Clare Daly (Dublin Fingal, Independent) | Oireachtas source

In some ways, the report is a little like the much-awaited sequel to a Hollywood blockbuster: the second version never really cuts it like the first. That is not a reflection on Fennelly but it is a reflection on the fact that despite the hyping up of this issue, it was never a case of covert mass surveillance of the population ruthlessly organised by An Garda Síochána. That is not to say I do not think the Garda is morally capable of that; I just do not think it has the wherewithal. It is too disorganised to pull off something of that nature. Mr. Justice Fennelly gives an incredibly accurate portrayal of the technical, procurement and management systems that led to this debacle in the first instance.

He gives a very good legal oversight of the illegality and unlawful nature of this practice and he should be complimented on that. What does it say that the Government and the hierarchy can take relief and breathe a sigh saying it was only ignorance and that it was not malpractice, and thank God we are not corrupt, we are only incompetent? What the Fennelly report says is scathing. The report says "senior management of An Garda Síochána failed to formulate or promulgate any policies or directives", that there was a "failure to draw up any formal set of rules" and "that there was a great deal of confusion, amounting to ignorance", "fundamental and regrettable defects in how the NICE recording system was managed", and so on. Mr. Justice Fennelly said the decision to set up the system in the first place was based on a misunderstanding by the fella who signed the order, and then it was just built upon after that. If one reads the report, across the whole thing we have statements being made which say one thing and the gardaí who read them - or do not read them - drawing a different conclusion.

It is incredible, unbelievable stuff which amounts to mass ignorance, until it gets to the Holness case in Waterford. Let us remember, that was the first time GSOC initiated a criminal investigation. Three gardaí were convicted of assaulting a citizen. It was a very serious case in the course of which evidence was attempted to be introduced of phone calls, including from those stations. The judge said the recordings had been obtained in an unlawful manner and were therefore inadmissible. It is very clear in the Fennelly report that that information was immediately given to the hierarchy of An Garda Síochána. It is also clear that former Commissioner Callinan acted upon it straight away. He sent an instruction to Nóirín O'Sullivan to ask what were the legal implications of the ruling, an explicit ruling which said it was unlawful and there were questions regarding the evidence. We know that Assistant Commissioner Ludlow also faxed Nóirín O'Sullivan about that. She responded in one instance in response to John O'Mahony saying that he should report on the question as a matter of urgency but he did not and she did not follow it up. Years later, they said they did not actually know it meant non-999 calls, even though when GSOC wrote to them it specifically spelt out that it was questioning the lawfulness of incoming and outgoing phone calls. How could an outgoing phone call be a 999 call? It was very clear what they were being told but either they did not have the ability or did not care enough to take it to its logical conclusion. That in and of itself is disgraceful. It is also disgraceful that they did not consider, even without the Holness case, the question of the legality of the entire practice to begin with, in particular in light of the phone tapping scandals in the State previously. Those points need to be taken further as they are very serious.

I wish to put on record that the handling of the situation by the former Commissioner Callinan, as we said following the previous report, was perfect. It could not be faulted. Of course he was not sacked because of that. It was all the other stuff which we had put on record previously and about which we said he should have been asked to stand down, but in this instance he handled it perfectly, unlike the Attorney General who, as other Deputies have said, has a huge amount to answer for. How that woman was reappointed is beyond me to be honest, because she did present an alarming picture despite the evidence that was presented to her. We know that she substantially altered the evidence she gave to the Fennelly commission. She excluded the Minister for Justice and Equality from those situations and her actions were not rational in light of her statements. They did not follow a reasonable sequence. That is the person from whom we must take legal advice on a range of issues. That is a very worrying situation and there is a lot to be answered in that regard.

The main point on which I wish to concentrate is paragraph 1(m) in the terms of reference. Mr. Justice Fennelly was asked to examine whether the recordings of the investigation into the murder of Sophie Toscan du Plantier "disclose evidence of unlawful or improper conduct by members of An Garda Síochána". The bottom line is that they did. Mr. Justice Fennelly said he viewed that term of reference as a preliminary task for the commission "to report on the existence of evidence that might warrant further investigation". The evidence the report unearthed in the tapes, which is not isolated from the evidence that was in the unpublished internal Garda report into that situation, and the court cases concerning Ian Bailey, means that does warrant further investigation. For the Government to say it will refer it to GSOC to see if it wants to have any further investigation is not good enough. The evidence is before us of a willingness to falsify, alter and suppress evidence. A young garda said Jules Thomas, Ian Bailey’s partner, was being truthful and trying to recollect the situation. Liam Hogan said: "it is in the statement, it has to be... [effing] taken out." He said they had to put a stop to this "honest man". Another garda said: "[it] undermines the whole thing" and "I will take that out so to fuck will I?" He said they could not have that. It is evidence of tampering with statements.

The Fennelly report did not rule in terms of the illegal drugs issue but the phone calls were tapped with the knowledge of the garda involved and much of the evidence would lead one to believe that there could be planting of drugs and certainly money was paid to a witness in that regard. We know of six different phone calls where Detective Garda Liam Hogan was telling everybody who rang the station willy-nilly that Ian Bailey was guilty. We know in the assault claim against Marie Farrell's husband how gardaí tried to curry favour with her as a witness in this case by pretending they were going to drop the charges. That is absolutely outrageous.

Two years ago I put on record that Ian Bailey’s legal team reckoned that the handling of his case had cost the State €40 million to €50 million. That is before all of the hours in assembling and analysing these tapes, which prove yet again the attempts made by An Garda Síochána to fit up this person, which has had an horrendous consequence on him, a huge human cost to his partner and leaves the family of Sophie Toscan du Plantier without any answers. It is particularly serious that this tainted evidence, which the DPP's report revealed previously, has been sent to France and is the basis upon which the French authorities are pursuing this man. It is not good enough. We need an independent commission of investigation now into that case.

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