No (due) process?

KangarooCourt_8592

Over a year after voluntarily stepping aside from their key roles in Scouting Ireland, four senior volunteers remain in limbo.

This despite a report commissioned to look into alleged wrongdoing on their part finding them without a case to answer on the key allegation levelled against them and around which the report was commissioned.

The long awaited Lynch Report, a redacted version of which is available under the Freedom of Information act (and of which the irishscouter has seen and read a fully unreacted copy) seems to have raised a lot more questions than it does answers. 

The report focused on a complaint made by one adult scouter about another involving an allegation of sexual assault. The report specifically looked at alleged involvement of four senior volunteers in seeking to influence the management of the complaint by putting pressure on professional staff. 

The report exonerates three of the four respondents from the key charge that they sought to inappropriately contact professional staff involved in managing the complaint and seeking in doing so to exert influence in favour of the subject of the complaint.

The fourth respondent, Mr Ollie Kehoe directed professional staff to reinstate a person against whom a complaint had been made (following a DPP ruling in the case), to the associations database. As such in the context of the circumstances set out in the report, this was deemed by Ms Lynch to be inappropriate. 

Mr Kehoe contends, as National Secretary and thus the ‘owner’ of the database (at the time), his actions were entirely appropriate. It remains unclear why the person against whom a complaint was made was removed in this instance, as this was out of step with the procedures normally followed in such circumstances. 

Context is important when it comes to the report. It is in fact CRITICALLY important. Testimony within the report possibly inadvertently, helps provide that context even if the terms of reference appear designed to do the opposite.

To a greater or lesser extent, there is some criticism of each individual on issues beyond the main charge levelled. Affording the four named respondents an open and fair opportunity to set out their version of events would help. To date, barring an RTE interview, that opportunity has not been afforded.

A journalist at a national newspaper remarked to theirishscouter that it was somewhat ironic that a fair hearing was proffered by the media and yet not by the association these individuals had served for years – in some cases decades. Remarkable indeed.

Mr Ian Elliot, the external consultant hired by the association at the insistence of senior volunteers (including at least one named in the report) to review safeguarding policies in Scouting Ireland is correct in his various assertions that the correct processes are not in place presently to provide adequate protection to youth members or indeed adults. That in part explains the course of events that led to the Lynch report being commissioned, even if it does not excuse them. 

The dysfunctional nature of how Scouting operates nationally even now (with the new Board admittedly trying to get on top of the problem), as set out in the Van Turnhout report, was clearly a factor in the failings around the case under review. 

It is a real cause for concern that the findings of the Van Turnhout report (commissioned by the government) appear to have been largely ignored by Scouting Ireland to date. It is failures highlighted in the Van Turnhout report that in some ways created the environment in which subsequent issues arose.

The Lynch report does however provide some useful clarity around lines of responsibility in Scouting Ireland. It is clear for instance that the ‘management’ of the complaint (that provides the backdrop to the actions that led to the commissioning of the report) from the very beginning was fully and totally in the hands of professional staff, according to the report. Equally, it is clear that files to ALL safeguarding cases in Scouting Ireland are under the jurisdiction of professional staff and this has been the practice for some time – volunteers have no access to these files.

The Lynch report is also quite informative in terms of what it does not say. The considerable testimony included in the report, from all manner of individuals in the association go a long way towards filling in some of the gaps. This testimony comes from professional staff and volunteers. 

A bone of contention from the outset with the report has been that the terms of reference were narrow, indeed so narrow as to arguably limit Ms Lynch from seeking to investigate the full story behind the management of the complaint made that triggered the report. Various respondents in the case raised their concerns on this prior to the terms being finalised, but were ignored. Theirishscouter has seen correspondence that proves some board members at the time the report was commissioned did likewise and again there is no evidence to indicate that any of these recommendations were acted upon.

The identity of the person (or persons) who set the terms of reference and briefed Scouting Ireland’s legal advisors accordingly would help clarify whether a potential conflict of interest was a factor in such narrow terms being set.

Even a cursory analysis of the report’s contents signals fairly clearly that others, beyond the four original respondents, have an account to give of themselves and questions to answer if this is to be seen as a fair investigation. The Board has taken a risk in undermining the entire process by assigning arbitration of the report to the moribund National Management Committee.

The NMC lost its electoral mandate in October 2018 and thus no longer acts as a democratically recognised decision-making body. Its sole function in remaining in existence is to wind up the old structures. It no longer has any executive function.

More importantly, at least three of the six remaining members of the NMC have a potential conflict of interest that if declared, would almost certainly preclude them from presiding over any decisions associated with this report, or the respondents within. These conflicts relate in some instances to the case itself or the report arising. In other instances they relate to close connections with persons named in the report and/or persons who may have an interest in the deliberations of the NMC on this topic.

To date however, nothing has happened to either draw a line under the report and reinstate or at least officially exonerate the relevant senior members or take definitive action against them. 

One could argue that the adverse publicity, the assumption of guilt, the seemingly deliberate attempts at character assassination by a group of vexatious individuals close to figures in Scouting Irelands higher echelons and the sheer duration of the suspension from duties, albeit voluntary – could more than suffice as sanction for any misdemeanour or error of judgement on the part of all four individuals. 

The utter lack of natural justice, the absence of any support whether legal, documentary, or representative has been not just astonishing in its unfairness, but should send a chill down the spine of any volunteer in Scouting Ireland – board members included. This could easily be any individual in the association. The precedent it sets and the fast and loose way in which due process has been cast aside and processes manipulated does not instil confidence.

 The Board of Directors needs to think very carefully about how it proceeds. But one way or the other, proceed it should – towards some sort of conclusion on this matter.

There is more to this case and the management of the case than was evident from the terms of reference. The board should get to the bottom of who specifically pushed for the setting up of the investigation and why it was set up in the way it was. 

Whilst conscious of the serious nature of the allegations made in the case that triggered the Lynch report how did this particular case become a sample case for review and not a child protection case? It is not as if there was a shortage of the latter, as has become appallingly clear in recent months. Who selected this case and why? 

Ian Elliot, despite his tendency to occasionally utter in the public domain what some might tactfully describe as somewhat sweeping statements, is nonetheless an acknowledged expert in his field. Despite mutterings on various social media pages to the contrary, it is very hard if not inconceivable to imagine that Mr Elliot is in any way deliberately biased in his conclusions on any aspect of his investigations into Scouting Ireland.

However, was Mr Elliot provided with all the facts related to the case that led to the commissioning of the Lynch report? Were all potential conflicts of interest laid out clearly on the table? Did individuals with potential conflicts of interest absent themselves from any presiding role in the case or clearly signal and minute said conflicts of interest at Board level?

There is no question that errors were made and lack of judgement was on display in some aspects of the case under review in the Lynch report. However if terms of reference have been calibrated to focus on these in part to deliberately conceal other lapses by individuals not subject to investigation, the Board and the Minister (not to mention the members) need to know the full facts. 

A second, wider investigation should be commissioned, to probe into some key areas where the Lynch report could not go. If the new Board of Scouting Ireland is serious about driving positive change and is interested in natural justice and fair play, then this is the only reasonable course of action.

In any event, the four volunteers who have endured the presumption of guilt, a process stacked against them, zero support from Scouting Ireland the entity for over a year now and a fair degree of personal stress, deserve closure on this matter one way or the other.

In the scramble to cleanse ourselves of the mess, let’s not become so sterile that we dispense with the very fabric, character and soul of the Scout movement.

4 thoughts on “No (due) process?”

  1. 1)It is Clear that huge potential
    Conflicts of interest played a role here
    It is up to the Board to outline to our 13K members
    What were the potential conflicts of interests in the Barristers report
    From its first suggestion, who/named members of a committee..wrote its terms of reference, ….to today.
    And more importantly what Our Board is doing about this.
    2) As we were NOT told of potential conflicts of interests before we elected the New Board.
    And potential Conflicts of interests are damaging our Association.
    To start to address this
    a) We now should be told of the potential conflicts of the Board.
    b) How many times each Board member ( or anyone at board meetings) had to excuse themselves because of Potential conflicts of interests since the board was elected

  2. Although it’s not a fate I would wish on anyone; it should by now be clear to the four volunteers just how unfit for purpose the complaints process is.

    Anyone who has the the misfortune to be subjected to the gross mishandling by Scouting Ireland of adult complaints will be sympathetic.

    However the fact remains that the Lynch report does not exonerate those involved, no more than the Mueller report exonerates Trump.

    If you have more information than we do, Garret, then publish it. Otherwise stick with commenting on what is publicly available.

  3. Morning Eleanor

    I’m not sure I would draw a comparison between the corrupt activities of a known racist who endorses state sponsored child abduction – and on the other hand what largely amount to procedural errors in the case of two volunteer scouters and errors of judgement in the case of the other two.

    Nonetheless, it is my conclusion having read the full unreacted Lynch report that it (1) finds three of the four people involved did not commit the transgressions that the report was commissioned to make a ruling on. (2) In the case of the fourth, the testimony outlines (and I outline in my article) why Ms Lynch found that ‘on the balance of probabilities’ a transgression was committed, however I also outline why the respondent would challenge this in the context of clear precedent in previous similar disputes cases.

    I would agree with you that the disputes process presently in use in Scouting Ireland is not fit for purpose. I would go further and say it is vulnerable to corrupt practices and again the full Lynch report paints a picture of some frankly astonishing conflicts of interest that make the entire process look like a kangaroo court.

    The contrast between the treatment of these alleged transgressions and the alleged transgressions of a member of professional staff referred to in a publicly disseminated letter from Tusla – a government agency – is stark, alludes to breath-taking double standards and probably tells us all we need to know about the disputes process in Scouting Ireland at present. In essence, volunteers appear very much to be second class citizens.

    ALL THAT SAID, the primary point of my article Eleanor is that whether these people cocked up and to what extent they did or did not do so does not change the fact that the manner in which this entire process has been handled on the watch of the current Board of Directors is poor.

    It lacks natural justice. It lacks fairness. It lacks any trace of compassion. It lacks transparency. It treats four people who invested very heavily in Scouting of their time and energy in a shameful manner. Criminals accused of the most heinous crimes are afforded more due process under Irish law. (Just re-read that last sentence and let it sink in)

    None of these people committed a crime. None of these people deliberately sought to undermine any investigation – the only one of the four who received the censure of Ms Lynch for the specific question posed for the investigation did so for an action undertaken after a clear finding by the DPP in the case under review, hence the matter was arguably procedural (to my reading of the background as set out in the report).

    I am not prepared at this point to publish the full report. I reserve the right to make whatever statements I wish in the public domain. My self-imposed criteria for such utterances is that I can fully support any statement I make or fact I assert with documentary or testimonial evidence from at least one (and preferably two) reliable sources. I don’t need to publish said material – I just need to have it on file.

    As your Muller report analogy might support in time, facts that are not in the public domain are still facts.

    One way or the other, whatever your (or my – or anyone else’s) personal views, these four people deserve closure on this matter. I believe the Board of Directors should demonstrate leadership. They should step up, take it back (from the NMC) and act to draw a line under the matter.

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