Maeve Sheehan: The minister, the breath test and the mystery of the garda 'report'
Alan Shatter's political future may hinge on whether or not an alleged report of his stop exists and if it can be found.
LATE last Monday, the independent Tipperary TD Mattie McGrath took a call from a member of the public with a story so politically hot that – if true – it actually made him nervous.
The story concerned Alan Shatter, the Minister for Justice, currently in the eye of a political storm for using confidential garda information to do down a political opponent. Shatter was dismissively swatting aside his critics. Now, a well-informed member of the public decided it was payback time and picked up the phone to McGrath.
The story this person told went like this: in February or March 2011 – when Shatter was on the cusp of becoming Minister for Justice – gardai set up a night-time checkpoint on Pembroke Street, a busy street in a social hub of south Dublin. It was authorised by a senior officer at Pearse Street garda station.
Five or six gardai were assigned to man it, including rank and file gardai and a senior official. McGrath later said he was told there were quite a few people around, including passers-by and smokers standing outside the various hostelries on the street.
McGrath was told that Alan Shatter, who was then a Fine Gael TD, approached the garda checkpoint. A female garda checked his car and asked him for a breath test. The TD pointed out to the garda that he was coming from the Dail. The garda presented the breathalyser. Shatter blew into the bag but did not do so adequately. McGrath was told that a report was filed in Pearse Street, ensuring a written account of what transpired.
If correct, the story had the potential to damage the Justice Minister on several counts. Here was the man, soon to be the government minister to whom the gardai were accountable, who had failed to complete a mandatory breath test, which can be an offence under Irish law.
But it also had the potential to seriously embarrass him.
Ten days ago, RTE's current affairs show Prime Time hosted a debate on the penalty points controversy that has dragged on since last October. Garda whistleblowers had highlighted how gardai used their discretion to quash penalty points for some journalists, judges and sports figures.
But a garda investigation found no deception or corruption, just breaches of technical procedures. The day after the report was published, Pat Kenny invited Shatter and Mick Wallace, the independent Wexford TD and one of his chief critics in the row, on to the show for a head-to-head debate.
A clever lawyer who punches above his diminutive stature, Mr Shatter's critics are never slow to call him arrogant. But his display of condescending cleverness on air that night rebounded on him dramatically.
In a now infamous moment, Shatter shared with the nation what the Garda Commissioner Martin Callinan had told him in private. Turning to Mick Wallace, he said: "Deputy Wallace himself was stopped on a mobile phone last May by members of An Garda Siochana and he was advised by the garda who stopped him that a fixed penalty notice could issue and he could be given penalty points but the garda – apparently, as I'm advised – used his discretion and warned him and told him not to do it again."
The significance of the minister's comments didn't seem to register with Wallace, who said he couldn't remember it. Pat Kenny did: "By the way, are you not concerned that the minister should know about your business dealing with the gardai?"
Wallace brushed it off. "I'm not remotely worried about what the minister knows."
If Wallace was slow on the uptake, then Shatter also seemed blind to the implications of publicising confidential information that he could only have come across in his role as Justice Minister.
Niall Collins, Fianna Fail's justice spokesman, watching the show at home in Limerick, spotted the significance straight away. His reading was that Shatter appeared to have used private, privileged information – which could only have come from gardai – to score a political point against his opponent.
"I rang our press people straight after the programme and said, 'Did you see what happened? Did you see the significance of that?'"
The party had a statement out first thing Friday. Labour TDs were also uneasy, including the junior minister Sean Sherlock and the Dublin TD Kevin Humphries, who tabled two parliamentary questions.
The clamour for an explanation grew. What everyone wanted to know was how had Shatter come into this information about a citizen's private encounter with a garda?
Shatter issued a short statement on Friday afternoon – the first of three he would issue on the debacle. Wallace had argued against gardai using discretionary powers to cancel fixed charge notices, he said, while "concealing the fact that garda discretion had been exercised in relation to himself". He was just shy of calling Wallace a hypocrite.
For his part, Wallace couldn't even remember the incident until a text message from a journalist mentioning the Five Lamps pub jogged his memory.
He remembered what he thought was a minor incident in May of last year, when he stopped at traffic lights on the North Circular Road. He was on the phone when a garda car pulled up alongside him. He dropped the phone and the garda rolled down the window. Wallace said he put his hands up and said: "Sorry."
"The garda said, 'That's okay' and left it at that. And we made small talk. After about nearly 15 to 20 seconds, the lights went green . . . and they pulled off," he later told Pat Kenny's radio show last Monday.
It emerged that there was no record of the incident on the force's Pulse system. What made matters worse was that Shatter had reinvented the casual encounter described by Wallace as a formal incident that entailed a "warning" and a stern ticking off.
Hours later, Shatter disclosed that Commissioner Callinan had told him about Wallace during a briefing. The screws seemed to turn on Shatter.
Wallace announced that he was lodging a complaint against Shatter with the Data Protection Commissioner and the Standards of Public Offices Commission.
Billy Hawkes, the Data Protection Commissioner, said he would investigate whether the minister had breached data-protection legislation by disclosing confidential garda information.
Fianna Fail had already called for Shatter's resignation. Growing concern at the apparent misuse of privileged information echoed across academic and political spheres.
When the Dail resumed last Tuesday, there was only one show in town. Alan Shatter gave a half-baked apology to Wallace, mocked his independent colleague Ming Flanagan – who campaigned against the quashing of penalty points while concealing the fact he had had his own quashed by invoking Dail privilege.
Niall Collins's laser-sharp questioning elicited some specifics. Shatter said the Wallace incident had been mentioned to him in an "aside" by the commissioner. He had nothing in writing and did not know how the commissioner came to be in possession of it.
The minister had been stopped himself many years ago by a garda for using a bus lane but he loftily informed the Dail that the garda in that case was mistaken. He made no mention of an encounter at a checkpoint on Pembroke Street, but of course at that point no one but Mattie McGrath – and a growing cabal of his political colleagues – was aware of it.
Shatter appeared to have won a reprieve, the body politic satisfied to let the two investigations into Wallace's complaints take their course. But the twist in the story was yet to come. All that time, Mattie McGrath was checking his facts, trying to be sure that he wasn't being spun a cock and bull story. He consulted some political colleagues about it, including members of Fianna Fail. There was speculation that the party had known for some time about Shatter's checkpoint encounter. But last week, the main opposition party seemed happy to let McGrath off on a solo run against the minister.
McGrath had originally intended to ask the minister last Tuesday night, but couldn't get the time. So he waited until Thursday morning, when he got a slot during Leaders' Questions. By then, Fianna Fail was also in on the act, getting similar information from its own sources.
The Taoiseach was out of the country, so Eamon Gilmore, the Tanaiste, stood in. McGrath asked if the Tanaiste was aware that the Justice Minister had been stopped at a checkpoint in Dublin in February or March 2011? Did he know if the minister had been cautioned or whether gardai had used their discretion? Had he been asked to produce a breath specimen? And did the Tanaiste know "whether his (Shatter's) behaviour and reaction to this request were appropriate and indeed cordial, or whether he attempted to use the privilege of travelling to and from the Dail as a means of avoiding giving the breath test?"
"How would I know that?'' asked Gilmore.
This was no joke, said McGrath. He wouldn't expect Gilmore to know, but he would expect the Justice Minister to be asked to make a statement in the Dail and make a garda report on the matter available.
McGrath's questions caused a stir, not least in garda headquarters.
Six hours passed before Alan Shatter responded to Mattie McGrath's questions. During that time, officers at Pearse Street garda station tried to locate this supposed garda report, which McGrath had claimed existed.
When asked, the Department of Justice press office said there would be no further comment on the matter.
Gardai searched for it through the computerised system that logs all correspondence to senior officers. Usually, all correspondence and reports of that nature are scanned into the system and assigned a file number.
The female garda who wrote the report is currently on leave. But curiously, when she was contacted by her colleagues last Thursday, a source said she told them that she had indeed written a report relating to Shatter and that she had filed it at the station.
According to one source, gardai at Pearse Street couldn't find anything on the system referring to Shatter's checkpoint encounter. Senior officers in the station at the time couldn't remember receiving any such report. The senior officer on whose desk the report should theoretically have landed didn't get it, according to the source.
At 16.45pm last Thursday, Shatter issued a long-awaited statement. He could remember an encounter at a garda night-time checkpoint on one occasion in 2008 or 2009 on Pembroke Street.
"There was a queue of motorists and when I was reached, like those before me, my road tax and insurance discs were checked and I was asked to exhale into a breathalyser. I did so but failed to fully complete the task due to my being asthmatic. I explained this to the garda. I also explained that I was on my way home from Dail Eireann and that I had consumed no alcohol of any nature that day.
"The garda consulted with another garda and I was waved on. There was no question of my having consumed any alcohol, nor of my having committed any offence under the Road Traffic Acts. I heard no further of the matter until I learnt it was raised by Deputy McGrath in questions today to the Tanaiste."
According to Shatter's statement, Mattie McGrath had got his dates wrong. But other key facts corresponded – the location of the checkpoint on Pembroke Street; the fact that he was asked for a breath test; and the fact that he couldn't complete the test – although Shatter blamed this on his asthma; and the fact that he mentioned that he was coming from the Dail to gardai – although not that he claimed Dail privilege.
If Shatter had hoped that his response would silence his critics, he was wrong. McGrath was back on the airwaves on Friday morning, confidently contradicting the minister's account. He said Shatter still had questions to answer.
"Because of the nature of the incident, the gardai were left with no choice but to make a report of it. They were left in quite an upset state because of the nature and the nastiness of the incident and the quite frank refusal.
"Minister Shatter says he was waved on. My information is that is totally erroneous, but I'm not going to say, I'm not going to comment on issues like that. It's a matter for the gardai," said Mr McGrath. "As I said, there is a garda report in existence and I am sure all the facts are contained in that."
Garda sources kept insisting this weekend that there was no report. Without it, Alan Shatter's account of what happened at that city-centre Dublin checkpoint cannot be disputed.
He will still face questioning about the encounter in the Dail this week, particularly on whether he attempted to invoke Dail privilege to get through the checkpoint.
His excuse that he couldn't complete a breath test because he was asthmatic has been widely derided.
As Niall Collins pointed out, if that was the case, wouldn't everyone who wheezed at a garda checkpoint get off? Fianna Fail will table a motion of no confidence in Shatter, citing an accumulation of misjudgements, policy failures, double standards and abuse of position.
The minister will, no doubt, survive the vote. But the most serious challenge for him lies in the investigations into breaches of data protection and standards in public office. A leading academic contended last week that the Justice Minister and Garda Commissioner had acted highly improperly in the Wallace disclosure, breaching all of the constitutional protections that have built up over decades.
If Professor Dermot Walsh is correct, the minister will have to deploy all of his lofty, scholarly smarts trying to justify that.
See Jim Cusack, Page 27