Colum Kenny: Reputation of the Garda at stake in O’Higgins report

Where is the missing computer seized in a sex abuse case in Cavan? Does it contain evidence of other sex abuse victims or perpetrators? Why was its loss by gardaí not fully investigated?

The report by Mr Justice Kevin O’Higgins into Garda conduct and into complaints by whistleblower Sgt Maurice McCabe answers many questions but invites, others such as those set out above.

Claims that counsel for the Garda Síochána received instructions to attack the motivation and integrity of McCabe before O'Higgins – instructions reportedly clarified after allegations by senior gardaí about McCabe were discredited – are further reason why calls to "draw a line" under this scandal are premature.

The reputation of the Garda itself – and not merely of individual commissioners and officers – is at stake. Another Minister for Justice appears to sinking in the quagmire of Garda affairs. Frances Fitzgerald follows Alan Shatter in acting professionally in exchanges with a Garda commissioner about McCabe but also in stumbling politically over issues his complaints have thrown up.

The case of the missing computer is one of the most disturbing loose ends. Others include a finding that the “vast majority of complaints made by Sergeant McCabe” about Garda Pulse records are borne out. There were certain “updates” or significant alterations of records. Are Garda records secure from untraceable “updates” now?

And what of potential evidence in child abuse cases? Is it not all promptly secured and forensically examined as a matter of course?

In 2007 a priest was arrested who later pleaded guilty to the abuse of a minor. In 2009 he was sentenced to five years for defiling a child under 15 years of age and three years on the count of possession of child pornography. A computer had been seized from the priest, but lost by the Garda. Had he not pleaded guilty, he might have escaped conviction.

O’Higgins writes: “It cannot be excluded that it [the missing computer] contained evidence of this, or indeed other crimes. The intention was to have the hard drive forensically examined, but nobody ensured that it was.” Instead, it disappeared.

The computer may, even now, contain evidence of further abuse of this or other victims by one or more persons. It was not sent as normal for immediate forensic examination, and its loss has not been explained to this day.

‘Serious deficiencies’

Disciplinary proceedings relating to its loss were launched only years after it disappeared and after the priest had pleaded guilty. They were then commenced, in practice, only against the whistleblower Maurice McCabe.

If he had a case to answer, why did proceedings not begin sooner? Where does the buck stop?

The Garda disciplinary proceedings against McCabe had “serious deficiencies” and were “subject to a number of criticisms”, O’Higgins says.

McCabe was eventually exonerated, and “quite rightly” so, according to the judge. He had never been a member of the investigating team in that sex abuse case. He was a sergeant at the station where the team was based.

The lengthy disciplinary process hung over McCabe’s family as he pursued his unwelcome complaints about penalty points and other matters. O’Higgins finds that it was “very stressful, particularly having regard to Sergeant McCabe’s long years of good service and the overall context of his complaints”.

The judge finds it “difficult to understand why Sgt McCabe was the only person subjected to disciplinary proceedings for the loss of the computer . . . ”

It surely is.

“Suggestions that there was no necessity to have the computer technically examined must be rejected,” he says.

The judge also identifies “major flaws” in respect to a recommendation to have the priest’s case disposed of summarily on a guilty plea.

Gardaí made significant efforts to identify other potential victims of the priest. This involved contact with the Catholic Church and social work agencies in parts of the country where he had worked and the examination of text messages on his phone.

But what if, on that lost computer, there is evidence of other victims or other perpetrators still active, or of abuse outside the ambit of church and social work agencies?

As the computer was “full-sized and bulky”, O’Higgins finds its loss “all the more surprising”.

“The disappearance of the exhibit in the context of the present case inevitably gives rise to the suspicion of it being removed to protect Fr Molloy. However, it would be quite unjustified, in default of any evidence whatever, to attribute that motive for the disappearance of the computer. There is nothing to show that the circumstances of its loss were such as to show a deliberate attempt to remove important evidence to undermine the prosecution,” he says.

Yet absence of evidence is not evidence of absence. This passage displays a limitation of any commission of inquiry. Its investigations are not open-ended.

Need for evidence

The judge rightly reminds us of the need for evidence before jumping to conclusions that impugn individuals. At the same time, careful and proper judicial articulations may pointedly leave open questions that at present have no satisfactory explanations.

A stressed McCabe has exaggerated at times, and his use of the word “corrupt” was unfair to certain named gardaí in terms of the usual understanding of that word. O’Higgins rejected it.

He also accepted Shatter’s unchallenged and uncontradicted denials of “certain inappropriate and unpleasant views, opinions and attitudes” about McCabe that a recording appears to reveal the official “Confidential Recipient” of whistleblowers’ complaints attributing to the then minister.

However, efforts to impugn McCabe’s integrity or motivation have been unfair and might have destroyed a less careful man. They are a further reason to pay close attention to outstanding issues raised for victims of crime by the report.