Alan Kelly (Tipperary North, Labour) | Oireachtas source

Please be assured that I have been here a long time and I have seen what is brought up in relation to Bills. I was made aware of this Garda operation some time ago. It was months ago, long before this young man took his own life. Members will be aware that journalist John Lee wrote about it in the Mail on Sunday. So much has happened in this case that does not add up. This creates a nervousness for me regarding this new legislation. It is clear and obvious that what he was doing was totally wrong. None of us can argue that. I hope the Minister will reflect in a deeply honest way on what I am saying. He was wrong; he was a vulnerable young man. He was also something else, though. He was a young man who loved his family. He was incredibly close to his childhood friends, and I know this to be true. Considering the legislation we are looking at, it is true to say that he had a fascination with guns. An Garda Síochána has admitted as much. However, given what we are talking about, Evan Fitzgerald was not a terrorist. He was not involved in organised crime, or any crime, for that matter. He took his own life. He could not see any way out and he felt so bad about everything that happened, particularly in relation to his two friends and their families. What these Houses need to ask is whether he needed to end up in that situation, in that dark hole.

It is ironic, given the legislation we are discussing, that the Garda today detailed in the Irish Examiner how it uses controlled deliveries. Why it feels the need to put this out there, I have no idea. I have no issue with controlled deliveries when used appropriately for reasons related to terrorism or organised crime. It is, by and large, good policing. However, they have to be used appropriately. I have serious concern when they are used on a vulnerable young man who, as a consequence of An Garda Síochána's actions, took his own life very publicly and had, I have no doubt, an impact on many other people in that shopping centre.

I understand the HK G3 military assault rifle delivered to him was stolen by the Provisional IRA from Norwegian reserves in 1984 and recovered by An Garda Síochána well over 20 years ago. I cannot understand, and never will, why the Garda did not take a different strategy, especially after meeting him, observing him, talking to him, following him and profiling him. The critical question is why there was not a knock on the door. Was it necessary to expend weeks in costly operations involving some of the most important Garda units to entrap this young man? Was it necessary to arrest him in the manner in which they did, smashing the windows of the car he was in, when they knew there was no threat? The other critical question is why An Garda Síochána needed such a big win. Why did the Garda agree to bail if he was such a big threat and warranted such a costly and high-profile Garda operation?

I want to raise some critical issues. One relates to the evidence given in court by the garda in March 2024. I have a direct request for the Minister. It is one I hope he reflects on because I believe him to be a decent man. I ask him as Minister for justice to read over the DAR, which is the report of the court sitting where Evan and his two friends were charged. There needs to be full accountability on this from the Garda Commissioner down. Maybe the Minister should sit down with the Garda Commissioner on it. Please, please, please read the DAR.

We cannot tolerate untruths being told to a District Court judge. In the Seanad on Tuesday, Senator McDowell said the same. Not alone was it a case of entrapment, but what was said in the court was not accurate. It was not true. Amazingly enough, An Garda Síochána said in the media that it was unaware of a judge having been misled. It was again answering a question it had not been asked. It said it was unaware of any court case where a judge categorically stated that a member of An Garda Síochána had misled him or her. How could the judge say that when the judge was not aware? The judge was told, and this was read into the record in the Seanad by Senator McDowell, that the arms were bought on the dark web. The judge later asked:

"When you say the dark web, do you have any idea who was selling them on the dark web?" A member of An Garda Síochána, in sworn evidence, told him, "That is an ongoing investigation. At this stage I wouldn't want to", and the judge said, "Compromise the trial", and [then the garda] said, "[This] is an ongoing investigation on the dark web."

We now know the guns and ammunition were supplied by An Garda Síochána, not on the dark web or by anyone else. Senator McDowell said:

It is a shocking thing... that untrue and misleading evidence would be given to a judge of the Irish District Court in these circumstances, leaving him in the dark that these were decommissioned weapons supplied in a controlled delivery by members of An Garda Síochána [to set up] one naive [young] man[.]

The central issue is that any deception - I use that word in the sense of a deception for the right reasons - in executing a worthy Garda operation needs to end when the independent, impartial judicial process begins. Does the Minister get that? It did not happen in this case. If John Lee in theIrish Mail on Sundayhad not raised this issue, I am not sure we would have ever known. The book of evidence was served after his articles were published and we do not know what Evan Fitzgerald knew about the entrapment before he took his own life.

There are no legitimate circumstances when the Judiciary is deliberately kept in the dark by misleading evidence concerning the substance of what precedes the exercise of the judicial function. If controlled delivery involving deception is legitimate and justified to produce evidence of guilt, once the evidence is brought into existence, the right to deceive falls away when the judicial function is invoked. The judge is entitled to expect the whole truth to be tendered in evidence, as required by the oath. In this case, informing the judge that the source of the firearms was under investigation was not true. The source was known to the Garda. The untrue evidence tendered was intended to conceal the truth from the court and the persons charged. The true source of the firearms and the fact they had been rendered useless were relevant to the bail decision, the judicial process and judicial discretion.

The Minister needs to deal with this. This is not going away. The follow-up by An Garda Síochána since Evan Fitzgerald took his own life is also worrying. The briefings from security sources that people like me and Senator McDowell - and I hope others will take an interest in this now - should not be speaking up on this issue and that such commentary was manna from heaven for organised crime groups is insulting to both Chambers. We are entitled to ask legitimate questions. I think I have said enough to show these are legitimate questions. Why did I have to tell the Minister about this? He has admitted I rang him in relation to this case. I appreciate the fact he has acknowledged that and that he took those calls, but surely under section 36(1) of the Policing, Security and Community Safety Act 2024 the Garda Commissioner should have done so because the Minister did not have a clue. Maybe his Department knew; I do not know that. In fairness, the Minister, I gathered from the tone of the call, did not know. I am not saying he did not have a clue in a derogatory way. I am saying he genuinely did not have a clue, in fairness to him.

There were reports of a manifesto on a USB key left by Evan. I understand there is no manifesto. Why was that put out there? The Garda keeps saying this issue was investigated by Fiosrú, the new GSOC. Miraculously, considering the length of time numerous investigations by this organisation have taken over many years, it turned this around in three weeks. That is not what happened. There was no investigation. If there had been, surely all the gardaí involved would have been interviewed, and so would many others. Indeed, I might have been interviewed myself. The journalists might have been contacted but they were not.

The Garda Commissioner has been asked to send details to the justice committee of what was sent to Fiosrú. I look forward to seeing that. I presume it was the file on the case and possibly the newspaper articles by John Lee about the case. The Minister's Department said on 10 May that it was aware of the case but could not comment because it had been sent to Fiosrú. The Garda Commissioner has confirmed it was sent to Fiosrú on 21 May, so I do not get how that was said on 10 May. More importantly, I believe there is a real issue here for Fiosrú, a new organisation commencing its work. I said in this House that GSOC had lost all credibility because of the way it was dealing with cases. Fiosrú has an opportunity to start afresh but this is a case that needs to be looked at.

There has to be an investigation in this case. I commend the Minister because he rang me about it. He did the right thing when it came to the Shane O'Farrell case. He now needs to show courage in the Evan Fitzgerald case. I will commend and thank him if he does so.

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