Michael McDowell (Dublin South East, Progressive Democrats)

This motion seeks approval for the establishment of a Commission of Investigation into the tragic death of Gary Douch. As Senators will be aware, the Commission of Investigation Act 2004 provides for the establishment of such commissions to investigate any matter considered by the Government to be of significant public concern. Such commissions are completely independent and in general will hear evidence in private.

A commission may direct any person to attend before the commission to give evidence, examine witnesses on oath and direct that documents be produced. A commission can authorise a person to enter premises, inspect documents and take copies, and it is an offence to obstruct such a person in carrying out his or her duties. It can direct costs to be paid in certain circumstances and it is an offence to make a false statement to a commission. A person giving evidence has the same immunities and privileges as a witness in court. The report of a commission must be published unless otherwise directed by a court.

The tragic circumstances which give rise to the motion before this House are as follows. On 31 July 2006, Mr. Gary Douch expressed concerns about his safety while imprisoned on C wing of Mountjoy Prison. He was moved from C wing and, unfortunately, placed in holding cell No. 2 in the B base area with five other prisoners. On the morning of 1 August 2006, shortly before 7 a.m., the holding cells in the B base area were opened. When holding cell No. 2 was opened, prisoners filed out and it was noticed that one prisoner was missing. Staff entered the cell and discovered Mr. Douch. Unsuccessful attempts were made to resuscitate him and he was brought to the Mater Hospital where he was pronounced dead. The indications are that Mr. Douch had died as a result of a vicious assault in the cell by another prisoner.

In the immediate aftermath of the death, I appointed Mr. Michael Mellett to carry out an independent inquiry into the circumstances surrounding the tragic death of Mr. Douch while in custody in Mountjoy Prison. He was asked to establish what action was taken by the Irish Prison Service, management and staff to safeguard Mr. Douch; to clarify whether Mr. Douch had expressed special concerns about his safety; to establish what procedures were followed and their adequacy; to establish the procedures used to allocate prisoners to the cell in which Mr. Douch died; to establish the level of monitoring during the night of 31 July and morning of 1 August 2006; and to make any observations and recommendations he saw fit.

Mr. Mellett had extensive experience in prison matters as a senior official in the Department of Justice, Equality and Law Reform but had retired from the Department a number of years before his appointment to carry out this inquiry. He was, therefore, fully independent of the Irish Prison Service and my Department in carrying out the inquiry. He carried out his task in a timely and totally independent manner and submitted a report to me last month. The report sets out the facts as he found them in forthright and unequivocal language. It is because of the material he has uncovered that the Government has decided a statutory commission of investigation with extended terms of reference is warranted. In accepting my invitation to conduct the inquiry Mr. Mellett took on a difficult task and did an excellent job. I acknowledge publicly the work he has done.

Since the death of Mr. Douch, interim steps have been taken to reduce the risk of a recurrence of an incident of this kind. The holding cell where the death occurred has been permanently taken out of service. Special arrangements have been put in place to deal with the situation where a prisoner seeks special protection, on foot of an interim recommendation from Mr. Mellett on 2 August 2006 which I immediately accepted and had implemented. I have issued two new committal directions which had the effect of diverting committals from Carlow, Kildare, Kilkenny, Laois, Offaly and Westmeath away from Mountjoy to the Midlands Prison and committals from Louth, Meath, Monaghan, Wexford and Wicklow away from Mountjoy to Wheatfield Prison. This direction lessens the danger of Mountjoy Prison being overwhelmed by any sudden surge of committals.

As with the case of all deaths in custody, the Garda Síochána was called to Mountjoy Prison and initiated a criminal investigation into the death of Gary Douch. A file was sent to the Director of Public Prosecutions and, as a result, an individual has been recently charged with causing the death of Gary Douch. The progressing of those criminal proceedings is a matter for the Director of Public Prosecutions and the judicial arm of the State. I have no role in those proceedings but I have a duty not to do anything or reveal any information that might prejudice those criminal proceedings. Although it was my original intention to publish the report of Mr. Mellett, the strong advice from the Attorney General was to the effect that the report should not be published. Therefore, in the circumstances, the House will appreciate that I am very much constrained in what I can say about the events of that night. I trust that Members of this House will exercise a similar caution when discussing this case.

In general terms I can say that Mr. Mellett, in his report, has identified a number of systems failures within the prison service, something I regard as very serious, which may have contributed to the death of Mr. Douch. The findings of the report have serious implications for the future management of our prisons and the Government has taken the view that a full statutory commission of inquiry is required to address the matter. While the terms of reference may be finalised only after the resolutions have been passed and the order made by the Government I advise the House that the intention is for the terms of reference to be as set out in bold in the script I have circulated.

It will be clear that prisoner A is the prisoner accused of causing the death of Mr. Douch. Mr. Mellett's report makes it clear that some of the most significant questions relate not so much to the victim and his management within the prison system but to how prisoner A had been managed and treated while in State custody. I use the phrase "State custody" because the prisoner had been in prison, was then sent to the Central Mental Hospital, and was then returned to prison. His entire period in State custody will have to be examined to ascertain if he was adequately and appropriately dealt with. Both prisoners were on protection and, without doubt, a detailed and comprehensive investigation is required into how prisoners requiring protection are managed. The most important aspect is that not only do we establish what happened but that we learn from the experience and take corrective action to ensure a similar fatality never recurs.

It is my intention, subject to the approval of the resolution by this House and the other House, to appoint Ms Gráinne McMorrow, an experienced senior counsel with a background in mental health and criminal law and experience of both the United Kingdom and Irish systems, to be the sole member of the commission of investigation. I have discussed the proposed terms of reference with her and she is happy to accept the position on that basis.

It may be appropriate at this juncture to refer to the procedural aspects of establishing a commission of investigation. The Government has agreed to the establishment of a commission but before the necessary order can be made a draft of the proposed order and a statement of reasons for establishing it must be laid before the Houses of the Oireachtas and a resolution approving the draft must be passed. The draft order has been so laid and provides that the Minister for Justice, Equality and Law Reform is authorised to set the terms of reference, appoint the members of the commission and receive the commission's report in due course. I have already set out the proposed terms of reference and indicated that it is proposed to appoint Ms Gráinne McMorrow as the sole member of the commission. Once the appropriate resolution has been passed by both Houses and the order made by the Government, I will immediately set about establishing the commission.

I have already explained the reason I cannot go into detail about the circumstances surrounding the death of Gary Douch. In any event, it would be wrong and unhelpful to start anticipating or pre-empting the findings of the commission of investigation but having read Mr. Mellett's report, one striking aspect is his account of the physical conditions in Mountjoy Prison, particularly the holding cell involved. One of the first official engagements I undertook on my appointment as Minister in 2002 was to visit Mountjoy and I can tell Members it was an eye opener. There has been trenchant criticism of the conditions in Mountjoy by the European Committee for the Prevention of Torture and by Mr. Justice Dermot Kinlen for many years. That is why this Government has made considerable progress in replacing and modernising our prison estate. I have got resources for the prisons capital programme.

The resolve to once and for all bring our prisons up to modern standards is evidenced by the money we have spent on prison buildings since my appointment as Minister in 2002. Already, we have spent €280 million on investment in capital in the prisons. For example, the Irish Prison Service is currently engaged in a major capital building programme involving the replacement of the four prisons on the Mountjoy campus — the Mountjoy male prison, the Dóchas Centre, the training unit and St. Patrick's Institution — with the Thornton campus. Portlaoise Prison, Cork Prison and the older parts of Limerick Prison are to be replaced and between them these comprise nearly 40% of the entire prison estate.

In tandem with improving the estate we have been making changes in other areas of prison management. Regarding the prison officers' overtime, the statement I have circulated sets out the background to that. The initiative on drugs in prisons, which was published in May 2006, is being implemented. At long last we will have the abolition of the old style padded cells in our prisons, which are being replaced by newly designed and improved observation cells that can best protect the prisoner when the occasion demands. The Prisons Act 2007, most of which Act I commenced today, is an important measure in modernising and ensuring cost-effectiveness in our prison system. New prison rules will be signed by me in the current week now that I have commenced the Prisons Act and will underpin important changes to the governance of our prisons by replacing outdated 1947 rules. Senators will be glad to know that it is my intention to re-appoint Mr. Justice Kinlen as the Inspector of Prisons — I have spoken to him about this matter — and to commence the relevant provisions of the Prisons Act almost immediately. He will continue his important work with legislative backing and I want to thank him for the work he has already done.

Returning to the setting up of the commission of investigation, it was wrong that Gary Douch should have died while in State custody and I reiterate my heartfelt apology to his family. We need this commission of investigation to establish all of the facts surrounding the death. We need to learn the measures that must be taken to prevent a similar tragedy happening again. Above all, we need to have a decent system for those who are suffering from psychiatric illness in our prison system to ensure they are properly dealt with and not transferred from one institution to another as nuisances but are dealt with in a way which is appropriate to their dignity and to the safety of other prisoners. I want to thank Ms Gráinne McMorrow for agreeing to act as commissioner in this case.

There are many comments I would like to make about this matter because the circumstances call for comment, but because of the impending criminal prosecution I am extremely constrained in making comments about it but I want to say this. First, the use of that cell, which was condemned by Mr. Justice Kinlen, was not justifiable at that time. Second, this would never have happened in any decent system of prisons if it had been appropriately administered and managed. I can say with certainty that this should never have happened. I ask all Senators to support the Government's proposal for the establishment of a commission of investigation in this case by supporting the motion before the House this evening.