Garda/DPP use forged document to protect a priest from rape allegation

Couple of thoughts:

First, yes, recedite, be very careful of defamation. The header to this thread is misleading (I think) and you may want to ask the mods to change it. The allegation is not that a forged document was used to protect a priest from a rape allegation. According to the charge, the document was dated 14 January 2009, and was actually forged on 15 January 2009, and was sent to the Murphy Tribunal. That was about when the Murphy Tribunal (2006-2009) was completing its investigations and preparing its final report. But the Murphy Tribunal was investigating historic allegations of child abuse and how they were handled. In other words, this was a letter ostensibly justifying a no-prosecution decision that had already been taken. The letter cannot have influenced the decision. It was intended not to protect the priest, but to protect those who had decided not to prosecute him.

Secondly, the obvious inference is that whoever forged the letter felt that the no-prosecution decision was likely to be criticised. But we don’t know on what grounds it might have been criticised. Nothing in the reported facts suggests that the no-prosecution decision was the result of pressure from the church authorities, or a desire to protect the church or its clergy, and there was no evidence that McGowan had any link to this priest, or any protective attitude towards priests generally, or towards the church. A useful general rule is never to attribute to conspiracy that which can be explained by simple incompetence. The investigation might have been sloppily conducted due to a guard being overworked, or incompetent, or not properly resourced, or bribed, or careless. Somebody might have felt that they had dropped the ball on this, and been anxious to cover their tracks, for reasons which are wholly unconnected with the fact that the suspect was a cleric.

Thirdly, I think it’s drawing a very long bow to suggest that the acquittal was in any way linked to a belief on the part of jurors that forgery to protect clerics is justified by a Higher Moral Imperative, and an even longer bow to suggest that this is any way linked to the practice of witnesses taking religious oaths. (There may be good arguments against religious oaths in court but, seriously, this is not one of them.) While it’s perhaps conceivable that one or two jurors might take the view the forgery to protect the church was justified, this acquittal was unanimous. Reading the newspaper reports, a more plausible account of the jury’s verdict was that they might have been satisfied that the letter was forged, but they were not satisfied that the state had shown beyond reasonable doubt that McGowan had forged it.

The state’s case seems to have been poor partly because of shoddy record-keeping at Bray Garda station. The filing system, was said to be “fairly haphazard”, the file store was a tip and in an (unrelated to this case) audit of files by the Garda Professional Standards Unit something like 30% of the files requested from Bray Garda Station could not be found. The file relating to this case could also not be found, which meant it was difficult to say either that the no-prosecution decision was objectively unjustified or that Garda McGowan was primarily responsible for the no-prosecution decision. And that’s a fairly big hole in the evidence, when your case is that Garda McGowan stuffed up the original investigation, and later forged the letter to cover try and conceal her stuff-up.

Fourthly, it’s correct to say that nobody else has been charged with, or accused of, forging the letter. On the one hand, McGowan’s acquittal was only last week. On the other hand, though, it’s very unlikely that anyone else ever will be charged.

The reason for this is not, I emphasise, that McGowan must have done it. In reality, once A has been prosecuted for a particular crime and acquitted, it is vanishingly rare for B to be prosecuted for the same crime and convicted. The reason is that B cannot be convicted unless it is shown beyond reasonable doubt that he did it, and to secure B’s acquittal the defence simply has to re-present enough of the evidence that was produced in the prosecution of A to raise a reasonable doubt that A could perhaps have done it.

On review, I think you're right, at least to some extent. The case was still open until 2011. But I think that's in fact only because there had never been a prosecution decision, one way or another, from the DPP, and that is because, whether deliberately or inadvertantly, the case had not been referred for a decision when it should have been, in 2007. in fact the (effective) action (or inaction) to close down had been taken in 2007, and what was being actively considered in 2009 was not the conduct of the priest, but the conduct of the investigating guards. From the reports, it's explicit that the the State claimed that the purpose behind the forgery of the letter was . . .

". . . to “hoodwink” gardaí who were reviewing whether she had acted properly in investigating allegations of sexual abuse by a priest of a teenage girl." (Source.)

So I think my basic point is correct. The letter was not forged to protect the priest, but later, to protect those who had already (for whatever reason or motive) acted to protect the priest. My sense is that the action (or inaction) which protected the priest was effectively taken in 2007 when the case was passed to McGowan, and McGowan interviewed the complainant (who wished for charges to be pressed) but the file was never sent to the DPP for a prosecution decision. The letter was cooked up to make it look as if the file had been sent to the DPP, and a decision taken not to prosecute.

(As a footnote, it's worth noting that in 2011 the matter was referred to the DPP and a decision was taken not to prosecute the priest. Whether this is because the prosecution case had been fatally weakened by all these shenanigans, or because the prosecution was weak to begin with, or for other reasons, we don't know. It would be richly ironic if somebody suppressed an investigation, and later forged documents to conceal the suppression, to prevent a prosecution which, on the merits, was never going to be brought anyway.)