Dáil debates

Wednesday, 25 May 2016

Commission of Investigation (Certain Matters Relative to the Cavan-Monaghan Division of An Garda Síochána) Report: Statements

 

3:00 pm

Photo of Alan FarrellAlan Farrell (Dublin Fingal, Fine Gael)
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I understand the Taoiseach is sharing time with the Tánaiste, Deputy Frances Fitzgerald.

Photo of Enda KennyEnda Kenny (Taoiseach, Department of An Taoiseach; Mayo, Fine Gael)
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I welcome publication of the report by Mr. Justice Kevin O’Higgins and the opportunity to speak about it in the House today. Mr Justice O’Higgins covered his terms of reference in a thorough and timely fashion. I thank him for his comprehensive report. Although the matters that gave rise to the commission are well known, I think it would be worthwhile to recap briefly the main points.

Sergeant Maurice McCabe was serving as a sergeant at Bailieborough, County Cavan, when he became concerned about the force’s handling of suspected criminal offences in late 2007. His concerns were primarily about policing practice and standards relating to the quality of investigations in the Bailieboro district. In addition, he expressed concern about compliance with proper internal Garda procedures in specific Garda investigations. He was also concerned about the manner in which his complaints were treated. Sergeant McCabe made a series of complaints directly to his superiors in the Garda, to the human resource management in An Garda Síochána, to the confidential recipient and to the then Minister for Justice and Equality, former Deputy Alan Shatter.

Subsequently, in February 2014, Deputy Micheál Martin gave me a dossier containing a note by Sergeant McCabe on a large number of different matters about which he had concerns. I immediately brought the matter to the attention of the Government and the Government appointed senior counsel Seán Guerin, to conduct an independent review of the allegations. In his report, which was published in May 2014, Mr Guerin recommended the establishment of a comprehensive commission of investigation. Mr. Justice O’Higgins was subsequently appointed as the commission’s sole member. As Deputies are aware, the commission’s report was published on 11 May 2016. The report has been referred to the Garda Commissioner for examination and to indicate what further measures might be taken to try to prevent the type of difficulties outlined in it arising again. It has also been referred to the Policing Authority given its statutory role in the oversight of An Garda Síochána.

As the House is aware, the former Minister for Justice and Equality, Mr. Alan Shatter, resigned following publication of the Guerin report in 2014. I am very pleased to acknowledge that the O’Higgins report has found clearly that the former Minister acted properly at all times in relation to the handling of allegations made by Maurice McCabe. In response to a request from the former Minister, I would also like to take the opportunity to correct the Dáil record of 7 May 2014. I am happy to state on the record that the former Minister, in resigning, did not in fact accept responsibility for criticism made in the Guerin report of the adequacy of the Department and Minister for Justice and Equality in responding to allegations made by Sergeant McCabe. The former Minister set out his reasons clearly in his letter of resignation.

In recent correspondence, the former Minister, Mr. Shatter, has raised a number of other serious issues regarding the Guerin report. These relate to ongoing litigation in the courts. For that reason, it is not possible for me to respond to these points until that process has been completed. The Government will respond when that litigation is resolved, taking account of the relevant court judgements.

Mr. Shatter also made a number of suggestions as to how any future preliminary or scoping investigations should operate. I believe that these suggestions merit further examination and consideration.

I would like to emphasise, as I did at the time of his resignation, that Alan Shatter was an exceptionally hard-working, radical and reforming Minister who has left a positive legacy across the wide range of areas for which he had ministerial responsibility. As Taoiseach, I again thank him for his service, both as a Minister and as a Dáil Deputy over many years.

The O’Higgins report highlights many significant failings in relation to the incidents it investigated and makes a series of recommendations for change. While it is important that we debate these findings, we must always remember to keep the focus on the victims of crime, many of whom were not well served in the cases examined by the commission. It is also important to put on record that a significant programme of reform has been under way since these events took place. Most important, a new independent Policing Authority has been established to oversee the performance by An Garda Síochána of its functions relating to policing services. I believe the new Policing Authority will prove to be the key structural change to ensure modernisation and reform of An Garda Síochána in the months and years ahead.

For the first time ever, the previous Government held an open and independent selection process for the position of Garda Commissioner. Legislation was enacted in early 2015 to strengthen the role and remit of the Garda Síochána Ombudsman Commission, including the power to investigate complaints against the Garda Commissioner. The Protected Disclosures Act was part of the previous Government's comprehensive approach to protect whistleblowers.

It provides a new mechanism for disclosures relating to An Garda Síochána. Now a Garda member may make a protected disclosure to GSOC, which, if it believes it is in the public interest to do so, may investigate such a complaint.

The last Government also established an independent review mechanism which has made recommendations on 320 allegations of Garda misconduct or inadequacies in the investigation of such allegations. The Garda Inspectorate has also published a number of reports recommending substantial reforms to Garda operations. Taking together previous reports of the Garda Inspectorate and the recommendations of the O’Higgins report, as well as those of previous inquiries and commissions of investigation, we now have a huge agenda of reform being progressed.

I understand that the Garda Commissioner has recently finalised a new transformation programme for An Garda Síochána which takes account of many of these recommendations. To support the reform process, the Government has also committed to significant capital investment in the Garda fleet, ICT infrastructure and building projects. I believe the previous Government made significant progress in ensuring that issues of the type that gave rise to the Guerin report and other controversies do not happen again.

I wish to assure the House that this Government will build on the progress being made. The programme for Government commits to a strong and visible police force in every community. We aim to bring Garda numbers to 15,000, to double the Garda Reserve and to increase civilianisation to free up gardaí for front-line policing. Other reforms we have committed to include measures to increase public confidence in policing, enhancing the work of the Criminal Assets Bureau, reviewing the boundaries of Garda districts and the dispersal of Garda stations, tackling crime gangs, stopping repeat offenders, and modernising our courts and legal system. The Government has re-established the Cabinet committee on justice reform to oversee progress on this reform agenda.

The O’Higgins report is further confirmation of the need for fundamental modernisation and reform of policing in Ireland. I believe that we now have the structures, resources and policies to make that reform happen. This Government, under the leadership of the Tánaiste and Minister for Justice and Equality, will focus our energy on delivering a police service fit for Ireland and its people in the 21st century.

3:10 pm

Photo of Frances FitzgeraldFrances Fitzgerald (Dublin Mid West, Fine Gael)
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I welcome this opportunity to debate the report of the O’Higgins commission. Mr. Justice O’Higgins is a distinguished retired judge of the High Court, and I take the opportunity to formally record my thanks and appreciation to him for his thorough, thoughtful and clear report on matters which, as we know, were far from clear when this process started. We were fortunate to engage the expertise, experience and wisdom of a man with decades of immersion in the judicial system and all the insights derived from that. The O'Higgins commission was conducted to the highest professional standards and the O'Higgins report is clear and unequivocal.

Last Saturday I attended, with An Taoiseach, a ceremony in Dublin Castle commemorating the 88 members of An Garda Síochána who have fallen in the line of duty. Inevitably, it was moving to be there, and all the more so when collectively we tried to comfort those who had recently been bereaved by the loss of the young garda lives taken away by very evil individuals. It struck me that whatever controversies arise in An Garda Síochána, whatever the problems that need to be addressed, we should never fail to show our support and appreciation for the work they do. Since its foundation, An Garda Síochána has served this State well. We in this House are not the people who put our lives on the line to keep our communities safe.

Yesterday, we saw yet more bloodshed in a gang feud that is being carried out with unprecedented ruthlessness. This House will have other opportunities to discuss gangland crime in more detail, but I want to make one thing clear: whatever resources are needed and however long it takes, the activities of these gangs and others will be confronted head-on. Of its nature it takes time, but the Garda has defeated gangs and others who believed themselves untouchable before, and they are determined to do so again.

I want to express my full support for An Garda Síochána at every level for the work it is doing to confront these gangs and for meeting the daily concerns of ordinary people in trying to keep them safe. That, of course, does not mean An Garda Síochána should be immune from criticism. The importance of the work the Garda does makes it all the more vital that it be done right. However, I believe it is important that the criticism should have a clear aim: to bring about the improvements that will make An Garda Síochána the world-class policing service that we all want it to be.

The O'Higgins commission report sets out real problems which quite simply have to be addressed. My priorities are clear. We need to do everything we can to ensure victims are not let down again in the way that is detailed in the report and we need to ensure that where wrongdoing by members of An Garda Síochána is reported, it is dealt with properly and the persons alleging wrongdoing are protected. We often talk of drawing a line under bad episodes in the work of An Garda Síochána. I do not buy that for a moment. It is not about drawing lines under anything. Instead, it is about rooting out bad practice and establishing proper, durable and sustainable policies and procedures to prevent a recurrence. Reform must be the watchword of the organisation, and reform can never stop.

Since its publication, much of the debate on the report has been overshadowed by controversy about what may or may not have been said during parts of the proceedings of the commission. I could devote much of this speech to repeating at great length the arguments I made here last week. We entrusted a commission of investigation with the task of looking into all these matters, and that is exactly what the commission did. The Commission was held in private session for a very good reason. In any such examination of the behaviour or misbehaviour of individuals at any level within a State body, it was and always will be vital that witnesses can give testimony and be questioned about it in a safe situation, where they can tell the truth as they believe it, without seeing their evidence in the newspapers the following day. That protection of witnesses is pivotal - it is crucial - to the establishment of commissions of inquiry in the future. I will not remind the House of the debates we had here in respect of tribunals versus commissions and why we had the commission of inquiry legislation.

I believe the right thing to do is to accept fully Mr. Justice O'Higgins's report. It is hard to see how any public interest is served by seeking to re-run its work. I do, of course, understand the concern that has arisen in respect of some of the matters that have been reported, and I believe it is in the public interest to address these matters within the constraints that apply. I said in the House last week that, despite the difficulties, I was sure the Garda Commissioner would try to put further information into the public domain if it proved feasible and legal to do so. This morning she has done so, and I have arranged for each Deputy to receive a copy of that statement for information purposes. I believe she has made a genuine attempt to deal with these matters as fully as possible, given the very real constraints under which she is compelled to operate.

I welcome the fact that there is a meeting of the Policing Authority with the Garda Commissioner tomorrow and, although I do not wish to interfere in any way with the independence of that authority, it is of course open to the authority to address these matters, within the constraints which apply, at a public meeting at some stage in the future. It is only recently that the Oireachtas set up the authority as an independent oversight mechanism for An Garda Síochána, and it should be allowed an opportunity to do its work. I want to emphasise that I continue to have every confidence in the Garda Commissioner. She faces the same challenges faced in the transformation of any large organisation and the particular challenge of doing so while meeting the daily demands, as we see today, placed on an organisation charged with protecting the people and the State from crime.

The statement from the Garda Commissioner speaks for itself, but there are two matters arising from it that I want to mention to the House. The Commissioner has asked me to use the legal powers available to me to ask the Garda Síochána Ombudsman Commission to investigate matters alleged to have occurred in respect of a meeting in Mullingar involving certain officers. I want to tell the House that I intend to do this and I am consulting with the Attorney General about the precise nature of such a referral. I welcome the fact that the Commissioner has requested this action and I recognise, as I am sure other Deputies do, that this issue has led to significant public concern. It is right that we try to establish the truth of the matter.

I also want to address the broader issue of whistleblowing. No one should underestimate the difficult issues confronting any organisation when whistleblowing takes place, which include balancing the rights of those making allegations with the rights of those against whom allegations are made. There is no point in pretending that these difficulties are not of their very nature all the greater in an organisation such as An Garda Síochána.

When a person's job can involve great dangers and she has to confront people who will not hesitate to harm her, she needs to know that those she works with support her in these difficult tasks. That is human reality. However, what can be a great virtue in some circumstances can become a great vice in others. While ranks have to be closed against those who pose dangers to the community, they should never be closed against the truth, however unpalatable that truth is.

The lesson from the O'Higgins report is clear. An Garda Síochána can only benefit from taking seriously allegations of wrongdoing by its members, valuing them and supporting those who bring these matters to light. We never again want to see the situation in which Maurice McCabe found himself, nor do we want to see people having to live for long periods under the shadow of unfounded allegations.

We have changed the law. The former Minister for Public Expenditure and Reform, Deputy Howlin, brought in the Protected Disclosures Act to ensure a sea-change in the options open to those who want to report wrongdoing. Now any garda can have complaints independently examined by the Garda Síochána Ombudsman Commission, GSOC, and that is already happening. Of course everyone in the House will recognise that laws of themselves do not change culture. This requires a relentless reinforcement of the values of the organisation led from the top. While I believe there has been clear progress, it is in the interests of An Garda Síochána and in the public interest to get independent verification of that. Therefore, I can tell the House today that I will be using the powers available to me under the legislation establishing the Policing Authority to ask the authority to conduct a detailed examination of the procedures and policies around whistleblowing in An Garda Síochána and to prepare a report on the matter to include any recommendations necessary to ensure those arrangements operate to best practice. We have the law now. We need to look at the culture and the implementation of that law.

Policy is only part of the approach to whistleblowing. Talk of change must be matched by evidence of real cultural change. This is how trust in An Garda Síochána will be maintained and safeguarded.

I will touch on the background to this report. The genesis of this report was a number of serious allegations made and well-publicised relating to Garda investigations. The Taoiseach asked Mr. Seán Guerin to review the action taken in respect of those allegations made by Sergeant Maurice McCabe. Mr. Guerin reported in May 2014. His review was an initial non-statutory examination of these matters. The principal conclusion of the Guerin report, accepted at the time by the Government, was that a full commission of investigation should be established with all of the statutory powers available to such inquiries in order that everyone would know exactly what had taken place. The Government accepted this recommendation and agreed to establish the O'Higgins commission of investigation. As a result of the decision taken by the Government at the time in this regard we now know from the commission that there were serious failings and shortcomings in how some of these investigations were conducted. That is something that I, as Minister for Justice and Equality, and the Government take seriously.

Mr. Justice O'Higgins presented his report to me on 25 April. I published the report on 11 May following legal advice from the Attorney General and engagement with the Director of Public Prosecutions, GSOC and the Garda Síochána to ensure there was nothing in it which might prejudice any criminal proceedings pending or in progress. The Government and I accept the conclusions of the O'Higgins report and will act on them.

I very much appreciate that the events outlined in the report have been traumatic for many people who have been affected by them. It would be an injustice to those who brought matters to light in the public interest and those who have lived under their shadow for a long time if we did not take on board the lessons from these events. It is worth reminding ourselves of the balanced findings of Mr. Justice O'Higgins. He described Sergeant McCabe as a man of integrity who had performed a genuine public service at considerable personal cost. He is due the gratitude not only of the public but of An Garda Síochána and this House.

The report is clear on serious failings in certain investigations. Again, we have to recognise the public service performed by having brought these to notice. However, it cannot go without comment that the report also found certain allegations of corruption against senior officers not to be true. Indeed, with regard to former Garda Commissioner, Mr. Callinan, the report makes this point: "It must be stated clearly and unambiguously that there is not a scintilla of evidence to support an allegation of any type of corruption against the former commissioner."

In the case of other senior officers, the commission found that what the judge described as hurtful complaints of corruption were unfounded and pointed out that the people involved had to live for many years under the strain of these allegations. It is important to put on the record that the report has shown that my predecessor, the former Minister, Mr. Shatter, and the officials in the Department of Justice and Equality acted properly at all times in handling the issues that came to them. We should recognise the contribution Alan Shatter has made to public life and in particular the many achievements, especially in the legislative sphere, of his time as Minister for Justice and Equality. Far from finding the slightest fault with the approach of Alan to any of these serious matters, the report uses descriptions such as "appropriate" and "entirely reasonable" to characterise his behaviour in all the matters involved.

The report must be considered carefully in its totality. As I have said already, we must all learn the lessons from it. The report identifies cases where victims of crime were failed by An Garda Síochána. That is as unacceptable as it is disheartening and we must take all actions open to us to ensure these shortcomings are not repeated.

I met Mary and George Lynch on Monday. Mary's bravery both on the night of her attack and since then in telling her story is an absolute inspiration to us all. I can say as much from having spoken to her and her husband and having listened to her recount her entire experience to me over this period. Her experience as a victim should be heard by every new and current member of An Garda Síochána. Mary told me she had lost trust in An Garda Síochána.

We must re-establish that trust between victims of crime and the Garda. Victims must be at the heart of the Garda service. In the past, the needs of victims of crime have sometimes been overshadowed by a focus on apprehending and prosecuting perpetrators. I have said repeatedly that we need a sea change across the entire justice system in the approach to victims. We must ensure our response to criminal behaviour is comprehensive while putting the needs of victims at the forefront.

The Taoiseach has outlined a number of reforms that have taken place already and I will refer to some of these briefly. Many are relevant to the findings in the report and the matters it addressed. We have the new independent Policing Authority. It has already held its first public hearing. We have the Protected Disclosures Act 2014. We have the Freedom of Information Act that was extended under the previous Government to include An Garda Síochána. We have had the Garda Inspectorate comprehensive report on crime investigation published in 2014. I do not have time to go into the details of the actions that have been taken already in this regard. Suffice it to say that a series of reforms have been undertaken, including the Central Statistics Office, CSO, carrying out work on the figures released by An Garda Síochána as well as a range of other areas. There is a commitment to increase the numbers in the Garda and the Garda Reserve and investment in CCTV.

It is worth reminding ourselves about the investment the previous Government made in An Garda Síochána, including well in excess of €200 million in ICT, an area that had been shamefully neglected but which has now been brought up to date. This will allow the force to deal with the demands a modern police force faces nationally and internationally. The purchase of 1,300 new Garda vehicles is being facilitated by a major investment of €34 million. A total of 720 new vehicles have come on stream since the start of last year. We have seen the powers of GSOC enhanced. We have seen how the role and remit of the ombudsman commission has been strengthened, including the power to investigate complaints against the Garda Commissioner. This is a significant new departure and should serve to increase confidence in the accountability of the Commissioner and the force as a whole. I believe these initiatives, in particular, the legislative reform, the new authority, the strengthened legislation and the new investment, have helped to increase both the confidence we want to see in An Garda Síochána and accountability as well.

As I said at the beginning of my contribution, there is no doubt that more remains to be done. However, I will return to a point I made earlier. There is no end to reform. This is an ongoing journey of practical and cultural change. I have emphasised throughout my contribution the need for that cultural change.

It is one thing to have policy and law and another to have implementation and the kind of cultural and values change we are speaking about today. As our country and society change, so too must An Garda Síochána continue its journey as an organisation that faces outward, embraces change and protects whistleblowers. I imagine that is what everybody in this House wants to see. In most cases, An Garda Síochána depends on moral persuasion instead of armed force. Moral persuasion depends on public trust and public trust is earned by professionalism, high standards, honesty and openness. That is what we expect, and that is what I expect, from An Garda Síochána.

The first Garda commission envisaged an unarmed force dependent on moral suasion. That requires that every member of the force, every day, wins the trust of members of the public, because trust is the currency of our police service. I, gardaí and the Garda Commissioner accept that there were failings and there must be change. I and the Government will do everything possible to support the ongoing reform of the force and I look forward to working with everyone in this House, particularly the new committee on justice and spokespersons on these matters. Victims must always be at the heart of the Garda service.

3:30 pm

Photo of Micheál MartinMicheál Martin (Leader of the Opposition; Cork South Central, Fianna Fail)
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I would like to share time with Deputy Jim O'Callaghan.

I welcome the opportunity to speak on this important report. I thank Judge O'Higgins and his team for their thorough, meticulous and comprehensive, detailed work. It is important to point out that there was a cynical, selective leaking of the document in the weeks before its belated publication. Such efforts to colour and dominate the debate around the findings of the commission are deeply unhelpful and threaten to undermine the lessons to be learnt from the report. Spin can never replace substance. There was an attempt to do that in advance of the publication. I cannot point fingers in any direction, and I am not doing so, but it is very clearly evident. Subsequent to publication of the report, there was selective leaking of transcripts of evidence given before the commission which caused a public controversy and debate about issues that were not addressed in the report.

I note today’s statement from the Garda Commissioner confirming that “An Garda Síochána legal team was not at any stage instructed to impugn the integrity of Sergeant Maurice McCabe or to take a case that he was acting maliciously”. I welcome that. It was important that the Garda Commissioner addressed the allegations that were made in the public interest. In her statement, the Commissioner has also referred to the two senior officers who interviewed Sergeant McCabe in Mullingar in 2008 and she has “requested the Minister for Justice pursuant to her powers within the Garda Síochána Act to refer those aspects to the Garda Siochana Ombudsman Commission (GSOC) for the purpose of investigating it in the public interest”. I welcome that too and the Minister's decision to ask the Attorney General for advice on that. It would appear that if Sergeant McCabe had not produced his tape of the Mullingar interview, the outcome of this commission report might have been very different. This is not acceptable and should be investigated.

In the selective spinning in advance of this report's publication there were attempts made to undermine the entirety of the Guerin report. Mr. Guerin is very straight and he says particularly in his conclusion and recommendations that "It should be recorded here that the Byrne-McGinn report found that:'No malice on the part of Sergeant McCabe is established in the making of his various complaints'". He added that all his interviews with Sergeant McCabe led him to "no different conclusion". He then quotes the testimony of the men and women who worked with Sergeant McCabe. Chief Superintendent Gabriel Mclntyre said: "I found Sergeant McCabe to be very positive and energetic in his position. He displayed a strong work ethic with a strong emphasis in community policing and to providing a high standard of policing to the community." Detective Superintendent Eugene Corcoran said: "I found Sergeant McCabe to be capable and enthusiastic in his approach to his duties." Retired Superintendent Liam Hogan said: "I considered Sergeant McCabe to be an excellent Sergeant and member of An Garda Síochána. He offered 200% commitment and was my one of my most reliable members in the District." Superintendent M. Lernihan said: "I found [Sergeant McCabe] to be efficient, flexible and committed." That is important in the context of all the controversy there has been in recent weeks.

While I accept that everybody has to be tested in their testimony to a commission, if one decodes some of the language in the Garda Commissioner's statement today, there is a strong sense that there was an adversarial approach taken to Sergeant Maurice McCabe in his testimony by the Garda counsel, as opposed to an inquisitorial one, which was advanced to us here the previous week. That is my sense of a particular paragraph in the Commissioner's statement.

The contents of the O'Higgins commission report raises issues of the utmost concern to every citizen and also to the victims of crime. I urge people to read the full report because it is quite shocking. The report also makes important recommendations on victim impact statements. The Minister is correct in her description of Mary Lynch as being an invaluable witness for articulating the degree to which a victim was let down by An Garda Síochána in this incident. I have met the siblings of Sylvia Roche-Kelly who were left out of the loop for quite a long time in respect of the murder of their sister by Jerry McGrath. Even though there is a right to furnish a victim impact statement in all courts, it is not always availed of in practice. The commission rightly recommends that “a victim impact statement where relevant should be furnished in all courts”. The commission also recommends that Directive 2012/29/EU dealing with the rights of victims be implemented as soon as possible. This should be possible if there is all party agreement to introduce same in the interest of our citizens.

There is no more important or fundamental role for the State than the protection of its citizens. The people depend on the Garda Síochána to feel safe in their communities and to uphold the rule of law. We all recognise that gardaí have endured dark and difficult days, standing against profound threats to our State. On a daily basis, they face immense personal risk. A total of 88 gardaí have given their lives in the line of duty. Their work and sacrifice is the cornerstone of a safe and secure society. That is why it is so important for the national Parliament to hold the force to account and ensure we achieve and maintain the highest possible standards.

The O’Higgins commission report raises concerns that need to be addressed to secure that goal. The report is 362 pages long and its contents are quite shocking. Its establishment was recommended by the Guerin report and I believe the commission of inquiry was very necessary as there were too many accusations and too many attempts to sweep very serious issues under the carpet. This report vindicates the central recommendation of the Guerin report. There is a net issue between Mr. Guerin and Mr. Justice O'Higgins in terms of the former Minister for Justice and Equality, former Deputy Alan Shatter, and his decision not to go beyond Byrne-McGinn. Byrne-McGinn's report and its inadequacies are fairly significantly highlighted in the O'Higgins report in several areas. Given the details around Jerry McGrath's murder of Sylvia Roche-Kelly and the sequence of events that led to it, people should have gone more deeply into this case than they did. That is my personal opinion. It is an arguable point but I make it strongly. It jumped out at me when I read the dossier and what happened. We have to learn lessons about communication and lack of communication. The Guerin report did not cause the resignation of the former Minister. The Taoiseach made clear to the then Minister what had to happen when he presented him with the Guerin report. The former Minister has focused too much on saying that the Guerin caused his resignation. That is not what happened. Even before we discussed the Guerin report in this House, the Minister had resigned, saying he was doing so for political reasons because of the forthcoming local elections.

The administration of justice has been assailed by a series of controversies since 2014. There has been deep frustration amongst ordinary rank and file gardaí, as they are demoralised by the onslaught of cutbacks and a series of revelations and issues. I am also very worried that the cultural change needed in the Garda Síochána to deal with whistleblowers or any staff member who highlights the need for change is too slow and in some cases non-existent. This has to change rapidly. It is vital that we draw on the lessons contained in this report to renew and re-build the central role our police force plays in our communities.

Gardaí need to be allocated proper resources and given proper training to do this. There is an urgent need to improve morale.

This report is one of many over the past number of years. It cannot be condemned to the administrative gulag of the top shop. At the heart of this commission of investigation are a number of serious cases, ranging from savage attacks on people to a brutal murder. These cases altered lives, devastated families and damaged communities. Behind this voluminous report victims are still struggling to patch the torn fabric of their lives back together. We owe it to them to ensure the recommendations in the report are fully implemented. The victims need to receive more support to deal with what has happened to them. Our debate on this matter should not lose sight of that or descend into petty point-scoring. How we respond to the tragic impact these cases have had on the victims and their families will be the ultimate measure of our success in dealing with this report.

In early 2014 I approached Sergeant Maurice McCabe, who had a dossier chronicling a series of fundamental problems in the Bailieborough district. The scale and depth of the issues raised pointed towards systematic failings in the area. I found Sergeant McCabe to be a decent, honourable and reliable witness. On that basis, I raised the issue on the floor of the House. I discussed the issue with others. I submitted papers and the dossier to the Taoiseach so that Sergeant McCabe's concerns and allegations could be investigated properly. At that stage, I called for a commission of investigation. This was not a partisan political attack or crude agenda-driven stunt. Rather, it was due diligence and the responsible thing to do. The detail covered in the report of the commission over some ten chapters illustrates the gravity of the difficulties in the Cavan-Monaghan division, and I understand the Taoiseach came to the same conclusion, having read the dossier. Policing in the area was critically undermined by myriad errors and inaction. A cocktail of poor to non-existent supervisory structures, an over-reliance on probationary gardaí and a lack of communication with the victims led to profound failures, including a failure to properly investigate crimes and the murder of Sylvia Roche-Kelly. The judge commented on the various lines of communication that were not full or comprehensive enough between gardaí in different stations and the courts.

The frequency and seriousness of the endemic problems uncovered vindicates the recommendations of the Guerin report that a formal commission of investigation be established. The lessons to be drawn extend beyond the geographic area covered by the report. The entire force must ensure that the misconduct and failure of performance charted in the report does not occur again. Furthermore, the findings of the commission underlined the staunch reliability of Sergeant McCabe and exonerate the former Commissioner Martin Callinan, which is important and which I welcome.

It should be noted for the record of the House that the report found that Sergeant Maurice McCabe performed a genuine public service at considerable personal cost, and for this he is due the gratitude not only of the general public but also of An Garda Síochána. We must always remember that dissent is not disloyalty. Sergeant McCabe had the common good at heart in his actions. He has endured a turbulent personal period in pursuit of what he believed was right. His dogged commitment to uncovering the corrosive practices that were eroding the integrity of the force in his area have set a precedent. His example is one that will be seen by whistleblowers elsewhere, not just in the Garda but in industries, companies and sectors across the country and economy.

There were some internal attempts to demonstrate that Sergeant McCabe was an untrustworthy character, but they had no basis. There was a lot of innuendo at the time, which was unacceptable. People sidled up to Sergeant McCabe and said things about his character. There were sinister efforts to pin the blame for the issues in Bailieborough, such as the missing computer in the Father Molloy case, on Sergeant McCabe. I understand Mr. Justice O'Higgins was quite strong on that, but wondered aloud why Sergeant McCabe was the only individual brought forward for disciplinary action. That particular chapter is required reading for everybody. These attempts were rightly exposed in the report. An earlier section of the report deals with the GSOC investigation into the Mary Lynch case. Again, were it not for the fact that Sergeant McCabe recorded the conversation, he would have been put in the frame for doing something he did not do.

Such petty and damaging accusations send a clear and chilling message to whistleblowers that they will be systematically targeted and undermined. This cannot be tolerated in any workplace, particularly An Garda Síochána, which has a responsibility to uphold the law. Against that backdrop, support and backing from the hierarchy is vital to facilitate whistleblowers in calling out problems in their organisations. I welcome the statement of the Minister in that regard today, which added to the Commissioner's statement on the action that she is taking on the issue. The chasm between the private and public accounts we have discussed matters. In the Commissioner's statement today, she confirmed that a protected disclosure manager will be appointed within the Garda, which is welcomed, as is what the Minister said today. The Commissioner also confirmed that a dedicated team which will be appropriately trained to oversee all matters relating to whistleblowers will be appointed.

Efforts to reform and improve the Garda are dependent on the Commissioner's strong and committed leadership. In the absence of that, moves towards a culture shift will fall on barren ground. We need real transparency on this issue in order to drive reform.

Media reports over the weekend pointed out other prominent examples of whistleblowers in the force and further highlighted what is at stake. The sheer weight of the claims involved strikes at the core of the operations of An Garda Síochána. It is critical to the long-term integrity of the force that whistleblowers be facilitated and their claims fully and fairly investigated. We cannot allow future whistleblowers to be intimidated by the prospect of a methodical and comprehensive effort to undermine their character. The Commissioner is capable of delivering on that and continuing to take the lead on reform. It is a fertile period for reform in An Garda Síochána. There are have been some 41 separate reports into the force in the past decade and almost 800 recommendations. The establishment of the Policing Authority in January this year represents a fundamental shift in the governance of the force. It offers a mechanism and opportunity to help to bolster public trust in the Garda and revitalise its structures and personnel. I welcome the statement that the authority will conduct a detailed examination of the procedures and policies around whistleblowing.

The Policing Authority is not a panacea. We need to be careful and keep it under constant review in terms of the impact it will have. Just because we have set it up does not mean everything will change dramatically overnight. We have to make sure it has the resources and breadth of remit to bring about change and improvement in An Garda Síochána and, above all, to bring back confidence and self-belief to rank-and-file gardaí. Despite all of the commentary from the Government about the provision of resources, if one spoke to gardaí the length and breadth of the country they would say the opposite: they would say there is one car for a particular district, or sometimes no car at all. The recommendations of the O'Higgins report give us a fresh set of measures to implement.

In facilitating the minority Government arrangement with Fine Gael, we were very conscious of ensuring that the explicit commitment to ramp up An Garda Síochána numbers to 15,000, which was in our manifesto, be given effect, because it is absolutely essential to give the Garda some chance of dealing with the major challenges it faces.

3:40 pm

Photo of Jim O'CallaghanJim O'Callaghan (Dublin Bay South, Fianna Fail)
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I want to start by thanking Mr. Justice O'Higgins for the comprehensive report he produced. It is worth noting that this commission of investigation was established on 3 February 2015, yet he was able to conclude his investigation and produce a report for the Minister by 25 April 2016, a total of 15 months. He had to do a lot of work. As we know from the report, he interviewed 97 witnesses, and there were a considerable number of serious complaints of regarding wrongdoing in respect of serious criminal investigations conducted by the Garda.

It is worth pointing out that the commission of investigation procedure under which Mr. Justice O'Higgins carried out his work was a procedure introduced by the House in 2004. The reason the Oireachtas introduced such a method of investigation was that we wanted something cheaper and quicker than traditional tribunals of inquiry, which can go on for too long. It is important to point out that the primary difference between the tribunal of inquiry procedure and the commission of investigation procedure is that, in respect of the latter, the evidence and hearings are held in private. That may be an advantage or disadvantage. By opting for a commission of investigation we got a cheaper and quicker investigation, but we did so at the expense of ability of the public to see all aspects of the evidence produced before the chairperson of the inquiry.

It is instructive to recall what would have happened if a tribunal of inquiry had been held. The public would have been able to see the evidence given by Sergeant McCabe and his cross-examination, the other witnesses and the victims who came forward.

People in this House may be appalled by that but we should remember that it is highly unlikely that we would be in this Chamber after 15 months discussing this report had we gone down the route of a tribunal of inquiry. For that reason, commissions of investigation are the way forward so that this House can produce quick and cheap investigative reports.

I am conscious that most people in the country will not have read this report. It is important, therefore, that the public has an understanding of what the report is about. It is also important that we as public representatives are aware of our function when it comes to looking at the failings identified in the report by Kevin O'Higgins. As Deputy Martin mentioned, the report reveals a series of inadequate investigations by An Garda Síochána in the Cavan-Monaghan region. The only reason those matters came to light was because of complaints that had been made by Sergeant Maurice McCabe. It is important to note and to put on the record of this House that the report largely corroborates the complaints made by Sergeant McCabe. It is also important that we note that what Kevin O'Higgins said about Sergeant McCabe is that he was "a dedicated and committed member of An Garda Síochána" who "has brought to public attention certain investigations where the public was not well served."

Although Sergeant McCabe is an important figure in the report produced by Kevin O'Higgins, he is not the most important person. The most important people referred to in the report are the ordinary citizens of Ireland who made complaints to An Garda Síochána and who were entitled to have those complaints adequately and competently investigated. Any citizen who goes to the Garda with a criminal complaint is entitled to be confident the complaint will be properly investigated. Without that, we do not have an adequate justice system. Unfortunately, the criminal complaints that feature within the pages of the report were not properly investigated. The victims of crime referred to in the report can therefore, unfortunately, legitimately say that they did not receive justice. Everyone in this House knows that where an innocent person is wrongly convicted, that is a miscarriage of justice but, similarly, it is a miscarriage of justice when guilty people are not convicted. That appears to be the implication of what is in the report from Judge Kevin O'Higgins.

It is also worthwhile mentioning on the floor of this House some of the events that were investigated and reported upon by Kevin O'Higgins so that the public will get an indication of the inadequacy identified in the report. In the case of the Kingscourt bus incident there was clearly a failure on the part of the investigating garda to take statements from witnesses, a failure to take adequate notes, a failure to interview suspects, a failure to inquire whether the suspects had criminal records and a failure to complete an adequate report. However, what stands out most in respect of that chapter, and it is apparent in other chapters as well, is that the investigating garda who was responsible for the investigation was a young probationer guard. There was a clear absence of supervision of the young guard in respect of the investigation he was conducting. One of the most important issues that can be extracted from the report is that the Garda must implement a new system of supervision so that young, probationary gardaí, or whoever is in charge of a Garda investigation, is adequately supervised. It is not tenable that one can have a garda investigating a serious criminal complaint without the garda being adequately supervised. It is also unfair on young gardaí coming into the force if they are left on their own without adequate supervision in respect of what they are doing.

Other speakers have referred to the chapter on Ms Mary Lynch, an extremely tragic chapter. Whatthe report indicates is that the vicious assault to which she was subjected on 30 April 2007 by Jerry McGrath should have resulted in a charge against him under section 3 of the Non-Fatal Offences Against the Person Act, as opposed to a charge under section 2. That might seem a minor misclassification but it was not; it was a very serious misclassification. The detail of the assault against Ms Lynch, to which the Minister previously referred, was horrific. It was a serious assault. However, by charging Mr. McGrath under section 2, the summary offence, as opposed to section 3, the alleged crime was misclassified on the system as being a minor offence. We do not know what might have happened in different circumstances, but what we do know is that Mr. McGrath appeared before the District Court in Tipperary in respect of another offence on 30 October 2007 when he sought a bail application, and he was granted bail. However, as Judge O'Higgins outlined, had it been the case that the judge in the District Court at the time had been informed that Mr. McGrath was charged under section 3, making it a serious offence, which he was not, that might have affected the decision of the court to grant bail. Tragically, we know that on 8 December 2007, while Mr. McGrath was out on bail he murdered Ms Sylvia Roche-Kelly.

There was also the incident in Cafolla's Restaurant, which involved a complaint by the owner of a fish and chipper about the fact that some men had come in and emptied the bottles of vinegar and replaced them with urine. She went to the Garda. She was entitled to have her complaint adequately investigated. The report, unfortunately, recordsthat the gardaí thought the incident funny. However, even if they did think it funny, it was essential that they carry out a proper investigation. Ms Cafolla was entitled to have her complaint investigated and she was entitled to be told honestly what was happening to the investigation and not to be told that the file had gone to the DPP when that was not the case.

We also know in respect of the assault in Cootehill, to which Kevin O'Higgins devotes another chapter, that there was a very serious offence in which a 17 year old girl was assaulted when she was walking home. Again, that criminal investigation was fundamentally flawed. There was inordinate delay in the investigation, no identification parade even though there was a suspect, the investigation file was incomplete with sergeants failing to provide statements and again, the notes were inadequate.

The incident in connection with Crossan's public houseinvolved a man being assaulted outside a pub and sustaining injuries to his head. Citizens who are subjected to such assaults are entitled to know that we have a justice system that will seek to bring the perpetrators of those crimes to justice. We cannot get justice unless the Garda conducts the investigation of those criminal complaints in a competent and adequate manner. We know from Kevin O'Higgins' report that the investigating garda simply did not investigate this criminal complaint. He then went out of his way to cover himself by asking the complainant to withdraw the complaint, and the complaint was then withdrawn, but it should have been properly investigated, and there was an inordinate delay on the part of the Garda in doing so.

Finally, there is the case of the Fr. Michael Molloy investigation, which involved a complaint by a man that his son had been sexually abused by Michael Molloy. The investigation had major flaws in that search warrants were defective, there was a failure to have the computer forensically examined and then the computer itself was lost. As Deputy Martin mentioned, it was surprising that the only person who was subjected to a disciplinary inquiry in respect of the loss of the computer was Sergeant McCabe, even though he was not even the exhibits officer in the case.

The reason I have referred to those examples from the report of Kevin O'Higgins is that we in this House must recognise that those victims of crimes were badly let down by An Garda Síochána, and they were badly let down by the State. Our concern is that such errors might extend beyond the region of Cavan-Monaghan. It is our job as legislators, and it is the Government's job as the entity responsible for the political direction of the force, to ensure that proper management structures are instilled and installed into An Garda Síochána. It is not tenable that An Garda Síochána can continue as it is without there being a fundamental reform in the management and supervision within the force. The absence of supervision and proper management is unfair to young gardaí joining the force. Every young person who starts a job is entitled to be properly trained. However, it is most unfair to the people of Ireland, particularly those who may be subjected to a criminal attack. They are entitled to the protection of the State and that protection cannot apply unless the Garda Síochána adequately investigates offences.

A lot of public attention has centred on what the Commissioner's senior counsel said to Sergeant McCabe. One of the sacrifices the House makes when it opts for a commission of investigation in that we do not get to see the cross-examination and the evidence of the witnesses. The benefit is that we get the result much quicker. However, it is worth pointing out that the question about Sergeant McCabe's integrity was answered conclusively in the report. Kevin O'Higgins viewed him as being "never less than truthful in his evidence". It is clear that Sergeant McCabe was a man of integrity. That question has been answered. I also welcome the statement made by the Garda Commissioner today in respect of the issue, which did give rise to public disquiet and concern last week and the previous week. In particular, there is the issue as to what happened in the meeting in Mullingar in 2008.

That matter must be resolved, not by looking at transcripts and evidence at which Members are not legally entitled to look, but by having a proper, quick inquiry and investigation into it. I appreciate that the Minister has now directed the Garda Síochána Ombudsman Commission, GSOC, to conduct such a short investigation.

Members also must recall that over the past 15 years, there has been a series of tribunals and commissions of investigation into Garda Síochána wrongdoing or malpractice. Members frequently consider the Garda Síochána in the shadow of allegations that have been made and investigated. The Government and Members must ensure they try to provide a mechanism whereby management structures in An Garda Síochána are changed and a proper system of supervision is put into An Garda Síochána. It is necessary to have an assessment plan as to what management direction the Garda Síochána must take. While there are many fine men and women in An Garda Síochána, its major failing is that there is an absence of management in the force and this report demonstrates there is an absence of supervision in the Garda. The people of this country need An Garda Síochána, as they have nothing else to protect them from crime and without it they are not safe. Members must legislate and the Government must decide as to what is best to ensure the people have such protection.

It is also important to recognise the role played by whistleblowers within An Garda Síochána. Dissent should not be regarded with suspicion. When whistleblowers come forward, they should have an entitlement to have their complaints investigated. They do not have an entitlement whereby everyone must automatically believe immediately everything they say. All that a whistleblower is entitled to is to have his or her investigation and complaints examined adequately. That is all Sergeant McCabe sought. He got that and he was vindicated and he was corroborated by Mr. Justice O'Higgins. It should be the objective of all Members of this House, all legislators and the Government to ensure the culture of An Garda Síochána changes in order that it can become a more professional force that accepts and encourages criticism in the knowledge that such criticism will achieve improvement in the force.

4:00 pm

Photo of Gerry AdamsGerry Adams (Louth, Sinn Fein)
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It is important to recap on some of the events which led to the establishment of the O’Higgins commission in late 2014 and early 2015. The commission was established to investigate in detail the serious allegations made by Garda Sergeant Maurice McCabe into Garda malpractice in the Cavan-Monaghan division and Garda investigations into serious crime. This followed months of controversy and a refusal by the Government to deal properly with allegations that crimes were not properly investigated. As the O'Higgins report has found, the crimes which were not properly investigated were of the most serious nature, including false imprisonment, assault, murder and sexual assault. Mr. Justice O'Higgins finds that investigations into these crimes were deficient and it is the victims of these crimes who have been let down the most and who deserve Members' utmost sympathy and solidarity in the furore that has ensued following the report’s publication.

The publication was mired by almost two weeks of selective and disruptive leaking in advance of its release by the Minister for Justice and Equality, as well as further leaking of transcripts associated with the commission’s work. The media management of a report of this importance is entirely unacceptable, as was the leaking of the papers that were part of it. Will the leaking of the report be investigated properly? Has the Minister considered this and, if so, who will conduct the investigation? Such action undermines the culture of openness, transparency and accountability that is required in the operation of the policing and justice systems.

It is worth noting that following the publication of the Guerin report, the Taoiseach told the Dáil there was a need for a root-and-branch analysis of the administration of justice and I agree with that statement. Sinn Féin has been critical of the unhealthy relationship between the offices of the Garda Commissioner and the Department of Justice and Equality over the years. In the aftermath of numerous controversies, we called for a new dispensation for the depoliticisation of oversight and the establishment of an independent policing board similar to that established arising from the Patten commission in the North. Under such a process, the Garda Commissioner would have been accountable to an independent policing authority with full powers to hold the Garda to account. While that is what Sinn Féin proposed, that is not what the Government produced. Although there is a Policing Authority, the most senior Garda, namely, the Commissioner, remains accountable to the Minister for Justice and Equality. Would it not be far better for the Commissioner and for the Minister for Justice and Equality - any Minister for Justice and Equality - if this was not the case? In this case, it is a Minister for Justice and Equality who refuses to answer questions in the Dáil put to her by the Opposition, whose job it is to hold her to account. The Taoiseach has also refused to answer the same questions when I put them to him. I must also state it is bizarre and unacceptable that just as the Policing Authority was about to assume responsibility for the most senior Garda appointments, the Government pulled the rug from underneath it yesterday and appointed four assistant Garda commissioners. There can be no justification for this action. The Government’s appointment of the four new assistant Garda commissioners subverts the role of the very Policing Authority it established and, again, such action does not bode well for a more open and accountable culture in the administration of policing and justice. Why then did the Government make these appointments? Why not permit the Policing Authority to do this?

Just before the eventual establishment of the O'Higgins commission, the Taoiseach intervened and played a central role in all these matters, when the Attorney General informed him during a telephone conversation that she did not trust the integrity of her telephone and needed to speak to him in person in respect of a particular matter. She alerted the Taoiseach to the issue of the taping or tapping of telephone calls in and out of Garda stations and after months of telling the Dáil there was nothing to see, the Taoiseach acted in an entirely unorthodox and unacceptable way. Moreover, I said this at the time. This all happened in the run-in to the events which led to the unprecedented resignations of the Garda Commissioner, the confidential Garda recipient, the then Minister for Justice and Equality, Mr. Alan Shatter, and the Secretary General at the Department of Justice and Equality. Mr. Shatter of course was central to the difficulties which emerged arising from the whistleblowers' revelations about practices in the upper echelons of the Garda. The Garda whistleblowers were smeared and bullied. There was a clear attempt to smear Sergeant Maurice McCabe's good name through the calculated leaking that emerged in the weeks before the publication of the O’Higgins report. Such attacks on his good character are extremely worrying and no doubt will make other potential whistleblowers think twice before coming forward - this is what happens to one when one does what he did - and this could contribute to what the O'Higgins report concluded was the closing of ranks.

The O'Higgins report vindicates Sergeant McCabe as a man of integrity and a highly competent garda committed to the good of the force, and yet accusations have emerged about how the Garda Commissioner briefed her legal team for the O’Higgins commission. This afternoon, the Garda Commissioner issued a statement. It provides very little clarity to the issues I and others raised with the Tánaiste and the Taoiseach. Despite there being no legal impediment to the Commissioner providing full clarity, the statement fails to provide the full detail of her instructions to her legal team. Of concern is the fact that she states that her legal team was not "instructed to impugn the integrity of Sergeant Maurice McCabe", but further on she suggests it would not have been unreasonable or improper for such a strategy to be pursued. In the light of the contradictory claims being made about the Commissioner’s instructions to her legal team, this comment lends weight to the belief that Sergeant Maurice McCabe’s integrity really was at stake. The Commissioner's legal counsel had already confirmed that he had challenged the "motivation and credibility" of Sergeant McCabe. How does one logically question someone’s motivations and credibility without also impugning his or her integrity? Such semantics do not instil confidence in the Commissioner’s capabilities to oversee the root-and-branch culture change so badly needed within An Garda Síochána.

I understand from the Commissioner’s statement that the two senior officers who interviewed Sergeant McCabe are to be investigated by GSOC. Perhaps the Minister will enlighten Members as to when this referral was made. Was it simply made because of the mounting public disquiet or was it when the Commissioner received the report?

The O’Higgins report contains a number of important recommendations and it is vital that these be implemented in full without delay. The problem is that it is the Commissioner who has to do this, yet the Minister has not held the Commissioner to account with regard to the questions that I and others have asked concerning her instructions to her legal team. The Dáil has not been given a satisfactory explanation. The Minister has not yet told the Dáil whether she has asked the Commissioner about this so here we are, almost ten days since we asked these questions, and the Minister has not even told us whether she asked the Commissioner about these issues of controversy. Unfortunately, this debate is not the end of the matter, and the Commissioner's statement today is not the end of the matter either. Despite the efforts of the Fianna Fáil and Fine Gael parties to close ranks in defence of the Commissioner, Sinn Féin will continue to press for full disclosure in respect of her role in the Sergeant Maurice McCabe affair. This requires the Minister for Justice and Equality to hold the Commissioner to account and to answer legitimate questions in the Dáil about how she does it.

4:10 pm

Photo of Jonathan O'BrienJonathan O'Brien (Cork North Central, Sinn Fein)
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In due course, I will come to the statement released by the Commissioner earlier today, but it is important first to look at the O'Higgins report and exactly what it contains. We know that it was a recommendation from the Guerin report, and on 19 November 2014 the Government decided that the matters were of such public concern that they warranted a commission of investigation. A resolution approving that commission was passed by both Houses of the Oireachtas in November 2014.

The commission of investigation looked into allegations of malpractice in the Cavan-Monaghan division of An Garda Síochána from 2007 to 2010. There were 12 matters specified in the terms of reference. These predominantly concerned specific investigations by gardaí into alleged offences, but also included the manner in which the complaints of Sergeant McCabe were dealt with by An Garda Síochána, the then Minister for Justice and Equality, the Department of Justice and Equality and the Garda Síochána Ombudsman Commission.

The report was 360 pages long and I have read all of it. It goes into a detailed analysis of the incidents. In fact, chapters 4 to 11 outline all the individual cases that came before the commission. Some of them were touched on by Deputy O'Callaghan in his contribution. They include the Kingscourt bus incident, the Lakeside Manor Hotel assault, the incidents involving Jerry McGrath, an incident in Cafolla's restaurant, an assault in Cootehill, a dangerous driving incident at the Lakeside Manor Hotel, an incident at Crossan's public house, and the Michael Molloy investigation and the issue of the missing computer. It is important to state that in all of those cases, which are outlined in chapters 4 to 11, it is clear that the victims of those crimes did not receive justice. They did not have their allegations and complaints properly investigated, and we failed them. Those victims were failed not only by members of An Garda Síochána but also by us as legislators and by society. It is incumbent upon all of us, regardless of our political persuasion, to ensure that this type of behaviour never happens again.

Chapter 12, which is also fairly detailed, deals with incidents concerning the PULSE system. While that chapter does not indicate that any corruption took place, it may be justified depending on the case, and there were many incidents in which the timing of updates was a factor. It makes particular reference to the driving licence and insurance production system, and traffic incidents after which PULSE updates took place. Many of the points about the PULSE system have been debated here previously.

Chapter 13 describes the investigation by An Garda Síochána, the Minister and the Department of Justice and Equality of the complaints by Sergeant McCabe. While the report does find that there was no basis to any of the allegations of corruption, obviously it found that many of the complaints were upheld. Chapter 14 deals with the conduct of policing in Bailieborough itself. The report found that while there were issues of management and resources, ultimately, the failures investigated by the commission were at a human level, caused by poor individual performance and in many instances poor supervision.

All of that leads to chapter 15, which contains the recommendations. It is worth noting that while it was not incumbent on the commission to make recommendations, neither was there anything prohibiting it from making them. The fact that we have a large number of recommendations from the commission of investigation goes to show the level of concern the judge had about the incidents in Cavan-Monaghan. One would have to surmise that if we have cases of a lack of supervision in one particular district, this may be replicated in other districts. It is important, therefore, that the recommendations be taken on board and implemented in order to ensure that such matters do not recur, not just in Cavan-Monaghan but also in other areas throughout the State.

Deputy Micheál Martin mentioned some of the recommendations with regard to victim impact statements and their use, as well as the computer crime division and ensuring it is properly resourced. I note from the Commissioner's statement today that she has already set about the task of implementing those recommendations. She has asked one of her assistant commissioners to examine that matter. I also know that the Minister has had discussions with her concerning the recommendations.

It is unfortunate that in the lead up to the report's publication there was some selective leaking of its contents. I completely agree that this should not have happened. Maybe that forced the Minister's hand in publishing it when she did, but once it was published, unfortunately, the Minister had to leave the country. I am not saying that was-----

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Directly connected.

Photo of Jonathan O'BrienJonathan O'Brien (Cork North Central, Sinn Fein)
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-----by design or directly connected, but it was certainly an unfortunate timing of events. Perhaps there are lessons to be learned from that. Maybe the Minister's hand was forced by some of the selective leaking. If it was not, then I think it was a poor judgment on the Minister's behalf to see the report published and then to leave the State and not be available to make statements on it.

Everyone will recognise the difficult job that gardaí have. They work on the ground with limited resources and they are under immense pressure. They do deserve all of our support, and particularly support from their superiors and those tasked with ensuring that the organisation operates in an accountable manner.

I am disappointed by the delay in the Garda Commissioner's response to the public outcry surrounding the publication of leaked transcripts from the commission, which appeared in the Irish Examiner. She refused to address what was being circulated and widely discussed, and chose to hide behind a misinterpretation of the legislation underpinning the inquiry. Her lack of action and clarity was unsatisfactory. Unfortunately, that leads to questions concerning her credibility in making progress on the change agenda that arises from the report by Mr. Justice O'Higgins. Restoring public confidence in An Garda Síochána, which has to happen, must come from a leadership level. The fact that the Commissioner has been involved in some of this controversy in recent days and weeks is not helpful in ensuring that confidence will be forthcoming.

We also acknowledge the carefully crafted statement issued by the Commissioner earlier. Unfortunately, it failed again to provide the clarity necessary in respect of the direction she gave her legal counsel during the commission of investigation. This is not about going after Nóirín O'Sullivan or trying to get a head on a plate - far from it; this is about ensuring the most senior member of the force, the Garda Commissioner, who will be responsible for leading a culture change within the force has the confidence of the public, of us as legislators and, indeed, of rank and file gardaí. Clarity is needed regarding the issues that have arisen in recent days.

Depending on the legal opinion one listens to, some state the Commissioner is legally precluded from clarifying the reports within the transcripts while others say she is not. It is our belief that she can make a statement in respect of the advice given to her legal team as it was not evidence given before the commission. Certainly, evidence given before the commission could not be disclosed publicly and could not be discussed but legal opinion can be clarified. It was not given to the Commissioner as a private individual; it was given to her in her role and in her capacity as the Garda Commissioner. It is the Minister's job to hold the Commissioner to account. It is a straightforward request that she would speak to the Commissioner in this regard and ask exactly what legal advice was given. There is an onus and responsibility on the Minister considering Ms O'Sullivan was acting in her capacity as the Garda Commissioner and not just as an individual.

In her statement earlier, the Commissioner stated that "at no time was there any direction to her legal team to question or try to impugn the integrity of Sergeant McCabe" but we know her legal counsel has corrected the record. There was an allegation that he was to question the sergeant's integrity and that has been corrected to say that he should not have used that word and that he was to question the motivation and the credibility of Sergeant McCabe. It is not feasible to question people's motivation and, particularly, their credibility without questioning their integrity because by questioning their motivation and credibility, their integrity is also being questioned. Even if the word "integrity" was not used, that does not mean that is grand. It is not credible to suggest that Sergeant McCabe's motivations and credibility could be questioned in the absence of also questioning his honesty and that is at the core of what the transcripts state. Later in the Commissioner's statement, she suggests "it would not have been unreasonable or improper" for such an approach to be taken; that it is to say it would not have been unreasonable to question the credibility and motivation. It simply boils down to her stating, "I did not do it but even if I had, it would have been okay". It would not have been okay and it is not acceptable.

The Commissioner is playing with words. She first used the legislation as a shield to state that she could not clarify the issue and then when she issued a statement today, it was full of even more contradictions. That leaves the fundamental question of whether the Commissioner is the most appropriate person to oversee the changes and improvements in how whistleblowers are dealt with within the Garda. I do not believe she is. Will the Minister explain to us and, more important, to potential whistleblowers who may wish to come forward with malpractice allegations within the force how they could have full confidence in the Commissioner given everything that has transpired in recent days and, in particular, the treatment of previous whistleblowers?

I welcome the Commissioner's statement that she has met Transparency Ireland regarding how to deal with these issues in the future. That is correct and I also welcome the Minister's statement regarding the two gardaí who alleged that Sergeant McCabe stated to them that he was acting out of malice with a gripe against a senior officer. One would have to question if the sergeant did not have tape recordings to refute those allegations where we would be today. That is telling. The commission of investigation stated what was on the tape recordings did not tally with the allegations made by the two officers. One can only assume the reason they were not included in the final report is there was no foundation to them. If that is the case, serious questions must be asked. While it is correct that GSOC should investigate this, the Commissioner cannot have it both ways. She cannot say she fully accepts the findings of the commission and then, on the other hand, state that to dispel public disquiet in respect of the two members of the force who made those serious allegations, further investigation is needed.

It is important that the Government moves quickly to implement the commission's recommendations. I presume the resources needed to implement them will be forthcoming. I agree with Deputy Martin that the Policing Authority will not be the panacea to all our problems. While the legislation was welcome, we stated when it was going through the House that it was flawed in the sense that the Garda Commissioner still remains accountable to the Minister for Justice and Equality. While the Minister can request an investigation to the initiated against the Commissioner, the legislation falls short of giving that power to the authority. If it is to be truly independent, serious consideration needs to be given to amending the legislation. If we are to have this new culture of reform within the Garda, then it has to be ensured everything done within the force is fully transparent and accountable. We owe it to rank and file gardaí to ensure that happens because their morale is on the floor following the many reports into Garda misbehaviour such as the Barr tribunal, the Abbeylara, Rossport and Guerin reports and this commission of investigation.

It is essential we do everything possible to ensure morale within the force is enhanced but we must also ensure the officers themselves do not fall outside the law, are held to account and take responsibility for their actions. If we can work on that, part of which involves amending the Policing Authority legislation, we would be well on our way to doing that. I reiterate my own position and that of my party, which is that, unfortunately, given the serious nature of the allegations relating to Nóirín O'Sullivan and her handling of the legal advice, she is not the best person to bring about that culture change.

Therefore, we believe her position is untenable. We encourage the Minister to have a very stark conversation with the Commissioner and to ask her those questions and request that she clarify matters, which we believe she can, because it is important.

4:30 pm

Photo of Brendan HowlinBrendan Howlin (Wexford, Labour)
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Like others, I begin by thanking Mr. Justice Kevin O'Higgins for this report. It is clear, comprehensive and stark. In the words of the Tánaiste and Minister for Justice and Equality, Mr. Justice O'Higgins has produced a thoughtful and thorough report which deserves the most careful consideration. I also agree with the Tánaiste that we must not lose sight of one central fact. The report identifies a number of cases in which victims of crime were not well served by those we entrust to protect all of us and investigate crime in this country, namely, An Garda Síochána. As she put it, that is as unacceptable as it is disheartening. It is not, however, surprising. Some time ago, I was involved with events leading up to the Morris tribunal, in which Mr. Justice Frederick Morris concluded that there was corruption among a small number of gardaíoperating in the Donegal division. Mr. Justice Morris said that the situation could not have flourished and gone unchecked if the leadership of the Donegal division had not behaved negligently and slothfully. This was a long time ago. He warned that there was no reason to think that what he uncovered in Donegal was confined to that county.

Mr. Justice O'Higgins was not investigating serious corruption on anything like the scale of what happened in Donegal, but he uncovered serious shortcomings in the standards of professionalism that we and, above all, the victims of crime are entitled to expect from our national police force. Again, the same point arises. There does not seem to be any reason to think that Cavan-Monaghan is unique. It seems that the only difference is that there happened to be a brave whistleblower in Cavan-Monaghan. While the events investigated by Mr. Justice O'Higgins are more recent, some of them go back almost a decade.

It is almost a decade ago that I, as the then Labour Party spokesperson on justice, published our party's policing policy document, which we called Better Policing for Safer Communities: A Programme for Partnership and Accountability. In that document of June 2006, I wrote that when the Garda Síochána was founded in 1922, Ireland was a rural, close-knit society. The crime rate was low and anti-social behaviour was sparse. Policing was simpler back then and it remained relatively uncomplicated for most of the 20th century. However, with the rapid transformation from a rural farming society to an affluent urban society, it was inevitable that severe social and policing problems would arise, as they have done everywhere in the world. We now have more crime, more drug and alcohol abuse, more public order offences and more anti-social behaviour, making life a misery for many citizens. Additionally, we now face a situation in which human life has become incredibly cheap, as armed drug gangs wage war on each other and put not only the lives of members of those gangs but the lives of innocent citizens at risk. The quality of life of whole communities, including some of the most marginalised communities in the country, has suffered due to lawlessness, vandalism and anti-social behaviour. Criminal and anti-social behaviour inflicts misery, particularly on the inadequately policed urban parts of this city. I wrote back then that there was insufficient appreciation at political or senior Garda level of the corrosive effect of crime and lawlessness on these besieged communities. Sadly, I think this is still the case a decade later. The Labour Party argued a decade ago that Ireland's policing structures, having remained virtually unchanged since the foundation of the State - the rural landscape I described - are now far removed from what is internationally recognised as best practice. I have had these discussions with the Tánaiste; she knows my views and I think she shares many of them. It has taken a series of reports from the Garda Inspectorate almost a decade later to confirm that this diagnosis is still valid. We said back then, and I now repeat, that the need for a radical shake-up of existing controls and oversight mechanisms within An Garda Síochána is beyond question.

I also repeat another conclusion from a decade ago, which is that An Garda Síochána continues to be overly defensive about itself. This trait is not unique to An Garda Síochána. Faced with any external or internal criticism, many organisations close ranks, deny and resist. An Garda Síochána is too slow to admit to serious structural and procedural problems within the force and it is even slower to actively do anything about them. The real risk now is that the relationship between gardaí and local communities, which has been problematic for some time in particular areas, will continue to deteriorate. The more the Garda is hindered from participating in the community, the more isolated the entire police force will become. There will be less understanding of public sentiment, less exercising of discretion, more public irritation, less sympathy for the police and an increase in downright hostility and further isolation. We can see examples of this happening already when members of An Garda Síochána think, "If that is the way we are treated, that is the way we will react," as though it were not an integrated entity involving community and policing.

I believe it is vital to rebuild confidence in the relationship between police and community. We need, in short, to reconnect police and community. An important part of our response must be to redouble the commitment to real community policing, and by that I do not mean simply exclusively designating a small cohort of gardaí as community policing officers. Real community policing is not an add-on to the "proper" police force. It should be intrinsic to a genuine local community partnership approach among all gardaí and it should pervade the entirety of their work. We believe that neighbourhood policing should be at the core of police work and that the structure of the entire police service, the staffing arrangements and the deployment of resources should be organised accordingly. If one positions community policing as the core function of An Garda Síochána and the core function of every Garda station, this has implications for structure, management, culture and training. This point was touched upon by every speaker in this debate so far. It would radically change the organisation and the way it thinks about itself. It would define the interface between the individual citizen and the local community Garda as the prime focus of activity to which the rest of the organisation becomes a support mechanism. It is happening; such models do exist. I repeat our central point. If the community is not engaged with, if there is not real and substantial participation by the community and if the community does not have and feel an ownership stake in policing, we will suffer an ongoing and increasing disjunction between our policing service and a growing number of our citizens.

Just as importantly, back in 2006, we also called for community-oriented policing delivered by a service that was accountable to the community it served, and we said that accountability must extend to the very top of our policing structures. That is why the Labour Party's long-held commitment to real community policing has always been clearly and inextricably linked to our commitment to establishing an independent Garda authority.

That is something I tried to legislate for a decade ago, but it was not until the Labour Party returned to Government that we could do it.

The community policing approach requires a devolution of power within the Garda, the decentralisation of authority to gardaí on the beat and a far greater emphasis on collaboration between gardaí and community, as I have said repeatedly. It seemed clear enough to us ten years ago - it is even clearer now - that such a reorientation of the Garda Síochána cannot be delivered either by the Garda itself or by the Department of Justice and Equality.Transparent and accountable policing, in partnership with communities, is not achievable without civilian oversight. The Garda authorities overseeing themselves cannot provide this and neither can the Minister and her Department. That is why I and the Labour Party have been so committed to the establishment of an independent Garda authority, representative of civic society, to stand between the Commissioner and her officers, on the one hand, and the Minister and Department on the other. Unless power is devolved within police structures and through civilian involvement and engagement, as well as through oversight of policing, then the gardaí will remain both centralist and distant from the communities they need to serve.

While the details of the individual cases of wrongdoing dealt with in the O’Higgins report are of great concern, what must concern us most, as representatives of the public gathered here in Parliament and as legislators, is the need to have structures that are robust and right for the future, to make sure the Garda Síochána behaves professionally and accountably. That was very far from the case when the previous Government came into office. We were faced with a breakdown of public trust in the ability of the gardaí to properly police themselves and their own members. We inherited a system, which the Tánaiste will remember, involving a confidential recipient, which was shown to be manifestly unfit for purpose because people did not know where the the confidential recipient was or how he or she could be contacted. As the Tánaiste put it, the system for dealing with reports of wrongdoing within the force by members served no one particularly well - not the people making the reports, not the people who were the subject of those reports, not the Garda Síochána, and, above all, not the people of Ireland. We were faced with an absolutely poisonous relationship between the Department of Justice and Equality and the Garda Síochána, on the one hand, and the Garda Síochána Ombudsman Commission on the other. That was self-evident; we could see it. We were faced with persistent allegations of Garda malpractice and with claims that these allegations were not being investigated. We took swift and decisive action. We appointed a series of statutory inquiries. We appointed a new Garda Commissioner following the first open international competition in the history of the State. I and my colleagues delivered on an extensive programme of reform, including legislation to protect whistleblowers and to extend the freedom of information provisions.

The Protected Disclosures Act, which was the overarching legislation to protect whistleblowers, enhanced the protection available to whistleblowers across the board and provided a new mechanism for disclosures relating to the Garda Síochána. Now, a Garda member may make a protected disclosure directly to GSOC, which has all the powers needed to investigate any complaint. We committed to the reform of Garda oversight and accountability, including delivering on the Labour Party's long-standing policy of establishing the independent Garda authority. Overwhelmingly positive changes to our policing landscape were made in the last few years. I acknowledge the commitment and ability of my former colleague, the Minister, Deputy Frances Fitzgerald, in delivering this change agenda quickly, but I remain to be convinced that her Department and the force will do all that needs to be done to ensure that Garda resources are deployed effectively and efficiently. For example, modern policing requires personnel to be deployed in front-line policing services. The Garda Inspectorate has called for this in the two reports. It says that real civilianisation could release an additional 1,000 gardaí to front-line duties, which means that all obstacles to the employment of qualified civilian personnel must now be removed in order to free up those 1,000 gardaí. In the current circumstances, it should be an immediate task of the new policing authority to ensure there is a rigorous programme of civilianisation of all jobs that do not require Garda powers, training or Garda experts. We do not need trained police officers doing clerical and back-up work, stamping passports and all the rest of it. Exceptions should be made only where it is demonstrated that there is a compelling reason for a garda to carry out a function. The commitment to, and implementation of, a real programme of civilianisation will be a touchstone of officialdom’s commitments to the implementation of the reform agenda. We fully support the Garda Inspectorate's recommendations on reform of organisational structure, governance and culture and on workforce modernisation and technology, and we look forward to working with the Tánaiste in implementing these.

Sergeant McCabe has now been confirmed as a dedicated and committed garda who brought to public attention cases in which the public was not well served by the Garda Síochána. The concerns he highlighted were legitimate and the bulk of the conclusions of the O’Higgins report fully justify the belief that the people were not getting the police service they deserve and that oversight of policing was entirely inadequate. The report describes poor policing, incompetence and wrongdoing. It also describes institutional hostility to anyone who identified a problem. I am happy that the reforms we insisted on in government go a long way towards addressing those defects, but there remains more to be done. There is a whole series of recommendations for change made by the Inspectorate and under the Haddington Road agreement. It remains to be seen whether the force and the Department of Justice and Equality will deliver on those reforms.

I welcome a great deal of what the Garda Commissioner, Nóirín O'Sullivan, said in her statement earlier today. I welcome her clear acceptance of the core fact that the O’Higgins report presents inescapable lessons for the Garda Síochána based on its shortcomings in a number of critical areas, including its dealings with whistleblowers. I welcome her commitment to radical and pertinent, permanent change. I am less happy with the continued insistence that there are clear constraints around the question of making public comment about the Commissioner’s approach to Sergeant McCabe and his evidence at the O’Higgins commission. I query first, as I have done publicly, the fine distinction the Commissioner and her advisers are seeking to make between what she did and did not instruct her lawyers to do. The Commissioner seems to me - and I would suspect, to a great many laymen and women - to be trying to make a distinction without a difference. It is highly artificial to say that the case against Sergeant McCabe was that he had a grudge against a senior officer which coloured his motives and that his evidence against that officer should therefore not be accepted as credible but, notwithstanding this serious claim, that Sergeant McCabe’s character and integrity were not put at issue. Both of those cannot stand. I am not sure that many lawyers would understand that particular argument. Second, I remain convinced that the law does not prevent the Garda Commissioner from clarifying the instructions she gave to her legal team at the Commission. I note from the transcript extracts published in the Irish Examinerthat I have the same interpretation of the Act as the now Senator Michael McDowell SC, who I recall in a previous capacity was the man responsible for drafting the legislation and steering it through this House. Our interpretation is that, while the law prohibits the disclosure of evidence given by a witness, it is clearly the case that lawyers are not witnesses and their statements are not evidence before the commission, so the prohibition in section 11 of the Act does not apply. There is no provision in the Act that restricts a person from commenting on the statements of lawyers before a commission. In particular, there is no bar preventing a party from explaining the statements their lawyers made under the instructions of their clients. Someone has been briefing journalists to the effect that there is such a broad definition of "evidence" in the legislation that it would also cover exchanges between the lawyers and the judge.

It is perfectly plain from the body of the Act, for example, section 14, which spells out the form and manner in which evidence is to be given to a commission, that the evidence includes only statements made by a witness, either orally or on affidavit and either on oath or affirmation. The only reason for the extended definition of evidence in the Act is to allow for opinion evidence as well as factual evidence to be given by witnesses, which is a departure from the strict rules that would apply in a court, as distinguished colleagues who operate in the lovely courts buildings on the river will know full well, but it has nothing whatsoever to do with including as well the submissions made by lawyers, unless one agrees with Humpty Dumpty when he told Alice that "When I use a word, it means just what I choose it to mean".

It is clear from the report of the judge that he set out at the outset and throughout the hearings to stress that his hearings were inquisitorial and not adversarial. At paragraph 2.02 he states: "This non-adversarial method was generally followed by all legal teams, although there were a few isolated aberrations from this approach." What we are dealing with here seems to be one of these aberrations, where lawyers were instructed by their client to cross-examine a witness with the intention of undermining their credibility. The serious problem is that this adversarial approach seems to have been adopted when the public stance of the Commissioner to Sergeant McCabe was quite different. She told a Dáil committee that Sergeant McCabe had the full support of Garda management. It is even more serious if the lawyers' instructions had been changed mid-stream, but only when a tape recording turned up that undermined the story their clients were going to tell the commission.

The reason the exchanges between lawyers and the judge arose in the first place is that matters had reached a stage where the judge wanted clarity about the case the lawyers were seeking to make, and it seems clear that those lawyers were initially quite clear about their client's instructions. They said they were instructed to seek to undermine Sergeant McCabe's evidence by questioning his motives, his credibility and his integrity. The lawyers were instructed to do this in the context of introducing evidence of a conversation, except that when Sergeant McCabe produced his own recording of that very conversation, the plan was dropped and the lawyers now said the sergeant's integrity was not at issue. They said it never had been in issue.

What would have happened, and others have posited this question, if Sergeant McCabe had not recorded that conversation? How did the false admission of malice find itself in the instructions of the commission's lawyers? We need to be blunt about this. If this issue is not properly resolved, the suspicion will be that there was a plan prepared by Garda witnesses to put sworn testimony on the record that was materially false and misleading, that this plan was only dropped when it was discovered that the false evidence could not be stood up.

This is an extraordinarily serious matter. It deserves to be treated seriously and not brushed under the carpet of the claim of confidentiality or lawyer-client privilege. The Garda Commissioner’s decision to request the Minister to refer this issue to the Garda ombudsman is a recognition that the matter needs to be investigated and resolved to public satisfaction - I hope quickly - but if the authorities do not change their attitude to legal privilege, will the Garda Síochána Ombudsman Commission run into exactly the same set of difficulties? Will the two senior Garda officers not say that their dealings with the Garda Commissioner’s lawyers about their proposed evidence to the O’Higgins commission are covered by the same legal professional privilege that Commissioner O’Sullivan is relying upon today?

On the issue of privilege, I accept that the Commissioner is as entitled as anyone else to have lawyer-client privilege, but legal privilege is not absolute. It belongs to the client, not to the lawyer, and it can always be waived by the client. Importantly, we as public representatives must insist that there is a difference between a holder of public office and a private citizen. The private citizen is entitled always to have regard only to their own private interest but the public officeholder holds a position in public trust, and their only legitimate concern can only ever be to serve the public interest. So while public bodies have legitimate reasons for relying on legal privilege, they can never confuse their own personal or institutional interest with the larger public interest.

Generally speaking, I agree with the Garda Commissioner that in regard to communications with her legal team, it is important that privilege is protected so as not to impact adversely on the workings of the Garda Síochána and its entitlement to seek and obtain legal advice on a confidential basis, but I do not believe that privilege can or should be used as a shield to prevent an investigation into an alleged scheme by public servants to plant false or misleading evidence on the record of a public sworn inquiry. I make no bones about asserting plainly and unequivocally that the holder of a public office should not be entitled to shelter behind legal privilege if that is contrary to clear public interest. In this case, where a vitally important public office is concerned, the public interest demands a public explanation.

I should make one other point because it struck me, in the context of this, that people might not be aware of it. When we were crafting the whistleblowers legislation, the Protected Disclosures Act, we looked at the British model. In the British model, motivation was one of the issues that could be taken into account in discounting a whistleblower's claim. We deliberately did not transpose that into Irish law because often, whatever the motivation, the allegations can actually be true, and that was so in one of the cases in Donegal in terms of one of the witnesses, whose motivations one might be suspect about but who was motivated to bring the truth to light.

I want to take this opportunity to make it clear that neither I nor any of my Labour Party colleagues ever had any reason to question the former Minister, Alan Shatter’s ability or integrity in Government. We were satisfied when he, properly and fairly, apologised and withdrew the claim he had previously made in the Dáil that the whistleblowers had not co-operated with Garda investigations. It is true that I and Labour Party colleagues, along with at least some of our Fine Gael colleagues in government, were unhappy to see revealed what Mr. Justice O’Higgins refers to in his report as institutional "instinctive hostility towards whistleblowers". Members will recall this culminated in the whistleblowers being referred to by the Garda Commissioner at a Dáil committee as "disgusting" – a description that took some time to be retracted.

We were not party to the events that led to the resignations of either the former Commissioner, Martin Callinan, or the former Minister, Alan Shatter. The reality is that the O’Higgins report is not a report into Alan Shatter or his dismissal by the Taoiseach, Deputy Enda Kenny. Mr. Justice O’Higgins was given terms of reference that asked him to investigate 12 distinct matters, just one of which referred to Alan Shatter.

A further reality is that Sergeant McCabe had been banging his head against a brick wall until his claims were made public and until the O’Higgins commission was tasked with examining them thoroughly. I fully accept, and I never thought or claimed otherwise, that there was no impropriety or malpractice on the part of either the former Minister for Justice and Equality or the former Garda Commissioner. It nonetheless remains the case that the McCabe allegations were not properly investigated on their watch.

Sergeant McCabe has now been confirmed as a dedicated and committed member of An Garda Síochána, with very many legitimate concerns. The conclusions of the O’Higgins report show we were not getting the policing service the people deserve, and that oversight of our policing was inadequate. Garda Commissioner O’Sullivan accepts that dissent is not disloyalty, that the service must learn from this experience and, importantly, that whistleblowers are part of the solution to the problems facing the service. The reforms we insisted on in government will endure for the public benefit.

The Garda Síochána is entitled to the support of the Government and of all public representatives, but citizens too are entitled to expect that we make sure that gardaí behave both professionally and accountably. In a democracy like ours, people expect and are entitled to live in peace in a law-abiding community. Effective and efficient policing is a basic prerequisite for that. To sustain effective and acceptable policing, the links between communities and gardaí are of fundamental importance. The job of the Minister, the Commissioner and the Policing Authority now is to establish a new partnership, and to get police and communities back working together with a common sense of purpose.

I wish to share time with Deputies Coppinger and Boyd Barrett. Deputy Coppinger and I will take 15 minutes and Deputy Boyd Barrett will take the remaining 15 minutes.

Garda Commissioner Nóirín O'Sullivan stated today: "I can confirm that An Garda Síochána's legal team was not at any stage instructed to impugn the integrity of Sergeant Maurice McCabe." TheIrish Examinerhas revealed the following exchange between Mr. Colm Smyth of Commissioner O'Sullivan's legal team and Mr. Justice O'Higgins at a private meeting last year. Mr. Smyth stated: "myinstructions are to challenge the integrity certainly of Sergeant McCabe and his motivation." There was a bit of back and forth between them at that stage. The transcript continues:

Mr. Justice O'Higgins: ... he made these allegations not in good faith but because he was motivated by malice or some such motive and that impinges on his integrity. If those are your instructions from the Commissioner, so be it.

Mr. Smyth: So be it. That is the position, Judge.

Mr. Justice O'Higgins: Those are your-----

Mr. Smyth: Yes, as the evidence willdemonstrate, Judge.

It continues:

Mr. Justice O'Higgins:Those are your instructions from the Commissioner.

Mr. Smyth: Those are my instructions, Judge.

Mr. Justice O'Higgins:Very good.

Mr. Smyth:I mean this isn't something thatI am pulling out of the sky, Judge, and I mean I can only act on instructions.

In other words, not once or twice but on five separate occasions the leader of the legal team made it clear that his instruction was to challenge the integrity of Sergeant McCabe. It is clear, at least from the words of Mr. Colm Smyth, that his instructions were to go very hard on Sergeant McCabe. This resulted in a position where, according to many reports, Sergeant McCabe was virtually put on trial during the hearings. Serious allegations against Sergeant McCabe's integrity by a superintendent and a sergeant were subsequently disproved by Sergeant McCabe.

Mr. Colm Smyth then corrected the record to indicate his instruction had been to challenge the credibility and motivation of Sergeant McCabe but not his integrity.

In her statement today, the Commissioner argued that she had the right to interrogate and cross-examine the evidence of Sergeant McCabe, as might be done with any other witness or person coming before such hearings. However, whatever conclusions can be drawn from these events - whether they are benign or maligned - it is quite clear the treatment of Sergeant McCabe by the Commissioner's team was not on a par with the treatment of others at the hearing. Another question arises from today's statement. It is now a full year since a Garda superintendent and sergeant allegedly presented false evidence against their colleague, a whistleblower. This is a matter of grave concern, so why has the case only now been referred by the Commissioner to the Minister for Justice and Equality and the Garda Síochána Ombudsman Commission, GSOC, a full 12 months on? Is she acting entirely freely? She is certainly under pressure from events.

Recent events in Dublin's north inner city clearly demonstrate the need for an effective police service in the State but an effective police service must be fully democratic and accountable. Clearly, there are problems relating to democracy and accountability within An Garda Síochána. This is not, first and foremost, to do with the approach of this or that individual. In the last analysis, it is to do with the fact that An Garda Síochána, as an arm of the State, is ultimately an organisation serving to protect the interests of a capitalist elite at the expense of the majority of the people. It is not in the nature of such an organisation to be run in a way that can be described as fully democratic and accountable.

This undemocratic and unaccountable role has been seen clearly in multiple instances recently. In the 12 months between November 2014 and November 2015, An Garda Síochána made 188 arrests at community-based protests against water metering. Per head of population, that would be equivalent to more than 2,500 arrests in the UK. If more than 2,500 persons were to be arrested in the UK for participation in a popular community-based campaign, I suspect there might be some Deputies in this House who are silent on what was done here by An Garda Síochána but who may speak in terms of human rights abuses across the water. In addition, what happened during the anti-water metering protests was not an exceptional circumstance. In 2006, some 200 gardaí descended on the community of Rossport in County Mayo, with strong-arm tactics employed to force the Shell refinery on local people. Despite 111 complaints of alleged Garda violence and intimidation submitted to GSOC, not a single garda was disciplined as a result of those complaints. In November 2010, only a few hundred metres from here, a cohort in a 40,000-strong protest by students was attacked by gardaí on horses and by police dogs, as the students protested an increase in university fees. A police force funded by the community and, in theory, charged with defending that community should not act in such a way. These events all point to the need for democratic community control over policing services.

If the Garda Commissioner is found to have been complicit in an attempt to frame Sergeant McCabe, she should go, of course. It should not be a case of resigning and she should in that instance be sacked. I listened with interest in the House last week to a passionate speech from a Deputy who has done much to highlight abuses within An Garda Síochána, Deputy Mick Wallace. Deputy Wallace argued that we will not change how we do policing in Ireland until we change the hierarchy. However, booting out one hierarchy within a police service designed to serve the interests of the 1% and replacing it with another hierarchy within the same force will not address the fundamental issue. That will only be addressed when policing hierarchies are ended altogether and policing comes under democratic community control.

In every district community policy committees should be established, filled by democratic vote of the people in that district. Such committees should have the power to decide where and how Garda resources are deployed within a district. If we leave aside the issue of water protests, if such democratic community policing structures had been in place in Cavan and Monaghan, I doubt very much there would have been a need for an O'Higgins report in the first place. Such committees should also have the power to investigate and discipline members of the force who abuse their power. On a national level, An Garda Síochána must also be brought under democratic control. For example, there is no reason a national meeting of delegates from local community policing groups could not elect a national board to oversee the work of the police. In such a way, the basis could be laid for a policing service that serves the 99% and not the 1%, and which is thoroughly democratic and accountable to the people.

5:00 pm

Photo of Ruth CoppingerRuth Coppinger (Dublin West, Anti-Austerity Alliance)
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There are many disturbing aspects to the O'Higgins report, such as the fact that the documents were not passed over for many months to the commission. We have not heard much comment about that. There was clear bullying and victimisation of Sergeant Maurice McCabe when he exposed poor investigation and wrongdoing. There was clearly a culture within that district, emanating from the top, as otherwise why would low-level gardaí relative to Garda McCabe feel they had the confidence to accuse him, wrongly, of wrongdoing and try to get him into difficulty?

Nobody is held responsible after this report. It concludes that there was a corporate closing of ranks, but that it was not done consciously and there was no question of bad faith. Investigations like this should not be done by people who are part of the legal system; they should be done by outsiders.

The theme I want to take up with the Minister, which I hope she might be concerned about, is one that has not been brought to light from the cases I studied in the commission's report, that is, the issue of violence against women. Surely the Minister must be disturbed by three cases in particular where women were the victims of violence or potential violence and nothing was done about it. We should be screaming from the rooftops about that, because I see some similarities in bad attitudes among these gardaí. I have seen it in my own district as well.

Let us take the Kingscourt bus incident, for example. This was the case of a female bus driver, who, by the way, is not prone to be scared easily and had said herself that she had worked as a bus driver and a taxi driver in some of the toughest areas of Dublin. This woman ended her night hiding in a hedge after what she had experienced, such was her level of fear. The gardaí took no statements. They discouraged any pursuance of the incident by constantly telling her that she had no case, that it was up to her if she really wanted to bother and that there would be a lot of difficulty. The woman ended up being offered a €150 meal voucher as compensation for the terror she had been put through that night. Does the Minister think it is acceptable that anyone - I do not care if it was a probationer - could think that was acceptable? Let us look at that case in particular. In the Byrne-McGinn report, which looked into the case, they said the claim that there was a sexual assault was grossly exaggerated. Actually two sexual assaults took place on that bus that night. One woman leaving the bus was groped and sexually assaulted and in respect of the other woman, what would the Minister call it when men grab a woman by her clothing, she is screaming and is not let off the bus? I would call that a sexual assault as well. We all know it was not taken seriously in any way. The woman who was driving the bus turned down the meal voucher, thankfully, and ended up getting €150 in compensation. What does that tell us about attitudes to the sexual harassment of the women on the bus that night and to violence against women?

In the case of the assault on Mary Lynch, which has been well publicised, we know the assault was eventually downgraded and that Mary Lynch was not told to attend court. I had to laugh when I heard her husband was rung on a couple of occasions. Mary Lynch was ringing the Garda station at the time, but the garda did not see fit to ring the woman who was the actual victim. The commission concluded that there was an agreement that her husband would be the point of contact. It is a bit like something out of the 1930s. The constant get-out clause throughout is that the gardaí were new, they were not being supervised, they were probationers. What does that say about Garda training in Templemore in respect of attitudes to violence against women?

To give the Minister an idea of the savage attack that took place on Mary Lynch in that taxi, the woman was first brought deliberately to a secluded location. She was pulled by the head and told to get out of the car. Lumps were pulled out of her hair. The man had his zip open. He tried to pull her out of the car, kicked her repeatedly in the stomach for a number of minutes, bit her shoulder and verbally abused her. Would that not suggest that this man might just be a danger to women, that he might repeat that pattern again? The gardaí in Cavan-Monaghan do not seem to think so. I do not know whether that is just that area or whether it is a prevalent thing, but the Minister should be asking questions about the attitudes to women among gardaí.

The case gets listed for mention and nothing is said about the judge in the cases, which the Minister should also be concerned about. My reading of it is that the case got disposed of without the person being there, which is a breach of the Criminal Justice Act in that a victim is meant to have the right to give evidence of violence or a threat of violence and the judge did not see fit to question that. The commission concluded it was all very regrettable. There are myriad disturbing features about that case and we know this man went on to abduct a child and to brutally murder another woman. I am not saying every man who attacks a woman might do that, but there is a pattern. Does the Minister not think gardaí should be educated about this area, because they seem to have a very flippant attitude?

I do not have time to deal with it, but I would like to mention the attack that took place on a 17 year old girl. I do not know about the Minister, but if a 17 year old is walking home at night and a man grabs her, covers her mouth and tries to drag her somewhere, I think that is also potentially a sexual assault. It is certainly unlikely to be an attempt to rob a young girl who is unlikely to have very much money. For the investigations to conclude that a sexual motive was unlikely is just ridiculous. That was done by Superintendent Clancy.

I am just trying to bring out aspects that I have not heard being brought out much in the media. This raises a general issue about the confidence woman would have in the police taking attacks on and threats to them very seriously and I would like to hear what the Minister has to say about it.

5:10 pm

Photo of Richard Boyd BarrettRichard Boyd Barrett (Dún Laoghaire, People Before Profit Alliance)
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I have not followed all of this as keenly as some Deputies, notably Deputies Daly and Wallace, who have done the State a great service in how they pursued the matter regarding Sergeant Maurice McCabe and whistleblowers generally and serious problems within the Garda, both in terms of how they conduct or fail to conduct proper policing and in how they deal with whistleblowers. However, the statement today by Garda Commissioner Nóirín O'Sullivan and the response of the Minister to the events surrounding the O'Higgins report are not satisfactory at all.

There is a glaring contradiction between Commissioner O'Sullivan's statement today to the effect that there was no attempt to impugn the integrity or credibility of Sergeant Maurice McCabe and the leaked transcript of what the senior counsel for the Commissioner, Colm Smyth, said to the judge. As Deputy Barry has already said, when questioned by Mr. Justice O'Higgins, Colm Smyth repeatedly indicated that he had got instructions about challenging the credibility and integrity of Sergeant Maurice McCabe. There is a glaring contradiction there. That also raises very serious questions over the commitments and assurances that Commissioner O'Sullivan is giving in the same statement about a new regime when it comes to dealing with whistleblowers. The O'Higgins report clearly vindicates Sergeant Maurice McCabe and indicates what tremendous service he did the State and the public in blowing the whistle on serious failings in the Garda in Cavan-Monaghan. Mr. Justice O'Higgins at least acknowledges that "there was a corporate closing of ranks" by the Garda in the face of the whistleblowing efforts of Sergeant Maurice McCabe, although frankly I think that is an understatement of what Sergeant Maurice McCabe was put through.

We all hoped and imagined that with the ascension of the Garda Commissioner Nóirín O'Sullivan, and after all the controversy surrounding the stepping down of the former Garda Commissioner, Mr. Martin Callinan, and the former Minister for Justice and Equality, Mr. Alan Shatter, we might have a new regime to deal with things in a different way. Instead it appears that the new Garda Commissioner is carrying on in precisely the same way as the old regime carried on in failing to deal in a proper way with whistleblowers to give them the proper protection and support they deserve for highlighting problems, failings and shortcomings within An Garda Síochána. It would appear that two gardaí were preparing to perjure themselves by giving evidence to the O'Higgins investigation by saying that Sergeant Maurice McCabe had indicated malice in his allegations against gardaí in the area. They were unable to do that because, thankfully, Sergeant McCabe had recorded the conversation and showed there was no such malice demonstrated. The fact that two gardaí were willing to perjure themselves, the effect of which would have been to undermine and malign the credibility and integrity of Sergeant Maurice McCabe, is incredibly serious.

Only now, after all the furore, complaints and protests about it, we hear that Commissioner Nóirín O'Sullivan is going to refer this to GSOC. However, that does not satisfy me at all. When will GSOC report on the issue and has its record on these matter been such that one would have confidence that it would get to the bottom of what is an incredibly serious issue? It would appear that two gardaí were prepared to tell lies to Mr. Justice O'Higgins to malign Sergeant Maurice McCabe. The O'Higgins report clearly indicates that Sergeant McCabe had performed a genuine public service at considerable personal cost and had acted out of genuine and legitimate concerns. The response to this is gardaí who were planning to perjure themselves and lie about Sergeant McCabe's integrity. Luckily, they were caught out because of Sergeant McCabe's forethought.

One could say that all of this is past history but there is still a glaring contradiction between what the Garda Commissioner Nóirín O'Sullivan is saying and what appears to be the case. These events might be considered in the past but the same thing seems to be happening again with other whistleblowers. I have not had as much contact with whistleblowers as have Deputies Daly and Wallace but earlier this week I had an extended conversation with Garda Keith Harrison. Before attending the Chamber now, I spoke with him about his thoughts on what was being said. It indicates that nothing at all has changed. Here is another garda with a very serious story, which I will recount. Garda Harrison arrested a senior garda on suspicion of drink driving, which he pursued following the arrest. He was faced with obstacles and resistance by senior Garda management in Donegal. Garda Harrison then started to experience bullying, harassment and victimisation by senior management in the Donegal area, gardaí who were actually supposed to be pursuing the person who was arrested and to serve justice on the senior garda against whom other very serious allegations were also being made by Garda Keith Harrison. Garda Harrison told me that he went to the confidential recipient, a commission of investigation was set up and information from the affidavits he gave to that investigation team were then leaked to the people against whom he had made allegations. This is very serious.

Garda Keith Harrison has written on four occasions to Commissioner O'Sullivan and has received nothing but perfunctory acknowledgements with no serious follow-through, no protection, and no support. I understand that he wrote to the Minister for Justice and Equality in December, and has written to her again this week. He has received from her only a perfunctory acknowledgement of his December correspondence with no real response to the contents of his letter, an account of his treatment when he tried to blow the whistle on very serious failings in the Garda in Donegal.

Garda Harrison tells me that Garda cars drive past his home on a regular basis in what appears to be some sort of low-level intimidation of him and his family. He has been on sick leave since May 2014 and from this week he has no income whatsoever. He has had no support from the Garda, financially or in any other regard. He is getting no support from the Minister or from Commissioner Noírín O'Sullivan. Despite the very serious allegations he has made, despite everything that has happened and despite the vindication of Sergeant Maurice McCabe and Deputies Daly and Wallace - who have championed these issues and the cause of the whistleblowers - nothing seems to be changing. All we get today is another statement that appears to be the Commissioner trying to cover her tracks. It appeared that finally something was going to be done but the evidence suggests that right up until recently they were in fact trying to undermine Sergeant Maurice McCabe, and we have that on the word of their own legal counsel. Consider also the treatment of whistleblowers such as Garda Nicky Keogh. I do not know much about the Garda Nicky Keogh case but apparently it covers very similar concerns.

Given what has happened, how she treated - or tended to treat - Sergeant Maurice McCabe in order to undermine his integrity and in her compete failure to respond to, support and protect whistleblowers such as Garda Keith Harrison, it would appear that Commissioner O'Sullivan simply has no credibility. The Tánaiste and Minister for Justice and Equality knows all of this and I do not understand what she is doing and why she is allowing this to stand. I would hope to hear from the Minister that she is not satisfied with the Garda Commissioner's explanations. It would be good to hear an explanation as to what the Minster intends to do to protect whistleblowers like Garda Keith Harrison and others. Simple rhetoric about protecting whistleblowers that in reality is not matched with visible change, and other Sergeant Maurice McCabes are coming forward, suggests that at best the Government is just playing politics with this issue. The Government was just playing politics when former Commissioner Martin Callinan and former Minister Alan Shatter stepped down. In fact, the Government appears to be doing what the senior gardaí hierarchy seems to be engaged in - the closing of ranks and self-protection, with no serious effort to bring about the needed reform and not following through on its commitment to protect and support whistleblowers.

I do not think any of the serious questions that have been raised regarding Sergeant Maurice McCabe or the whistleblowers have been answered, and a very radical change in attitude is necessary from the Government if it is to regain any credibility on these matters.

5:30 pm

Photo of John LahartJohn Lahart (Dublin South West, Fianna Fail)
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I call Deputy Mick Wallace. Are you sharing your time, Deputy?

Photo of Mick WallaceMick Wallace (Wexford, Independent)
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I am sharing my time with Deputy Clare Daly. We will take 15 minutes each. Both Deputy Daly and I have read the reports in full and it would have been nice to have an hour each to address the many issues in them. However, to bring it back home first for a while, in the Tánaiste and Minister for Justice and Equality's press statement on the publication of the O'Higgins report, she would have us believe that the incidents detailed in the O'Higgins report could not happen now. She stated that "[the] situation has been significantly transformed" and lists, as an example, the new whistleblowing mechanism under the Protected Disclosures Act 2014 now permitting a serving garda to make a protected disclosure to GSOC for investigation. Although investigation by an independent body such as GSOC is an improvement on the internal investigations preferred by An Garda Síochána and the Government, an approach which does not pass constitutional muster due to the perception of bias, GSOC investigations into whistleblowing allegations suffer the same handicap as GSOC investigations into any citizen's complaint of Garda conduct, that is, GSOC cannot take an action or impose any sanction based on the conclusions of its investigations. The report of GSOC's investigation is referred right back to the Garda Commissioner for internal disciplinary action, if any.

The Minister, in that press statement, also refers to "an unprecedented programme of Garda reform" and the eventual introduction of the Policing Authority has been lauded as an example of this, despite the fact that the Government rubbished the need for such a body when we introduced a Private Members' Bill to establish an independent police board a year previously. The Minister states that she is forwarding a copy of the report to the Policing Authority and the authority has released a press statement stating that it "expects that matters which are within its oversight remit will be discussed further with the Garda Commissioner and her senior team in the Authority's ongoing engagement with the Garda Síochána".

The final legislation which established the current Policing Authority represents a significant row-back on what was originally promised by the Government in the wake of the Garda controversies and in their own heads of a Bill published in November 2014. The Policing Authority we now have is a much weaker version than its counterpart in the North or the board we envisaged in our 37-page Bill. Significantly, there is no role at all for the authority in Garda discipline, particularly in respect of Garda discipline and underperformance at management levels and senior rank. How can the authority be expected to oversee anything relating to the report of the O'Higgins commission when the Government's legislation did not give it the power to supervise or discipline, as recommended by other groups and as per the functions of the Northern Ireland Policing Board? Both of these issues - Garda indiscipline and underperformance at management levels and senior rank - were identified by both the Guerin report and the Garda Inspectorate report in November 2015 as fundamental issues within An Garda Síochána requiring urgent action.

The conclusions of the O'Higgins report reconfirmed these two fundamentals along with the other serious issues detailed in the Garda Inspectorate report of 2015, which is now gathering dust in the Minister's office. These issues include poor investigation techniques and detection rates, the absence of proper record or note taking, the absence of proper supervision and training, the appalling treatment of victims of crime and the massaging of figures and PULSE records by gardaí. The O'Higgins commission refers to evidence given that a new performance management system is about to be introduced in An Garda Síochána, suggests that it be implemented immediately and states that a systematic approach to management of performance for members and officers should be part of the culture of An Garda Síochána. Will the Minister please provide details on the proposed performance management system?

The Irish Human Rights and Equality Commission recommended that the Policing Authority discipline, appoint and dismiss all senior gardaí, including the Commissioner, and highlighted the need to align breaches of discipline and criminal offences identified by GSOC with disciplinary procedures within An Garda Síochána. In contrast to the Policing Authority in the Republic, the Northern Ireland Policing Board has a clear disciplinary and supervisory role provided for it in its legislation. Garda discipline remains an internal matter only for rank and file gardaí, to be doled out behind closed doors.

The Minister's press statement concludes by saying she has asked the Garda Commissioner to "indicate... what further measures might be taken to try to prevent the type of difficulties outlined in it in relation to An Garda Síochána arising again". I ask the Minister to commit to updating the House in this regard. I also ask the Minister to consider issuing a directive or an order in accordance with section 25 of the Garda Síochána Act 2005 requesting a full explanation of the allegations now in the public domain regarding her privately expressed views of Sergeant McCabe's motivation, credibility and, possibly, integrity. The Policing Authority does not have the power to issue a directive to the Garda Commissioner and so cannot be expected to satisfactorily address this issue.

I certainly would not take any comfort from the carefully worded and crafted earlier statement of the Garda Commissioner when she said that she does not and never did regard Sergeant McCabe as malicious. This statement clearly sidesteps the issue of whether or why she gave instructions to her counsel to submit to the O'Higgins commission that Sergeant McCabe was motivated by malice in his complaints when her public statements of support for McCabe were at that time directly at odds with any such instructions. What action, if any, has been taken by the Commissioner or the Minister with regard to the leaks that two members of An Garda Síochána were allegedly prepared to perjure themselves in their evidence to the O'Higgins commission in order to falsely impugn Sergeant McCabe's motives? This would have been a criminal offence under section 18 of the Commissions of Investigation Act 2004 but for the providing of a recording by Sergeant McCabe which resulted in the alleged withdrawal of these witnesses. It must be emphasised that Commissioner O'Sullivan had a very specific and personal role in this when acting in her capacity as assistant commissioner of human resources and chapter 13 of this report questions the decision she made in respect of the investigation sought by Sergeant McCabe.

In an effort to provide objective and independent clarification of this leak once and for all, in the interest of transparency and in order to prove a real sea change in Government attitude to Garda whistleblowers, will the Minister now confirm the accuracy or otherwise of the leaked transcript? Section 43 of the Commissions of Investigation Act 2004 sets out that she must now be in possession of the transcript and all evidence given and the O'Higgins commission is now dissolved. Will the Minister also commit to the publication of the relevant parts of the official transcript to the House?

In any event, section 40 of the 2005 Act, as amended by the 2015 Act establishing the Policing Authority, restates and reiterates that the Garda Commissioner is accountable solely and exclusively to the Government and the Minister and not to the authority. Furthermore, the Policing Authority has no ultimate role in respect of the hiring and firing of the Commissioner. There is a clear absence of any real sanction or power to compel compliance. The authority does not have either the carrot or the stick. Therefore, the referral by the Minister of the report to the Policing Authority would appear to be a cynical effort to kick the political football to touch and to an organisation that has been provided with no real legislative power to properly deal with or address the very serious issues that arise from this report. Unfortunately, it seems that, similar to GSOC, the new Policing Authority is at risk of becoming a convenient scapegoat for this Fine Gael Government's cowardice and reluctance to take political responsibility for real Garda reform.

I agree with the final part of the Minister's press release on the publication of the O'Higgins report when she states, "It would be an injustice to those who brought events to light in the public interest and those who have lived under the shadow of these events for a long time, if we do not take on board the lessons from these events". The O'Higgins commission noted in its conclusions that it is "glad to note the coming into effect of Directive 2012/29/EU in November, 2015 dealing with the rights of victims", given the appalling treatment of the victims of crime and the incidents in the report.

Before the Government and the Minister take credit for this development, it should be noted that the welcome protection set out in this directive has been imposed by the EU since the directive was adopted in 2012 but due to the absence of any domestic implementing legislation in the two-year time period, the protections only became available to Irish citizens by default in November 2015. This Government has still not drafted the necessary implementing domestic legislation to provide fully for these protections. This is the priority the Government provides to victims of crime in this country; it must be dragged kicking and screaming by the EU to protect its own citizens.

Sadly, the emergency of the allegations in respect of the Garda Commissioner, the questionable reliance on legal duty to avoid political responsibility, the delay and selective leaking of the report, the resistance of the Garda Síochána to outside investigation, as noted in this report, and the diluted and superficial reform undertaken by this Government leave little hope that the poor quality policing and the tragedies detailed in the O'Higgins report will not be repeated or that there is any reliable and satisfactory system of transparency in existence to investigate them when they recur.

Let us consider the Commissioner's statement today. Essentially, she admits that she gave instructions to challenge the credibility and motivation of Sergeant McCabe. The distinction she draws between challenging his credibility, which she admits, and his integrity, which she denies, is unreal. A lawyer cannot attack someone's credibility, that is, whether the person is telling the truth, without also attacking that person's integrity at the same time. Moreover, the Commissioner has now referred the two gardaí to GSOC for investigation. Her statement does not clearly indicate that she was not aware these two gardaí were planning to perjure themselves or provide false evidence to impugn Sergeant McCabe's motives until a recording was produced. It is incumbent upon the Garda Commissioner to clarify this for the record in light of the seriousness of these allegations, the question mark over the Commissioner's role and involvement in the investigation of Sergeant McCabe, as per chapter 13 of the report, given the treatment that Sergeant McCabe has endured in the past ten years and to reassure any future potential whistleblowers of her commitment in this regard.

The two people the Commissioner refers to are Superintendent Noel Cunningham and Sergeant Yvonne Martin who were at the meeting in Mullingar. The transcript was leaked. In it, Mr. Smyth says: "I appreciate that but my instructions are to challenge the integrity certainly of Sergeant McCabe and his motivation". Mr. Justice O'Higgins then says, "The integrity?", and Mr. Smyth replies, "His motivation and his credibility in mounting these allegations of corruption and malpractice". Mr. Justice O'Higgins then says: "In other words that he made these allegations not in good faith but because he was motivated by malice or some such motive and that impinges on his integrity. If those are your instructions from the Commissioner, then so be it", to which Mr. Smyth replies: "So be it. That is the position, Judge."

Mr. Justice O'Higgins then asked him whether these were his instructions from the Commissioner. Mr. Smyth replied: "Those are my instructions, Judge." The legal team for Sergeant McCabe insisted that Mr. Smyth go outside the room, contact the Commissioner and check whether this was definitely the road he wanted to go down, whether that was what he was really saying. He came back in and said: "Those are my instructions, Judge." He further said: "I mean this isn't something that I am pulling out of the sky, Judge, and I mean I can only act on my instructions."

Clearly the Commissioner thought she was going to get away with throwing Mr. Smyth under the bus on the integrity issue. However, she is not getting away with the fact that she found out in May from the recording of the fourth day that the evidence being put forward by Superintendent Cunningham and Sergeant Martin was totally false. What did the Minister do about it at the time? I will tell the Minister what she did: she did nothing about it. Is the Minister going to let that slip? Is the Minister going to allow the Commissioner to stay in her position? It beggars belief. She does not have a leg to stand on.

There are so many aspects to this and I do not really have time to go into the report. In the past two years myself and Deputy Clare Daly have raised issues 18 times about how the Department and the Commissioner have dealt with whistleblowers. Garda Nicky Keogh wrote to the Minister last week. He made allegations on 8 May 2014 to the confidential recipient, Judge Pat McMahon. After that, he said he was subject to five internal investigations and relentless harassment. He said he has been driven out and has been out sick since 26 December. He also says he has got no protection. The Minister will know this from the letter she received.

His letter went on to say that further to his letter dated 25 July 2015, he had made a protected disclosure to GSOC in respect of a flawed Garda criminal investigation into a conspiracy to supply heroin involving a member of An Garda Síochána in contravention of section 21 of the Misuse of Drugs Act 1977. He said he believed this was no more than a deliberate and unmitigated cover-up by the Deputy Commissioner, Donal Ó Cualáin. He said he believed that the investigation was similar to the internal Garda investigations into Garda misconduct in Donegal in the 1990s. He went on to say that the protection offered to him as a whistleblower under the terms of the protected disclosures legislation was completely disregarded and ignored by the Garda Commissioner, Nóirín O'Sullivan. In fact, he believes that as with other senior gardaí who have met the confidential recipient, Judge McMahon, on the question of Garda misconduct in Athlone, every effort has been made to break him mentally and financially. He said this orchestrated harassment could not have been done without the full knowledge and support of the Garda Commissioner, Nóirín O'Sullivan.

Sergeant Maurice McCabe would be buried by now if he had not taped the conversation. The Commissioner should be buried by now but the Minister is holding her afloat. I put it to the Minister that she is on a sticky wicket.

5:40 pm

Photo of Clare DalyClare Daly (Dublin Fingal, Independent)
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The real story of the O'Higgins report can be summed up by saying that Sergeant Maurice McCabe was right. This is essentially what Mr. Justice O'Higgins was able to establish although almost a decade of Garda reports have stated the opposite. Even that statement alone says a great deal. A person would not have gathered that if she had listened to the coverage given by RTE's Paul Reynolds two weeks ago, following which anyone would have thought the O'Higgins report was entirely different altogether.

We have been visited by the ghost of Ministers past pulling the Taoiseach's hands. This has happened in the form of the former Minister, Mr. Shatter, bleating that he has been exonerated by these proceedings. That is utterly ludicrous. The former Commissioner, Mr. Callinan, and the former Minister, Mr. Shatter, were not exonerated by this commission. In fact, they were bit players, nothing more than a sideshow. They are referred to in 30 pages out of 370. The only matter dealing with the former Garda Commissioner was a complaint which happened to be taken under the Garda Síochána Confidential Reporting of Corruption or Malpractice Regulations. The complaint was that he misused his position with the inappropriate appointment of an officer. He was exonerated for that. That was the only point under investigation. The former Minister, Mr. Shatter, seems to be taking great comfort from the O'Higgins report statement that he was within his rights to rely on the reports of the Commissioner and internal Garda investigations. However, I put it to Mr. Shatter that being within his rights and being right are two very different things. In fact, the former Minister, Mr. Shatter, was wrong. His conclusion that there was nothing to see here was not the right answer. There was plenty to see but he chose not to look at it.

Overwhelmingly, the O'Higgins report is an appalling account of lawlessness, indiscipline, perjury, incompetence and laziness inside An Garda Síochána in Cavan and Monaghan. Certain behaviour which was never disciplined caused enormous consequences to the victims of crime. Were it not for the timely intervention of Sergeant Maurice McCabe, in many instances that behaviour would have led to cases being statute-barred.

When I read the report I was reminded of the first time I met Sergeant Maurice McCabe over five years ago. The Minister has seen Sergeant McCabe. He is an incredibly mild-mannered gentleman. He told the stories of being a sergeant in that district and trying to deal with the type of indiscipline that has been revealed so well in the O'Higgins report. He was laughed at, mocked and ridiculed. There is mention in the O'Higgins report of a campaign on social media about Maurice the rat. I remembered that and I looked up the pictures, some of which I have before me - the Minister may wish to look at them. The pictures are of gardaí off duty in a pub with pints doing what they would like to do with Maurice the rat, which is a plastic rat. It is quite inappropriate for me even to mention it, but the Minister can imagine what they are doing to the rat. These are gardaí. When I read the report I was reminded of these people. How many of the people in these photographs are among the named gardaí in the reports? I do not know but I imagine some of them are. I found the whole thing sickening. More shocking is the fact that ten years down the road these people have learned nothing.

In case after case before Mr. Justice O'Higgins, he repeatedly rejected the evidence of sworn gardaí in the course of the tribunal, while lavishing praise on the victims of crime, including, for example, Majella Cafolla, whose word was taken over the word of Garda Kelly and Garda McCarthy; the word of the victim and her father in the Cootehill assault case taken over the word of Garda Martin; and the rejection of the evidence of Garda O'Sullivan who tried to blame Sergeant Maurice McCabe for Mary Lynch not being told about the court case or Garda Killian who tried to hold him responsible for the taking of the computer. It goes on.

Does it not strike the Minister that these are people who go into courts every day of the week and give evidence before judges about cases, prosecutions and so on on behalf of the State? This is indeed an appalling vista and shame on those individuals. They absolutely have to take account of their actions but on one level could they be blamed when the attitude that perjury is okay is being set at the very top of An Garda Síochána? Unless that is dealt with, we will never reform the force as we know it. The corporate cover-up will continue as will the blue wall of silence. The culture has to be changed. The biggest problem with the O'Higgins report is that there is an almighty chasm after his findings, which are very clear, and then nothing. Nobody will be held accountable for any of this and we are left with an incredible feeling of not being satisfied by it.

One of the linchpins is the Byrne-McGinn report. O’Higgins makes many references to it, saying it was a considerable understatement, it was inaccurate, and the gravity of the issues was not addressed in the report. He found it difficult to understand and surprising. In multiple reports, he found that Byrne and McGinn, at the highest echelons of An Garda Síochána, missed the key point in the complaint. In the one on the Lakeside Hotel assault, they did not deal at all with the unacceptable method of investigation used by the garda who tried to trick the suspect. He found it strange that they expressed the view that the CCTV was delayed when there was no CCTV involved at all. He found it surprising that they did not question Superintendent Clancy on why there was no ID parade. In respect of the Crossans pub assault, he says that Byrne and McGinn said the complaints were largely unfounded when in fact they were largely justified, but he leaves it there. This was a pivotal moment for Sergeant Maurice McCabe, the first time he had taken his complaints to the hierarchy of An Garda Síochána who did not uphold them and tried to blame him. These are complaints that O’Higgins says were largely upheld. To make matters worse, their report was sent to Deputy Commissioner Rice who said Byrne and McGinn were professional and impartial and carried out their work with propriety. He said Commissioner Callinan agreed with him.

Back at the base in Cavan-Monaghan, where the boys went out drinking and put up a picture of Maurice the rat, Chief Superintendent Rooney put a notice on the notice board about the confidential revelations of Sergeant McCabe, saying that it was found that there were no systemic failures identified in the management and there was no evidence to substantiate alleged breaches of procedure, that the findings of Assistant Commissioner Byrne vindicated the high standards and professionalism in the district. Then he thanked them all and their families for the very difficult time they had been put through over these terrible revelations. All of these people were wrong and many of them are still serving officers.

What they did to Maurice McCabe would have floored a weaker man. I do not accept that no one should be called to account for that. It is not good enough for Mr. Justice O’Higgins to say it was okay for the Minister for Justice and Equality to rely on what he clearly says are flawed reports. That is not good enough because in that type of approach nobody is held accountable and if nobody is accountable, bad practice continues. That is precisely why we are in the mess we are in today because, correctly, pressure over policing issues led to the departure of the Minister’s predecessor and the former Commissioner. Now the dogs on the street know what we have been telling her for two years: nothing has changed. It has just been an illusion. As Deputy Wallace said, we have come in here 18 times over the past two years and given the Minister detailed specific information about the horror being endured by current Garda whistleblowers, not to mind the written questions we have tabled to her, and she has done nothing. She said in her speech that she never again wants to see the situation that Maurice McCabe was in, but that situation is here now. It has been here for the other people and she knows it. She referred to a sea change. There is no sea change.

Deputy Boyd Barrett referred to Garda Keith Harrison. We are being told there is a new dawn here, that everything will be great for these whistleblowers. It is not great for them and the legislation the Minister lauds is not fit for purpose. GSOC is incapable of playing the role of Garda confidential recipient. Garda Harrison went to GSOC first on 13 September 2014. He met Simon O’Brien, who was still around at that time and who took the complaints very seriously. He came back in November and said that if a scintilla of what Garda Keith Harrison said was true, it was a very serious complaint. He put two officers in charge of it, but Garda Harrison heard nothing until April 2015 after Deputy Wallace raised the issues in here - I know Simon O’Brien departed but it is a big organisation. That man has been through hell, even to the point of taking a legal action to stop the Garda invoking a disciplinary procedure taken 14 months after an alleged complaint against him was closed. The State defended that action for almost a year before the courts, at what cost, until Christmas. Now Garda Harrison is off the payroll. The Bill is not fit for purpose. Garda Nicky Keogh made allegations of gardaí being involved in the drugs trade. His papers have been with GSOC and the time for the protocols for that information being handed over by the Garda expired approximately three months ago. The Garda has not furnished the papers to GSOC. It is an organisation that cannot deal with this area.

The Taoiseach talked about the independent review mechanism as a barometer of change, that it made recommendations in 300 cases. Apart from 20, the recommendation was that no action be taken. That is not a great harbinger of things changing. To pretend that the new Policing Authority is dealing with all of this is a sleight of hand because the new authority was deliberately constituted and watered down to prevent the type of independent oversight that is necessary. The Minister is legally the only person who can sort this out. The power rests with her and it will be her legacy if she does not take up what is in front of her on this. It is way past the time for the Commissioner to go. Her statement today was an utter insult. It was very cleverly worded, stating counsel was not "instructed to impugn the integrity of Sergeant Maurice McCabe". Funnily enough, they were the words used by Mr. Colm Smyth. The Chinese wall between his credibility and his motivation is utter rubbish, as other Deputies have said.

The testimony of other people at the commission is that it was quite adversarial and that Sergeant Maurice McCabe was being put on trial. Does the Commissioner really expect us to believe that putting out a statement saying that GSOC will look into the conduct of these two senior officers will kill this story? These two serving officers were prepared to give false testimony on the record to discredit Maurice McCabe and the idea that Commissioner O’Sullivan, who was aware of this fact on day three of the commission, almost a year ago, did nothing about it until it became a major story is reason enough for her to go. She is trying to tell us that the two officers were flying solo and she did not know anything about it. If she did not know about it at the start of the commission, she did know about it on days three and four. If she did not know about it and these are solo runs, has she initiated a complaint to the Law Society about the conduct of Mr. Colm Smyth because he was quite clear that he was instructed to undermine the credibility and motivation of Maurice McCabe? Of course she has not done that because the strategy could not have happened without her involvement, and the Minister legally is the only person who can deal with this.

Public trust is and has been broken for many around the country and this report has reopened many wounds. A retired garda in my constituency has been in contact with the Minister. He was one of the investigating officers in the Baiba Saulite case involving a young woman who was murdered and he alleges, very much like Maurice McCabe, that if police work had been done properly previously, that young woman would not have died. Many have been the victims of crime in the same situation. There are enormous systemic problems in An Garda Síochána and those in the last Government did not address them.

It now has a very limited window in terms of how it can respond. Deputy O'Brien said the Minister should have a stark conversation with the Commissioner. It is well past time for that. I strongly recommend that the Minister initiate the legislative powers she has to investigate the behaviour of the Commissioner and that she releases the transcripts, which she has now that the commission has been dissolved, in order to clarify this matter which is the subject of significant public debate. There can be no reform or moving on without it.

The victims in Cavan and Monaghan for whom she has expressed her sympathy and the heroic efforts of Maurice McCabe and John Wilson, who has been in the Gallery for the entire debate, will not be remembered or properly recognised unless we take the necessary steps forward. The Minister has been warned about this for the past two years, but the clock is ticking and there is very little time left.

Debate adjourned.