Mr. Brian Purcell:

Yes, we did. We wrote on perhaps five occasions to the solicitor requesting his permission to refer these dossiers to the Garda Commissioner because in order to make an informed choice regarding whether a section 42 or a section 102 inquiry would be taken, the Minister had to have something other than allegations. This is not in any way a reflection on Sergeant McCabe but when someone makes allegations, allegations are not facts. Establishing an inquiry either under section 102 or section 42 is a significant step to take so in that context, some response was required and the only person who would have been in a position to provide that response, other than Sergeant McCabe, would have been the Garda Commissioner.

While the point was not reached where a decision was to be made on holding an inquiry under section 42, and acknowledging fully the reality that Mr. Guerin did not find any material containing a specific analysis of that, the Department fully appreciated the existence of section 42 as a potential option but understood also the limitations of section 42. It had already been noted that in an inquiry under section 42, any information, document or thing provided by a person to that inquiry is not admissible in criminal proceedings. That contrasts sharply with an investigation by GSOC following a referral by the Minister of a matter under section 102 of the Act or in cases where GSOC was determined to carry out such an investigation because that can be a full criminal investigation.

There are other aspects of section 42 which, while not discussed in the report by Mr. Guerin, are important in understanding the potential for its use in inquiring into serious allegations of misconduct. Section 42 enables the Minister, with respect to any matter considered by him or her to be of public concern, to by order appoint a person to inquire into any aspect of the administration, operation, practice or procedure of An Garda Síochána or the conduct of its members and make a report to the Minister. On the face of it, that is a broad-ranging power.

Indeed, section 42 was amended by the Criminal Justice Act 2007 to extend its scope to the conduct of members and to provide for the compellability of witnesses, in that non-compliance by any person with a section 42 inquiry may be brought before the High Court and treated as contempt. Crucially however, there is no power to administer the oath to any person appearing before a section 42 inquiry, unlike, for example, inquiries under the Tribunals of Inquiry (Evidence) Acts or the Commissions of Investigation Act. This also is in contrast to the statutory predecessor of section 42, which was section 12 of the Dublin Police Act 1924, which was used in the inquiry into the death of Brian Rossiter that reported to the then Minister for Justice, Equality and Law Reform in 2007. The 1924 provision provided that evidence-----