Michael McDowell (Dublin South East, Progressive Democrats)

The matter before this House today deals essentially with technical and procedural issues which are a necessary prerequisite for the establishment of a commission of investigation.

Beneath this procedural veneer lies a tragic case to which I must refer at the outset. Most, if not all, Senators will be aware of the fact that two innocent women, Ms Sylvia Shiels, then aged 59 and Ms Mary Callinan, then aged 61, were brutally murdered in their home on the night of 6 and 7 March 1997 at Orchard View, Grangegorman in Dublin. By any standards it was a particularly heinous crime which shocked the nation and set in train a Garda manhunt with a view to bringing the perpetrator to justice.

The aftermath of those tragic events gave rise to further tragic events. An innocent man, Mr. Dean Lyons, who is now deceased, confessed to the crime. Following consultation between the Garda Síochána and the Office of the Director of Public Prosecutions, he was charged with one of the murders. The Garda Síochána now accepts that Dean Lyons had no participation in the murders and that his confessions were false. On 29 April 1998, the Director of Public Prosecutions, having received a further report from the Garda Síochána, directed that the charges against him be withdrawn.

There is no doubt that those events have had a profound effect on the everyday lives of the families of the women victims and on the family of the late Dean Lyons. I am sure we are all at one in expressing our deepest sympathy for the enormous suffering caused to those families.

Under the Commissions of Investigation Act 2004 a commission of investigation may be established by the Government, based on a proposal by a Minister, with the approval of the Minister for Finance, to investigate any matter considered by the Government to be of significant public concern. There are questions arising from Dean Lyons's false admissions and from the investigating team's conclusion that there was a prima facie case against him.

In making these points I am simply identifying them as matters which need to be addressed. I am not, as Minister for Justice, Equality and Law Reform, expressing any definitive conclusion on them. I am convinced, however, that unless we do our utmost to get to the bottom of this controversy it will simply continue to fester as an indictment of our criminal justice system.

The Government is of the view that the establishment of a commission of investigation is appropriate. The motion before the House is a necessary prerequisite to the establishment of that commission. It seeks to have a draft order providing for the establishment of a commission of investigation into the Dean Lyons case approved by this House. The draft order is accompanied by a statement of reasons for establishing the commission, as required by the Commissions of Investigation Act. A similar motion was passed by Dáil Eireann yesterday without opposition.

Under the provisions of the Act, the order establishing the commission must specify the matter to be investigated. The draft order — the Commission of Investigation (Dean Lyons Case) Revised Order 2005 — which was laid before the Dáil yesterday describes the matter to be investigated in the following terms, "matters relating to and surrounding the making of a confession by Dean Lyons (deceased) about the deaths of Mary Callinan and Sylvia Shiels in March 1997 in Grangegorman, Dublin 7."

The draft order is a revised order because yesterday in the Dáil I proposed an amendment to the draft order which had originally been laid before the Houses. In effect, I substituted the phrase "surrounding" in the aforementioned provision for the phrase "arising from". I did this to ensure, lest there be any doubt, that the terms of reference which I propose to set were properly comprehended by the draft order. All sides in Dáil Éireann approved the inclusion of the revised order in the motion and passed it without opposition.

The draft order authorises me, as Minister for Justice, Equality and Law Reform, to set the commission's terms of reference. If such provision were not made that task would be a matter for the Government under section 4(2) of the Act. The terms of reference which I propose to set are as follows: to ask the commission to examine and report on the circumstances surrounding the making of a confession by Dean Lyons (deceased) about the deaths of Ms Mary Callinan and Ms Sylvia Shiels in March 1997 in Grangegorman, Dublin 7; the adequacy of the Garda assessment of the reliability of Mr. Lyons's confession, both before and after he was charged with murder; and the adequacy of information provided by the Garda Síochána on the morning of 27 July 1997 to the Director of Public Prosecutions and, in particular, whether any additional information should have been provided at that time.

These terms of reference concentrate on the three issues which need to be resolved. In this regard, the Act requires that the terms of reference set out as clearly and as accurately as possible the events, circumstances, systems, practices or procedures to be investigated, together with the relevant dates, locations and individuals involved.

I am obliged, as soon as possible after the terms of reference are set formally, to prepare an accompanying statement containing an estimate of the costs of the commission and the length of time it will take. This will be published in Iris Oifigiúil and such other publications, as I consider appropriate, as soon as possible after the terms of reference are set.

I do not want to be too definitive about the length of time the commission will take at this stage, although I will have to do so when the terms of reference are set formally. I will take the opportunity to discuss the matter with the commission first. In that regard, I am mindful of the fact that the obligation on the commission under section 32(4) of the Act is to "endeavour" to submit its report within the specified time period. Other technical issues must also be clarified, including how the report will be published and the opportunities given to people to ensure the report is fair.

I envisage that the legal fees, salaries and other administrative costs for the commission will come to about €510,000 for its first four months of operation. This does not include any third party costs that may be awarded by the commission itself.

The draft order also authorises me to appoint the member or members of the commission. I place a high importance on the independence and required expertise of a member of the commission. The powers and duties vested in a commission include the duty to caution witnesses, to compel witnesses to answer questions, to establish rules and procedures regarding evidence and submissions, to adjudicate on matters of privilege and to conduct the investigation. For this reason, I was advised by Mr. Shane Murphy to appoint a senior counsel to carry out the function. I am pleased to inform this House that Mr. George Birmingham, SC, who is a former member of Dáil Éireann, has indicated he is willing to accept the appointment.

The draft order also specifies that I, as Minister for Justice, Equality and Law Reform, am responsible for overseeing the administrative matters relating to the establishment of the commission, for receiving its reports and performing any other functions accorded to the Minister by the Act.

One such function is the obligation to prepare general guidelines. Once the commission has been formally established I am required, in consultation with the Minister for Finance and the commission itself, to prepare general guidelines concerning the payment by my Department of legal costs necessarily incurred by witnesses in connection with the investigation. The commission in turn is obliged to ensure that any direction it makes concerning the payment of legal costs by the Minister for Justice, Equality and Law Reform fall within these guidelines. The guidelines will also make provision for payment to witnesses of non-legal costs.

Each witness will be furnished with a copy of the guidelines in advance of his or her giving evidence. This ensures that witnesses who wish to do so can arrange legal representation with full knowledge of the regime under which they may have their costs recouped.

The commission itself is charged with the onerous task of establishing facts relating to a situation which is laden with complexity. The situation is compounded by the fact that Mr. Dean Lyons is now sadly deceased and no longer available as a witness. As I indicated earlier, he was charged with one of the murders in July 1997, three months after the women met their deaths. In August 1997, another person who had been arrested and detained during the investigation of another double murder, made a confession concerning the Grangegorman murders. As a result of the admissions made by the second person, admissions which have since been withdrawn, the Garda Commissioner appointed an assistant commissioner to review all available evidence concerning these murders.

That second Garda investigation concluded that Mr. Lyons did not commit the murders in question. Following completion of the review, a report was submitted by the assistant commissioner to the Director of Public Prosecutions. In April 1998, after consideration of the report, the Director of Public Prosecutions decided that criminal proceedings against Mr. Lyons be discontinued. In July 1999, Mr. Lyons presented a signed and witnessed statement denying any involvement in the murders. Unfortunately, on 12 September 2000, Mr. Lyons died in a friend's flat in the United Kingdom.

As the House is aware, when the DPP decides not to prosecute in a particular case, the reasons for the decision are given to the State solicitor and the investigating gardaí. The director has stated that it is his policy not to disclose this information otherwise or to make it public. Under our legal system, the function concerning the prosecution of alleged offences is the responsibility of the Director of Public Prosecutions. The director is independent in the exercise of his functions and it would not be appropriate to bring any aspect of his determinative process within the ambit of the commission's terms of reference. However, as Senators can see, the question of the adequacy of the information provided by the Garda Síochána to the DPP prior to his decision that Mr. Lyons should be charged with murder is contained within the terms of reference. It is also important to state that the criminal investigation into these two murders remains open and, in particular, a forensic cold case review is being conducted on exhibits and samples of material taken from the scene with a view to establishing whether they might identify the perpetrator and make a prosecution possible.

On 24 February 2005 the Garda Síochána published a notice in a number of newspapers in which it stated it was satisfied that Dean Lyons had no participation in the Grangegorman murders. The notice also stated that the Garda appreciated the embarrassment suffered by his family as a result of criminal charges preferred against him and subsequently withdrawn. The notice expressed regret and contained an apology to the family of Mr. Lyons for any embarrassment caused. On 6 April 2005, at the request of the Secretary General of my Department, the Garda Commissioner submitted a detailed up-to-date report on the arrest, charging and subsequent withdrawal of charges against Dean Lyons.

In response to public concern about these matters I appointed senior Mr. Shane Murphy, SC, on 27 June 2005 to complete an independent review of Garda papers and actions taken regarding these matters. For the purpose of that investigation he reviewed documents presented to him by the original murder investigation team, including statements, copy statements, job book reports, exhibits and appendices. He also reviewed documentation relating to subsequent reviews of the original criminal investigation file which were made by the assistant commissioner and his team. He also visited the Bridewell Garda station in Dublin for the purpose of examining the interview rooms and the medical room and the overall layout of those areas of the station where the interviews of Dean Lyons took place.

I am not in a position to publish the report because it was not written with a view to publication. It contains some matters which may cause distress and others which would be regarded as confidential and not suitable for publication. Mr. Murphy acknowledges, however, that he received full co-operation from both my own Department and the Garda Síochána.

While Mr. Murphy's report makes a significant contribution to progressing the matter, he did not have the power to examine persons under oath or determine matters of fact. He recommended that the best method to resolve the issues was to establish a full commission of investigation. In July 2004 the Commissions of Investigation Act 2004, which I had put through the Houses, was signed into law by the President and took effect thereafter. This mechanism has only been available since late 2004 to deal with this issue.

One aspect of Mr. Murphy's recommendations has not been included in the commission's terms of reference. Mr. Murphy recommended that the adequacy of Garda protocols and procedures regarding the assessment of the fitness of witnesses to be interviewed should be examined and should form part of the commission's terms of reference. However, I intend to pursue an alternative course with regard to that aspect. With Government approval I have decided to establish an expert group to examine these more general matters and intend to publish its report.

The reason for the difference in my approach is as follows. It has come to be recognised that having clear and well-defined terms of reference which are tightly drawn is often the key to a successful investigation. Second, I am anxious to ensure that this particular commission of investigation will complete its work as quickly as possible. Hence I want it to concentrate on those aspects which are peculiar to the Dean Lyons case itself and in respect of which the inquisitorial powers of the commission will be of particular value.

The commission of investigation is vested with considerable powers. These considerable powers will be best utilised in investigating the specific circumstances of the Dean Lyons case. My intention is that this will facilitate a more focused approach for the commission. The more general aspects are well capable of being addressed by an expert group who will not need to have recourse to these investigative powers when conducting their work. The success of that group will depend not so much on an ability to compel evidence but on its own membership which is capable of bringing a multidisciplinary approach to the issue. For example, I intend to appoint a person with a professional expertise in the area of human behaviour, perhaps a psychologist or psychiatrist, accompanied perhaps by a person with expertise in the area of criminal investigations and a person with an expertise in the area of criminal law.

It is not my intention to appoint a serving officer of the Garda Síochána or a serving official of my Department even though they would have something to contribute. The work of objectively analysing the practices and policies of public bodies goes on every day without the need to establish formal inquiries which operate in a quasi-judicial fashion. Consequently, these more general aspects will be assigned to an expert group to allow the commission to concentrate on the core issues which are central to the case of Dean Lyons himself.

I will now revert to the proposed commission of investigation which is the subject of the motion before the House. The commission will be under a statutory duty to conduct its proceedings in private except in very exceptional circumstances, which are set out in section 11. In effect it will be for the sole member to determine whether or not these circumstances arise. As I said earlier, there is no doubt that because Dean Lyons is now sadly deceased the task of the commission will be more difficult than it might otherwise be. Of course, I intend to give a copy of the report by Mr. Shane Murphy, SC, to the commission to facilitate its work. At the conclusion of its work the commission will prepare for me a written report based on the evidence received and setting out the facts it has established on the matter referred to it.

It is not the function of a commission to speculate or to make findings or to reach judgments based on the balance of the evidence. However, Senators should note that if the commission concludes that the facts relating to a particular aspect of its terms of reference have not been established the commission is obliged to identify that particular aspect. Furthermore, in any such case the commission is empowered to indicate its opinion as to the quality and weight of evidence relating to any area where the evidence is incomplete, insufficient, inconsistent or disputed.

There is no general restriction in the Commissions of Investigation Act 2004 on the identification of persons in reports of a commission. However, section 32(3) sets out considerations that may lead to the omission of certain details from a report identifying persons who gave evidence or any other person. The grounds include where the context in which the person was identified has not been clearly established or where disclosure might prejudice any criminal proceedings pending or in progress or where it would not be in the person's interest and the omission would not be contrary to the interests of the investigation or any subsequent inquiry.

In accordance with the provisions of section 38 of the Act, it is my firm intention to publish the report of the commission. I point out, however, for the information of Senators that the Act empowers me to seek directions from the High Court where there is a risk that anything in the report or interim report could prejudice any pending or ongoing criminal proceedings. I make this point simply for the purposes of clarity. There are no criminal proceedings pending at present but as I stated earlier the case remains open.

It is important to state that there are two pieces of legislation now on the Statute Book which would make dealing with this situation a different proposition were it to occur in the future. The first is the Garda Síochána Act 2005, which provides for the establishment of an ombudsman commission. The ombudsman commission will be empowered to directly and independently investigate complaints against members of the Garda Síochána.

The ombudsman commission will also be empowered to investigate any matter, even where no complaint has been made, where it appears that a garda may have committed an offence or behaved in a manner that would justify disciplinary proceedings. It will also be empowered to investigate any practice, policy or procedure of the Garda Síochána with a view to reducing the incidence of related complaints. I am conscious of the need to have the ombudsman commission established as soon as possible and an implementation review group is currently working under the chairmanship of Senator Maurice Hayes. It is in the process of drafting a report for which I am grateful. Substantial progress has been made and I expect to be in a position to seek Government approval for the nomination of the members of the commission at an early date.

Had the ombudsman commission existed in 1998 things would have been radically different. However, cases such as this serve to illustrate the importance of the provisions which were made for its establishment in the Garda Síochána Act 2005. The Commissions of Investigation Act mechanism, which is the subject of today's debate, is another new inquisitorial tool which was not available in 1998, only becoming available in the latter half of 2004. In that sense I respectfully submit that things have progressed considerably since 1998. I regret the delay in this matter but if any attempt had been made to establish an inquiry prior to the second half of 2004 it would either have to have been a full-blown tribunal of inquiry with all its attendant difficulties or an inquiry under the Dublin Police Act 1924, which is a narrow statutory provision.

The matter has been carefully investigated and the Commissioner reviewed the case again in April 2005. I appointed Mr. Shane Murphy, SC, in June 2005 and he reported to me during the parliamentary recess. I am acting on his report, therefore, in the first parliamentary term after it was produced. While one might be critical of the time that has elapsed since these events first came into the public domain it should be borne in mind that as Minister my field of options has been narrow and has opened greatly since the passing of the Commissions of Investigation Act 2004, which made it possible to have an inquiry of this kind.