Brendan Howlin (Wexford, Labour)

I ask the Minister to tell me when the investigation was concluded. Will he put the report into the public domain? The reply that paraphrased the findings of the second investigation was issued to RTE, rather than to any Member of this House who had tabled a parliamentary question — so much for the parliamentary oversight facility that the Minister had such regard for in his earlier contribution. It is clear that an investigative journalist has much more access to information than a mere Member of this House. It does not seem that the Minister has a policy of contacting interested Deputies as soon as relevant information comes to hand. We do not receive letters telling us that "subsequent to your parliamentary question, that investigation has been concluded and as soon as it has been considered it will be made available to you". It seems that an investigative journalist has much more oversight capacity than a Member of this House. That has to change if the Minister's words about parliamentary oversight are to have any meaning.

The second investigation found that no evidence was available to substantiate the allegation that Shane Tuohey was assaulted immediately prior to his death. It apparently concluded that there was no evidence to substantiate the allegation that the Garda investigated the death of Shane Tuohey in such a manner as not to establish the full facts. It also found there was no evidence to justify the arrest of anybody in relation to Shane Tuohey's death. The Commissioner's spokesman accepted that some aspects of the first investigation could have been dealt with more efficiently. It is accepted, in essence, that the searches were not carried out in accordance with normal procedures and guidelines. The scene was not preserved from the time the body was removed from the river, even though it was obvious at the time that Shane Tuohey did not enter the water at that point. The scene should have been preserved in accordance with standard procedures until the findings of the post mortem had been established.

In the first investigation, no reference was made to the fact that a number of CCTV cameras were in operation in Clara during the night and morning of the disappearance of Shane Tuohey. The second investigation established that there was at least one sighting of Shane Tuohey before his disappearance. However, the recollection of the gardaí involved in the first investigation, who were familiar with the CCTV system in operation at the time, was that no information of evidential value was available. A more professional investigation would have referred to the CCTV footage, which should have been available even if it did not have any evidential value. I understand that nine CCTV cameras were in operation on the night in question. The investigative reporter I mentioned has found that at least one of them has gone missing.

No response has been made in respect of some important and disquieting matters. I refer, for example, to the handling of the witness statements of the three men who were present at the time of the alleged assault on Shane Tuohey, which appear to contradict one another. Concerns have also been expressed about the circumstances surrounding the taking and use of a statement from a person identified as "Geraldine". This unsigned statement purports to detail a relationship between Geraldine and Shane Tuohey. It claims to describe Shane's mental health and physical condition on the night of his death. At Shane's inquest, Geraldine refuted everything in the statement — she said she was not sober when the statement was taken. Mr. Boucher-Hayes spoke to members of Geraldine's family, who accept, as she does, that she is a chronic alcoholic.

A third issue is the manner in which the Garda treated Shane's disappearance as a case of suspected suicide from early in the investigation, despite hearing allegations of assault against him. When an alleged assailant was identified to the Garda, a statement was not taken from him until six months after the recovery of Shane Tuohey's body. Other matters which also need careful examination include the availability of CCTV footage.

It is simply not acceptable that an internal review by the Garda Síochána is currently the only mechanism that is available to provide for oversight of these matters. We cannot remain in limbo until the Garda ombudsman commission is brought into operation and starts to receive complaints on some date next year. The Minister has been telling the House for a year or more that the Garda ombudsman commission will come on stream soon, but we need something to address the matters which are agitating the public now. I refer to good, decent and law-abiding citizens who want their questions answered — they simply want the full truth to be laid before them. The House has finally accepted that it cannot be done by means of internal inquiry, which is why it established the Garda ombudsman commission in the first instance. I want the Minister to tell the House whether an interim solution can be made available. We may need to examine the possibility of acceptance by the Garda ombudsman commission of cases from now, even if they cannot be investigated subsequently. I have asked for that to happen.

Many other cases could be raised in this House, but I want to mention just one more case. Three weeks ago, on 7 November 2006, parliamentary questions were tabled by Deputies Broughan and Sargent about the status of two members of the Garda who had been acquitted in Dublin Circuit Court on 23 October 2006 of charges of perjury and forging documents. Certain papers had been deemed inadmissible during their trial. The main reason for the declaration of inadmissibility seems to have been that there was a break in the chain of evidence. The matters in question centred on the trial of Mr. Colm Murphy for his alleged role in the Omagh bombings. During Mr. Murphy's trial, Mr. Justice Barr, who was the presiding judge in the three-judge court, described two Garda witnesses as "discredited". He said that their conduct was "outrageous" and that they had been involved in "persistent lying under oath". Mr. Murphy's subsequent appeal to the Court of Criminal Appeal relied strongly on the argument that the Special Criminal Court did not take proper account of the fact that one of the teams of interviewing gardaí had fabricated notes and lied in the witness box.

The Court of Criminal Appeal quashed the conviction and ordered a retrial. Members of this House wanted to know what was happening to those individual gardaí who were the subject of unprecedented damning commentary in court by a senior judge. The gardaí were acquitted by virtue of the fact that the chain of evidence was broken. In his Dáil reply on 7 November 2006, the Minister for Justice, Equality and Law Reform quoted regulation 38 of the Garda Síochána (Discipline) Regulations 1989 in his statement:

Regulation 39 of these regulations provides that where a member of the Garda Síochána has either been convicted or acquitted of an offence, then proceedings under the discipline regulations for an alleged breach of discipline shall not be commenced or, if already commenced, shall not be continued if the breach of discipline is in substance the same as the offence for which he has been convicted or acquitted. In respect of one of the persons referred to, who is still a serving member of the Garda Síochána, as the alleged breach of discipline and the criminal charges of which he was acquitted were in substance the same, I am informed by the Garda authorities that disciplinary proceedings were discontinued in accordance with regulation 38 of the disciplinary regulations. I am further informed that the second person acquitted last month of the charges preferred against him was medically discharged from the Garda Síochána on 18 September 2006. As this person is no longer a member of the Garda Síochána, disciplinary proceedings were discontinued.

Can this be satisfactory?

See this speech in context