judge’s riposte showed, however, that his approach to the tribunal differed from what had been widely expected of him, not least by the politicians who set up the inquiry by a motion of the Oireachtas.

Rather than focusing on the Garda inquiry, it is clear that he saw the central question to be the circumstances in which Hayes’s real baby was born. What mattered was whether Hayes had the baby alone outside the house – as she initially claimed – or in a bedroom with others present – as he concluded.

This difference, he wrote, was central to the whole case. If the baby was born in the field, the family’s confessions could not have come into existence without gross misconduct, almost certainly including physical abuse, on the part of the gardaí.

If the baby was born in the bedroom, the family’s statements to gardaí could well have come into existence without any such misconduct, he argued.

Unfortunately, the judge did not explain further this reasoning. Having decided that the baby was indeed born in the house, he apparently thought that the gardaí had nothing to answer and that the false confessions had simply come about through the pressure of the Hayes family’s guilty consciences.

Garda actions

Thus, he dismissed the Garda actions as “gilding the lily” and turning pre-conceived beliefs and wishful thinking into facts. Or, to put it in a way that he did not, inserting inaccurate information into confessions.

It was not a conspiracy to frame the Hayes family, the judge said. Such an idea was ridiculous as it would have required the co-operation of a large number of gardaí from Kerry and Dublin. Were it true, he added, it would be monstrous

It was not a conspiracy to frame the Hayes family, the judge said. Such an idea was ridiculous as it would have required the co-operation of a large number of gardaí from Kerry and Dublin. Were it true, he added, it would be monstrous.

There is no doubt that he applied double standards, branding the Hayes family as liars while excusing Garda lies as an example, as he put it in the report, of “familiarity breeds contempt”, excusing them because they routinely gave evidence under oath in court.

That a High Court judge would apparently excuse gardaí for lying under oath because of their familiarity with court procedures is one of the more extraordinary sections of his report which has received little public attention.

Much of the opprobrium that descended on the tribunal, then and now, has to do with the treatment of Joanne Hayes, especially the brutal and intrusive cross-examination to which she was subjected during the hearings. In his Magill letter, Judge Lynch denied that he was anti-women because he had made adverse findings about the Hayes women.

“I was required to find the facts of the case and I did so,” he wrote. “For example, I found that the women of the Hayes family are much brighter and cleverer than the men. I found that being much brighter and cleverer, the women masterminded the events following the birth of Joanne Hayes’s baby. If these findings are anti-feminist, then the truth is anti-feminist.”

However, the bad taste left by the case was mainly the result of the judge’s decision to conduct the hearings primarily as adversarial rather than inquisitorial. It was akin, he said at the time, to a civil case in which the Hayes family was suing the Garda for damages. Which meant that it was a swearing match between the family and the 28 gardaí represented at the tribunal with one of their barristers being allowed go to extreme lengths to try to discredit Hayes and her siblings.

The whole sorry saga was brought about by the Garda practice of playing fast and loose with confessions – a practice that was in many respects a response to the drift of politically-inspired crimes across the Border – which had been a matter of controversy for almost a decade at the time of the Kerry babies case. Judge Lynch chose to focus on what happened on the Hayes family’s farm the night Joanne gave birth to her own baby and not what happened in Tralee Garda station some two weeks later when she and her family “confessed” to the murder and disposal of another baby of which they knew nothing.

Had he focused instead on what happened in the Garda station and taken some of the detectives involved to task for the false confessions, perhaps some of the subsequent scandals that have blighted the force might not have come to pass.

Don Buckley and Joe Joyce wrote about the Garda heavy gang in 1977 as Irish Times reporters and revealed the Kerry babies case in the Sunday Independent in 1984