The second Morris tribunal report suggests Co Donegal was a parallel universe - but in fact it exemplifies problems now fundamental to policing and governance in Ireland, writes Fintan O'Toole.
To get a sense of how bad the situation revealed by the Morris report is, you have to think, not about the bad cops but about the good cops. In trying to mollify public concern about the shocking story that Justice Frederick Morris has to tell, the Garda and political authorities have relied on the evident truth that most people in Ireland still feel our police force has a solid core of decent, committed public servants. Yet one of the things that emerges from the report is how hard it is to be a good cop when those around you are feckless, incompetent or corrupt.
Consider the case of Supt John Fitzgerald, one of the senior officers criticised in the report. He was the district officer for Letterkenny when the cattle-dealer Richard (Richie) Barron was found dead on the roadway outside Raphoe, Co Donegal, in the early hours of Monday October 14th, 1996. From then until early February 1997, he was in overall charge of the bizarre investigation into a death that resulted from a hit-and-run accident but that led to two local men, Frank McBrearty Jr and his cousin Mark McConnell, being framed for a murder that never happened. Supt Fitzgerald, the report finds, shared with three other senior officers the overall responsibility for an investigation that was "prejudiced, tendentious and utterly negligent in the highest degree".
To anyone reading a quick summary of the report, it seems obvious therefore that John Fitzgerald was one of the rotten apples. In fact - and this is what makes the whole story so serious - he was one of the good guys.
Justice Morris notes that he "left the Garda force after a fine career with a high reputation" and that "Time and again, I have heard evidence of the high regard in which those who worked with him, and served under him, held Supt Fitzgerald. I have no doubt that he was an able, experienced officer. I am also satisfied that his work practices were based upon an ethic of trust. He assumed that his fellow officers and those that served under him would behave in a proper and trustworthy manner." He failed in his duty to the Barron family, to the McBreartys and to the general public, not because he was an amoral cynic, but because he was too decent. That's how bad things are: the very quality that the public most values in its police - decency - is, in the distorted world mapped out by the report, a vice.
Or consider the case of another good cop, Det Sgt Sylvie Henry, a member of the team investigating Richie Barron's supposed murder. He seems to have been the one senior member of the team who refused to jump to the conclusion that the extended McBrearty family were the guilty parties. He tried to act like a policeman investigating a crime rather than a member of a lynch party.
He interviewed a petty criminal called Paul Gallagher, whom he suspected of involvement in Richie Barron's death, and Gallagher fed him a line about hiding a billhook which was supposedly used in the murder. Although he reckoned that Gallagher's story was nonsense, he did his job and found the billhook in question. Garda Tina Fowler, who worked in the incident room for the Barron case, told the tribunal about the general attitude of the other gardaí to Henry's attempts to do his job properly: "He became almost the subject of ridicule in relation to the investigation. He was nicknamed 'Captain Hook' after the discovery of the billhook, and his pursuance of that aspect was almost a source of derision during the investigation . . . At a conference, if something came up in relation to Paul Gallagher, there'd almost be a sigh or a, not quite a laugh, almost a snigger, in relation to it." The decent but naively trusting superintendent became a fool. The diligent detective became a joke.
In the Morris report, the word "extraordinary" appears 18 times, "astonishing" 13 times, "bizarre" 10, "unbelievable" seven times, "absurd" three times and "incredible" twice. And while all of this language is undoubtedly justified by the events the judge has to describe, it may, in a broader sense, be somewhat misleading. It suggests that Co Donegal was a through-the-looking-glass world, a parallel universe where the normal rules of behaviour did not apply. Yet the disturbing reality is that Co Donegal was not a law unto itself. It was an extreme expression of a set of problems that are now fundamental to the nature of policing, and indeed of governance, in Ireland. That is precisely why it took so long for the truth to be acknowledged by the leadership of the force and by the Government.
The story at the heart of the report is not about one or two exceptionally bad cops. It is a tale in which those who did their job with basic professionalism were the exceptions. From the mundane gardaí who were first contacted about Richie Barron's death, to the senior officers in Co Donegal, to the higher echelons in Garda headquarters and on to the civil servants and politicians in the Department of Justice, there is an unbroken chain of arrogance and indifference.
It begins almost at the moment at which the Garda Síochána was told there was a body on the road outside Raphoe. Garda Pádraig Mulligan, who was supposed to be on duty in Raphoe at the time of Richie Barron's death, could not be found and did not answer his call from the Garda Central Communications centre in Letterkenny. He was drinking in a pub in Lifford with his off-duty colleague Garda John O'Dowd at the time.
When the Communications Centre then called Lifford station, the crew of the Lifford Garda car deliberately delayed answering the call until after their meal break. When they eventually went to Raphoe they did nothing to preserve the scene or to initiate local inquiries. When they went to Letterkenny general hospital, where Richie Barron's body had been taken, they again did nothing. It was left to a hospital porter to preserve Barron's clothing.
When the investigation into Richie Barron's death did begin, it was blinded almost from the start by sheer prejudice against the McBrearty family. In Judge Morris's memorable phrase, it was governed by "the ability of hatred to transform myth into facts". A postmortem, had one been held, would have shown beyond doubt that there was no murder. Instead, the case would have been one of dangerous driving causing death. No forensic pathologist was called to examine the body.
The Garda Technical Bureau was not asked to become involved. There were, according to the tribunal, four possible suspects for the driver of the car which had hit Richie Barron. The case against none of them was seriously examined by the Garda.
What happened instead was a rumour. At the traditional wake held for Richie Barron, people began to speculate that he had been murdered. One of those at the wake was Willie Doherty, a minor criminal and a Garda informer who was also, in the eyes of Judge Morris "a deeply mischievous individual who would be prepared to lie in order to turn any situation to his advantage". Although he had no real information to give, he was being used by Garda John O'Dowd as a source for fabulous claims about IRA activity which were passed on to Garda headquarters to gain kudos for the Donegal gardaí.
At the wake, Frank McBrearty snr went in and out of the room where Richie Barron's body was laid out in an open coffin. He seemed genuinely upset. Instead of being taken for what it was - a mark of human decency - however, this display of emotion was taken as evidence of a guilty conscience. Willie Doherty told his handler John O'Dowd that rumours were flying at the wake that the McBreartys had a hand in Richie Barron's death.
In a professional police force, this was the kind of vague lead that ought to be investigated. Instead, it was treated by the senior gardaí in Letterkenny, not as a potentially interesting question, but as a final answer. Within an hour, the senior officers had "translated rumour into fact".
Chief Supt Denis Fitzpatrick told Supt Fitzgerald: "Mark my words, it is a murder and Mark McConnell and Frank McBrearty jnr did it". The astonishing speed withwhich this conclusion was reached can be explained only in one way: Willie Doherty was telling the gardaí what they wanted to hear. They didn't like the McBreartys and from that moment, with what the report calls "hysterical determination", they set about framing two of them for a murder that had never happened.
On the night of November 29th, Robert Noel McBride, whom his own counsel described at the tribunal as "a gormless auld divil", was arrested on suspicion of stealing an aerial from the technical school in Raphoe. In the course of the questioning, he made a statement that he had seen Frank McBrearty and Mark McConnell on the night of Richie Barron's death near the scene of his alleged murder.
In fact, McBride was not in Raphoe that night. The tribunal concludes, "Whatever Robert Noel McBride was saying that night, it was doctored by the Gardaí so that it told the story that the other witnesses were not prepared to tell." McBride made a number of subsequent statements implicating the McBreartys in the "murder", but retracted them all in September 1997.
Using McBride's concocted statement as an excuse, members of the extended McBrearty family, including Frank jnr and Mark McConnell, were arrested and questioned. Frank jnr allegedly made a statement admitting to the "murder". The tribunal has yet to examine the circumstances surrounding this alleged confession. It notes, however, that two gardaí on the inquiry team have "alleged that Det Insp John McGinley was seen practising, by way of some sort of a joke, as they rationalised it, the signature of Frank McBrearty jnr while he was in custody and purportedly made a voluntary statement". Supt Fitzgerald was evidently so doubtful about the worth of this supposed statement that he took it with him in February 1997 when he left Co Donegal.
The campaign to frame the McBreartys also had a public dimension.
In March 1997, leaflets were circulated around Raphoe and the adjoining areas stating: "The murdering McBreartys. See them live. Father and son at Frankie's nightclub on 8th March 1997 with Joe Dolan." Slogans were painted on the road outside the McBrearty home: "House for sale, owners moving to Mountjoy, contact Frank McBrearty." There were also five phone calls made to an innocent couple, Michael and Charlotte Peoples, alleging that they had helped to cover up the McBreartys' involvement in the "murder" and demanding money to protect them from prosecution.
Four of these calls were made by the informant Willie Doherty and one was made from the home of Garda John O'Dowd. This, too, was "part of the conspiracy to frame the suspects in this case, and particularly Michael Peoples". It was these phone calls and the attempted extortion which ought to have blown the whole affair wide apart.
Michael and Charlotte Peoples made formal complaints to the Garda Síochána. But at this point an organised cover-up began. As the report notes "the reason why the Donegal Garda division did not properly investigate the extortion telephone calls to the home of Michael and Charlotte Peoples on the 9th of November was because senior officers, including Supt Kevin Lennon and Chief Supt Denis Fitzpatrick were determined to cover up the trail which led to Garda John O'Dowd. The reasons for this were to ensure that no light was shone on the unhealthy relationship between William Doherty and the Garda force in Donegal which had, among other things, contaminated the investigation into the death of the late Richard Barron."
It is the cover-up, and the subsequent inaction of Garda headquarters and the Department of Justice, that makes the Co Donegal scandal far more than an isolated and unfortunate episode. Garda headquarters should have known that something strange was going on in Co Donegal.
The bogus information supplied by Willie Doherty on alleged IRA activities was forwarded on a regular basis to the Crime & Security Branch at Garda Headquarters. Much of it was, as the tribunal puts it, "dramatic", containing details of planned operations and assassinations. If it was accurate, it demanded urgent action. Yet, "none of the intended victims were ever notified. Nobody was ever arrested. Nothing was ever found." Why did no one at the Crime & Security Branch, which was headed for a time by the current commissioner Noel Conroy, ask questions about this sensational information that was never acted upon? Or about the reason the flow of information stopped in July 1997 when the Co Donegal gardaí realised that things were going awry and tried to distance themselves from Doherty?
According to the report, "The witnesses from Crime & Security Branch maintained that it was not their job to act on the information received, nor could they act as they were an information-gathering and analysis unit." Justice Morris concludes that the branch was "negligent in failing to make the necessary inquiries". He also notes "the failure of the Department of Justice to impose order and discipline on the force".
The department got its first inkling of what was going on in February 1997, when Senator Seán Moloney (the only local politician to take up the McBrearty case) wrote to the then minister Nora Owen about Frank McBrearty's complaints of Garda harassment. (He was issued with 160 summonses on minor and trivial matters.) According to the current secretary of the department, Seán Aylward, this was "processed as a piece of correspondence, among thousands of pieces of correspondence about the activity of the gardaí and relatively junior people were forwarding it in a kind of post-box fashion to the Garda Commissioner's office to be looked at".
After the McBreartys employed a private detective, Billy Flynn, and instituted civil proceedings, both the department and the office of the DPP received detailed complaints about the Barron investigation and the false confession.
But even then, the department's attitude was that "the civil claim was a distraction, an attempt by somebody who was under suspicion to throw dust in people's eyes". There was, according to Aylward, a continuing "assumption by the officials concerned that it was being handled appropriately by the Gardai". In July 1997, the then minister for justice John O'Donoghue was informed in a letter from a solicitor acting for the Peoples about the extortionate phone calls, including the crucial fact that one of them came from the home of a serving garda whose identify had also been made known to the chief superintendent in Donegal.
The response, however, perfectly expressed the deeper malaise. O'Donoghue asked the garda commissioner to look into the matter. He in turn passed the letter on to none other than the acting chief superintendent in Donegal, Kevin Lennon. In effect, an allegation that Kevin Lennon was covering up a crime by a garda was to be investigated by that garda's colleagues under the direction of Kevin Lennon.
The attitude underlying this absurdity meant that the McBrearty and Barron families continued to be denied justice. By June 1998, the Department of Justice had a copy of the full McBrearty file, but the gardai were still contesting the allegations and, as Seán Aylward admitted, "the department would have tended to take such a statement on trust".
The internal Garda inquiry carried out by Asst Commissioner Kevin Carthy was thwarted by the ability of Co Donegal gardaí to defy it with impunity. "Gardaí", as the report puts it, "looked to protect their own interests. The truth was to be buried. The public interest was of no concern."
Even when Carthy did identify some of the culprits, they were merely transferred with no stain on their reputations. The Garda Complaints Board failed to get to grips with any of the numerous complaints it received from the McBreartys. John O'Donoghue and the then attorney general Michael McDowell continued to resist all calls for a public inquiry.
The thread of injustice that began with a rumour whispered at a wake stretched all the way to the evasive mutterings of the highest authorities of the State.
Donegal saga: who's who
Richard (Richie) Barron - Killed in a hit-and-run accident in 1996
Frank McBrearty jnr (below) and his cousin Mark McConnell - Both framed for the alleged murder of Richard Barron
Noel McBride - Claimed he saw McBrearty jnr and McConnell near scene of alleged murder
Willie Doherty - A Garda informer who first reported the rumours that the McBreartys had been involved in Barron's death
Garda John O'Dowd - Doherty's handler, involved with him in attempts at extortion
Supt Kevin Lennon - Covered up the trail of evidence that led to Doherty, O'Dowd and the wider scandal