Wednesday, 13 February 2019
Death of Shane O'Farrell: Motion
Let me start by saying that the Government is not opposing the motion before us. However, I will have a number of things to say about it in the matter of the terms of the motion itself because these terms do raise issues that have potential constitutional and statutory consequences of which I hope Seanadóirí are mindful. I will come back to that shortly.
I want to recall, as Senator Bacik has said, that I spoke in this House last summer about the tragic death of a young man at a point where his life looked so promising. Shane O'Farrell was obviously a much loved son and brother. His death has clearly been devastating for his family to whom, once again, I extend my condolences. My statement in this House at the time followed the completion by GSOC of its criminal investigation into complaints made by the family of Shane O'Farrell. Indeed, GSOC had also included in its investigation a number of matters referred to it by a previous Minister for Justice and Equality. Members will appreciate that the criminal investigation took some time and I recognise that this was a cause of great frustration. However, it is important to acknowledge the very serious nature of a criminal investigation and the requirement that any such investigation be carried out with great diligence and care.
GSOC completed its first report last year and found there were no grounds for criminal proceedings against any member of the Garda Síochána. However, the report identified conduct that might lead to disciplinary proceedings and GSOC therefore commenced a disciplinary investigation into that conduct. I will return to the outcome of that investigation momentarily.
During my statement in this House last June I also stated that there were a number of failings in the period leading up to the road traffic incident in which Shane O'Farrell lost his young life. These were clearly set out in the GSOC report following the conclusion of its criminal investigation. A man who had numerous previous convictions and who was on bail at the time of the incident had also been arrested for other offences while on bail. Indeed, tragically, the actions of the gardaí fell short of what should have happened where a person is on bail or remand and is subsequently arrested for other offences, and that is what GSOC has been investigating over the period since then.
A few short weeks ago, at the end of January, I was informed by GSOC that its disciplinary investigation is now complete. A report has been sent to the Garda Commissioner which recommended certain actions. I have not been furnished with a copy of the report but I have been informed that GSOC has recommended that disciplinary action be taken against three members of An Garda Síochána. I understand the Garda Commissioner is examining that report in detail, and I would note that under the Garda Síochána Act 2005, this is a matter entirely for the Garda Commissioner alone to decide on the matter.
As Minister for Justice and Equality, I am particularly mindful of the independence of GSOC. My responsibility is not to do anything in any manner or means that may be interpreted as undermining its work. Accordingly, when the Dáil passed its motion last June, I began examining how I could give effect to the intention of that House without undermining the work of GSOC. My officials began to explore options with the Attorney General. I was notified at the end of January that GSOC had completed both its investigations into this case and this allowed me to proceed with steps to resolve the outstanding issues in the case.
At the very earliest opportunity, I appointed a respected and very experienced former judge of the District Court, Judge Gerard Haughton, to carry out a scoping exercise into a number of matters surrounding the circumstances leading to the death of Shane O'Farrell. As the House will be well aware, scoping exercises have been carried out in the past prior to the establishment of major inquiries or tribunals of inquiry. It is good governance to allow a scoping exercise by a legal expert to determine the net issues that require examination.
In this case, Judge Gerard Haughton has been asked by me to review the investigations that have taken place into the circumstances of the death of Shane O'Farrell, including the criminal prosecution arising from the road traffic incident, the independent review mechanism examination of the case, and the investigations by the Garda Síochána Ombudsman Commission. His scoping exercise will also review changes that have been made to the law and practice relating to the administration of bail and bench warrants, and the extent to which they have or have not addressed gaps in those systems since the death of Shane O'Farrell.
Following his review, Judge Haughton will advise me on any remaining unanswered questions which should be the subject of further inquiry or investigation and the most appropriate manner in which they should be investigated. I ask Senators to appreciate that I must have regard to the constitutional independence of the courts and the statutory independence of the Director of Public Prosecutions, the Garda Síochána and the Garda Síochána Ombudsman Commission.
I met Mr. and Mrs. O'Farrell and three of their daughters last week to outline my proposals to them. I acknowledge that they objected to the process of a scoping exercise. They did agree, however, to consider the proposed terms of reference and to engage with Judge Haughton on the terms of reference. I very much thank them for that. I have since written to Judge Haughton and asked him to contact the family early to commence that very important engagement.
I am very much aware of the extensive research carried out by the O'Farrell family into issues surrounding the case and I have asked them to make that research available to Judge Haughton. I hope this House will appreciate why I do not wish to say anything further about the process to allow Judge Haughton and the family as much latitude as possible on these issues.
Turning briefly to the terms of reference for the motion itself, I note that the motion is identical to one passed by the Dáil last June. While I have said that the Government is not opposing the motion, it is important that I point out a number of difficulties that may arise in trying to give effect to it. The motion calls for the public inquiry to examine the actions of An Garda Síochána, the Director of Public Prosecutions, GSOC and the Courts Service. I am sure that members of this House are very much aware of the constitutional and statutory provisions governing the functioning of these very important organs of the State.
The investigation of a suspected criminal offence is, with some exceptions, a matter for An Garda Síochána. Where there are alleged failings in this regard, one course of action available, under the Garda Síochána Act of 2005, is for GSOC to investigate. In this case GSOC has carried out two investigations - a criminal investigation and a disciplinary investigation.In respect of the former, it was deemed that there was no criminality. In respect of the latter, the Garda Síochána Ombudsman Commission has recommended that disciplinary action be taken against three member of An Garda Síochána. The motion proposes that the actions of the gardaí which have been examined by GSOC be examined again in another forum. This is being proposed without sight of the most recent and final report of GSOC on the case. I am sure Senators will agree that this is an unusual course of action.
Legal difficulties arise with the proposals made in the motion in respect of the courts which are independent under the Constitution, as well as the Office of the Director of Public Prosecutions and GSOC, both of which are independent under the law. I submit that the House must have regard to the separation of powers under the Constitution where the courts are concerned. Where the Director of Public Prosecutions is concerned, the law has specifically been designed to prevent inappropriate interference with the office where prosecutorial decisions are concerned. On the face of it, the motion is in conflict with the law governing the Office of the Director of Public Prosecutions. Likewise, I need not advise Members that GSOC is statutorily independent. There is provision in section 109 of the Garda Síochána Act 2005 for a senior judge to be appointed to inquire into the actions of a GSOC-designated officer. However, to my knowledge, there is no suggestion that any designated officer involved in the investigation of complaints made by the family of Shane O'Farrell has behaved in a manner that justifies invoking that section.
I am coming towards the conclusion of my remarks, but I am keen to have unanswered questions arising from the case examined and reported on. To that end, I have commenced a scoping exercise to assist me in that regard. When I receive the report of Judge Haughton, I will be in a position to make a further decision on whether to take the matter forward. I ask Senators to be supportive of Judge Haughton as he goes about his sensitive and important work. I reiterate that the Government is not opposing the motion because we, too, wish to see questions answered to the satisfaction of the O'Farrell family. I thank Senators for giving me the opportunity to set out how I propose to proceed in this tragic case.