The report from the Commission on the Future of Policing in Ireland, released on 18 September, recommended yet more ‘sweeping reforms’, including a new framework for the independent oversight of policing, with a clear mandate for effective scrutiny, that will promote professional standards of policing and ensure fully independent investigation of complaints. Among the failures of ‘effective scrutiny’, ‘professional standards of policing’, and the ‘fully independent investigation of complaints’, the ‘Kerry babies’ case and the Lynch tribunal that followed stand out in high relief.
In February of this year Dr Vicky Conway, associate professor of law at DCU and a member of the Commission that produced the report, said that
The findings of the Lynch tribunal should be rejected by the Government. That tribunal report repeatedly castigated Joanne Hayes and her family, branding them liars, declaring that Hayes killed her own child when the medical evidence did not support such a statement. The procedure adopted by the tribunal was deeply flawed, undermining the findings further. (irishtimes.com here)
Justice Kevin Lynch, presiding at the tribunal, largely ignored the terms of reference he was given, ‘to inquire into the facts and circumstances leading to the preferment and subsequent withdrawal of criminal charges against Joanne Hayes and her family’ and ‘to inquire into allegations made by the Hayes family in connection with the circumstances surrounding the questioning and the taking of statements from those persons’. He decided, instead, that the Government ‘have asked me to investigate, as best I can, the birth of Miss Joanne Hayes’s baby in Abbeydorney’. The government did no such thing.
The tribunal manifestly did not investigate the circumstances under which the gardai obtained ‘confessions’ from Joanne Hayes and three members of her family that, as I have said, were contradicted by forensic and other evidence, and that included information known at that time only to the gardaí. It became instead, as Nell McCafferty pointed out, the trial the gardaí had failed to obtain for Hayes and was used, with the collaboration of the presiding Judge, to justify the garda investigation, its methods, and its faulty conclusions.
To establish that Joanne Hayes fit the identikit manufactured by the investigating gardaí of an unstable and possibly deranged woman ‘of loose morals’, her lover, Jeremiah Locke, was questioned as to the time, place, and manner of their illicit lovemaking. He was given an ordnance survey map and asked to point out exactly where on the road to Abbeydorney they had pulled off to have sex in the back seat of his white mini car. He revealed that she had not been a virgin when he met her. Barrister Martin Kennedy, representing Garda superintendents, justified this questioning by asking ‘Did she love this man or love what he or some other man was prepared to do with her?’ (McCafferty). When asked about the relevance of this line of questioning, Kennedy said he wished to ‘establish the sexual life of this man and Joanne Hayes.’
If he could establish a previous sexual history, that Joanne was having sexual intercourse with others, and ‘if one of those others turns out to have blood group A it is not only possible but probable that Joanne had twins, one of blood group O, one blood group A. The judge allowed the cross examination to proceed ‘on that basis’. (Kerrigan)
‘That basis’ is the outrageous claim by gardaí that Joanne Hayes had been pregnant simultaneously by two different men and had given birth ‘not only possibly but probably’ to twins. No medical evidence was offered to support such a possibility, much less its probability. In order to establish a sexual history for Hayes that fit this story, the gardai conducted a wide-ranging search for the other man, Hayes’s fictional other lover, the father of the fictional second twin. A name, Tom Flynn, was found written on the mattress taken from Hayes’s bed and a search was begun for Tom Flynn as this other man. The case, as McCafferty pointed out, took on farcical proportions: tee-shirts went on sale imprinted with the legend ‘I am Tom Flynn’.
Tom Flynn was finally, after months of searching, identified as a worker in the shop that sold the mattress; he had emigrated to America in 1962. No other lover was found, but Courtney had already predicted as much: ‘no man,’ he had said at the outset, ‘will come forward and say they had an association’ with a woman of loose morals. A lack of corroborative evidence could be written into the garda narrative, apparently, as vindication of the official position.
The fit up
The core of the garda allegation that Hayes was not only a liar but a sociopath, as capable of lying under oath as she was of killing her baby, was supported from within another ‘objective’ discourse, in this case, psychiatric medicine. Dr John Fennelly, chief psychiatrist in Limerick mental hospital, had examined Hayes after she had been charged with murder. He judged her at that time to be depressed and suicidal and had her transferred to a psychiatric ward. He testified that he believed she was truthful with him when she said that she had no connection with the Cahersiveen baby. She also told him, he said, that having given birth to her baby alone, in the dead of night, in a field on the family farm, she had put her hand over his mouth to stop him crying. The baby had died. Fennelly is ready at this stage to assign blame but not responsibility to Hayes in the death of her baby. He agreed with Anthony Kennedy that ‘mental disturbance at the time of birth in a perfectly stable woman was quite common, even if the childbirth were uneventful, and agreed that until her hormone level adjusted itself a woman would be in ‘a tricky mental state’. All of which agrees with the most persistent understanding put forward throughout this case—that the hormonally induced instability of the mother is an inherent threat to the life of a baby.
Asked to examine her a year later and report his findings to the tribunal, Fennelly found her to be ‘bright and cheerful’, not displaying as much guilt as he thought appropriate. McCafferty points out that no other commentator describes Hayes as either bright or cheerful. All accounts speak of the obvious stress under which she gave evidence. At times she testified while sedated. ‘She broke down repeatedly. Her tears and sobs and laboured breathing were a daily feature, an hourly feature, and then a minute by minute occurrence’. More than once, she left the courtroom to vomit.
Fennelly’s evidence and his disappointment that Hayes no longer fit his profile, reflect his investment in the narrative he had constructed of Joanne Hayes as a victim of biology and circumstances. That one year later she did not appear to behave sufficiently like the profile he had fashioned, threw her whole case into question in his mind. He agreed with Kennedy that she was ‘narcissistic’:
He did not think she was frigid. She was a sociopath with a histrionic personality. The two men went through the fourteen-point guideline to a histrionic personality and agreed that all the points fitted Joanne Hayes. . . . On the other hand, Dr Fennelly pointed out, he had based this assessment partly on what he had read about Joanne Hayes in the papers. (McCafferty)
The person under discussion here is not Joanne Hayes but a figure cobbled together from several stories; she is quite literally now a discursive construction. The psychiatrist constructed his profile of her at least in part from the accounts of her he had met in the media; these media profiles were in turn constructed in part from the testimony of legal and medical experts, including Fennelly himself, who had testified earlier. Nevertheless, to the extent that Joanne Hayes no longer fit the profile Fennelly had earlier constructed, she becomes culpable, a narcisistic liar who deceived him into believing the assumption he had brought with him in the first place.
Fennelly’s was one of a selection of accounts called upon during the Tribunal shaping Joanne Hayes to fit the initial picture of the accused constructed from the ‘mental evidence’ of the accusers. In the process, her own account had been disqualified in the face of these multiply-authorised narratives—authorised by their own claims to ‘objective’ truth and by their confluence with ‘common-sense’ knowledge, what ‘everybody knew’ about ‘that kind’ of woman in 1980s Ireland:
A time when contraception was difficult to access, abortion criminal and Magdalene Laundries still operating. Illegitimacy was still a legal and shameful term. (irishtimes.com here)
Hayes’s unwillingness or inability to communicate can be seen as part of perhaps the most compelling narrative that surrounds the case, a persistent narrative of silence on the part of those most intimately involved.
The case is remarkable, in fact, for the extent to which Hayes and the people around her did not discuss her pregnancy prior to the advent of the garda investigation and all that followed. Up until then, Hayes closed off any attempt to discuss the matter. Her family too, though aware, one assumes, of the pregnancy, chose not to talk about it, even, or perhaps particularly, with Joanne. Lynch in his report, failing to understand the motivation of these people to conduct their lives within this silence, would describe the family as very odd and as barefaced liars where their version of events differed from that of the gardaí. Precisely because each family member had watched in silence as events unfolded and had not discussed what he or she had seen, their accounts of those events when they were forced to talk about them were often confused and differed on a number of points—until the gardaí provided them with ‘accurate’ details. As McCafferty says, in reference to the separate examination of each during the tribunal and the differences that emerged in their accounts:
Such procedure is the stuff of psychological textbooks or successful television entertainments: while Kevin waits offstage Ursula recounts from memory an intimate event that involved her and him; while Ursula waits offstage, Kevin recalls the same incident; the audience laughs its leg off at the wildly contradictory detail, the differing emphasis on what was important. . . .
There are times when things are not so funny, when a family chooses or is compelled by fear to ignore what is happening in its midst.
This silence became an important signifier, interpreted differently from within the various discursive positions; what McCafferty sees as fear, for instance, others—the gardaí, the judge—see as an attempt to deceive or to hide the truth, or as guilt at having been deceptive, or as just plain ‘odd’ and therefore unreliable. What becomes clear is that when these people whose habitual mode is silence in intimate matters were forced to speak on those matters publicly, what they said or were encouraged to say was easily manipulated to fit into the various narratives that were growing and multiplying around the births and deaths of the two babies. To speak, to assume a position of subject within legal discourse is to become subjected to the power and regulation of that legal discourse. Reading accounts of the Tribunal, it’s clear that the Hayes family did not speak the language of legal discourse: the language spoke them. The results were confusing, painful, and often harmful to the speakers or to those the speakers would almost certainly not wish to harm.
As a family, they were easily manipulated by those more accustomed to dealing with the law, the media, and public scandal. Joanne’s aunt, Bridie Fuller, one of the witnesses whose testimony was used selectively to support the garda narrative, had been a nurse serving with the British army in Malaya until ill health had caused her to retire, after which, according to McCafferty,
she had withdrawn gradually into a world of her own, sleeping by day, sitting wakefully by the range in the kitchen all through the night. After giving up her car due to what her loyal family resolutely refused to call a drink problem, she withdrew even more from the real world of other people. . . . Bridie was famous in Abbeydorney for only ever volunteering one piece of conversation. ‘What time is it?’ she would ask. On being told she would lapse again into silence.
She had suffered one stroke before the events of that April and would suffer two more before the tribunal members went to her hospital room to question her. The evidence she gave was both internally contradictory and inconsistent with several of the known facts of the case. Sections of it were, nevertheless, seized upon as damning evidence in the case against Joanne Hayes as the killer of a baby, and possibly two babies, born at Abbeydorney. Bridie Fuller testified that she had aided Joanne Hayes in the delivery of a baby in her bedroom on the night of 13 April; she did not remember what had happened to the baby, had not seen it killed. Her memory of the night was confused on many points, for instance as to whether the baby had been washed or not. The Cahersiveen baby had been washed; the Abbeydorney baby had not. Fuller’s final memory was that she had washed the baby. The umbilicus of the Abbeydorney baby had been longer than usual, almost a foot long; the umbilicus of the Cahirsiveen baby had been cut flush with the body. Fuller testified that she had cut the umbilicus long. Neither baby had both been washed and had had its umbilicus ‘cut long’, as Bridie Fuller put it. Only the fictional Azores baby could possibly fit these details.
More ‘damning’ evidence came from Joanne’s brother, Mike. He became easily confused during questioning and in the witness box and again contradicted both himself and the scarce known facts. With Mike, as with Bridie, leading questions could and often did produce the sought-after answers. After the night spent confessing in the police station, only Bridie and Mike could be made to say—implausibly—that they had witnessed the birth and/or death of a baby to Joanne Hayes on the night of April 13/14. Everyone else in the house that night insisted that they had been coerced into confessing to a crime that had not taken place. They all maintained that they had not seen Joanne giving birth, although her behaviour had been ‘suspicious’ and clearly they were aware that something had happened. Her sister Kathleen at least suspected Joanne had given birth that night, but was afraid to probe too deeply, fearing what she might hear. The silence that had attended the pregnancy deepened around the birth of the child. Joanne Hayes herself testified to the gardai and to the tribunal that she had given birth to a baby boy, alone and standing up, in a field on the family farm. In keeping with family behavioural patterns, she did not, until the time spent in the garda barracks, talk about what happened and nobody dared ask her.
The selective use of testimony from vulnerable witnesses was at the heart of the report produced by Lynch that convicted Joanne Hayes of killing her baby when the medical evidence showed that he did not survive his birth and that no foul play had been involved. Once again, the baby that had washed up on the beach at Cahersiveen was effectively sidelined. More on that tomorrow.