Friday 30 September 2016

Judge needs to think outside the box to get at truth

The Cooke inquiry into events at GSOC must ask more questions than its terms of reference might allow, writes Colum Kenny

Published 23/02/2014 | 02:30

Mr Justice John Cooke
Mr Justice John Cooke

WHAT’S the old saying?” asked Alan Shatter last week. “Experts differ. They say that about doctors. It can have fatal consequences.”

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Fatal consequences for the Garda Ombudsman (GSOC) perhaps? That is why Judge John Cooke, appointed by the Government last week to inquire into what went on at GSOC, needs to dig deep. But his hands are tied by his terms of reference.

The Government has asked Cooke to focus on GSOC itself, and particularly on GSOC’s own public interest inquiry into possible unlawful surveillance of its offices and on security there.

But the Cooke inquiry needs to ask about broader GSOC problems with the gardai, and to find out why GSOC and the confidential recipient for garda whistleblowers had limited powers of investigation.

And it ought not to be left to the Department of Justice to review its correspondence with garda whistleblowers, some of which was stern.

It is claimed that early in 2012, the confidential recipient provided the Department of Justice with details of serious concerns to which Fianna Fail leader Micheal Martin referred in the Dail last week, although other government minis

ters and the Taoiseach were not then furnished with those details by whistleblowers.

The senior whistleblower did write to the Taoiseach in general terms about his concerns during 2012.

Judge Cooke should ask why GSOC has never investigated certain matters raised with it by at least one of the whistleblowers during the past five years, and why such concerns were not referred to it by the Department of Justice.

All of these factors are relevant to the relationship between gardai and GSOC and should be examined by Judge Cooke. They help to explain why GSOC thought that the gardai might be bugging it.

But Judge Cooke may feel constrained by his terms of reference not to pursue such questions.

To gauge from his evidence to the Oireachtas last week, Minister for Justice Alan Shatter seems to believe that because GSOC had no hard evidence of garda involvement, it acted out of proportion to the facts (and out of order) when it launched its public interest inquiry into possible bugging under the very specific terms of Section 102 (4) of the Garda Siochana Act 2005.

Section 102 (4) permits GSOC to spend public monies to “investigate any matter that appears to it to indicate that a member of the Garda Siochana may have committed an offence or behaved in a manner that would justify disciplinary proceedings”.

He may be hoping — for the sake of his political future — that Judge Cooke raps GSOC on the knuckles for concluding that certain “anomalies” in its communications systems amounted to indications that a member of the Garda Siochana may have committed an offence.

Minister Shatter also points out that whenever GSOC does undertake such an inquiry, it is required generally by Section 103 of the same act to provide the minister “with sufficient information to

keep him informed of the progress and results of an investigation”, and complains that he was entitled to such a report months ago but never got one.

But it is also the case that GSOC can refrain from sending him such a report if it decides that it would not be in the public interest to do so. GSOC will need to find a formal record of any such decision for Judge Cooke to stand over its |decision.

But if the judge confines himself to such narrow legal questions then, no matter what he finds, his inquiry will not satisfy current public unease about this affair.

And on the big question of whether or not GSOC was actually bugged, there is certainly little or no chance that he can possibly come to any definitive decision.

So what is the point of a judicial inquiry that will simply find again what we already know, that something odd happened at GSOC but we cannot be sure now exactly what that was?

Or that may also find that GSOC was technically or legalistically out of bounds in launching any formal public interest inquiry pointed specifically at the gardai? Or that GSOC failed to follow procedures in not flagging its inquiry to the minister at some point?

While Minister Shatter might take some consolation from such a report, far too much water has flowed under the bridge for it to serve any useful purpose now.

What could be genuinely useful would be an effort by the judge to determine how matters had got to the point that GSOC found it perfectly reasonable to use a section of the Garda Act relating to possible Garda misconduct to launch its Section 102 inquiry.

A public recitation of the ways in which the Garda had failed to assist GSOC in its various investigations would clearly show that the system has not worked as was intended, and why. This would need to be coupled with clear recommendations for reform, and perhaps some judicial reflection on any failure to implement earlier recommendations for independent garda oversight.

And the judge should also look at why the confidential recipient system for garda whistleblowers has not worked well. The holder of that office, which was set up ostensibly to help whistleblowers discreetly, was sacked last week after it emerged that he had given some advice to a whistleblower that he did not repudiate.

One main reason why that confidential recipient system has not worked is that it, like GSOC, |has had to depend too heavily on the gardai themselves doing its work for it in a range of sensitive cases.

There is no point transferring the powers of the confidential recipient to GSOC, as the Government now intends, unless we know why that office has failed and what is needed to allow it to work as the Oireachtas originally intended.

The central term of reference that the Government has given Judge Cooke is “to establish a chronology and identify the sequence of events and facts leading up to and relating to the public interest investigation pertaining to security concerns commenced by the Garda Siochana Ombudsman Commission.”

Members of the public do not always fully appreciate just how constraining such terms of reference may legally be. If they do not specifically mention something, then the person conducting the inquiry may feel constrained not to pursue it if anyone objects.

Will Judge Cooke decide that the ongoing strains between the Garda and GSOC relating to GSOC access to Garda information can properly be examined as part of “the sequence of events and facts” that led up to GSOC launching an inquiry into possible garda misconduct?

And will this and the other terms of reference that focus largely on security at GSOC allow him to raise questions about the confidential recipient? Possibly not.

A narrow focus can be a good thing if it results in clarity and quickly resolves an issue. However, on this occasion, if the judge interprets his terms of reference too narrowly, then his report could console the minister and weaken GSOC without achieving any long-term public good.

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