Tuesday 21 October 2014

Paddy now has a chance to learn the whole truth

Judge Fennelly has been charged with lifting the lid on a lot of disgraceful behaviour.

Published 13/04/2014 | 02:30

Mr Justice Nial Fennelly was recently appointed to oversee the commission of inquiry into Garda phone recordings. Picture: Collins Courts
Mr Justice Nial Fennelly was recently appointed to oversee the commission of inquiry into Garda phone recordings. Picture: Collins Courts

We have been getting the runaround for a while now as to the truth of what really happened in our garda stations over the decades, in Garda Headquarters in recent years and in the Justice Department over the past few weeks. Nobody in authority has given us sufficient information to see the whole picture – not Enda Kenny nor Alan Shatter nor Martin Callinan nor the Attorney General, Maire Whelan.

But now at last there is a chance we will get to the heart of the matter. That chance exists because of the terms of reference for Mr Justice Nial Fennelly's Commission of Inquiry. These terms show it to be essentially a Commission of Inquiry into how the gardai investigated the murder of Sophie Toscan du Plantier, with a few nodules (or modules, as the legal trade would have it) attached.

One of the nodules requires Mr Justice Fennelly to "investigate and report on the sequence of events leading up to the retirement" of Martin Callinan, and to "investigate and report on the furnishing to the Minister [for Justice] of a letter dated 10 March 2014 sent by the former Garda Commissioner, Mr Martin Callinan, to the Secretary General of the Department of Justice and Equality."

When Martin Callinan read that, he must have breathed a sigh of relief, because on the face of it, that is a module of inquiry from which the former Commissioner could hope to emerge unscathed, given that it is confined to a period in which he did what he was supposed to do, something that cannot necessarily be said of all the other major players.

This narrow confine would mean that Judge Fennelly would not examine all the other unfortunate happenings in the recent career of Commissioner Callinan – all the whistleblower stuff and the Mick Wallace affair and much more – most of which also involved the Justice Minister, Alan Shatter. But wait. There is another important paragraph in the terms of reference that could change that.

The Commission, it says, "shall exercise discretion in relation to the scope and intensity of the investigation it considers necessary and appropriate, having regard to the general objective of the investigation." So, Martin, don't pop that cork just yet.

Of course, since this inquiry arose out of the Taoiseach's revelation to the Dail that telephone calls in more than 20 garda stations around the country had been taped, the Commission will have to look at this too. But apart from those taped calls – 133 of them – that relate directly to Bandon garda station in Cork where the Du Plantier murder investigation was headquartered, this is another relatively minor module.

Last November, Martin Callinan set up a working group within the gardai to collect all the tapes, examine them, collate them and get them into safe storage. This work appears to be complete, so the Commission should be saved a lot of time in this module. But they still have to "establish what authorisation was sought or obtained by An Garda Siochana for such installation and, including the funding, installation, maintenance and/or upgrading of those telephone recording systems;" and vitally, "to investigate and report on the level of knowledge of the existence, operation and use of the said telephone recording systems within An Garda Siochana." And the Commission will have to find out what knowledge of all this there was in the Justice Department, the AG's office, the office of the Chief State Solicitor, the Data Protection

Commissioner's Office, and the Garda Siochana Ombudsman Commission; and whether the office of the DPP made any use of this information.

The answers to those vital queries will tells us a lot of what we need to know and, of course, in the case of the Du Plantier murder, some of this information is beginning to come out by way of discovery in the Ian Bailey case.

But there are convicted criminals behind bars who have shown a great interest in what is on tape, too. Many of them may feel they have a get-out-of-jail card coming their way soon, courtesy of the possible discovery that a call between themselves and their solicitor was recorded.

For some, this may be a realistic hope. But when the tapes that have been recorded over or deleted, the ones that are too degraded to be of evidential use, and those legitimately recorded are excluded, we are not necessarily looking at the appalling vista of flinging open the prison gates to let guilty persons walk free.

Even the discovery of a tape of a privileged conversation is not a slam dunk. The courts (and the Commission) will have to look at "how such information was accessed and analysed by the gardai", and whether any information was used by the gardai "either improperly or unlawfully and, in particular, whether any recordings as may have been made by An Garda Siochana of solicitor/client telephone conversations were used for any purpose whatsoever".

That would seem to suggest that the very existence of a recording does not constitute a faulty verdict. And it would seem to imply an onus to prove "improper use".

Plus, there is more discretion here for the Commission. "The Commission shall have the discretion to decide to limit its investigation to samples of recordings in the light of what is disclosed as the investigation progresses."

In other words, Nial Fennelly need not feel he has to sit down and listen to and have transcribed every single word of all 2,693 tapes now in secure storage in Garda HQ.

But there is little doubt that the real value of this Commission is the light it may eventually shed on the murky episode that has hung over the good name of the Garda Siochana for several years now, just as surely as the events that led to the Morris tribunal and the Smithwick tribunal have. Getting the full facts about how certain gardai investigated the murder of Sophie Toscan du Plantier has not really defied the best efforts of the authorities, because up till now, the authorities have not shown any willingness to have these allegations of unsavoury practices dealt with in public – or at all. Ian Bailey, his partner, Jules Thomas and his tenacious solicitor, Frank Buttimer, have uncovered a certain amount of information on their own using the courts. That process will continue, but now we have a Supreme Court judge who is essentially simultaneously seeking the truth of the Du Plantier case. Everyone knows this will be the key module of the inquiry.

Fianna Fail has suggested that rather than wait till the end-of-year date for the Commission to complete its work, the findings in the smaller modules should be published when ready. Tribunals of inquiry, the costly and lengthy predecessors of inquiry commissions, have in the past published interim reports. And if that is what Mr Justice Fennelly decides to do, no harm in that. But it is not vital. The main effect would be to keep the political pot boiling between now and the general election, and that is definitely not in Judge Fennelly's terms of reference.

What he has been charged with is lifting the lid on a lot of disgraceful behaviour, some of which, it is no exaggeration to say, has been actively concealed from public inspection. Now finally, there is reason to believe Paddy will get to know the whole story.

Sunday Independent

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