When Judge Peter Smithwick in December published his tribunal finding that he was "satisfied there was collusion in the murders" of RUC Chief Supt Harry Breen and Supt Bob Buchanan in 1989, and that "the evidence points to the fact that there was someone within the [Dundalk] Garda station assisting the IRA", it was a judgment based on "the balance of probabilities". This was never a finding of fact, or a conclusion that would have satisfied a court in the prosecution of a criminal. The balance of proof applied by the judge did not, and had never been intended to add up to "beyond a reasonable doubt".
As Judge Smithwick observed in his report of the standard “on the balance of probabilities”, “if I were to apply a higher standard to the question ‘was there collusion?’... I could find myself in the position where I conclude that the operation was not carried out with collusion, but nor was it carried out without collusion. This would be a manifestly absurd outcome.”
And, from the start of the process, given the time that had elapsed, the cross-border nature of the inquiry and problems of compelling witnesses from a different jurisdiction, and the proliferation of witnesses with their own agendas and wide-ranging degrees of reliability, any greater degree of certainty was never on the cards. Did that reality make the tribunal a waste of time, or the judgment, an approximation of truth, and so useless? No. Smithwick has provided an important insight not only into the killings and the likelihood of Garda collusion, but also what he saw as the worrying collegiate sense of loyalty among gardaí that had undermined previous inquiries.
That said, the critique by three former Garda chief superintendents of the methodology of the Smithwick report published in this paper yesterday, does raise important questions that deserve to be taken seriously. Whether their concerns warrant the Government rejecting the Smithwick findings outright, is another matter.
The former officers, John O'Brien, Michael Finnegan, and Michael Staunton, all of whom served in the Dundalk district, complain that the tribunal failed to conduct basic investigative work like reconstruction of the scene of crime or of movements in the Dundalk station or to hire a team of professional crime investigators to assist.
They complain that in finding that unnamed gardai colluded with the IRA he applies a lesser standard of proof than in his finding that certain named gardai did not do so – a discrepancy that Smithwick acknowledges as the inevitable consequence of of needing to meet a higher standard to accuse an individual.
Crucially, the officers say that Smithwick failed to properly evaluate the relative value and reliability of certain witnesses or pieces of hearsay information before the tribunal. Among others that critique applied particularly to the deeply questionable evidence of British agent Kevin Fulton. But they suggest that the tribunal should have placed greater weight on Provisional IRA members' testimony that they acted alone.
Perhaps they are right. Perhaps not. But, ultimately, it is precisely the function of a judge, or a jury in a jury trial, to weigh such considerations in coming to a view. Do the officers successfully show that he acted perversely in finding as he did on the evidence before him? The jury is out.