Mr. Brian Purcell:

As I mentioned at the outset, I am concerned about the issues involved in terms of any commission of investigation that is imminent. However, I will try to answer any questions. As a result of the fact that I must be very careful about what I say and, effectively, because this may be something that will impinge on the workings of a commission of inquiry that is going to be established in respect of the Guerin report, I am going to be cautious but I will provide some detail on this. The committee will have to bear with me in that regard, even if it takes some time to go into the detail.
In the report, Mr. Guerin mentions in his analysis that it is apparent that the Minister was invited to exercise two specific functions. One was to cause an inquiry to be held under section 42 of the 2005 Act and to cause the allegation to be investigated or take such other action as the Minister considered appropriate in the circumstances. He commented that:

What is important about these specific Ministerial functions is that they enable the Minister to ensure that an investigation, in the true sense, independent of An Garda Síochána, can be conducted into matters that might be the subject of a complaint made to the Minister.

He goes on to state:

From the papers I have seen, I have had difficulty finding material which demonstrated that the Department identified and understood the significant independent statutory role which the Minister had to perform in respect of these matters. The practice adopted when matters were brought to the Department's attention was invariably to refer the issues that had been raised to An Garda Síochána. While it would, of course, be entirely reasonable to expect that, where a complaint is made, opportunity will be given to the person the subject of the complaint to respond to it, it is a different matter altogether to be entirely satisfied by that response.

In effect, Mr. Guerin summarises the process of determining Sergeant McCabe's complaint went no further than the Minister receiving and acting upon the advice of the person who was the subject of the complaint. His conclusion was, for whatever reason, that the approach adopted had the result that there was no independent investigation of Sergeant McCabe's complaints and that there is a cause for concern as to the adequacy of the investigation of the complaints made by Sergeant McCabe to the Minister for Justice and Equality, and a sufficient basis for concern as to whether all appropriate steps were taken by the Minister for Justice and Equality to investigate and address the specified complaints.
While Mr. Guerin emphasises at the start of his report that he has not made any findings or determinations, clearly these are critical conclusions. In analysing them it is helpful to recall key facts and legal provisions. The allegation against the Garda Commissioner centred on the contention that the Garda Commissioner had been guilty of misconduct for listing a superintendent for promotion who in essence had allegedly been in neglect of his duties by permitting seriously inadequate policing practices in his Garda district. It might be mentioned here for completeness that promotions to the rank of chief superintendent are made by Government on the basis of the outcome of competitive interviews by a board which under the relevant regulations is composed of two independent persons from outside the Garda Síochána, one of whom is the chair of the board and a deputy Garda Commissioner.
It is important to note that no direct allegations of misconduct were made against the Garda Commissioner. They were made against the superintendent in question and, to some extent, against other members. With the greatest respect, it is submitted that in all the circumstances, the characterisation of the action of the Minister and the Department as merely receiving and acting upon the advice of the person who is the subject of the complaint is open to question.
The Garda Commissioner is the person who has the statutory function of directing and controlling An Garda Síochána and of carrying on, managing and controlling generally the administration and business of the Garda Síochána. More particularly, the Garda Commissioner is responsible for discipline in the force. While Mr. Guerin's report now raises serious issues about the nature of the Garda Commissioner's response to the Department, it is submitted that the formal written advice and assurances of the Garda Commissioner to the Minister on the adequacy of investigation into Sergeant McCabe's substantive allegations cannot fairly be characterised as merely taking the word of the person against whom allegations have been made.
It was also clear from the Garda Commissioner's response that a substantial file had been submitted to the Director of Public Prosecutions, DPP, who had directed that there be no prosecutions. While Mr. Guerin mentions this, he did not discuss its significance. It meant that the Minister could be assured that the investigation files had been examined independently by the Director of Public Prosecutions who had not directed any prosecutions.
As I mentioned earlier, there is a further crucial point which Mr. Guerin does not appear to analyse in his findings. The Minister had been advised by the Garda Commissioner in his report that the investigations into Sergeant McCabe's substantive allegations had been based on earlier reports made to the confidential recipient. The Minister and the Department naturally knew of the provision in the confidential recipient regulations providing that all allegations through the confidential reporting mechanism have to be forwarded to the Garda Síochána Ombudsman Commission, GSOC, as explained earlier, and would have been conscious of the rationale for this, namely, that GSOC would have sight of the allegations, and the response, and could initiate an investigation in the public interest under section 102 of the 2005 Act if it thought it appropriate. This was, as it was intended to be, a substantial reassurance for the Department and the Minister on the existence of independent oversight regarding the investigation of the allegations.
The Minister was faced with a formal written assurance by the Garda Commissioner of the position regarding the superintendent on which he placed reliance to an extent successive Ministers would be likely to have done, augmented by the fact that the DPP had been involved in the matter and in the context where GSOC had sight of the allegations and outcome, and could have instigated its own independent investigation.
With all that has become known since, it might well have been better if a different course of action had been taken but the Department would say that the advice it gave the Minister was reasonable based on what was known at the time and on the statutory provisions in place, which we have since widely acknowledged to be less than satisfactory. That is one of the reasons the amendments to the Protected Disclosures Bill are being taken and why careful examination of the powers that relate to the remit of GSOC is under way.
If the Minister, despite all these factors, had been minded to cause any further investigation of the allegations, the obvious option would have been for him to refer them to GSOC under section 102 of the 2005 Act rather than cause an inquiry under section 42 of that Act. Mr. Guerin did not consider this point but, in any event, the Minister would have been faced with two issues in that regard. First, he would have had to satisfy the tests for referral to GSOC under section 102, namely, that it would have had to appear to him to indicate that a member of the Garda Síochána may have committed an offence or may have behaved in a manner that would justify disciplinary proceedings. This would be happening in circumstances where the Garda Commissioner effectively assured him that the opposite was the case. Second, the Minister would have been aware that GSOC already had sight of the allegations and the outcomes and could have initiated, but chose not to, its own investigation under section 102 on the very grounds that the Minister would have used to refer the allegations to it.
As regards the request from Sergeant McCabe's solicitor for an inquiry under section 42 of the 2005 Act, the crucial difficulty that arose in that regard was the fact that consent was not forthcoming despite repeated reminders to Sergeant McCabe's solicitor to transmit the material to the Garda Commissioner. While Mr. Guerin acknowledges this, no explanation was forthcoming in the report as to why the consent was not forthcoming, other than references to Sergeant McCabe losing all faith in his superior officers. No decision could properly be made to establish such an inquiry without the complaints being first put to the Commissioner.