Why not prosecute the people who smeared Maurice McCabe?

It seemed to be an obvious decision: Sgt Maurice McCabe and his family said that the inquiry had to be in the form of a tribunal of inquiry rather than a commission of investigation. And that it is the way it went.

Underlying that easy decision lay an easily understandable course of reasoning. Sgt McCabe has been treated abominably by various elements of the State, and the State owes him substantial recompense. Also, Sgt McCabe is a whistleblower. Typically, these are people on the inside of an institution that professes high ideals who have the courage to take action, even at the cost of their careers, if they see the institution falling short of those ideals. (Think Conor Cruise O'Brien on UN behaviour in the Congo in 1961 or John Stalker on the RUC and its "shoot-to-kill" policy in the 1980s.) In a country where loyalty and an easygoing approach count for a lot, such people should be celebrated and, if necessary, protected.

But the Government has responsibilities in many directions and, leaving aside the yapping from unlikely directions, in Leinster House, it has its own duty to make the best choice of the form of inquiry.

In the first place, someone who had just come down with the last shower of rain would point out that a conspiracy to spread false and damaging information about an individual is a criminal offence. So why not prosecute? If the response to this is that it would be difficult to get the necessary investigation work done, then we have a problem, as is considered below.

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Choice

But, in practice, the choice does come down to either a tribunal of inquiry or a commission of investigation. In each case, the supporting statute makes it an offence for a witness to refuse to appear or not to answer.

Historically, the tribunal came first. Its main feature is that any party whose character is called into question has the entitlement to a luxuriant “fair procedure”. The significant point is that Irish judges, in contrast to those elsewhere, take this to mean that each party should have their own lawyer to put questions. There are ample numbers of barristers working for the tribunals, but this does not satisfy fair procedure if the questions are put by them.

In more recent years, because of the delays and costs, tribunals have been superseded by commissions. In principle, the big difference is that commissions sit in private and go public only when they issue their report. The advantage of this is that unchallenged evidence is not being published daily in the news media. Any damaging finding is published only after the judge has heard all the evidence, with the witnesses being cross-examined by the commission’s team of barristers.

This feature justifies the fact that usually parties at commissions are not represented by their own lawyers, though there were some exceptions at the previous whistleblower commission, under Mr Justice Iarfhlaith O’Neill.

Smear

In this context, it is notable that one of the reasons given by Sgt McCabe for preferring a tribunal is that some of the the police witnesses at the O’Neill commission were taking the opportunity to smear him. Naturally, these smears did not appear in the report, but they leaked out. But then there lots of other channels for such leaks.

Following an episode such as the current one and the Donegal abuses, there seems no doubt that we need a thorough review of the governance of the Garda Síochána, including its interaction with government. But this cannot be mixed with the present investigation of misconduct. The judges have now imposed on our public inquiries, of whatever type, too many of the characteristics of a trial for such a mingling to be permitted.

Many people were delighted that Mr Charleton had been nominated as chairman of the (former) commission. As a former criminal advocate, he knows the ways of the Garda. And having a Supreme Court, rather than, as is usual, a High Court, judge, would lend extra gravitas. Also, it might have made certain gardaí less ready to ask a High Court judge to judicially review the inquiry.

Unfortunately, this excellent fit is in doubt. There is a suspicious delay in announcing the chairman of the tribunal. One might guess that the judge is saying: “I signed up for several months, not years.” And Minister for Justice Frances Fitzgerald can be imagined saying: “Because of the establishment of the Court of Appeal, the Supreme Court has less work and can spare you.”

David Gwynn Morgan is emeritus professor of law at University College Cork