Oireachtas Joint and Select Committees

Wednesday, 16 July 2014

Joint Oireachtas Committee on Justice, Defence and Equality

Draft Commission of Investigation (Mr. Ronan MacLochlainn) Order 2014: Motion

2:00 pm

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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The purpose of the meeting is to consider the motion regarding the proposed approval by both Houses of the draft Commission of investigation (Ronan MacLochlainn) Order 2014. A briefing document will be circulated shortly to members. We received something earlier, but more material is on the way. I welcome the Minister for Justice and Equality and her officials to assist the joint committee in its consideration of the motion. I invite her to brief us on it. We will then have a question and answer session.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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At its meeting on 1 July the Government decided that matters relating to the fatal shooting of Ronan MacLochlainn in Ashford, County Wicklow, in May 1998 were of significant public concern. It also agreed to the processes relating to the establishment of the commission as defined in the Commissions of Investigation Act 2004 on this matter, including the bringing of a resolution before the Houses of the Oireachtas.

In 2010 the partner of Ronan MacLochlainn, Ms Gráinne Nic Gibb, took a case against Ireland under the European Convention on Human Rights alleging a failure on the part of the State to carry out an effective official investigation into this fatal shooting in accordance with the terms of Article 2 of the convention. During friendly settlement negotiations on the case, a commission of investigation was proposed as a means of ensuring the State’s compliance with the convention in this matter. The settlement negotiations did not reach a satisfactory conclusion. Instead, in a unilateral declaration which was submitted to the European Court of Human Rights, ECHR, under Article 62(A) of the convention, Ireland admitted to a technical breach of the convention in this instance and, by way of a remedy, offered to conduct a commission of investigation into the fatal shooting. In return, the court was asked to strike out the case. In its decision of 25 March 2014 the court struck out the case on the basis that a commission of investigation would meet Ireland’s obligations under the convention in this matter. Having regard to the outcome of the case and with the approval of the Minister for Public Expenditure and Reform, I proposed to the Government that a commission be established. The Government has agreed to this proposal.

I emphasise that, without prejudice to the work of the commission of investigation, its establishment relates to a failure of process on the part of the State in this fatal shooting.
The draft order specifies that as Minister for Justice and Equality, I am the Minister responsible for overseeing administrative matters relating to the establishment of the commission, receiving its reports and performing any other function given to the Minister under the Act. It also authorises me to set the commission’s terms of reference. I have arranged for the terms of reference to be provided for the members of the committee. As provided for in section 5(2) of the 2004 Act, the terms of reference will be published in Iris Oifigiúil.
I am also authorised by the draft order to appoint the member or members of the commission of investigation. I will nominate a senior counsel to act as the sole member of the commission and inquire into the following matters: the circumstances surrounding the fatal shooting by An Garda Síochána of Ronan MacLochlainn on 1 May 1998 in Ashford, County Wicklow; and all relevant Garda matters, including the policies, practices and procedure of An Garda Síochána in the planning and control of the operation which led to the fatal shooting and the training provided for personnel detailed for the Garda operation concerned. The terms of reference provide that the commission shall keep Ms Gráinne Nic Gibb, applicant in the case to the ECHR, involved in the investigation to the extent necessary to safeguard her legitimate interests.
The conduct of the commission of investigation is a matter for the sole member appointed to run it. Essentially, the task of the commission is to decide whether the use of force by An Garda Síochána in this instance was proportionate. It is envisaged that the commission will report in six months. Based on this timeframe and excluding third party costs, the overall cost of the commission of investigation is estimated to be €350,000. In accordance with the provisions of the 2004 Act, following consultation with the commission and the consent of the Minister for Public Expenditure and Reform, I will have guidelines prepared on the payment of legal costs and other expenses to persons who become involved with the commission.
Arising from the outcome of the case to the ECHR, it is necessary to proceed to establish a commission of investigation into this fatal shooting. In accordance with the provision in section 3(2) of the Commissions of Investigation Act 2004, the approval of both Houses for the draft order is required. Accordingly, I would be grateful for the support of the committee for the resolution before it.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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I thank the Minister. Have the terms of reference been published?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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I understand they have been sent to the Deputy

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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I am sorry.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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They are to be found on the final page of the briefing document. They were circulated previously also.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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If the Deputy would like to have further details of the incident, I can provide them.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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Is it normally the practice in establishing a commission of investigation to appoint a serving or retired judge as chairperson? I do not question the appointment of Ms Aileen Donnelly, SC, but is this a departure from the normal convention?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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There is a precedent and, at the end of the day, it is a Government decision.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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Will the commission sit in public or private?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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It is a matter for the sole member to decide how to run the commission.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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This could best be described as a legacy case. The Minister referred to "friendly settlement negotiations." Was there previously a financial settlement with the family or partner of Ronan MacLochlainn?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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A civil case is outstanding.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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Was there a cost to the State in defending the case before the ECHR?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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The costs are carried in the normal course by the Attorney General and Department of Foreign Affairs. I can check the costs.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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If the Minister can do so, she might furnish them to us in time. Will she confirm that current and former members of the Garda who may be called by the commission will be afforded legal representation, the cost of which will be covered by the State? What will the process be in this regard?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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Like many commissions of investigation, the person appointed can have a point of view on that matter. There is a legal precedent for such costs being carried.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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Anyone who is called before the commission can, therefore, expect, given the precedent, to have his or her legal costs covered in their entirety.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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Guidelines will be developed, but the key issue is that there is a precedent for this to happen.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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The incident occurred in 1998 and predated the Garda Síochána Ombudsman Commission, GSOC.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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The background is that Ronan MacLochlainn was fatally shot by members of the Garda during an attempted armed robbery of a Securicor van in County Wicklow on 1 May 1998 and on 12 March 2010 his partner, Ms Gráinne Nic Gibb, took a case against Ireland under the European Convention on Human Rights alleging a failure on the part of the State to carry out an effective - that is the key word - official investigation into this fatal shooting, as required under Article 2 of the convention. Under this article, the State is under an obligation to have an effective and official investigation where a State agent takes action that leads to a fatality. If it were to happen now, there would be an investigation by GSOC.

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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When was the ongoing civil case initiated?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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The ECHR struck out the case on the basis of the proposal made. Ms Nic Gibb was awarded €23,000 to cover pecuniary and non-pecuniary damages and expenses. The award has been paid but a civil case is outstanding. I do not have a date for it, but I can inform the committee at a later date. It has been under way for approximately three years

Photo of Niall CollinsNiall Collins (Limerick, Fianna Fail)
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It was on hold because of the ECHR case and is now on hold pending the outcome of the commission's investigation.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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Yes.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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I strongly support the proposal to approve a commission of investigation into the shooting of Ronan MacLochlainn in May 1998. All human life is valuable and I offer my sympathy to Mr. MacLochlainn's family and everyone else involved. It is also a sad case for the gardaí involved from a professional and personal point of view. Is it correct that the commission is a response to the fact that there was no effective investigation at the time?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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Yes. I used the term "effective official investigation."

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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Was there a failure of process at the time?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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I am informed that technically Ireland had breached the convention because the investigations carried out by the Garda, the Director of Public Prosecutions and the coroner were deemed not to have met the criteria and that that was what led to the discussion. The agreement was that there would be a commission of investigation.

It was agreed that it would be seen as the effective mechanism.

2:10 pm

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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The Minister mentioned in her submission that it would be deemed an effective investigation under Article 2 of the convention.

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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Yes.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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Will the allegations of excessive force be dealt with in a comprehensive manner by the commission of investigation?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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What is being looked for is an effective remedy. The other word I should have used was "efficient". The European Court of Human Rights has a role in the determination of the matter when an action on behalf of a State agent has led to a fatality. The question Deputy McGrath raised will, I assume, be part of the commission of investigation. I imagine the commission will examine all the circumstances.

Photo of Finian McGrathFinian McGrath (Dublin North Central, Independent)
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Is the family or the partner alleging that Ronan MacLochlainn could have been arrested rather than shot? Is that part of the brief or the allegation? Is it an allegation in any way?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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That was raised in a civil action, but I could prejudice the outcome of the commission of investigation if I were to go into any details on that.

Photo of Alan FarrellAlan Farrell (Dublin North, Fine Gael)
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I welcome the opportunity to discuss the establishment of this commission of investigation. Several of the questions I had intended to put to the Minister have already been asked and answered by Deputy Collins and the Minister. My questions relate to what effect this commission of investigation will have on the civil matter which, presumably, is still before the courts. The Minister remarked that the case is on hold. Will the Minister outline to the committee the practical effect of this investigation?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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Deputy Farrell will appreciate that it is a matter for the courts. We will have the investigation and there will be an outcome. The civil action will proceed as normal. How the two might or might not interact is for the court to decide.

Photo of Alan FarrellAlan Farrell (Dublin North, Fine Gael)
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The Minister indicated that there would be publication of guidelines. This relates to the question Deputy Collins asked about costs for supporting witnesses called, up to and including Ms Nic Gibb. Will the Minister detail when that document will be provided? Will it be provided to this committee under its remit?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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It should be possible for the guidelines to be circulated. Certain costs have been agreed already by the Department of Public Expenditure and Reform in respect of the commission. They break down between the costs of the sole member and legal costs, which, at this stage, are assumed to include administrative costs. They were included in the figure I quoted.

Photo of Alan FarrellAlan Farrell (Dublin North, Fine Gael)
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When does the Minister expect the sole individual responsible for the commission to be appointed?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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I expect to be in a position shortly to name the person. Obviously, the person would have to be agreeable to undertake it.

Photo of Alan FarrellAlan Farrell (Dublin North, Fine Gael)
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Another point was touched on by one of my colleagues. Notwithstanding the Minister's remark about not wishing to prejudice the proceedings, is it possible for her to indicate the outcome the commission of investigation is seeking in terms of the effective investigation into the shooting of Mr. MacLochlainn in 1998? Specifically, will the investigation be looking into whether wrongdoing took place or is the purpose of this investigation simply to establish the facts? Is there a question of wrongdoing on the part of members of An Garda Síochána in carrying out their duties on the day?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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First, to meet the terms of the European Convention on Human Rights we had to establish this commission because, as I stated already, there was no effective remedy in the first place. The establishment of the commission meets our international obligations. The internal investigations of the three bodies I referred to were deemed to be unacceptable. A commitment was given in respect of the establishment of the commission of investigation to ensure we had a remedy. The key issue relates to whether the use of force by the State was proportionate. Deputy McGrath asked the same question. That is the primary issue under consideration by the commission.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I assume, Minister, that the three reports into this matter already, from the Garda, the Director of Public Prosecutions and the coroner, will be available to the commission. Is that the case?

Photo of Frances FitzgeraldFrances Fitzgerald (Minister, Department of Justice and Equality; Dublin Mid West, Fine Gael)
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I am sure they will be. Yes, I think so.

Photo of David StantonDavid Stanton (Cork East, Fine Gael)
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I thank the Minister and her officials for their attendance.