Alan Shatter (Dublin South, Fine Gael) | Oireachtas source

I welcome publication of the Cooke report and the careful and detailed consideration given by retired High Court judge John Cooke into reports of unlawful surveillance of GSOC's offices. These matters, of course, first came to public notice in a revelation in an article in The Sunday Timesof 9 February 2014. I welcome Mr. Justice Cooke's finding that the article contains misinformation and that "it is clear that the evidence does not support the proposition that actual surveillance of the kind asserted" in the article "took place and much less that it was carried out by members of the Garda Síochána". As Minister for Justice and Equality, I dealt with these matters in a straightforward, truthful and comprehensive way on the basis of information available to me. Both inside and outside this House, the Taoiseach and I were pilloried for referencing GSOC's statutory obligation to report its conducting a public interest investigation to me, as the then Minister for Justice and Equality, and I welcome the conclusion of Mr. Justice Cooke that such mandatory obligation exists, as I informed the Dáil, under section 103 of the Garda Síochána Act 2005.

On RTE's "Morning Ireland", the day after publication of the Cooke report, the chairman of GSOC, Mr. Simon O'Brien, explained GSOC's failure to provide a statutory report until 13 February 2014, four days after publication of the The Sunday Timesarticle, on the basis that "events overtook us" and referenced The Sunday Timesarticle. I note that Mr. Justice Cooke recounts that on 25 November 2013, Mr. O'Brien recorded in his personal log:

This investigation is now closed. I need to think about reporting. This will be difficult, we have found nothing.

I do not regard the explanation of Mr. O'Brien given on RTE as credible and I believe the only reasonable conclusion to be drawn from the fact that no report was furnished to me was that the finding of "nothing" in the public interest investigation was an embarrassment. What was said on RTE is sadly an indicator that GSOC has not learned from these events.

There of course always will be tensions between a police force and an independent body established to investigate allegations of police misconduct. However, in late September and early October, when GSOC first learnt of two of the alleged technical anomalies, new protocols had only just then been put in place, at my urging, to resolve difficulties that had arisen between An Garda Síochána and GSOC. Its approach to the matter, therefore, should not have been "heavily influenced by the atmosphere of frustration and tension that had arisen ... between GSOC personnel and the senior ranks of An Garda Síochána" as referenced by Mr. Justice Cooke. I believe it also is disturbing that when appearing before the Oireachtas Joint Committee on Public Service Oversight and Petitions, the GSOC commissioners were so imprecise and unclear in their presentation as to fuel speculation that my first statement to the Dáil was inaccurate in circumstances in which it was entirely based on their verbal and written briefing. No effective steps were taken by them to correct that perception. The work GSOC does is of crucial public importance and it is essential that there is public confidence in the leadership provided by GSOC commissioners, that they comply with and respect their statutory obligations, that when conducting an investigation they assume those subject to the investigation are innocent until proven guilty and that they truthfully present to the Minister of the day, as well as to the public, actions taken by them. In this context, I believe the conduct of GSOC's commissioners and the narrative and conclusions of Mr. Justice Cooke raise genuine concerns as to GSOC's capacity to undertake and comply with its statutory duties under its present leadership. This is an issue that must be addressed before any additional statutory powers are extended to that body by new legislation.

As Members of the House are aware, the Cooke inquiry was announced on 19 February last. Eight days later, on 27 February, the Guerin inquiry was announced. Each was requested to report "within eight weeks" or "[as] soon as may be thereafter". The documentation, public bodies and individuals of relevance to the Guerin inquiry were far more extensive than those of relevance to the Cooke inquiry. Many more allegations were made by Sergeant McCabe than there were issues to be considered by Mr. Justice Cooke. There was, however, a connectivity between the two reports. The reports and documentation of GSOC, the manner in which GSOC undertakes investigations and reaches conclusions, its statutory role and engagement with An Garda Síochána, its relationship with the Minister for Justice and Equality, the circumstances in which it deems it appropriate to conduct a public interest investigation and its competence and professionalism were of relevance to both inquiries.

There is an extraordinary and stark contrast between the approach of Mr. Justice Cooke and that of Mr. Seán Guerin SC in their dealings with GSOC and in the manner in which they conducted their inquiries. Although the issues to be addressed in the Guerin report were more extensive than those to be addressed in the Cooke report, Mr. Guerin completed his report within a much shorter timeframe - nine and a half weeks - than Mr. Justice Cooke, who completed his in 15 weeks. On 6 May, the Guerin report was furnished, together with a little-noticed letter in which Mr. Guerin expressed his regret for failing to furnish the report within the time period mentioned in paragraph 8 of his terms of reference. An examination of the report illustrates the extent to which he inexplicably focused on the request that he report within eight weeks of 27 February last and ignored the latitude given to him to report "[as] soon as may be thereafter", the latter being language clearly facilitating his taking such time as was required to properly complete his work. I am very puzzled as to why Seán Guerin did not take the additional time necessary to properly complete his work and why he rushed to judgment.

In contrast, Mr. Justice Cooke, in paragraph 5.9 of his report, notes that he did not conclude his inquiry within a period of eight weeks, and explained that "the correspondence exchanged in dealing with conditions, objections and queries raised on behalf of GSOC and of Verrimus as its 'servant or agent' " affected the time required to conduct the inquiry and that the timescale was "prescribed before it was known that GSOC would be simultaneously required to cooperate with two Inquiries".

Both reports recount that GSOC instructed Arthur Cox Solicitors to assist them with the inquiries and in the preparation of documentation and statements. Both reports recount that GSOC's lawyers prescribed conditions to be complied with for reading documents regarded as sensitive, confidential or privileged. Judge Cooke had no difficulty in agreeing appropriate arrangements and in attending at GSOC's offices to access and read all relevant documentation. I do not understand why Mr. Guerin did not do the same.

In addition, to comply with fair procedures, Judge Cooke met with the GSOC Commissioners and their lawyers, raised questions for them to answer and ultimately met with them:

to clarify some points that had arisen during the inquiry and to afford them an opportunity... to comment upon the conclusions to be expressed in the report.

Mr. Guerin's approach to GSOC and others affected by his report could not have been more different. Four days after Judge Cooke had attended at GSOC's offices to examine documentation, Mr. Guerin received a letter from GSOC's solicitors raising what the Guerin report refers to as, "preliminary legal and practical issues" and which stated that GSOC had, "voluminous relevant documents" and "was anxious to cooperate". Bizarrely, for some reason I do not understand, Sean Guerin, in his report states, "there was no practical reality to 'voluminous documents' being reviewed at that late stage". He criticises GSOC for not making relevant documents available to him earlier. He affords no recognition to the fact that GSOC was simultaneously engaged in two separate inquiries and, unlike Judge Cooke, he never met with any member of GSOC. Moreover, in his letter of 6 May to Martin Fraser, Mr. Guerin acknowledges that GSOC's seeking safeguards relating to making documentation available to him was, "not unreasonable". However, in that letter, he complains that he was given no indication of GSOC's concerns, "until the process of drafting the final report was well underway", and that he had, "no opportunity to review such documentation with the care required". This is astonishing. I would like to know why Mr. Guerin thought he had no opportunity to review GSOC's documentation with the care expected; why the drafting of the final report was "well underway" without his having read and considered this documentation without meeting others affected by his conclusions; why he completely failed to observe fair procedures in accordance with constitutional and natural justice. His terms of reference allowed him all the time he needed to properly complete his work. What was his hurry?

With regard to GSOC, Mr. Guerin partially explains his failure by attempting to minimise the importance of GSOC's role and recounts that it became involved in a small number of the cases he reviewed. This assertion is disingenuous. For example, GSOC was central to determining complaints of Garda misconduct with regard to serious offences committed by Jerry McGrath, one of which involved an alleged catastrophic Garda failure which, if it had not occurred, may have resulted in McGrath being held in custody on the tragic day in December 2007 when he murdered Sylvia Roche Kelly.

It was right that Mr. Guerin met with Sergeant McCabe for as long as he deemed necessary. It is a mystery to me, however, as to how he believed he was properly fulfilling his remit and his obligation to observe fair procedures to reach accurate conclusions and make recommendations by meeting for 19 hours with Sergeant McCabe, but meeting with no one else whose good name, reputation and credibility could or would be affected by his report. Unlike Judge Cooke, he made no arrangements to meet with any persons so affected, to raise any questions with them or to give them an opportunity to address any draft conclusions reached by him. There would have been, of course, no difficulty in his doing so; he simply chose not to.

Paragraph 2 of the terms of reference enabled Mr. Guerin to interview not only Sergeant McCabe but also:

any other such person as may be considered necessary and capable of providing relevant and material assistance in his review... and to communicate with An Garda Síochána and any other relevant entity or public body in relation to any relevant documentation and information and to examine what steps, if any, have been taken by them to investigate and resolve allegations and complaints [referred to him].

I believe most people would regard me, as the then Minister for Justice and Equality, as a person who could have provided relevant and material assistance. I believe that fair procedures and the principles of natural and constitutional justice required that Mr. Guerin should have interviewed me or at the very least, communicated his concerns and questions to me in writing and afforded me the opportunity to address them and also to address his draft conclusions which he had to know would render my continuing in the office of Minister for Justice, Equality and Defence, untenable.

I believe had I been given the opportunity, I could have provided comprehensive information detailing the substantial attention I gave to allegations made by Sergeant McCabe and to use Mr, Guerin's words, my heeding and acting on what he had to say. In doing so, I could have also detailed obstacles and difficulties of relevance that would have shed light on aspects of the background into which he had no insight. I also believe there was no basis for Mr. Guerin's conclusions that there were grounds for concern that I did not understand my independent statutory role, as there was no question, as he suggests, of my simply accepting the views of the Garda Commissioner without question. Unfortunately, I was given no opportunity by him to address these matters and I believe these conclusions reached by him to be substantially outside the remit of his terms of reference. The result of Mr. Guerin's report was to render my continuing as Minister untenable and, as a consequence, I resigned my position. That is done. However, the process involved and the failure to adhere to fair procedures has serious and wider implications.

I believe all of us should be entitled to know that we cannot, by way of any form of inquiry or review or other means, be secretly put on trial; have charges levied against us of which we have no knowledge; be prosecuted without being informed of the evidence and convicted without being given the opportunity to speak or defend ourselves. I believe that the unprecedented approach to this review and examination or preliminary inquiry which was undertaken and conducted must never be repeated. I believe no one in the future, requested to undertake such a task, should be enabled to take onto himself or herself the role of investigator, prosecutor, judge, jury and executioner and to ignore entirely fair procedures prescribed by our courts and which are specifically prescribed for the undertaking of a statutory inquiry under the provisions of the Commissions of Investigation Act 2004.

I do not believe it was ever envisaged that a preliminary inquiry and scoping exercise to determine whether a statutory inquiry should take place could be so utilised as to undermine totally the fair procedures architecture which is a central core of the Commissions of Investigation Act 2004. Preliminary inquiries or reviews should not facilitate the bypassing of essential human rights protections incorporated in the 2004 Act. For my own part, I never anticipated that a practising senior counsel, asked to consider independently the serious issues detailed in his terms of reference, could or would so ignore basic principles of constitutional and natural justice and fair procedures which have been repetitively pronounced upon and endorsed by our courts at the highest level. These principles are crucial to the rule of law and ignoring them places in peril a value system crucial to the well-being of all our citizens and of all who reside in the State. To ignore them is to endorse the creation of kangaroo courts as dramatically depicted in Franz Kafka's book, The Trial.

It is clear from the Guerin report that its author understood what was required in the context of fair procedures. For example, in chapter 5 of his report, he castigates An Garda Síochána for not affording Sergeant McCabe an opportunity to comment on evidence uncovered in an investigation resulting from a complaint he made and references his entitlement to so comment as being an "important procedural right" and the failure to enable him to do so as resulting in, "a fundamental procedural flaw in the investigation." Moreover, he states, in the context of the statutory inquiry that he recommends to examine further Sergeant McCabe's allegations:

[following] an opportunity to hear evidence from the individual members and officers of An Garda Síochána and civilians, including victims of crime, involved in these matters, a different view of the facts could emerge.

The startling omission from his report is an acknowledgement that, "with the benefit of an opportunity to hear evidence" from me, as the then Minister for Justice and Equality, or from some others, "a different view of the facts could emerge" as to my dealing with Sergeant McCabe's allegations and my taking heed of his concerns. Of course, even if this had been expressly stated by him, it would have been no substitute for applying to me the ordinary rules of fair procedure instead of rushing to judgment with obvious consequences.

I believe that I am entitled to an explanation for the approach adopted in the preparation and finalisation of the Guerin report and to an explanation as to why conclusions were reached and a factual finding made that, as Minister for Justice and Equality, I did not heed what Sergeant McCabe had to say, without my being interviewed or a single question put to me or to departmental officials. I believe I am entitled to know, as are Members of this House, why the Guerin report was so hastily and prematurely completed in comparison to the approach and time taken to complete the Cooke report. My accusation is that it is a fundamentally flawed preliminary inquiry and report and an unprecedented rush to judgment. As a prosecuting counsel, Mr. Guerin must know that the manner in which he conducted his role and some of the conclusions reached by him would not withstand court scrutiny.

Unfortunately, I do not have the time available in this debate, to detail all the omissions and inaccuracies in the Guerin report which I could have addressed had Mr. Guerin interviewed me. There is, however, a particular issue to which I wish to refer.

Chapter 19 of the report deals with the role of the Department of Justice and Equality. In paragraph 19.89 the report purports to summarise "advice" received from an official in the Office of the Attorney General, of whom I make no criticism, on 18 December 2013. It states:

The substance of the advice related to the three booklets of allegations that were received by the Minister under cover of the letter of 4September 2012 from Sergeant McCabe's solicitors. The advice was to forward the two booklets relating to complaints of malpractice and corruption to the Minister "without further ado". It was said that, if there was any issue with such a course of action, it was for Sergeant McCabe's solicitors to say so earlier in the correspondence. The advice in relation to the third booklet was that it be returned to Sergeant McCabe's solicitors, in light of the existing proceedings in relation to alleged harassment.

Paragraph 19.90 states: "It is unclear whether or not the documents were ultimately forwarded to the Commissioner."

Any reading of this extract from the Guerin report could only conclude that officials were advised to furnish two files of documentation to me in December 2013 and that, having received these files, I did nothing. In fact, Mr. Guerin has misquoted the letter, which actually advised that the two files concerned be furnished by officials of the Department of Justice and Equality to the Garda Commissioner and that no copies of the documents be retained in the Department. It makes no reference whatsoever to their being furnished to me.

The first I learned of this letter was upon my reading of the Guerin report and I sought a copy of it following my resignation. As it was at my request that departmental officials sought advice from the Attorney General's office, I do not know why this letter was not furnished to me upon its receipt in the Department, nor was I at any time verbally briefed on its existence or content, contrary to the impression that may have been given by the Secretary General of the Department in his recent presentation to the Joint Committee on Justice, Defence and Equality.

Crucially and inexplicably, Mr. Guerin omitted a substantial portion of the letter from his report. The missing portion leaves no room for doubt that, on 18 December 2013, it was the view of the Attorney General's office that the existing statutory mechanisms for addressing Sergeant McCabe's allegations should be relied upon and no mention is made of the need for a statutory inquiry. Critically, the advice contained in this letter, written approximately two months before Mr. Guerin's appointment, is the exact opposite of the course of action recommended in the final chapter of the Guerin report, a course of action I am criticised in the report for not taking.

I doubt that at the time the Guerin report was furnished to the Taoiseach and he sought the advice of the Attorney General on it, the Attorney General was aware of the full content of this letter. I believe it is probable that all the Attorney General and Taoiseach knew of it was derived from paragraph 19.89, which is open to the mistaken conclusion that I failed in some respects in my statutory obligations as Minister. If the report had accurately and comprehensively detailed the full content of the letter and my background involvement in seeking advice from the Attorney General's office, the letter could not have formed the basis for any such conclusion.

In my letter of resignation I expressed support for the holding of a statutory inquiry, as it is clear from the Guerin report that there existed correspondence, documentation and information that should have been but was not furnished to me as Minister, and there are clearly issues of importance that should be comprehensively and transparently addressed in the public interest. It is important that, prior to the terms of reference being finalised and cast in stone, there be a further opportunity for them to be considered in the House. I am conscious that I do not have the time, nor would it be appropriate, to address these matters in detail today. I merely wish to briefly reference four matters.

If the statutory inquiry is to be comprehensive, it should include all cases dealt with in Bailieborough Garda Station which have given rise to complaint. There is a matter which has been the subject of articles in the Irish Independent, which included a report of Deputy Micheál Martin meeting an individual who alleges she was the victim of a sexual assault and her complaint was not recorded on the PULSE system and did not result in a prosecution. I understand from the newspaper report that Deputy Martin was to provide information on this matter to the Taoiseach and I presume he has done so. This case should clearly form part of any statutory inquiry.

It is clear that, in mistakenly finding that I paid insufficient heed to Sergeant McCabe's allegations, the Guerin report substantially ignored the relevance of action taken with regard to the fixed charge notice issue. This action included seeking and obtaining a report from the independent Garda Inspectorate, fully accepting recommendations made by the Garda Inspectorate and, when new allegations emerged, asking the Garda Síochána Ombudsman Commission to conduct an investigation. The terms of reference should ensure this omission is not repeated, as there is a clear connection between this matter and any consideration of the extent to which I took Sergeant McCabe's allegations seriously.

Sergeant McCabe's conversations and dealings with the Garda confidential recipient are also of relevance if the full background is to be understood, as are any steps taken by the then confidential recipient. It is my view that the terms of reference should be so extended. All of these matters have been in the public domain and it is in the public interest that they be fully examined.

Any recording or transcript made of Mr. Guerin's 19 hours of conversation with Sergeant McCabe should be provided to the statutory inquiry to assist it in its work. I presume such material exists, and this matter should be clarified.

I stand by the rule of law, the personal rights protected by our Constitution and the European Convention on Human Rights, the core principles of constitutional and natural justice and the core values of this State and the European Union, whose objectives include ensuring that justice is not arbitrary and that no body or individual can trample on such rights, including the right of all to receive a fair hearing where allegations are made against them. The issues I have raised today are of a general importance that is far greater than any impact on me personally resulting from recent events.

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