Analysis

Tuesday 29 July 2014

Garda Ombudsman needs to get finger on the Pulse

The penalty points saga represents an unseemly side of Irish life and has distracted from other issues

Colum Kenny

Published 01/02/2014|22:42

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PENALTY PROBE: The three members of the Garda Ombudsman Commission are, from clockwise from left, Simon O'Brien, Kieran Fitzgerald and Carmel Foley

The independent Garda Ombudsman must now get to the bottom of the penalty points affair. It has dragged on too long. But to do so the Ombudsman needs direct and unfettered access to the Pulse computer system, on which gardai store records.

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The Government recently refused the Ombudsman that kind of access. The Ombudsman currently relies on serving gardai to report what is on Pulse. There have been problems in the past securing appropriate garda co-operation. The Ombudsman is now again seeking what he calls “enhanced access” to Pulse.

Without ongoing independent access to Pulse, who can ensure no future abuses of the system? Members of Oireachtas committees may have strayed outside their terms of reference on this and other issues recently, but there is no denying that the Public Accounts Committee (PAC) has in recent months exposed matters of public interest that ministers had either missed or kept under wraps.

The senior whistleblower last week met the PAC for nearly three hours. He did so in private, having taken legal advice. But he would be happy to see a transcript of his evidence published.

Any thorough investigation by the independent Garda Ombudsman must now begin with an independent trawl of penalty point records in general on Pulse.

Any examination of cases must go behind the stated reasons for set-asides, asking not only if the reason given is plausible (such as “medical emergency” or “bees swarming”) but establishing if such an alleged emergency actually existed. Otherwise the Ombudsman may waste time and resources merely replicating the findings of the Comptroller and Auditor General, and those of an earlier internal garda enquiry.

Attempts have been made to represent set-asides in this affair as the proper exercise of garda discretion, although circumstances suggest otherwise in various cases. Critics say that there was a culture among some gardai that got out of control.

The selective setting aside of penalty points without substantial evidence of legally justified grounds is not just unfair to other citizens forced to pay fines, incur penalty points and have their motor insurance hiked substantially.

It also represents a way of acting in Irish society to suit acquaintances or relatives that is still evident in some circles.

The Ombudsman may find that there were no more instances of favours done improperly than the Garda Commissioner currently believes.

Such favours would be a form of corruption under garda regulations, even if no cash changed hands.

 

‘I have seen no evidence that journalists or their readers find this story “entertaining”.’

The Ombudsman should also look at how gardai have interpreted a provision of the legislation that allows them to set aside points for other gardai. It is only human nature that individual gardai would take this to cover all circumstances, even if common sense dictates that it was only meant to refer to emergencies.

But these are by no means the only questions to be answered. Mr Shatter quite rightly decided last week to request the Ombudsman to examine “the manner” in which allegations about penalty points have been pursued, “including issues relating to the preservation of the confidentiality of garda records”.

In doing so the Ombudsman should determine the truth or falsity of any allegations that records on the Pulse system were altered after complaints began to be made about the operation of the system, thus undermining the integrity of the records.

The Ombudsman could also enquire into facts surrounding garda disciplinary proceedings that were brought against the sergeant who is a whistleblower and that found he had no case to answer in relation to a separate matter where he was not a member of the investigating team involved in the case.

Although Mr Shatter claims he wants the Ombudsman to examine the manner in which allegations about penalty points have been pursued, he made it clear on RTE this week that this examination should not include the manner in which he, as minister, received confidential information about a political opponent from the Garda Commissioner and used it on television. This is despite his concerns about how others have used information from the Pulse system.

He told Morning Ireland  last Tuesday: “I entirely exclude myself from that. RTE failed to report that Mick Wallace’s complaints that he made to the Standards in Public Office were dismissed on the basis that I had behaved properly and correctly on information properly furnished to me by the Garda Commissioner. Unfortunately, that did not fit into the narrative that the media like on occasion, for entertainment, to present.”

The Standards in Public Office Commission (SPOC) last week declined to confirm or deny that it had found that Mr Shatter had behaved “properly and correctly”. Its decision has not been published and was refused to me. I was obliged to ask the minister for his copy, which his office gave me.

While SPOC notes in its decision both that the information provided by the Garda Commissioner to the minister had been provided under Section 41 of the Garda Siochana Act 2005 and was “not therefore improperly obtained” and that the minister had subsequently expressed regret for his comments about Mick Wallace, this is far from a finding by it that the minister had behaved properly and correctly on that information. SPOC explicitly states in its decision that it ultimately decided that it would in fact not investigate the matter of the minister’s Prime Time comments because it deemed these to be “not of significant public importance” and so had no statutory power to do so.

This does not mean that the minister was right to have broadcast the information from garda files about a political opponent.

Not everyone agrees with SPOC that this is “not a matter of significant public importance”. In some countries Mr Shatter’s political career might have ended that night.

There was nothing entertaining about his behaviour on Prime Time, as he tried to get the man rather than the ball by using private information about Mick Wallace, who was pursuing the penalty points affair in the Dail.

Mr Shatter subsequently expressed regret for making such remarks about Mr Wallace, although he now appears to believe that he behaved “properly and correctly”.

And as someone who has been writing about this matter for a year, I have seen no evidence that journalists or their readers find this story “entertaining”.

It is a distraction from other national issues, and the minister could have referred it sooner for investigation by the Garda Ombudsman.

The garda whistleblowers have certainly not been amused by it. They took action because of their concerns about the reputation of the force. Sergeant Maurice McCabe proudly wore his uniform to the Oireachtas hearing last week.

Before invoking a statutory provision and contacting members of the Oireachtas, at least one of the known whistleblowers had discreetly voiced concerns to garda superiors, as well as to the Confidential Recipient, the Garda Ombudsman, the Attorney-General, the DPP and senior government ministers.

The office of the Confidential Recipient, who is appointed by the minister to assist garda whistleblowers, has been mentioned at recent PAC hearings. It is currently filled by a person who made political donations to Fine Gael. Some gardai say that they would prefer the position to be occupied by a judge.

Last week the serving whistleblower received a letter from Garda Human Resources, just days after his manner of making complaints had been condemned by the Commissioner as “disgusting”. HR told him that they support him in his work as a valued employee and are available to help deal with any concerns that he might have.

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