By Jim Cusack
Sunday March 12 2006
THE garda response to the murder of Donna Cleary ended in a shambles last week as two men walked free because their period of lawful detention overran.
Like most suspects in gangland crime in Dublin, the three men arrested under Section 30 of the Offences Against the State Act in connection with the murder of Donna Cleary repeated, mantra-like, "nothing to say" in reply to every question put to them.
Garda interrogation is now, in the words of one very senior Dublin detective, "a joke". He pointed out that gang bosses routinely order their subordinates to go back to the garda station where they have been questioned and demand a copy of the videotape of their interrogation. Gardai must provide them with a copyunder law.
"Their bosses want to see the video in case they gave something away. That's all they're saying: "nothing to say". They're having great crack showing them in pubs and clubs. They're having parties watching them on the video. It's all a big laugh." The popular pastime of watching these videos began in Limerick over a year ago and has now spread to Dublin.
The investigation into Donna's murder faces two major hurdles: the impossibility of getting suspects to confess or incriminate themselves under questioning, and intimidation of witnesses.
In Donna's case the first hurdle has already presented itself. Questioning provided no evidence and, embarrassingly for the guards, was curtailed after losing Wednesday's High Court case forcing the release of suspects.
The next problem facing gardai is getting witnesses to testify. Murder and other serious cases are increasingly failing because of intimidation of witnesses, referred to by one judge as "mass amnesia".
The collapse of gangland trials because witnesses retract statements is now almost the norm as Dublin, Limerick and Cork's armed and organised criminals flout the law. The trial-collapses - there were two within two days last month - are coming about because of the increasing reliance on witness evidence and because those witnesses are highly susceptible to intimidation.
In particularly flagrant cases of intimidation the Government has been forced to say it will bring in new legislation or new arrangements to protect or force witnesses to testify. Similarly, last week, the Government's response to the public outcry over Donna's murder was to say it was bringing forward anti-gun crime legislation.
After the partial collapse of the Jerry McCabe murder trial in 1997 when the IRA intimidated a key witness, the Government introduced the witness protection scheme. However, the scheme is costly and there are still only a handful of people under permanent protection. Little else has happened.
Most witnesses are given only perfunctory protection if any, even if they live cheek by jowl with the main suspects or their associates.
The experience of those who agree to testify is not encouraging. One particularly brutal example was that of a young Dublin woman who was determined to give evidence against a member of a south Dublin drugs gang who had beaten her boyfriend almost to death five years ago. She was forced to attend repeated pre-trial hearings at which she was harassed and finally viciously assaulted outside the court room. She still went ahead.
The gang then hired a former republican assassin to kill or maim her for life causing the young woman, her partner and young child to flee Dublin. They moved from B&B to B&B until, finally, their relationship collapsed under the strain.
With almost no resources provided to protect and house the young mother she finally ended up living in a homeless hostel in Dublin with her child. She still went ahead and, eventually, the ruthless young drug dealer who had nearly killed her partner, pleaded guilty and received a three-year sentence. He was released late last year.
In January this year shots were fired at the house where the young woman's partner was living. The gang was sending out a message that they will not forget anyone who helps the gardai.
Even if the gardai offer to protect potential witnesses, it means that they are taken away from their own communities. It also means that even if they do flee, the threat is directed at the relatives who remain at home.
This was most recently seen in the case of a young man who had survived being shot three times at close range as part of the Drimnagh drugs gang feud which has claimed up to nine lives so far. As he recovered in hospital the young man told gardai who had shot him - two brothers who lead one of the warring factions. When word emerged that he had made a statement and might give evidence in court, members of his family were approached and threatened.
Finally, in mid-January, the threats became increasingly grave and he fled the country. He has made no further contact with gardai and they are not even sure if he has been murdered.
Two weeks ago, gardai in south Dublin arrested a man who, they believed, had made death threats to three witnesses in a murder case. Gardai now believe that this case might also collapse as the witnesses, who made statements to detectives, will suffer a bout of "amnesia".
Gardai complain that the current methods of interviewing suspects - based on guidelines handed down by garda management - are unworkable and ineffective.
Detectives have to write down each question as it is delivered. The suspect is asked not to answer until the question, which might be two or three lines long, is written down in hand, usually by a second detective. Once this is down, the suspect is asked for his reply. He has up to a minute or two to consider hisanswer which, in most cases, is "nothing to say". This is written down and the process continues.
Not remarkably, thismonotonous system of interview has meant that in almost every murder case there isno point in producingevidence of the suspect being interviewed.
By contrast, police in the United Kingdom have a far more successful technique where suspects are videotaped. This technique was used to devastating effect in the videotaped interview of Ian Huntley in the Soham murder case. The jury was able to view his evasive and shifty demeanour as he lied and prevaricated in the face of firm questioning from detectives well-armed with strong circumstantial evidence.
The collapse of the interview in custody has meant detectives have had to look elsewhere to make their case and this, inevitably, means gardai have to fall back on witnesses. Witnesses are warned that failure to tell the truth can lead to 10 years imprisonment for obstruction of justice and, in many cases, they agree to talk. However, by the time the case comes to trial the defendant will have access to these statements. It is at this point that the gangs can move. Either directly or indirectly through family members, the witness comes to learn that testifying in court may have fatal consequences. It is often only a simple word in the ear of a near-relative in the street, in a pub toilet. The gangs rarely have to produce weapons to make their point.
And, the result is that the witness then becomes the second victim of the gangland hit. He or she is forced to recant on the statement. Ironically, it is the witness who may now face prosecution.
Of the 18 or so gangland murders in Dublin last year, very few will get as far as court even though gardai have strong circumstantial and other evidence against the main suspects. In only one instance where an accused has admitted serious offences, has been sentenced and has agreed to testify against others, is there a strong chance of convictions. He is under the witness protection scheme.
In cases where gardai are relying on the testimony of unprotected witnesses, detectives admit the chances of gaining a conviction are slim to none. Gangs see there is only a slight chance of being convicted of murder so murder, terror and intimidation are the rule of the day.
Last week the gardai's response to the murder of Donna Cleary turned from one of urgent action into the bizarre death of the chief suspect, quickly followed by near farce as the High Court found the gardai had breached detention rules. This along with the confused noises from the Taoiseach and other politicians about judges only emphasised the hopelessness of the State's response to the very serious problem of gun crime in Dublin and Limerick.
Donna's murder was inevitable. There have been dozens of drive-by shootings and shootings into occupied houses in Dublin and Limerick in the past year. In one feud alone, between two traveller families in north Dublin, there were seven gun attacks in December with four people hit, one seriously. Where no one is killed or badly injured the incidents are generally not reported.
Just 24 hours before Donna's death, a three-year-old girl came within a hair's breadth of being murdered when a gunman opened fire on her father outside their home in Greencastle Road, Coolock. The man, 25, was hit in the leg but his daughter escaped injury. The incident attracted almost no attention.
In Donna's case, her friends and family will be encouraged by gardai not to speak to the press, being told that it might hinder the investigation. It is a cynical form of damage limitation until the next outcry over the next innocent young victim.
- Jim Cusack