Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

I welcome this opportunity for the House to debate the findings and recommendations of the report by Mr. Justice Cooke into claims of unlawful surveillance of the Garda Síochána Ombudsman Commission, GSOC. Mr. Justice Cooke's authoritative report assesses, in a balanced and measured way, the evidence for these claims.

As the House knows, The Sunday Timeson 9 February 2014 claimed that the offices of GSOC had been targeted in a sophisticated surveillance operation which used Government-level technology to hack into its e-mail, Wi-Fi and phone systems. On 13 February 2014, after the publication of this article, GSOC submitted a report to the then Minister on the matter. In its report, which should have been submitted earlier as required by statute, GSOC explained that it had brought in a specialist IT company to conduct a security sweep of its premises in September 2013 which had initially identified two operational surveillance threats, and that a third such threat also emerged. Subsequently, on 8 October, GSOC initiated an investigation into these issues under section 102(4) of the Garda Síochána Act 2005. This provision enables GSOC, if it appears desirable to it, in the public interest, to investigate any matter indicating to it that a member of the Garda Síochána may have committed an offence or behaved in a manner that would justify disciplinary proceedings. The report by GSOC to the then Minister explained that the conclusion of the GSOC investigation under section 102(4) was that it "did not find any definitive evidence that GSOC was under technical or electronic surveillance. It did, however, uncover a number of technical and electronic anomalies that cannot be explained."

The House will recall that The Sunday Timesclaims led to a considerable level of comment and debate, resulting in a statement by the then Minister to this House, plus an appearance by GSOC commissioners and the then Minister before the Oireachtas Joint Committee on Public Service Oversight and Petitions. I will return to that later.

It is entirely understandable that these claims led to serious disquiet, which in turn had the potential to, and indeed did, undermine the continued public confidence in policing and the oversight of policing. That is why the Government decided that it was essential for these claims of unlawful surveillance to be examined in an independent, impartial and authoritative manner. It, therefore, appointed a former distinguished judge of the High Court, Mr. Justice Cooke, to carry out an independent inquiry into the claims, and this was approved by resolution of this House. I thank Mr. Justice Cooke for his work.

The terms of reference of the inquiry were, in summary, to establish the sequence of events and facts leading up to and relating to the investigation by GSOC into the security concerns; to examine all reports, documentation and other evidence relevant to that investigation; to review and assess any evidence of a security breach or attempted security breach at GSOC's premises; and to make any recommendations relating to improvements to GSOC's security, to legislation or otherwise. They were broad terms of reference.

The key finding of Mr. Justice Cooke is that it is "clear that the evidence does not support the proposition that actual surveillance of the kind asserted in The Sunday Timesarticle took place and much less that it was carried out by members of the Garda Síochána". The report by Mr. Justice Cooke also analyses in detail the evidence in relation to the three threats identified by the security sweep of GSOC's premises. Much has since been written and spoken about these threats, and it is important to look at the findings of Mr. Justice Cooke in this regard.

First, it was alleged that a handheld wireless device associated with audio-visual, AV, equipment, located in the area of the GSOC boardroom was connecting and transferring audio data to an external "Bitbuzz" hotspot. This device became known as device 4B. It was further claimed that the device had been reconfigured and it was suggested this was evidence of interference. Mr. Justice Cooke finds as "not convincing" the accounts of device 4B authenticating a connection to the external "Bitbuzz" hotspot, as "Bitbuzz" would have had a record of the MAC address of device 4B if the connection had been made and authenticated. Mr. Justice Cooke found it "highly improbable that the haphazard performance of such a ... device constituted the planned means of covert eavesdropping on GSOC in a sophisticated surveillance exercise by any agency equipped with a capability of 'intelligence-service level'".

Mr. Justice Cooke goes on to add that: "the possibly sinister characterisation attributed to its abnormal behaviour appears now to warrant reconsideration in view of the fact that: a) it was not microphone enabled as had been assumed; and b) its original default password was publicly available and had not been changed." On this last point, Mr. Justice Cooke noted that as the password was publicly available it could have been that a service engineer had, in the past, benignly reconfigured the device as part of checks or maintenance.

The second threat related to the detection on an iPhone of what was considered a "fake" base station displaying a UK mobile phone country or network code operating in the vicinity of GSOC's offices. It was claimed that this "spoofed network" was "good evidence of a localised intelligence-gathering or interception device, symptomatic of something in the nature of a dedicated 3G IMSI grabber or interceptor". Mr. Justice Cooke, in his inquiry, sought evidence from a mobile phone provider who reported that it had been testing new 4G equipment in September and October 2013 in Dublin, including close to Upper Abbey Street. These tests included connecting to the group's test bed in the UK, and the particular detected 5 digit country or network code was one that was allocated exclusively to that test bed. The company considered it likely that these tests may have caused the detection of the code.

Mr. Justice Cooke found that the network which was found to be operating in the vicinity of GSOC's offices was "highly likely" to have been that attributed and generated by the mobile provider testing its new 4G installation; and that "it is clearly more probable that the iPhone scan detection of the country-network code was not caused by the presence in the vicinity of the offices of an IMSI catcher".

The third threat was an unexpected reaction to a security test on a polycom unit teleconferencing device in the office of the GSOC chairman. An "alerting test" was conducted on the polycom device, involving playing music down the open phone line. Immediately following the test, at 1.45 a.m. there occurred an anomaly of a "ring-back" to the device. It had claimed that the "likelihood of a wrong number ... at the time of an alerting test is so small it is gauged at virtually zero". It had been further claimed that the ring-back may have been the result of a response from an "attacker-listening station" which was triggered by the illegal listener hearing the music and then deciding, without thought or consideration, to ring back to test the phone line to ensure it was working.

Mr. Justice Cooke challenged some of statements in relation to this matter. He found that "the 'ring-back' reaction to the alert test of the Polycom unit remains unexplained as a technical or scientific anomaly". He observed that "there appear to be some technical factors which cast doubt upon the explanation that there had been mistaken human intervention in the monitoring of a tap upon the phone line". He concluded that "whatever the explanation may be, there is no evidence that the ring-back reaction was necessarily attributable to an offence or misbehaviour on the part of a member of the Garda Síochána".

Mr. Justice Cooke made the point that in the "world of covert surveillance and counter-surveillance techniques, it is ultimately extremely difficult to determine with complete certainty whether unexplained anomalies of the kinds identified in this instance were or were not attributable to unlawful intrusion". He acknowledged that "further tests and investigations might be conducted with a view to finding explanations for the anomalous behaviour" of the wireless device and the Polycom unit. He concluded that "having regard to the absence of evidence that the anomalies in question were in fact exploited for the purpose of illicit surveillance and to the fact that their threat potential has since been eliminated it may be questionable whether such further investigations would be justified". It is important to emphasise that neither of the other two threats revealed evidence of unlawful surveillance. Mr. Justice Cooke found a perfectly rational and lawful explanation for the detection of a UK mobile network, which was originally depicted as the most sinister of the threats. It was suggested that it involved the use of Government-level technology.

With respect to the actions of GSOC in commencing a public interest investigation, Mr. Justice Cooke found that "it is also clear, however, that the investigating officers and the members of the Commission acted in good faith in taking the steps in question once presented with the ... Report" on foot of the initial security sweep. It is important to be clear that Mr. Justice Cooke expressed satisfaction that the steps taken by GSOC since September 2013, when vulnerabilities were identified, "are adequate to rectify the defects and vulnerabilities and sufficient to enhance the security of the relevant areas and the equipment used in them". He recommended that "GSOC should more frequently carry out a thorough and suitable counter-surveillance examination of its offices, communication and IT equipment and data storage facilities to ensure that its protection remains adequate and that the risk of new surveillance techniques being deployed against the Commission or its personnel is reduced as much as possible". These are sensible precautions. It is right that GSOC has already taken action to strengthen its security. Mr. Justice Cooke recommended that in any revision of the Garda Síochána Act 2005, "consideration should be given to clarifying the precise scope of the competence to be accorded to GSOC to conduct investigations of its own initiative under section 102(4)". He said that in the context of the proposed legislation to establish an independent Garda authority, "it may be desirable to consider simplifying the somewhat complex provisions [in the 2005 Act] governing the making, admissibility and investigation of complaints".

As I have already said, the Government welcomes the publication of the Cooke report and accepts in full its findings, conclusions and recommendations. We are currently implementing a comprehensive programme of reform in the areas of policing and justice. This includes the plan to establish an independent Garda authority by the end of the year. We have committed to providing that future appointments to the position of Garda Commissioner will be made by means of open competition. As part of this programme of change, the Government is committed to the introduction of new legislation to reform, strengthen and clarify the remit and operation of the Garda Síochána Ombudsman Commission to ensure it is fit for purpose and to ensure further that the men and women of the Garda Síochána, as well as the wider public, can have the fullest confidence in its workings. This is extremely important for the force and, as I have said, for the members of the public. An oversight body like GSOC plays a critical role in our democracy. It is also critical in terms of having confidence in the Garda.

The Cooke report will inform how we will proceed with reforms in this area. I refer in particular to the proposed new Bill to reform the workings of GSOC. We need to examine precisely how it is working at present. It is clear that the 2005 Act needs to be amended and further strengthened. There is no doubt that more robust provisions are needed. We will take the point made by Mr. Justice Cooke about clarifying the legal basis for public interest investigations. The question of the thresholds for initiating such an investigation is extremely important. I have been discussing these issues with representatives of a wide range of groups. They have made a range of recommendations about how the actual investigations are handled at present. I believe those recommendations would smooth the process of the work that is done when matters are referred from GSOC back to the Garda. The proposed new Bill will further clarify and strengthen the provisions relating to the preparation and implementation of protocols relating to co-operation between the Garda and GSOC. I understand from the meetings and discussions I have been having that the implementation of the protocols in question, which were put in place by the former Minister, Deputy Shatter, has led to quite an improvement of the various cases by the Garda and GSOC.

The claims made by The Sunday Timesof unlawful surveillance of GSOC and the subsequent emergence of issues relating to the vulnerability of GSOC's security systems have led to a difficult period for GSOC and the Garda Síochána. I appreciate the disquiet felt by the Garda. I appreciate where GSOC's concerns came from. It is vital now and in the future that the public has strong confidence in the Garda Síochána and in the system of oversight of the Garda Síochána. I believe that confidence demands action on the part of both organisations, not one or the other. I have asked the Garda Síochána and GSOC for their responses to Mr. Justice Cooke's report. I will refer the report to the Joint Committee on Justice, Defence and Equality, where all of these issues can be considered and discussed in detail. I want more than a formal report, however. The interim Garda Commissioner has spoken about the force taking a new attitude to critical friends like GSOC. I want to see evidence of that sooner rather than later. I think Deputies will agree the bottom line is that these organisations are not mutually opposed. Each of them has its own important responsibilities. They are devoted to the preservation of peace and the creation of a context within which individuals can go about their business without fear and in which both systems are trusted by citizens. That is essential.

The claims of unlawful surveillance have been independently investigated. GSOC's security has been reinforced. The relevant law is being clarified and strengthened. There will be further debate on these issues at the joint committee. It is important to learn lessons from what has happened and take all necessary measures to ensure continued public confidence in our system of policing oversight. The Government commissioned Mr. Justice Cooke to prepare a report to get the clearest possible picture of the events surrounding the allegations of surveillance and the initiation by GSOC of a public interest investigation. At that time, the former Minister, Deputy Shatter, made statements to the House and to the joint committee outlining the facts as he had been given them. Now that we have the Cooke report, I believe Members of this House should reflect on the responses they gave to the then Minister. In light of how significantly ad idemthe results of the Cooke report are with what the then Minister told this House, we must all consider the advantage of developing a measured and reflective response to significant issues such as these, rather than making an immediate judgment. I look forward to hearing the views of Members of the House on these issues.

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