JOANNE HAYES: STATE TO ‘BUY HER SILENCE’
Victim in the Kerry Babies scandal will be offered money in secret plan – but there will be no admission of liability and the payout will be confidential
THE State has been accused of trying to ‘buy the silence’ of Joanne Hayes, who was wrongly accused of murdering a baby boy found stabbed to death on a beach in Kerry 35 years ago.
The Irish Mail on Sunday can reveal that Department of Justice documents, seen by this newspaper, show there is a proposal to offer Joanne Hayes, and members of her family, an undisclosed sum for the trauma and distress they have endured in the decades since the scandal.
However, the payment comes with a number of provisos including confidentiality, and surrendering the right to future legal action. The family would also have to accept the State is not liable and they could never seek a written apology.
Cervical cancer whistleblower Vicky Phelan, who fought a gagging order herself, has criticised the secret bid to buy the family’s permanent silence and said it is further compounding
their suffering. Joanne Hayes finally received apologies from An Garda Síochána, the Taoiseach and the Justice Minister last year for her ordeal.
Despite those apologies, if Ms Hayes and her family wish to receive financial redress, a host of strict clauses will apply. They include: A confidentiality clause No written apology No liability accepted by the State
The family will have to forfeit their rights to any and all future actions
The offer is not only to Joanne Hayes, but will include her siblings Kathleen, Ned and Mike
It also includes her daughter, Yvonne McGuckin, who was two years old at the time. An indication that the trauma has travelled down to the next generation
The family would have to make a written application for assessment, and would have to be assessed by a board of three people, to be appointed by the Minister for Justice.
The redress is for the considerable stress and pain caused to the Hayes family during what
‘Forfeit rights to any future action’
became known as the Kerry Babies case in 1984, and a subsequent tribunal.
At that time, Joanne Hayes was 24 and living on the family holding in Abbeydorney, north Kerry. Gardaí knew she had been pregnant and arrested her as part of their investigation into the death of an infant, referred to as ‘Baby John’.
Baby John was found with 28 stab wounds, including four to the heart, on White Strand outside Cahersiveen in south Kerry on April 14, 1984.
Ms Hayes had concealed the birth and death of her own baby in Co. Kerry that year. Subsequently during Garda questioning she confessed to the murder, by stabbing, of Baby John.
She was charged on May 1, 1984 with murder. Her brothers Ned and Mike, her sister Kathleen and aunt Bridie Fuller were charged with endeavouring to conceal the birth of the child by secretly disposing of his body contrary to Section 50 of the Offences Against the Person Act 1861.
The charges were dropped within months. Forensic evidence proved that she was not the mother of the murdered baby in what was an infamous case that highlighted Ireland’s attitudes towards women, family and religion in the 1980s.
The Department of Justice’s proposed scheme says that ‘eligible’ members of the Hayes family will receive ex-gratia payments and it carefully stresses that this is not ‘compensation’.
It says the State will reserve ‘its rights in all respects’ in not accepting responsibility and says that if Ms Hayes and her family sign documents accepting an ‘informal’ ex-gratia payment, they will forfeit all rights to future legal actions.
The documents state that the scheme is not designed to apologise or accept responsibility, but as an ‘expression of the sincere nature of the State’s reconciliatory intent to those person or persons deemed eligible under the scheme’.
Clause after clause in the document sets out to explain to Ms Hayes and her family how the Government utterly absolves itself of blame for the 35-year trauma they suffered.
But the offer has been heavily criticised as having the potential to inflict further trauma on Ms Hayes and her family given the weight of the confidentiality clause.
CervicalCheck campaigner Vicky Phelan, whose own determination not to sign a confidentiality clause exposed the national scandal, told the MoS: ‘They certainly shouldn’t be asking her to sign a confidentiality agreement considering what she’s already been through.’
Ms Phelan agreed that this is another attempt by the State to buy the silence of women, saying it’s ‘not unlike what happened with CervicalCheck’.
‘I totally disagree with confidentiality agreements in situations like this, where someone has obviously suffered injustice or mistreatment or a misdiagnosis. They should not be allowed to slap one on some-
body in that situation,’ she said.
The MoS was in a position to brief Kildare TD Catherine Murphy of the contents of the agreement yesterday.
‘Apologies have to be genuine, if it is a sincere apology. I don’t know why this is an approach that would be taken,’ said Ms Murphy, who is co-leader of the Social Democrats.
‘I remember the treatment of Joanne Hayes. I remember it very well. She was vilified. The most extraordinary claims were made about her.
‘It was about fitting something into a theory they had. The kind of pressure she was put under, and her good name and reputation were demolished.
‘And the idea that there is a gagging order says to me that it is really about closure, but closure on the State’s side as opposed to offering closure on Joanne Hayes’s and her family’s side,’ said Ms Murphy.
‘You would have to wonder what kind of a mindset would be thinking that this is an appropriate way to go about something with a family that were so badly wronged.
‘The thing about it is that they would need a lawyer to decode this for them, and it seems an extraordinarily over-legalistic way of dealing with this. She was destroyed. I remember her name all these years later and it required nothing for me to recall who she was, so bad was the vilification of this woman.
‘And you know we should, on her behalf, have an expectation that she would be treated humanely and any kind of closure should be offered.’
The legal documents show that regardless of the public apologies by Mr Varadkar and others, the State is determined to avoid legal liability.
One sentence states: ‘No legal liability (and no admission of liability) arises on behalf of the State, its servants or agents.’
It says the State will reserve ‘its rights in all respects’ in not accepting responsibility and says that if Joanne Hayes and her family sign documents accepting an ‘informal’ ex-gratia payment, they will forfeit all rights to future legal actions.
Ex gratia means the State is paying the victims out of a moral obligation rather than due to legal requirement.
The document is entitled ‘Scheme for the Consideration of Making Ex Gratia Payments to Eligible Persons’.
Justice Minister Charlie Flanagan was one of those who apologised to Ms Hayes in January 2018, saying she ‘was subject to a prolonged ordeal that was simply wrong on every level’.
The document issued in his name says the ‘reconciliatory intent’ comes following ‘a public apology on behalf of An Garda Síochána and the State issued in January 2018’.
One sentence makes it clear that the Government believes it is buying the family’s silence on their treatment by the State. It states: ‘Subject to the obligations arising from the consideration of the payment of public moneys, the scheme will endeavour to remain confidential and private’.
The document again drives home its intent: ‘The operation of this Scheme is informal and private.’
The document says the State does not have to make any payment to the victims.
The ‘eligible persons’, as the victims are referred to throughout, will have to make written application under this ex-gratia scheme and then they will be assessed by an Assessment Board of three people which will be appointed by Minister Flanagan.
It says that the chair of the assessment board will have ‘appropriate legal experience’.
And the ‘losses’ incurred by the family are referred to as ‘alleged non-pecuniary losses’ and ‘alleged pecuniary losses’.
Alleged non-pecuniary losses are ‘any alleged injury, mental distress, anxiety, deprivation of convenience or other harmful effects’ incurred from the Garda arrest, charge detention and questioning.
Alleged pecuniary losses are primarily loss of earnings.
‘In the event that an offer of an ex-gratia payment is accepted, an eligible person will indicate in writing, within a period of 14 days after receipt of the decision of Department/Minister, whether she/he accepts the said offer,’ it says.
Ms Hayes and her family, in signing the document, will also be signing a waiver.
It goes into painstaking detail to explain how the State is divesting itself of any responsibility or liability for what happened in the 1980s.
It states there will be no legal liability – and no admission of liability – arising on behalf of the State, its servants or agents from: (i) The initial Garda investigation (ii) The findings of the aforesaid Tribunal of Inquiry
(iii) The establishment of the exgratia scheme referred to herein
(iv) The recommendation, payment and acceptance of any financial sums or payments under this scheme
(v) All correspondence and communications by and/or on behalf of the State, its servants or agents in relation to the aforesaid matters and all related matters
(vi) All correspondence and communications by and/or on behalf of eligible persona and/or in relation to the matters referred to herein.
‘Prolonged ordeal simply wrong on every level’