Quis Custodiet Ipsos Custodes?


90421170_90421170File Photo: Mr. Justice Adrian Hardiman has died suddenly. End.6/5/2009 Courts with a View. Justice Adrian Hardiman takes time before court is in session to look over the courtyard of the Four Courts in Dublin. Photo. Mark Stedman/RollingNews.ie

From top; New Gardai pass out at Templemore College; The late Justice Adrian Hardiman

Further to the fallout from the Maurice McCabe revelations….

Before his death last year, Supreme Court judge Adrian Hardiman delivered a stark assessment and warning about An Garda Síochána.

‘Legal Coffee Drinker’ writes:

In 2015, a majority of the Supreme Court in Director of Public Prosecutions Vs JC IESC 31 reversed a long standing rule of evidence prohibiting the prosecution from adducing evidence which had been obtained as a result of an unconstitutionality by the Gardai.

Examples of evidence excluded under this rule over the years have included property obtained under an unlawful search of a dwelling house or a confession made by an accused during a period of unlawful detention.

According to the majority of the court, the exclusion of unconstitutionally obtained evidence interfered with the truth-finding functions of the court and also showed a lack of regard for the constitutional rights of victims.

They felt that unconstitutionally obtained evidence should be admitted where the unconstitutionality was as a result of ‘inadvertence’.

Adrian Hardiman delivered a strong dissent, largely based on concerns regarding abuse of the investigatory process by the administration of justice.

His judgment stands as a remarkable and unprecedented criticism of the operation of the Gardai and the Department of Justice.

Not only did he state that “over the past twenty five years there had “been a considerable number of deeply disturbing developments both in relation to the Garda Síochána itself and to the arrangements for its oversight… expressly acknowledged in impressive and authoritative sources”, but he then went on detail these developments in full.

Justice Hardiman stated:

“[T]here have been two Tribunals of Inquiry, each presided over by an eminent member of the judiciary, which have each reported in a profoundly disturbing manner, The first report of the Morris Tribunal, published in 2004… related to bogus explosive finds by gardaí in County Donegal.

The report observed that garda culture: …generally militates against open and transparent cooperation with investigations both internal and external and manifests itself in a policy of ‘don’t hang your own’

This was said in a context of Gardaí “planting” explosives and then “finding” them.

This last phrase quoted “don’t hang your own” came from evidence to the Tribunal by Garda Martin Leonard, a Garda Representative Association official, who said:

“It is the nature of the gardaí, we don’t name the names – we don’t want to get anybody into trouble in the Garda Síochána internal matters… we do our best to make sure – we are not going to be hanging our people”.

Almost ten years later, in December 2013, the report of the Smithwick Tribunal stated:

“I regret to say… that there prevails in An Garda Síochána today a prioritisation of the protection of the good name of the force over the protection of those who seek to tell the truth. Loyalty is prized above honesty”.

In the next section of his judgment, headed ‘Wall of Silence’, Justice Hardiman summarised the experiences of the Morris Tribunal as follows:-

“… the Tribunal was faced with gardaí who were determined to hide the truth of what happened. They made statements to their superiors which were in many instances minimalist in their detail and failed to give a fully truthful account; in a number of instances the statements were a complete fabrication.

It was disturbing to find a deep seated reluctance to concede that a colleague had acted incorrectly or wrongfully or that the complaints made by the detainees were true – the wall of silence was maintained

.Unfortunately this approach extended to and was encouraged by senior officers in this investigation and in the overall approach adopted by An Garda Síochána to external complaints.”

He quoted further from the report of the Tribunal as follows:

“The State must act honourably and honestly in its dealing with plaintiffs in these circumstances. It cannot do so if it is told lies and half truths by the gardaí. This must stop.

Senior officers in An Garda Síochána must show leadership in this regard. The difficulties are linked to difficulties faced by ‘whistle blowers’ who wish to tell the truth but fear the consequences from their colleagues or for their careers…”

Justice Hardiman then went on to consider the 2014 report of the Smithwick Tribunal, which described itself as:

“staggered by the amount of indiscipline and insubordination it has found in the garda force. There is a small, but disproportionately influential, core of mischief making members who will not obey orders, who will not follow procedures, who will not tell the truth and have no respect for their officers.”

In particular, Justice Hardiman quoted from the Smithwick Report, regarding Tom Curran:-

“Tom Curran retired as a senior officer of An Garda Síochána, and he struck me as an officer of the utmost integrity. I would have thought he is as deserving of the support of the Garda Commissioner as any other former officer.

However, it seems to me that because he was giving evidence of which An Garda Síochána did not approve, such support was not forthcoming. I regret to say that this suggests to me that there prevails in An Garda Síochána today a prioritisation of the perfection of the good name of the force over the protection of those who seek to tell the truth. Loyalty is prized above honesty.”

He also referred to the following statement by Judge Smithwick:

“I am drawn to the conclusion that a number of the garda witnesses before this Tribunal, including former and current senior gardaí were not fully forthcoming in their evidence to me. … I accept that any individual witness may not recall, or for some reason may never have encountered, the unease to which I have referred; the evidence of any one individual witness may therefore be truthful.

What I find difficult to accept, what I cannot accept, is that so many of the garda witnesses from whom I have heard do not recall or have never encountered such unease. Regrettably, this suggests that there is an ingrained culture of prioritising loyalty to the good name of the force over the legal, moral, and ethical obligation owed to give truthful evidence to this Tribunal”.

In the next section of his judgment, headed ‘A Pot of Inquity’, HJustice referenced the case of Frank Shortt, which he described as “an appalling example of a deliberate garda conspiracy to perjure an innocent man into prison for no better reason than to enhance the careers of certain gardaí.”

Mr Shortt had been the victim of disreputable conduct and an abuse of power on the part of two garda officers, namely a superintendent and a Detective Garda.

They both engaged in a conspiracy to concoct false evidence against the plaintiff which in turn resulted in perjured garda evidence being given at his trial for allegedly permitting drugs to be sold in his licensed premises in Co. Donegal in 1992. That perjury procured his conviction by a jury.

According to Justice Hardiman:

“What followed as a consequence for the plaintiff was a tormenting saga of imprisonment, mental and physical deterioration, estrangement from family, loss of business, public and professional ignominy and despair. Furthermore, as the learned High Court Judge put it, “the plaintiff was sacrificed to assist the career ambitions of a number of members of the Garda Síochána….

….despite the injustice of his situation Mr Shortt finally obtained an order setting aside his conviction from the Court of Criminal Appeal… when the DPP, for reasons that were never disclosed to that Court, consented to such an order. Finally, in July 2002, the Court of Criminal Appeal certified that he had been the subject of a miscarriage of justice.”

Justice Hardiman shared the view previously expressed by the Court that what had happened to Mr Shortt could not be

“bracketed as a couple of bad apples in the proverbial barrel. The misconduct penetrated the system of law enforcement too deeply and persisted over too long a period to be discounted in such a fashion.

Concrete independent evidence of the wrongful conspiracy against Mr. Shortt only emerged in the course of an official garda investigation into affairs in Donegal.

The matters concerning Mr. Shortt may only have been a rather small part of that investigation but the lack of immediacy or action in response to the evidence which emerged concerning his trial does raise questions as to whether there is some complacency at different levels in An Garda Síochána with regard to the exacting standards of integrity which must at all times be observed by its members.

The cavalier manner in which those two members set about concocting evidence and subsequently persisted in trying to cover up their misdeeds, not entirely out of sight of other garda members, displayed a worrying confidence on their part that they could get away with it”.

Justice Hardiman’s particular concern was that “no steps were taken from within the Garda Síochána, or from within the broader State structures, to remedy the grave wrong done to Mr. Shortt”.

In particular, in the run up to Mr Shortt’s trial, a number of gardaí, including the Superintendent, worked at improving the statement of evidence by the Garda who was ultimately found to have given perjured evidence against Mr Shortt.

According to Justice Hardiman:

“The Superintendent wrote in his own handwriting on the draft statement various suggestions or instructions for changes, absolutely without regard to whether or not they were true…

it was a marked feature of the case that the Garda and the Superintendent were in fear of each other because each knew that the other had information which could destroy his career.

The Garda kept the original version of his statement as altered by the Superintendent and told his wife that giving him the statement with the handwriting on it was the most stupid thing the Superintendent had ever done.”

He added:

“Quite apart from the reports of the two Tribunals mentioned, there have in very recent days been a number of new and contemporary controversies affecting An Garda Síochána. Many of these arise from the revelations or allegations of a whistle blower, Sergeant Maurice McCabe. It is no exaggeration to say that, in the course of this last calendar year, Sergeant McCabe has become a household name.

There have been demands from the Garda Representative Association that these allegations should be resolved by an independent body as soon as possible because of the reputational damage that gardaí are incurring.

There has been much public debate as to whether an independent garda authority should be established to oversee the Gardaí and this matter does not appear to have been finally been decided upon as yet.”

Justice Hardiman concluded:

“it appears to me that very serious problems of garda culture and practices have been revealed by Tribunals headed by two distinguished members of the judiciary and by the garda whistleblower, and have been expressly acknowledged by members of the Government.

It would appear to me absolutely extraordinary, and very damaging to the very concept of due process of law, if, with these matters outstanding and awaiting resolution, this Court were to take a step which would considerably loosen the application of the law of the land, and indeed on the Constitution itself, to members of An Garda Síochána and to provide a positive incentive for them to ignore it…

….Against this indisputable factual background, the decision of the majority will virtually preclude judicial supervision of the force publique, will make available to public servants with enormous powers over ordinary citizens a defence of carelessness or inattention, and will exalt already empowered public officials into a virtually impregnable position.

Justice Hardiman continued to express his concerns regarding the admission of unconstitutionally obtained evidence until his death in March 2016.

DPPVs JC judgements and Determinations (Courts.ie)

Previously: How Did he Get Here? (Maurice McCabe timeline)


29 thoughts on “Quis Custodiet Ipsos Custodes?

    1. Legal Coffee Drinker

      Welcome, Happy, but the credit is due to Judge Hardiman, paragraphs 161-197 of his judgment (link above) are definitely worth a read in full.

      The majority decision was very helpful to the Gardai and the State in light of the Garda bugging scandal – see a discussion of the scandal and its implications for confessions obtained during a period of bugging here:-


      For balance, there’s also a discussion of the majority approach in JC here:


      1. Harry Molloy

        great stuff, think I’ll print the judgements out and read in full.

        I appreciate the majority’s position, were it not for the multiple instances as highlighted by Hardiman that make it impossible to have the confidence you would need in the executive to accept such evidence

      2. Anne

        Helpful? The unconstitutionally obstained evidence could still be admitted if the unconstitutionality was a result of inadvertence, was the decision right.

        hmmm so bugging could be inadvertent? whoopsie the bugging equipment just appeared judge..like Denis O’Brien and his USB stick fairy story. Or they could claim they didn’t know it was against the law, in which case why would they hide the fact they were doing it?

        How is the inadvertance and intention being determined? Just by the gardai stating they were ignorant of the law?

    1. Sheik Yahbouti

      Indeed. The day of fearless Jurists like Hardiman, and “Judicial activism” in general have well and truly passed. Whither the ‘separation of powers’ and the ‘Third Pillar ‘? I tell you folks, there is real danger in this.

      1. Pat Harding

        Excellent article. Members of the legal profession are well aware of what the Gardai are capable of. The decision by the majority of the Supreme Court is hard to believe, and it appears to give Carte Blanche to the cops to engage in despicable behaviour.

        There comes a time when it becomes necessary to break-up the Gardai in their current arrangement and strip them of certain powers including the state security aspect of their function. Interestingly in the U.K., MI5 which is separate to the police is subject to parliamentary oversight and is presided over by a civilian. The same should be the case here, additionally State Security should not fall under the Department of Justice (which nominally controls the cops too) which is a Byzantine and questionable institution in its own right.

        Perhaps at some point in the future the Gardai will go the same way as The RIC, DMP and the RUC, into oblivion

        1. Louis Lefronde

          The idea that your Gardai should also be responsible for security and intelligence is seriously worrying. Back in the 1970’s the Royal Canadian Mounted Police were in charge of state security, until it was discovered they were involved in a number of serious incidents including the bombing of a private residence, blackmail, extortion and the framing of one intelligence officer as a soviet spy, when the real culprit was the son of an RCMP assistant commissioner.
          (Do you a similarity here)

          Eventually, the Canadian Government set up the McDonald Commission investigate illegal activities which the Mounties had been involved in. The principal recommendation of the commission was to remove responsibility for national security from the RCMP and assign it to a new civilian spy agency. This recommendation was followed with the establishment of the Canadian Security Intelligence Service (CSIS) in 1984.

          Ireland should do the same, Police forces are never to be trusted, especially your Gardai who bare an uncanny resemblance to the RCMP in the 70’s and from what I’ve read a hell of a lot worse.

    1. ivan

      He was, but in a good way. He wasn’t your common or garden ‘establishment’ figure. I mean, he was, inasmuch as he was a Supreme Court Judge and pals with certain leading politicians but he was his own man, had his own opinions, read up on things, mulled them over, and the like. Going along with The Prevailing Consensus wouldn’t have been his schtick at all. And LCD has shown that above; he was quite happy to talk about the elephant in the room about the potential for Garda ‘corruption’; it’s always been something the judiciary have struggled with, because if it’s the case that 1 team in all criminal cases has form for mucking around with evidence AT ALL, then how safe is any other evidence. Lord Denning banged on about The Appalling Vista years ago; Hardiman (admittedly some years later and with Smithwick et al to assist) was happy to accept that it could actually be a thing.

  1. dav

    Legal Coffee drinker, thanks for the above. Any chance you’d be interested in doing a piece on Irish insurance cost increases being blamed on irish legal system (be it legal costs or awards of damages)?

  2. 15p

    jailing innocents on purpose, covering up for pedos, planting evidence .. isnt it a great police force we have

  3. The Bottler

    LCD I am sure Ken in the law society will only be too willing to help with any enquiries or research!

  4. Murray Flood

    The concept of ‘truth’ per se is totally out of fashion in Ireland. Has been since the foundation of the State if you ask me. Dishonest, indeed completely illegal activities are often ignored by the Gárdaí it seems. Who can ‘cook their books’ in any way they choose ; as Justice Hardiman said. Bad example starts at the VERY top of Irish society. So it is that Politicians can get away with unjustified reasons for not accepting Penalty points ( for example ) ; and had good reason to hide their involvement in dealings with FINGLETON during the bank bailout débacle. Why does Kenny eternally ‘support’ Lowry ; for instance. What information do they hold about each other which could hang them if it was to be revealed. Ha bloody ha ; something ROTTEN in the state of Ireland ! And then there’s the media, rotten lot too. Sing from the rotten Government hymn-sheet at ALL times. Afraid of their jobs eh. Sing dumb, and don’t metion names, it’s such a libellous country you know. Spineless, visionless, greedy -for -power-at -all -costs politicians are constantly re-elected. QED the PEOPLE are equally condoning of untruthful methods in life.

  5. Devine

    Murray, in a round about way there is truth in what you are saying. But here are just a few examples of where members of the force have been involved in criminality

    1. Planting of evidence
    2. Selling drugs
    3. Owning property from which ‘illegal brothels’ are being operated
    4. Facilitating trafficking in people.
    5. Collusion with organised crime.

  6. nellyb

    Yeah… What I was struck by is the sense of finality in Hardiman’s quotes. Loss of hope in humanity if you like. Must have been really hard for him. Real pathologist of the state. May he rest in peace.

  7. Anne

    “Inadvertance” is giving the gardai carte blanche to do whatever and say they were ignorant of the law but didn’t mean to be.

    Inadvertance – like Enda’s Mea Cuplas are horsepoo basically. What a joke.

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