Joe Costello (Dublin Central, Labour)
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Question 2: To ask the Minister for Justice, Equality and Law Reform if he will establish under the Commission of Investigations Act 2004, an inquiry into the deaths of persons (details supplied); and if he will make a statement on the matter. [29917/05]

Michael McDowell (Dublin South East, Progressive Democrats)
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I would like to express my sympathies again to the families of Terence Wheelock and Brian Rossiter on the untimely deaths of their sons.

I will speak firstly about the death of Terence Wheelock, who had been detained in Store Street Garda station. I have been informed by the Garda authorities that an officer from outside the division was appointed to investigate the incident immediately after it occurred. When he visited the scene on the day of Mr. Wheelock's death, he arranged for a full technical examination to be conducted. I have received a preliminary report of the investigation and I have asked the Garda authorities to submit to me a full report on the outcome of their investigation when it has been completed. I will consider the report after it has been received. A completed investigation file will be submitted by the Garda authorities to the law officers for their consideration.

On 14 September last, I formally appointed Hugh Hartnett SC to hold a statutory inquiry into Brian Rossiter's death under section 12 of the Dublin Police Act 1924. As the Minister responsible to the Government and the House for the Garda Síochána, I drew up the specific terms of reference of the inquiry following a comprehensive evaluation of all the information at my disposal. The inquiry will examine all the circumstances surrounding the late Brian Rossiter's arrest, treatment and detention in Clonmel Garda station in September 2002. Mr. Hartnett will report on his findings to me. It is my intention to publish that report. It is relevant to mention that Mr. Hartnett is an eminent senior counsel with considerable experience in the area of criminal law. He is, for relevant and practical purposes, vested with the same inquisitorial tools as a member of a commission of investigation would be. He has the power to summon witnesses, whether members of the Garda Síochána or otherwise; the power to take evidence on oath; and the power to make findings and reach conclusions. In such circumstances, I do not intend to propose to the Government that a separate statutory inquiry be established under the Commissions of Investigation Act 2004. Such a proposal would, at the very least, compromise the ongoing independent statutory process, which should be capable of the thorough and speedy investigation of the relevant facts in the Brian Rossiter case.

Joe Costello (Dublin Central, Labour)
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Is the Minister aware that Terence Wheelock's family and their lawyer are in the District Court as we speak, seeking the return under the Police Property Act of Mr. Wheelock's clothes and telephone, which were taken by the Garda without permission four and a half months ago? Mr. Wheelock's family has been continually refused answers to some important questions. Who arrested Terence Wheelock? Who found him in the cell? Why was the cell totally refurbished after Mr. Wheelock's family and their lawyer sought to see it but before they were given a chance to do so? Why has the pathologist's report been kept from them? Is the Minister aware that the superintendent who was supposedly brought in "from outside the division" had served as a garda in Store Street Garda station for 15 years? Why was the superintendent in question, who is currently based in Dún Laoghaire but cannot be said to be "from outside the division" in any real sense, appointed to conduct the investigation? Why has his report not yet been made available, four and a half months after the death of Mr. Wheelock?

The pathologist's report on the death of Brian Rossiter has been received. Can the Minister explain why the Department of Justice, Equality and Law Reform did not reply to the family of Brian Rossiter for a considerable period of time? The pathologist's report indicates that Brian Rossiter died from head trauma, probably caused by his head contacting forcibly with a wall or a solid rough surface. It indicates that there was serious bruising to his eyes and other parts of his body, including his penis. The impression given to the State pathologist was that there were drugs and alcohol in Brian Rossiter's body, but no drugs and alcohol were found in his body. The Minister said the inquiry that has been established under the Dublin Police Act 1924 is as good as any inquiry that would have been established under the Commissions of Investigation Act 2004. I would like to quote from Mr. Hugh Hartnett's warrant of appointment. Mr. Hartnett has been appointed to inquire "into the truth of any or all of the members of the Garda Síochána——

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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It is not appropriate to quote during Question Time.

Joe Costello (Dublin Central, Labour)
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I am quoting from the warrant signed by the Minister.

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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It is not appropriate to quote from it.

Joe Costello (Dublin Central, Labour)
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Why did the Minister provide in the warrant of appointment that Mr. Hartnett's powers of investigation would be limited to examining on oath whether "any or all of the members of the Garda Síochána (referred to in the schedule below)" were in neglect or in violation of duty? Why are just seven members of the Garda referred to in the schedule? The garda who was in charge of Clonmel Garda station at the time has since retired. As he is no longer a member of the force, he cannot be investigated under the police Act. I ask the Minister to reconsider the need for accountability and transparency to be shown to the public and the families in both these cases. He should establish, under the Commissions of Investigation Act 2004, a proper and open investigation that will be seen to be transparent and accountable in both cases.

Michael McDowell (Dublin South East, Progressive Democrats)
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I am satisfied that the Garda Síochána is fully and properly investigating the unfortunate death of Terence Wheelock. Deputy Costello made a number of points. I have been informed that Mr. Wheelock was found hanging from a ligature that was tied around his neck and suspended from a permanent fixture in the cell, which was an alarm buzzer panel. I have been further informed that the ligature used was the cord from the waistband of Mr. Wheelock's tracksuit. Deputy Costello should be aware that the cell in question was subsequently altered to recess the alarm buzzer into the cell wall. Photographs were taken of the ligature in situ before that work was carried out.

Joe Costello (Dublin Central, Labour)
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Neither Mr. Wheelock's family nor their lawyer was informed of that.

Michael McDowell (Dublin South East, Progressive Democrats)
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I am simply informing the Deputy of my understanding of the circumstances in question. He will appreciate that the cell continues to be in daily use. When the Garda discovered that a ligature had been suspended from the alarm button in such an unlikely manner——

Joe Costello (Dublin Central, Labour)
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That is the story.

Michael McDowell (Dublin South East, Progressive Democrats)
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——the responsible thing to do was to photograph the panel as it was found and to replace it so that it could not be used in such a manner again. If an event of this nature was to happen again, I am sure Deputy Costello would be the first to say that to leave the panel in such a condition was evidence of gross Garda negligence. I wish to clear up any doubt by reminding the House that such events will be investigated by the new Garda ombudsman commission on an automatic basis from now on. The sooner the commission is up and running the better, as far as I am concerned. The House is familiar with the efforts I made to ensure the legislation establishing the ombudsman commission was pushed through. I am not aware of any reason to suspect that anybody other than Mr. Terence Wheelock was involved in the events which led to his death. It is not fair to create an alternative impression.

I do not want to prejudge the outcome of the inquiry into the death of Brian Rossiter by responding to some of the remarks made by Deputy Costello. Mr. Hugh Hartnett has been asked to inquire into the various issues and he will do so. If a commission of inquiry were established, it would proceed in private. Commissions of inquiry do not operate in public.

Joe Costello (Dublin Central, Labour)
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I did not mention privacy.

Michael McDowell (Dublin South East, Progressive Democrats)
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Tribunals of inquiry operate in public, but commissions of inquiry do not. Deputy Costello should consult the relevant legislation for further details. It was always likely to be a private inquiry, unless the Deputy would have preferred me to have established a public tribunal of inquiry. I hope Mr. Hartnett's inquiry will proceed rapidly to investigate all the issues involved. I do not accept Deputy Costello's point about former members of the Garda. If the Deputy were correct, it would mean that every inquiry under that statute, whenever established, could simply be brought to an end by a garda handing in a letter of resignation. That is a proposition I do not accept as legally valid. Perhaps I am wrong on that point and the High Court will tell me different but it would be an unusual construction of a statute if it stated that a member who was under investigation by a statutory tribunal could bring it to an end by simply handing the Garda Commissioner his resignation from the force.

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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I call Question No. 3.

Joe Costello (Dublin Central, Labour)
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I wish to ask a further supplementary question.

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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We have a serious logistical problem.

Joe Costello (Dublin Central, Labour)
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I have just one priority question.

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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I appreciate that. When I called the Minister to respond to the supplementary, the Deputy had used four minutes. The six minutes allotted for the question had concluded. To be fair, I used my discretion and allowed the Minister to answer questions because I thought the Deputy would wish to hear the answers. However, we have gone three minutes over time on the question. I must call Question No. 3 at this stage. It is 3.50 p.m. We should be on——

Joe Costello (Dublin Central, Labour)
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Perhaps I could ask the question and the Minister could respond at a later time.

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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Maybe so, but I call Question No. 3 at this stage.

Joe Costello (Dublin Central, Labour)
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Could I briefly ask——

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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No. It is 3.50 p.m. At this stage we should be on the fourth question but we have not yet begun the third.

Joe Costello (Dublin Central, Labour)
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The Minister——

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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That question went for nine minutes.

Joe Costello (Dublin Central, Labour)
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The Minister has not replied as to why the inquiry was established under the Dublin Police Act.

Rory O'Hanlon (Cavan-Monaghan, Ceann Comhairle)
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I am sorry. I call Question No. 3.