The McGinn Report compiled by Senior Counsel Dominic McGinn and published yesterday is a review of the Serious Crime Review Team (SCRT) and its probe into the investigation of the 1985 death of Roscommon preist Fr Niall Molloy and the subsequent criminal trial of Richard Flynn.
Background to the case can be found here.
Legal Coffee Drinker has had a chance to read the 109-page report.
As part of Mr McGinn’s brief, he had to identify any matters of ‘significant public interest or concern arising from the earlier Report warranting investigation by a public inquiry and in respect of which such further inquiry would have a reasonable prospect of establishing the truth‘.
Broadsheet: “Legal Coffee Drinker did Mr McGinn find any such ‘matters’?”
Legal Coffee Drinker: “No. The report concludes (at section 11.3) that ‘while there are a number of issues of public interest which have been identified and enumerated, some of which could be categorised as issues of significant public interest or concern, it is unlikely given the passage of time, the death of many of the pertinent witnesses and the reluctance of others voluntarily to give evidence, that any further inquiry would have a reasonable pro sect of establishing the truth. Accordingly, examination by a further inquiry could not be said to be warranted’.”
Broadsheet: “Despite the fact that he identified ‘issues of significant public interest or concern?’.”
LCD: ” Yes. The report identifies (at 11.1) a number of ‘extremely unusual, if not unique, features about this case which are quite disturbing and merited an in-depth analysis,’ in particular:-
(i) Inaccuracies in the accounts given by Richard and Therese Flynn as to the time of Fr Molloy’s death, with medical evidence indicating that it could have occurred any time between 10 p.m. on the 6th July 1985 to 11 p.m. on the 7th July 1985;
(ii) The unexplained significant delay in calling the authorities;
(iii) The attempts by the local parish priest, Fr James Duignan, to keep the circumstances of Fr Molloy’s death quiet;
(iv) The calm attitude of Richard Flynn on the arrival of the Gardai at Kilcoursey House, the report remarking that ‘after the violent death of a family friend in the house, a somewhat less controlled reaction would perhaps be anticipated‘”
(v) The failure of the Flynns to reveal their business dealings with Fr Molloy at the outset of the Garda investigation.”
Broadsheet: “Extremely unusual.”
LCD: “Indeed. It also (at 10.5) agrees with the conclusions reached by the SCRT that there were serious shortcomings in the original investigation, in particular failure:—
(i) to interview all guests who attended the wedding on the 6th July 1985;
(ii) to conduct house-to-house enquiries;
(iii) to record any scientific testing of blood samples, physical items and fingermarks taken at the scene;
(iv) to properly investigate a prior break in at Fr Molloy’s house;
(v) to interview the people mentioned by David Flynn in his original statement to Gardai at an early stage to test the veracity of his account;
(vi) to return Fr Molloy’s wristwatch (which was broken, and had stopped at a particular time) without a proper investigation of its condition;
(vii) to seek a report from Dr Michael Farrell, whose opinion had been relied on by Dr John Harbison, the pathologist who gave evidence at the inquest and the trial, but whose report, when compiled by the SCRT, highlighted that the account given by Richard and Therese Flynn could not have been accurate as to time.”
Broadsheet: “What about the allegations that political and judicial contacts were used to stymie the investigation and subsequent trial of Richard Flynn?”
LCD:” The report identifies (at 10.3.5) two political figures – Brian Lenihan and an unnamed member of the Fianna Fail National Executive – the latter the groom’s uncle – as having been present at the wedding which preceded Fr Molloy’s death.
However it concludes (at 11.1) that although ‘the Flynn family certainly enjoyed friendships with those involved in politics, some of them at the highest level… there is no evidence to substantiate a contention that these political connections were used to their advantage in relation to the events surrounding Fr Molloy’s death…it is clear that certain strident views are held by those closest to the late priest. This does not amount to evidence upon which any reliance can be placed and, in the absence of such and given the death of most of the main protagonists connected with the case, there is no prospect of arriving at a sound, evidentially-based conclusion‘.
As regards the subsequent trial before Judge Frank Roe, at which he directed an acquittal of Richard Flynn (detailed at 4.1), the report references (at 4.4) a letter subsequently written by prosecuting Counsel which, although ambiguous on the merits of Judge Roe’s decision to acquit on the manslaughter charge, is strongly critical of his decision to acquit Richard Flynn on the other charge of assault. However the report points out (at 4.5) that the scope of the DPP to challenge Richard Flynn’s directed acquittal was limited at that time to an application under Section 34(1) of the Criminal Procedure Act 1967, which, even if successful, would not affect the verdict.”
Broadsheet:“What about if Judge Roe was shown to be biased e.g. because the Flynn family were friends of his?”
LCD:“The report doesn’t consider the possibility of a judicial review of Judge Roe’s decision on the grounds of bias, perhaps because, although acknowledging (at 11.1) that ‘it is an uncomfortable fact that.. Judge Frank Roe was deeply involved in the horse business, which… inevitably has let to an inference being drawn that he must have known all the parties involved’ it concludes (at 11.1) that ‘as an objective fact, there is no documentary evidence to substantiate… the suggestion that Judge Roe was predisposed to securing Richard Flynn’s acquittal.While nothing can be done to prevent anyone arriving at their own decisions in respect of the trial judge, at this remove and given the death of Judge Roe, it is highly unlikely that any correct conclusions, founded on reliable evidence, could be reached’.”
Broadsheet: “What about the letter, reported to have been written by Judge Roe to the DPP, acknowledging an acquaintanceship with the Flynns?”
LCD: “According to the report (at 10.4.1) the alleged letter is not on the DPP’s file, nor is there anything on the file disclosing evidence or suggestion that it ever existed. The then incumbent of the position, Eamon Barnes, is also reported (at 10.2.16) as saying that neither he nor any member of his staff had any recollection of such letter having been received. The report concludes (at 11.1) that “there is no documentary evidence to substantiate the suggestion that the judge was in correspondence with the DPP.”
Broadsheet: “Wasn’t this the file taken by Martin Cahill [The General]? And wasn’t there a file destroyed by fire?”
LCD: “The file alleged to have been destroyed by arson was the inquest file. In fact it is stated in the report (at 8.2) that the SCRT sourced this file and found it intact. The DPP file was returned after its theft and no indication is given in the account of its theft and return (detailed at 8.1 and 11.1) that it was not returned intact. It should be noted that the report does not absolutely conclude that no such letter was written by Judge Roe, or that he did not have knowledge of the Flynn family, simply stating that – like the other public interest issues in the case – it is impossible to prove it at this remove, given Judge Roe’s death.”
Broadsheet: “But surely as regards proving what happened to Fr Molloy at least, many of the people in the house that night, and at the wedding, are still alive?”
LCD: “Yes. In a formal statement (detailed at 10.1) made by her to the SCRT on the 17th November 2010 – journalist Gemma O’Doherty – whose prior writings on the case are covered extensively in the report (at 9.3) – gave the names of 35 people whom she felt should be interviewed or re-interviewed. However the report states (again at 10.1) that only 17 of these persons chose to make agreed to speak to the SCRT and to make statements. The summary of these statements (at 10.2) of the report records in some instances (10.2.1, 10.2.8) divergences and/or omissions as between these statements as made and as outlined by Ms O’Doherty, although it is not clear in all cases whether or not these divergences were put to the persons making the statement. The report also states (at 10.3) that in addition to those people named by Gemma O’Doherty in her statement, the SCRT interviewed a further 24 witnesses who had not been named by Ms O’Doherty.”
Broadsheet: “Were any of the Flynn family interviewed by the SCRT?”
LCD: The report states ‘Perhaps unsurprisingly, the members of the Flynn family and their in-laws and close friends declined to comment further about the case‘. The consequence of this was that the SCRT inquiry was limited, in respect of the Flynn family, to the statements prepared in conjunction with their solicitor for the purposes of the initial investigation.
Broadsheet: “Any exceptions?”
LCD: “Richard and Therese Flynn’s son David Flynn, who is described as having been questioned on a voluntary basis by members of the SCRT. In this interview, he stated that he had been asleep in the early morning of the 8th July 1985 when he was woken by a telephone call from his brother-in-law who asked him to come to Kilcoursey House without specifying what was wrong.”
Broadsheet: “Or why the gardai were not called until some time after Fr Molloy’s death?”
LCD: “David Flynn could not explain why the Gardai had not been contacted but insisted that there had been no discussion among members of the family to follow any particular plan of action. When asked about a comment he had made during an interview with Tom McCaughren of RTÉ during which he was reported as saying “It’s very difficult when one knows certain answers and isn’t in a position to comment; it makes it very difficult to live with,” he explained that, at the time there had been rumours and speculation about matters which he knew were untrue and which he could have shown were untrue but that, at the time, he had felt that he could not say anything specific.
The report states that David Flynn “did not specify what matters he had been in a position to refute, neither did he offer an explanation about why he had felt unable to refute them at the time or on what basis he would have refuted them.” David Flynn denied that his mother had ceased speaking to him after 1985, but accepted that their relationship had merely changed from mother-son to a purely business arrangement, but without any animosity. He described the bond between his mother and Mr Molloy as, in many ways “stronger than any husband-wife relationship.”
When asked (also at 10.2.4) about a comment he had made during an interview with Tom McCaughren of RTE during which he was reported as saying “It’s very difficult when one knows certain answers and isn’t in a position to comment; it makes it very difficult to live with,” he explained that, at the time there had been rumours and speculation about matters which he knew were untrue and which he could have shown were untrue but that, at the time, he had felt that he could not say anything specific. The report goes on to state (also at 10.2.4) that David Flynn “did not specify what matters he had been in a position to refute, neither did he offer an explanation about why he had felt unable to refute them at the time or on what basis he would have refuted them.”
The report also states (at 10.3.24) that the SCRT, as part of their investigation, expressed a wish to interview Richard Flynn; however certification was received from Mr Flynn’s doctor that he was physically and mentally incapable of questioning in relation to any garda matters.
As regards other members of the Flynn family, the report states (at 10.1) “Perhaps unsurprisingly, the members of the Flynn family and their in-laws and close friends declined to comment further about the case.” The consequence of this was that the SCRT inquiry was limited, in respect of the Flynn family, to the statements (detailed at 3.4) prepared in conjunction with their solicitor for the purposes of the initial investigation. The report also states (at 11.1) that “the attitude taken by the Flynn family with the authorities is perhaps less surprising given that, undoubtedly, at least one of them knew who was responsible for Fr Molloy’s death.”
Broadsheet:“Did the failure of the Flynn family to co-operate stymie the SCTR investigation?”
LCD: “Yes.The report specifically identifies (at 11.2)“the continued reluctance of those who have first-hand knowledge of these events to answer questions raised by others” as a key reason why many of the questions in the original investigations remain unanswered..”
Broadsheet: “Can anything be done about this?”
LCD: “Not according to the report, which states that “given that every individual has an inalienable right not to incriminate himself, it would appear that this difficulty cannot be overcome.” It also mentions, in the context of the original investigation, that it was not possible at the time to compel people to co-operate with the Gardai.”
Broadsheet: “At the time?”
LCD: “Yes. The report mentions (also at 10.5) that the law has been subsequently changed, without giving details. It is possible that what is being referred to here is the duty to inform contained in Section 9 of the Offences against the State (Amendment) Act 1998 which provides that a person shall be guilty of an offence if he or she has information which he or she knows or believes might be of material assistance in securing the apprehension, prosecution or conviction of any other person for a serious offence and fails without reasonable excuse to disclose that information as soon as it is practicable to a member of the Garda Siochana.”
Broadsheet: “Could Section 9 apply to compel individuals relating to the Molloy case to disclose information which they may have had since 1985?”
LCD: “A very interesting question, and one which is not discussed in the report. There is a presumption against criminal legislation having retroactive effect. On the other hand, could it be that the duty under Section 9 is an ongoing duty, so that if one has information about a criminal offence committed prior to the coming into effect of the 1998 Act one has an obligation to disclose that information as soon as the Act comes into effect? It is a pity that the implications of subsequent changes in the law regarding disclosure were not discussed in full in the report, so as to remove any doubt on this issue, which is at the heart of Mr McGinn’s decision not to recommend an inquiry.”
LCD: “Yes. There’s a fairly significant typo in the report’s conclusions (11.1, at p103) where it is stated that Fr Molloy was seen by witnesses on the evening of the 8th July (presumably this should be the 7th July since his death was reported to Gardai in the early morning of the 8th). It’s a pity that wasn’t picked up in proofreading…”
Broadsheet: “Thank you Legal Coffee Drinker.”
Full report here
Yesterday: Father Forgive Them
Previously: Fr Niall Molloy on broadsheet