Clare Daly (Dublin North, United Left) | Oireachtas source

This discussion reminds me of "The Twilight Zone". There have been enormous problems in the Garda Síochána and this may be the most serious in many ways. The idea that the Garda oversight body was under the surveillance of the organisation it was supposed to oversee is appalling for the State to consider. Have we dismissed the possibility that this surveillance may not have happened? I think we have not.

The way this report has been handled since publication has been bizarre. The Guerin report consisted of 336 pages of comprehensive analysis and there was massive media interest and analysis. This is a 65 page report that has been thrown into the public realm. Very defined viewpoints have been taken on this immediately to peddle a myth. There has been no media interest and today we discuss it on a Thursday afternoon with only a handful of Deputies present.

The problem is the reality does not reflect the contents of the report. As soon as the report was published, the acting Garda Commissioner told us it exonerated the Garda from any wrongdoing. The former Minister for Justice and Equality, Deputy Shatter, said the report was proof positive he did a brilliant job. I think the Minister for Justice and Equality, Deputy Frances Fitzgerald, echoed those sentiments earlier. The former Garda Commissioner, Mr. Martin Callinan, previously said there was no question of any garda being involved in such wrongdoing. GSOC said it was all right too as it was said to have acted in good faith. The problem is everyone is capable of saying a black page is white but this doesn't make it true.

The roots of the problem lie in how the report was constructed and its terms of reference. Many issues were not explained and this remains the case today. Regarding terms of reference, the Government set an incredibly narrow focus for the investigation. The focus was on whether GSOC acted proportionately and reasonably in initiating a section 102 investigation into Garda misconduct in the public interest. GSOC was only ever lawfully able to investigate wrongdoing by gardaí. Lawful behaviour by gardaí would not be the subject of a public interest inquiry. The report focused on this rather than asking whether attempts were made to bug GSOC and, if so, by whom. This is what the report should have been about. To my mind the report was established in a way precisely to prevent this from happening.

The limited terms of reference were reinterpreted even more narrowly by the former Justice Cooke as he took the allegations in The Sunday Timesarticle as his yardstick rather than the section 102 investigation. The Minister's office and press office adopted this approach too and the media ran with it. One of the first quotes from the Department of Justice and Equality on the matter stated that the report concluded "the evidence does not support the proposition that actual surveillance ... took place", much less that it was carried out by members of the Garda Síochána. Of course the phrase omitted the important qualifying words that were in the middle, that actual surveillance of the kind asserted in The Sunday Timesarticle took place. It also ignored the fact that Mr. Cooke referred toThe Sunday Timesarticle as claiming to deal with Government-owned technology when in fact the The Sunday Timesreferred to Government-level technology, which is an entirely different matter. He made a statement based on a false conclusion.

This was taken up by the rest of the media ad nauseam. We had significant examples and evenThe Irish Times, the so-called paper of repute, led with headlines stating "Cooke report finds no evidence of GSOC bugging". In fact the report found it could not exclude the possibility that some form of illicit eavesdropping may have taken place, which obviously is a very different headline. The spin around this is quite incredible and, in some ways, borderline sinister. What is in the report does not reflect what people are saying about it. This point must be made because it means we have a problem and we need to see what the Government will do.

There are many unanswered questions. Mr. Cooke is a former judge so I am not being derogatory in referring to him as mister. I would like to put on record that Mr. Cooke goes to some length in his introduction to emphasise the limitations of the report. He has been much more honest than the Government because he makes this very clear.

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He states he had no authority to make binding findings of fact, much less definitive ones. He states the report does not have the authority to adjudicate on disputes of fact and that he was reliant on the voluntary co-operation of the parties concerned. He is also at pains to point out this is just his personal evaluation and opinion. In other words, the conclusions of the report are not as comprehensive and rigorous as the Minister, Taoiseach and Tánaiste have tried to point out, because the conclusions are not judicial. They were not reached by way of an independent statutory inquiry conducted by a sitting judge with powers of compellability. In fairness, Mr. Cooke has been quite clear on this. It is a non-statutory paper review and exaggerating Mr. Cooke's past employment of being a judge is trying to give the report a veneer of judicial backing when in actual fact it is not. This is a paper review of secondary evidence rather than an investigation based on first principles. We are exactly where we were before the report was published and this matter is not over.

Deputy Mac Lochlainn is quite correct; we must consider this issue in the context of the background of what was going on at the time. I will not repeat the points, but the background comprised the Kieran Boylan affair; inordinate delays, over which GSOC went to the length of holding a public press conference to show the massive level of non-co-operation it was receiving from An Garda Síochána when attempting to call it to account; and hundreds of outstanding cases on relatively minor matters where gardaí were supposed to be disciplined but nothing was taking place. We found out subsequently that around this time the former Commissioner, Mr. Callinan, contacted the four Garda representative organisations and asked them to issue a public statement that they had no faith or confidence in GSOC. This is quite incredible. Two of the organisations, the AGSI and the GRA, did so. The body charged with oversight of the Garda experienced sinister happenings, and this is not disputed, at a time when these issues were in the background. It had a serious responsibility to deal with them because of the huge implications. I must be honest and state we are still none the wiser in this regard.

Mr. Cooke has no technical expertise himself and the world of surveillance is incredibly high-tech. As the former Minister, Deputy Shatter, did before him, Mr. Cooke favoured one so-called expert report over another without any further serious analysis. In this context it is not surprising he reached the same conclusions more or less as GSOC did, that there was no definitive evidence of unauthorised covert surveillance, but neither is there definitive evidence that there was not. In particular, there is no definitive evidence that it was not attempted. Mr. Cooke did not seem to take any account of this, although it was allowed for in the terms of reference.

The biggest weakness of the report is that no examination of lawful surveillance was done. This was never investigated. Deputy Wallace put this issue to the former Minister, Deputy Shatter, on a number of occasions, as did I, but he never answered. Why was this point not answered? Did the former Minister not ask? Did the Garda Commissioner not ask? How does one know if one does not ask the question?

The Minister is correct to state the report concludes there was no evidence of Garda involvement, but we must ask how much emphasis we can place on this statement when it was made in the backdrop of not investigating or interviewing a single garda. No attempt was made to seek the information, no request was made for a report from the Garda Commissioner to detail the access storage or logbooks of IMSI catchers, and the possibility of rogue gardaí being involved was not analysed. Let us remember that senior gardaí were at the heart of the highly sensitive GSOC investigations into the Kieran Boylan case. Is it beyond the realms of possibility that some of these people might have had a vested interest in surveillance on GSOC? The fact these questions were not asked in some ways is not the fault of Mr. Cooke, but it comes back to the limited terms of reference that were in place. It severely weakens the report in its entirety.

Lawful surveillance was never investigated and let us be clear about this. If one were starting off, surely it would be the first thing one would rule out, because if there was lawful surveillance one would not have to go any further. We know lawful surveillance by the Revenue Commissioners, the Defence Forces and the Garda Síochána is permitted. In most, but not all, cases it must be the subject of a judicial order. Our law allows a situation under section 7 of the Criminal Justice (Surveillance) Act 2009 for senior gardaí to authorise other senior gardaí to conduct surveillance. This is perfectly lawful, could have happened here, and so would have been outside the remit of the Cooke inquiry. We still do not have answers with regard to this situation. There are a huge number of other practical issues which have not been answered by Mr. Cooke. The most significant of these is that of the significant anomaly identified by Verrimus, namely, the ring-back. Mr. Cooke offers no explanation for this and does not even attempt to put one together. He states it is unexplained. The most significant breach is still unexplained.

This in and of itself is bad enough, but there are still a number of other questions which are unanswered. Other Deputies have referred to issues such as the photographers at the airport. Who were they? Mr. Cooke said they were likely to be members of the Garda security branch. This is who he thinks they were. Is it appropriate that the Garda security branch would be out at the airport taking pictures of an organisation it knew was there to do work on behalf of GSOC? Does this not need further questioning? I think it does. His take on the device in the media room, because he does not really know, is that it the person inside GSOC who leaked the issue to The Sunday Timescould have been the person who tampered with the device. This is what he states in the report. Does the Minister accept this? Does she think GSOC itself could have been behind one of the anomalies? This is what Mr. Cooke states. He has raised it as a possibility. We have the issue of the identified person who tried to tamper with Verrimus's evidence to the Cooke inquiry. Who is this person? The person claimed to be acting on behalf of An Garda Síochána. I would like more information on this. All of these instances exist and they all remain unexplained.

Mr. Cooke accepts the information given by the GSOC commissioners that their phones were subject to ambient listening, because the phone batteries were dying within a two-hour period. The batteries of these phones do not die any more. It has stopped. Since the issue came into the public domain the GSOC commissioners' phone batteries do not run down, which is pretty strong proof of an element of surveillance or ambient listening being in place. Mr. Cooke does not seem particularly interested in this and does not give it any attention. This is a huge weakness because he seems to suggest it was Verrimus which was under surveillance. It may be because surveillance is unregulated in Ireland, and in this sense probably lawful, that it was outside the remit of his report. I am not sure. I find it striking he does not seem to appear in any way concerned that Verrimus might be the subject of ordinary surveillance while conducting work for GSOC, or is even curious about identifying those who might have been responsible. To me this is a pretty serious deficit. In fairness to Mr. Cooke, he states this type of examination could only be done as the subject of a statutory investigation. Here we are, back where we started, with the need to conduct a proper statutory investigation in order that we really get to the truth and get to the bottom of all these issues.

Mr. Cooke deals with the GSOC question and states it acted in good faith, although there is a bit of a slap for it. He states section 102 was premature. He absolutely ignores the fact that under section 103 if it felt it did not have to disclose a section 102 investigation in the public interest, it was lawfully entitled not to do so.

He does not in any serious way address that point. He also seems to place emphasis on the fact, nearly suggesting, that in order to be allowed to conduct a section 102 investigation GSOC had to have the evidence, when of course the entire purpose of its investigation was to get the evidence to ascertain whether its suspicion of surveillance was backed up.

I believe he has just done enough in this report to allow GSOC to state there was something in it for the commission but to prevent the option of its being obliged to take a judicial review, because the only way of overcoming this report is by taking such a review and the only body that would have a sufficiently strong legal interest in that is GSOC. There has been an effort in the report to make Verrimus and The Sunday Times out to be the demons but I am unsure whether legally they would have enough of an influence or an interest in taking a judicial review.

Unless the Government decides to look at this in a different forum, all the questions I have thrown out here remain unanswered and must be seen in the context of the bigger picture, where there has been a huge amount of recognition of the need to move forward on issues of Garda accountability. Everybody now accepts there will be an independent police authority and a beefed-up GSOC. However, it will not be possible to move on in the future unless the truth about the past is known. How could GSOC work with An Garda Síochána with these issues unanswered? It is not fair to either party that this situation would pertain. In justice to all concerned, Members must go back to the drawing board on this. The only way to find out what really happened is to have a properly constituted commission of inquiry. It also is necessary given the level of the breakdown in trust and the breakdown in procedures that clearly existed. While it was no secret that this was the case with regard to former Commissioner, Martin Callinan, and GSOC, it also is the case with many of the higher ranks inside the Garda. As recently as a couple of weeks ago, representatives of Garda organisations went public to state that GSOC was not a fit body for their Members to approach. There is a huge problem in this regard and it will not be possible to move forward in the manner indicated by the Minister without addressing the issues of the past. This is the living past.

Moreover, Members should remind themselves that they are not dealing with some kind of Mickey Mouse outfit here. Verrimus is a company of serious repute with high credentials and it has stood over its findings and the manner in which it has conducted itself in this situation. In fairness, nothing in this report contradicts that position on its part. When the Minister responds to this debate, I ask her to deal with the issue of lawful surveillance, because there are a number of areas where lawful surveillance could have taken place and Members would be none the wiser. However, they do know with absolute certainty that unusual events were happening, such as attempts to breach surveillance, unusual physical sightings of people who were unexplained, photographers and the like. There still are no answers, and the Minister's new reign, as it were, will be judged on whether she is prepared to rock the boat. My own feeling is that the possibility of vindication of the gardaí who were bugging GSOC would be enough to bring down the Government. Therefore, I am not surprised that the report did not find that, but the questions still remain.

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