I welcome publication of the Cooke report and the careful and detailed consideration given by retired High Court Judge John Cooke into reports of unlawful surveillance of GSOCs offices.
These matters, of course, first came to public notice in a “revelation” in a Sunday Times article of 9 February 2014.
I welcome Judge Cooke’s finding that the article contains “misinformation” and that “it is clear that the evidence does not support the proposition that actual surveillance of the kind asserted” in the article “took place and much less that it was carried out by members of the Garda Siochana”.
As Minister for Justice I dealt with these matters in a straightforward, truthful and comprehensive way on the basis of information available to me. Both inside and outside this House, the Taoiseach and I were pilloried for referencing GSOCs statutory obligation to report their conducting a public interest investigation to me, as the then Minister for Justice, and I welcome the conclusion of Judge Cooke that such mandatory obligation exists, as I informed the Dail, under Section 103 of the 2005 Act.
On Morning Ireland, the day after publication of the Cooke report, GSOC Chairperson, Mr Simon O’Brien, explained GSOC’s failure to provide a statutory report until 13 February 2014, four days after publication of the Sunday Times article, on the basis that “events overtook us” and referenced the Sunday Times article. I note that Judge Cooke recounts that, on the 25th November 2013, Mr O’Brien recorded in his personal log that “this investigation is now closed. I need to think about reporting. This will be difficult. We have found nothing.” I do not regard the explanation of Mr O’Brien given on RTE as credible and I believe the only reasonable conclusion for no report being furnished to me was that the finding of “nothing” in the public interest investigation was an embarrassment. What was said on RTE is sadly an indicator that GSOC have not learned from these events.
There will always be tensions between a police force and an independent body established to investigate allegations of police misconduct. However in late September/ early Oct, when GSOC first learnt of two of the alleged technical anomalies, new protocols had only just then been put in place to resolve difficulties that had arisen between An Garda Siochana and GSOC. Their approach to the matter, therefore, should not have been “heavily influenced by the atmosphere of frustration and tension that had arisen between GSOC personnel and the senior ranks of An Garda Siochana” as referenced by Judge Cooke. It is also, I believe, disturbing that when appearing before the Joint Oireachtas Petitions Committee, the GSOC Commissioners were so imprecise and unclear in their presentation as to fuel speculation that my first statement to the Dail was inaccurate in circumstances in which it was entirely based on their verbal and written briefing. No effective steps were taken by them to correct that perception.
The work that GSOC does is of crucial public importance and it is essential that there is public confidence in the leadership provided by GSOC Commissioners; that they comply with and respect their statutory obligations; that when conducting an investigation they assume those subject to the investigation are innocent until proved guilty; and that they truthfully present to the Minister of the day, and to the general public, actions taken by them. In this context, I believe the conduct of GSOCs Commissioners and the narrative and conclusions of Judge Cooke raise genuine concerns as to GSOCs capacity to undertake and comply with its statutory duties under its present leadership.
As Members of the House know, the Cooke inquiry was announced on 19 February last. Some 8 days later, on the 27 February, the Guerin inquiry was announced. Each was requested to report “within 8 weeks” or “as soon as may be thereafter”.
The documentation, public bodies and individuals of relevance to the Guerin inquiry were far more extensive than those of relevance to the Cooke inquiry. Many more allegations were made by Sargeant McCabe than there were issues to be considered by Judge Cooke. There was, however, a connectivity between the two Reports. Reports and documentation of GSOC, the manner in which GSOC undertakes investigations and reaches conclusions, its statutory role and engagement with An Garda Siochana, its relationship with the Minister for Justice, the circumstances in which it deems it appropriate to conduct a public interest investigation under Section 102 of the 2005 Act, and its competence and professionalism were of relevance to both inquiries.
There is an extraordinary and stark contrast between the approach of Judge Cooke and Sean Guerin SC in their dealings with GSOC and in the manner in which they conducted their inquiries. Although the issues to be addressed in the Guerin Report were more extensive than those to be addressed in the Cooke Report, Mr Guerin completed his report within a much shorter timeframe (9 and a half weeks) than Judge Cooke (15 weeks). On 6 May, the Guerin Report was furnished together with a little noticed letter in which Mr Guerin expressed his regret for failing to furnish the report “within the time period mentioned in Paragraph 8” of his Terms of Reference. An examination of the report illustrates the extent to which he inexplicably focussed on the request that he report within 8 weeks of 27 Feb 2014 and ignored the latitude given to him to report “as soon as may be thereafter”, the latter being language clearly facilitating his taking such time as required to properly complete his work. I am very puzzled as to why Sean Guerin did not take the additional time necessary to properly complete his work and why he rushed to judgement.
In contrast, Judge Cooke in para 5.9 of his Report notes that he did not conclude his inquiry within a period of 8 weeks and explains “the correspondence exchanged in dealing with conditions, objections and queries raised on behalf of GSOC and of Verrimus ‘as its servant or agent’ impacted on the time required to conduct the inquiry and also that the time scale was “prescribed before it was known that GSOC would be simultaneously required to cooperate with two enquiries”. Both reports recount that GSOC instructed Arthur Cox solicitors to assist them with the inquiries and in the preparation of documentation and statements. Both reports recount that GSOCs lawyers prescribed conditions to be complied with for reading documents regarded as sensitive, confidential or privileged. Judge Cooke had no difficulty in agreeing appropriate arrangements and in attending at GSOCs offices to access and read all relevant documentation. I do not understand why Mr Guerin did not do the same.
In addition, to comply with fair procedures, Judge Cooke met with the GSOC Commissioners and their lawyers, raised questions for them to answer and ultimately met with them “to clarify some points that had arisen during the inquiry and to afford them an opportunity…. to comment upon the conclusions to be expressed in the report” (para 5.4). Mr Sean Guerin’s approach to GSOC and others affected by his Report could not have been more different.
Four days after Judge Cooke had attended at GSOC’s offices to examine documentation of relevance to his inquiry (23 April 2014), Mr Guerin received a letter from GSOCs solicitors raising what the Guerin Report refers to as “preliminary legal and practical issues “ and which stated that GSOC had “voluminous relevant documents” and “was anxious to cooperate”. Bizarrely, for some reason I do not understand, Sean Guerin, in his Report states “there was no practical reality to ‘voluminous documents’ being reviewed at that late stage” (para 1.8) and criticises GSOC for not making relevant documents available for examination in good time. He affords no recognition to the fact that GSOC were simultaneously engaged in two separate inquiries and, unlike Judge Cooke, he never met with any member of GSOC. Moreover, in his letter of 6 May to Martin Fraser, Mr Guerin acknowledges that GSOCs seeking safeguards relating to making documentation available to him was “not unreasonable”. However, in that letter, he complains that he was given no indication of GSOCs concerns “until the process of drafting the final report was well underway” and that he had “no opportunity to review such documentation with the care required”. This is astonishing. I would like to know why Mr Guerin thought he had no opportunity to review GSOCs documentation with the care expected, why the drafting of the final report was “well underway” without his having read and considered this documentation, without meeting others affected by his conclusions and why he completely failed to observe fair procedures in accordance with constitutional and natural justice. His Terms of Reference allowed him all the time he needed to properly complete his work. What was his hurry?
With regard to GSOC, Mr Guerin partially explains his failure by attempting to minimise the importance of GSOC’s role and recounts that it became involved in a small number of the cases he reviewed (para 3.1). This assertion is disingenuous. For example, GSOC was central to determining complaints of Garda misconduct with regard to serious offences committed by Jerry McGrath, one of which involved an alleged catastrophic Garda failure which, if it had not occurred, may have resulted in McGrath being held in custody on the tragic day in December 2007 when he murdered Sylvia Roche Kelly.
It was right that Mr Guerin met with Sargeant McCabe for as long as he deemed necessary. It is a mystery to me, however, as to how he believed he was properly fulfilling his remit and his obligation to observe fair procedures to reach accurate conclusions and make recommendations by meeting for 19 hours with Sargeant McCabe but meeting with no one else whose good name, reputation and credibility could or would be affected by his Report. Unlike Judge Cooke, he made no arrangements to meet with any persons so affected to raise any questions with them or to give them an opportunity to address any draft conclusions reached by him. There would have been, of course, no difficulty in his doing so. He simply chose not to.
Para 2 of his Terms of Reference enabled Mr Guerin to interview not only Sargeant McCabe but also “any other such person as may be considered necessary and capable of providing relevant and material assistance” in his review and also to “communicate with An Garda Siochana and any other relevant entity or public body in relation to any relevant documentation and information and to examine what steps, if any, have been taken by them to investigate and resolve allegations and complaints” referred to him.
I believe most people would regard me, as the then Minister for Justice, as a person who could have provided relevant and material assistance and I believe that fair procedures and the principles of natural and constitutional justice required that Mr Guerin should have interviewed me or at the very least, communicated his concerns and questions to me in writing and afforded me the opportunity to address them and also to address his draft conclusions which he had to know would render my continuing in the office of Minister for Justice, Equality and Defence untenable.
I believe, had I been given the opportunity, I could have provided comprehensive information detailing the substantial attention I gave to allegations made by Sargeant McCabe and to use Mr Guerins words “my heeding” and acting on what he had to say. In doing so, I could have also detailed obstacles and difficulties of relevance that would have shed light on aspects of the background into which he had no insight. I also believe there was no basis for Mr Guerins conclusions that there were grounds for concern that I did not understand my independent statutory role as there was no question, as he suggests, of my simply accepting the views of the Garda Commissioner without question. Unfortunately, I was given no opportunity by him to address these matters and I believe these conclusions reached by him to be substantially outside the remit of his Terms of Reference.
The result, in my case, of Mr Guerins Report, was to render my continuing as Minister untenable and, as a consequence, I resigned my position. That is done. However, the process involved and the failure to adhere to fair procedures has serious and wider implications.
I believe all of us should be entitled to know that we cannot, by way of any form of inquiry or review or other means, be secretly put on trial, have charges levied against us of which we have no knowledge, be prosecuted without being informed of the evidence, and convicted without being given the opportunity to speak or defend ourselves. I believe that the unprecedented approach to this review and examination or preliminary inquiry which was undertaken and conducted must never be repeated. I believe no one in the future requested to undertake such a task should be enabled to take to him or herself the role of investigator, prosecutor, judge, jury and executioner and entirely ignore fair procedures prescribed by our courts and which are specifically prescribed for the undertaking of a statutory inquiry under the provisions of the Commission of Inquiries Act 2004.
I do not believe it was ever envisaged that a preliminary inquiry and scoping exercise to determine whether a statutory inquiry should take place could be so utilised as to totally undermine the fair procedures architecture which is a central core of the Commission of Inquiry Act 2004. Preliminary inquiries or reviews should not facilitate the bypassing of essential human rights protections incorporated in the 2004 Act.
For my own part, I never anticipated that a practicing Senior Counsel, asked to independently consider the serious issues detailed in his terms of reference could or would so ignore basic principles of constitutional and natural justice and fair procedures which have been repetitively pronounced upon and endorsed by our courts at the highest level. These principles are crucial to the Rule of Law and ignoring them places in peril a value system crucial to the wellbeing of all our citizens and all who reside in the State. To ignore them is to endorse the creation of kangaroo courts as dramatically depicted in Kafkas book “The Trial”.
It is clear from the Guerin Report that its author understood what was required in the context of fair procedures. For example, in Chapter 5 of his Report, he castigates An Garda Siochana for not affording Sargeant McCabe an opportunity to comment on evidence uncovered in an investigation resulting from a complaint he made and references his entitlement to so comment as being an “important procedural right” and the failure to enable him to do so as resulting in “a fundamental procedural flaw in the investigation.” (para 5.68). Moreover, he states, in the context of the statutory inquiry that he recommends to further examine Sargeant McCabes’ allegations, that following “an opportunity to hear evidence from the individual members and officers of An Garda Siochana and civilians, including victims of crime, involved in these matters a different view of the facts could emerge.” The startling omission from his Report is an acknowledgement that “with the benefit of an opportunity to hear evidence” from me, as the then Minister for Justice, or from some others, “ a different view of the facts could emerge” as to my dealing with Sargeant McCabes allegations and taking heed of his concerns. Of course, even if this had been expressly stated by him, it would have been no substitute for applying to me “the ordinary rules of fair procedures” instead of rushing to judgement with obvious consequences.
I believe that I am entitled to an explanation for the approach adopted in the preparation and finalisation of the Guerin report and to an explanation as to why conclusions were reached and a factual finding made that, as Minister for Justice, I did not “heed” what Sargeant McCabe had to say without my being interviewed or a single question put to me or to Justice officials. I believe I am entitled to know, as are Members of this House, why the Guerin Report was so hastily and prematurely completed in comparison to the approach and time taken to complete the Cooke Report. My accusation is that of a fundamentally flawed preliminary inquiry and report and an unprecedented rush to judgement. As a prosecuting Counsel, Mr Guerin must know that the manner in which he conducted his role and some of the conclusions reached by him would not withstand court scrutiny.
Unfortunately, I do not have the time available, in this debate, to detail all the omissions and inaccuracies in the Guerin Report which I could have addressed had he interviewed me. There is, however, a particular issue to which I wish to refer. Chapter 19 of the Report deals with the role of the Department of Justice and Equality. In para 19.89 the Report purports to summarise “advice” received from an official in the Attorney Generals office, (of whom I make no criticism), on 18 December 2013. It states that “The substance of the advice related to the three booklets of allegations that were received by the Minister under cover of a letter of 4th September 2012 from Sargeant McCabes solicitors. The advice was to forward the two booklets relating to complaints of malpractice and corruption to the Minister ‘without further ado’. It was said that if there was any issue with such a course of action it was for Sargeant McCabes solicitors to say so earlier in the correspondence. The advice in relation to the third booklet was that it be returned to Sargeant McCabes solicitors in light of the existing proceedings in relation to alleged harassment” . Para 19.90 states “ it is unclear whether or not the documents were ultimately forwarded to the Commissioner”.
Any reading of this extract from the Guerin Report could only conclude that officials were advised to furnish two files of documentation to me in December 2013 and that, having received these files, I did nothing. In fact, Mr Guerin has misquoted the letter which actually advised that the two files concerned be furnished by Justice officials to the Garda Commissioner and that no copies of the documents be retained in the Department of Justice. It makes no reference whatsoever to them being furnished to me.
The first I learnt of this letter was upon my reading of the Guerin Report and I sought a copy of it following my resignation. As it was at my request that Justice officials sought advices from the Attorney’s office, I do not know why this letter was not furnished to me upon its receipt in the Department nor was I at any time verbally briefed on its existence or its content, contrary to the impression that may have been given by the Secretary General of the Department in his recent presentation to the Joint Oireachtas Justice Committee.
Crucially and inexplicably, Mr Guerin omitted a substantial portion of the letter from his Report. The missing portion leaves no room for doubt that, on the 18 December 2013, it was the view of the Attorney’s office that the existing statutory mechanisms for addressing Sargeant McCabes allegations should be relied upon and no mention is made of the need for a statutory inquiry. Crucially, the advices contained in this letter, written approximately two months before Mr Guerins appointment, are the exact opposite of the course of action recommended in the final chapter of the Guerin Report, a course of action I am criticised in the Report for not taking.
I doubt that, at the time when the Guerin report was furnished to the Taoiseach and when he sought the advice of the Attorney General on it, that she was aware of the full content of this letter. I believe it is probable that all the Attorney and the Taoiseach knew of it was derived from para 19.89 which is open to the mistaken conclusion that I failed in some respects in my statutory obligations. If the Report had accurately and comprehensively detailed the full content of that letter and also my background involvement in seeking advice from the Attorney’s office the letter could not have formed the basis for any such conclusion.
In my letter of resignation I expressed support for the holding of a statutory inquiry, as it is clear from the Guerin Report that there existed correspondence, documentation and information that should have been but which was not furnished to me and there are clearly issues of importance that should be comprehensively and transparently addressed in the public interest. I believe it is important that, prior to Terms of Reference being finalised and cast in stone, there be a further opportunity for them to be considered in this House. I am conscious that I do not have the time today nor is it appropriate that I address this today in detail. I merely wish to briefly reference four matters.
If the statutory inquiry is to be comprehensive it should include all cases dealt with in Bailieboro Garda Station which have given rise to complaint. There is a matter which has been the subject of articles in the Irish Independent which included a report of Michael Martin meeting an individual who alleges she was the victim of a sexual assault and who alleges that her complaint was not recorded on Pulse nor did it result in a prosecution. I understand from the newspaper report that Deputy Martin was to provide information on this matter to An Taoiseach and I presume he has done so. This case should clearly form part of any statutory inquiry.
It is clear that, in mistakenly finding that I paid insufficient heed to Sargeant McCabes allegations, the Guerin Report substantially ignored the relevance of action taken with regard to the Fixed Charge Notice issue, which included seeking and obtaining a report from the independent Garda Inspectorate, fully accepting recommendations made by it and when new allegations emerged asking GSOC to conduct an investigation. The Terms of Reference should ensure this omission is not repeated as there is a clear connection between this matter and any consideration of the extent to which I took Sargeant McCabes allegations seriously.
Sargeant McCabes conversations and dealings with the Confidential Recipient are also of relevance if the full background is to be understood, as well as any steps taken by the Confidential Recipient and it is my view the Terms of Reference should be so extended. All of these matters have been in the public domain and I believe it is in the public interest that they be fully examined.
Finally any recording or transcript made of Mr Guerins 19 hours of conversation with Sargeant McCabe should be provided to the Statutory Inquiry to assist it in its work. I presume such material exists and this should be clarified.
In conclusion, I stand by the Rule of Law, the personal rights protected by our Constitution and the European Convention on Fundamental Rights, the core principles of constitutional and natural justice, the core values of this State and the European Union whose objectives include ensuring that justice is not arbitrary and that no body or individual can trample on such rights including the right of all to receive a fair hearing where allegations are made against them. The issues I have raised today are of far greater general importance than any impact on me personally resulting from recent events.