Dáil statements on report by Seán Guerin SC Statement by Frances Fitzgerald TD Minister for Justice and Equality

A Cheann Comhairle

I welcome the opportunity in the House today to give my response to the report by Mr. Seán Guerin of his review of the action taken by An Garda Síochána pertaining to certain allegations.

The report contains deeply disturbing findings.

It raises fundamental issues about the Garda Síochána, their investigation of criminal cases and the responses to serious concerns raised about them, Garda management and oversight, basic policing procedures and the role of bodies such as GSOC and the Department of Justice and Equality.

Significant steps must be taken to deal with these issues. All of the issues which Mr Guerin has found warrant further inquiry, including the individual allegations which have not been properly investigated, must be examined by the Commission of Investigation which he recommends. But the wider systemic and historic problems revealed must also be tackled by a programme of significant reform.

When I say significant reform I mean that the oversight and governance of the Garda Síochána will be transformed with the establishment of an independent Garda authority. The highest levels of legal support and protection will be given to Garda whistleblowers. The remit, strength and capacity of GSOC will be enhanced to enable the effective and independent examination of complaints. The filling of the post of Garda Commissioner will be by way of open competition, and a wide range of Garda management, operational and procedural issues will be examined by the independent and expert Garda Síochána Inspectorate.

First let me very briefly recall how the allegations which led to the report by Mr Guerin came to be made. In doing so I will touch on some of the main points. The full details of what is a complex history are set out in the report by Mr Guerin. In late 2007 and into 2008 Sergeant McCabe made allegations of Garda misconduct, first to the Garda authorities and then to the Garda Confidential Recipient. Additional complaints were subsequently made through the Garda Confidential Recipient, many involving an alleged lack of supervision, management and oversight by a specific Superintendent. These allegations were investigated by an Assistant Garda Commissioner and a Chief Superintendent.

In 2009 Sergeant McCabe communicated with the then Minister for Justice, Equality and Law Reform, expressing concerns about the conduct of the Garda investigation and asking for independent oversight of it. He was advised then that the conduct of the investigation was a matter for the Commissioner in accordance with the Garda Síochána Act 2005, and that the Minister had no role in directing him in such operational matters. In January 2012 the Minister for Justice and Equality received a letter via the Garda Confidential Recipient containing broadly the same allegations as those covered by the Garda investigation, with additional complaints against the Assistant Commissioner who carried out the investigation and against the Commissioner for permitting the Superintendent at the centre of the allegations to be on a promotion panel.

The Minister sought a report from the Garda Commissioner. The Commissioner advised the Minister that the Assistant Commissioner had found the complaints made by Sergeant McCabe were not substantiated. No adverse findings were made against the Superintendent involved, who had secured his place on the promotion panel following an independent competitive process. The Commissioner also advised that the investigation by the Assistant Garda Commissioner had been reviewed by a Deputy Garda Commissioner who found that it had been properly conducted.

In February 2012 the Minister advised the Garda Confidential Recipient of the advice of the Garda Commissioner, and concluded that there was no evidence to support further action by him. Later in 2012, the Minister also received additional documentation from Sergeant McCabe’s solicitors which was the subject of correspondence with them.

Mr Guerin, in sharp contrast, has found cause for concern in 10 of the individual allegations by Sergeant McCabe. Cause for concern as to the adequacy of the investigation by the Garda Síochána.

While Mr. Guerin makes the point that he has not made any findings of fact or come to any determination in relation to any of the matters he examined, he has indicated the need for further inquiry by way of a Commission of Investigation. The Commission will have the powers and the remit to thoroughly investigate all of the relevant issues and to hear the evidence of everyone concerned.

I want to acknowledge the very difficult experience Sergeant McCabe has had, and the critical role he played in bringing these issues forward. I fully support the remarks made by the Taoiseach yesterday about how Sergeant McCabe’s complaints were handled. I also want to recall his earlier response on how seriously he regarded the allegations when he was given documentation by Deputy Martin.

The individual allegations, which the report recommends should be examined by a Commission of Investigation, relate to serious matters such as the granting of bail to an offender who ultimately committed murder, an assault on a 17 year old girl, dangerous driving causing injuries, and the investigation of sexual offences. The precise terms of reference of the Commission of Investigation will be decided shortly, and will include all of the issues recommended by Mr Guerin for examination. The Commission of Investigation therefore, will look at a wide range of issues, including the individual and serious cases described and also systemic policing issues, general policing issues in the Bailieboro Garda District at the time, the role of GSOC in this matter, and the role of the Department of Justice and Equality and the Minister in responding to the allegations.

What is now imperative is to grasp this opportunity to comprehensively address all of the complex and deep-rooted issues raised not only in the report by Mr Guerin, but more widely, relating to matters such as Garda oversight and management, policing practice, whistleblowing, and relationships between the Garda Síochána and key stakeholders.

Many of these issues were raised, in one form or another, in the reports of the Morris Tribunal. And yes, action was taken on foot of the findings of the Morris Tribunal.

Changes were made.
GSOC and the Garda Inspectorate were established.
The legal relationship between the Garda Commissioner and the Minister was clarified.
New discipline and promotion procedures were introduced.

But time passed and systems failed. That’s the truth of it. And that’s a truth that should inform our thinking from now on. We must never be seduced into believing that a once-in-a-lifetime radical reform is enough. More to the point, we must understand that major reforms carry their own inbuilt danger: the assumption that, because of the scale of change, we won’t need to be vigilant from that point on. If there’s a single overarching lesson we – and all the organs of the state related to justice – must learn, it is that major reform never removes the need for constant questioning, constant attention to detail, constant reaching for what is better, constant review, rather than what will “just do.”

Right now, we have to acknowledge the need for much more than reform arising from the Guerin report or the Commission of Investigation. Fundamental reform is needed, not just of legal provisions – although that is certainly needed – but of institutional relationships, of culture and of attitudes. The reforms I envisage will be systematic and comprehensive, using what has happened as a catalyst. This is an historic opportunity to give Ireland a justice system of which we can be proud.

We now have an opportunity to introduce real and lasting change, change that makes a genuine difference, so that we will not be here again in 10 years time. We must put in place this time a comprehensive set of reforms to make sure nothing like this can happen again.

The public rightly expect to be able to rely on the policing service and criminal justice system. They must be able to trust that crimes they report will be fully and properly investigated. It is also vital for the members of the Garda Síochána, the overwhelming majority of whom joined the Garda Síochána to give public service and to give of their best, that they work in a system where detecting failings is regarded as professional and praiseworthy rather than disloyal. It’s important to recognise that Gardaí right around the country, who understand this, are hurt and upset at the failures which have been exposed.

The Garda Síochána provides a vital public service, preventing and investigating crime, tackling anti-social behaviour, keeping our streets safe for law-abiding citizens, and of course protecting national security, especially through combating subversion and terrorism. Members of the Garda Síochána routinely find themselves, and sometimes have to put themselves, in harm’s way so that the public are protected. Many have suffered hardship and injury doing this, and some have made the ultimate sacrifice.

This Saturday I will be attending the annual Garda Memorial Day in the Dubhlinn Gardens at Dublin Castle to honour the memory of members who have been killed in the line of duty. We owe it to them, as well as to the public they serve, to put things right once and for all.

The Government has therefore decided to amend the Protected Disclosures Bill, which is currently before this House, to enable Garda whistleblowers to report their concerns direct to GSOC for independent investigation. As Deputies will know, this Bill, which has been brought forward by the Minister for Public Expenditure and Reform, will provide a robust and supportive environment for all whistleblowers, in both the public and private sectors, in line with the very best international standards. This will mean that Garda whistleblowers will from now on have a strong legal framework in which to report concerns, strong legal protection against penalisation, and the opportunity of a fully independent examination of their concerns. This historic move will mean that the situation that faced Sergeant McCabe can never happen again.

The Government has also announced that it will bring forward urgent – and I do mean urgent – proposals to strengthen GSOC’s powers and remit. I know that the Joint Oireachtas Committee on Justice, Defence and Equality is currently considering these matters and is hearing submissions from interested parties, including GSOC itself. I look forward to their recommendations, and I will take them into account in developing proposals for legislative change. My intention is to finalise these proposals, in the form of a draft Bill for consideration by Government, as a top priority. I won’t anticipate here the detailed content of those proposals, but we know that some of the key issues which must be considered are the potential inclusion of the Garda Commissioner within the remit of GSOC, the desirability of permitting GSOC to initiate reviews of Garda practices, policies or procedures without requiring the consent of the Minister, whether GSOC need any extension of the police powers available to them, the threshold for the referral of cases to GSOC by the Minister, and the extent to which complaints to GSOC are currently referred to the Garda Síochána for investigation.

In listing these issues which must be considered, I am not being prescriptive or restrictive. All good ideas will be constructively considered.

The Government has already announced that an independent Garda authority will be established by the end of this year. This is a hugely significant development, surely the most important single change in the governance of the Garda Síochána in its history.

The end-of-year deadline is very challenging, particularly as legislation will be needed, but I am determined to do everything possible to achieve it, and I look forward to the cooperation of the House in that regard.

Yet another reform announced by the Government is that the vacancy in the office of Garda Commissioner will be filled by open competition. Like the idea of an independent Garda authority, an open competition has been proposed before, including by a 2007 report by an Advisory Group on Garda Management and Leadership Development chaired by former Senator Maurice Hayes and now we must move on this.

As the 2007 report noted, “This does not in any way predicate the appointment of an external candidate but it does ensure that the successful candidate would have been tested against international standards in police leadership.”

The Guerin report also identifies a range of legal and procedural issues which warrant further review. These relate to matters such as the continuity of tenure of District Officers, aspects of the supervision of probationer Gardaí, the securing of CCTV footage in criminal investigations, the operation of station bail and the use of the Bail Act 1997, the taking of victim impact statements, the taking of contemporaneous notes, and the integrity of PULSE records

In some instances these issues will require consideration by the Garda Commissioner, but I will also be asking the Garda Síochána Inspectorate to carry out a comprehensive inquiry into serious crime investigation, and the management, operational and procedural issues arising from the findings of the report. The Garda Inspectorate has already made recommendations in some of these areas. They also have important work currently under way, and this will of course be taken into account.

All of this reform work is being overseen by the new Cabinet Committee on Justice Reform, chaired by An Taoiseach, and including the Tánaiste, the Minister for Communications, Energy and Natural Resources and myself. The Attorney General also attends the Committee.

A review of the Garda Síochána is also currently under way under the Haddington Road Agreement. This is being conducted by the Garda Inspectorate and Ray McGee, a former Deputy Chair of the Labour Court, and it too has the potential to contribute to the wider Garda reform programme.

I have already noted the recommendation in the report that the Commission of Investigation should look at the role of the Minister, which would of course include the Department of Justice, in responding to Sergeant McCabe’s allegations. In addition, however, the Government has also agreed to my proposals for the establishment of an external expert review of the performance, management and administration of the Department, to be completed before the Summer Recess.

I am on record as saying that I have been very impressed at the range and extent of the legislative output of the Department of Justice and Equality. I acknowledge the extensive and reforming contribution of from former Minister Alan Shatter to that program. That has been achieved despite the extraordinary breadth of policy and operational areas within the Department, covering not just policing and legislation, but prisons and probation, extradition, domestic violence, international child abduction, family law, charities, insolvency, data protection, and many others. Every one of these difficult and complex areas is directly relevant to the citizen — all the more reason to learn wider lessons and put the right structures are in place.

As I have said, all of this means tackling a significant and challenging programme of review and reform, with the establishment of an independent Garda authority, strong protection for Garda whistleblowers, an enhanced GSOC, and an independent review of a range of policing issues by the Garda Síochána Inspectorate.

These are far reaching changes, and we must also be prepared, as we are, to respond to any further findings or recommendations which may emerge from either the Commission of Investigation to be chaired by Judge Fennelly or the Commission of Investigation to be established on foot of the report by Mr Guerin. We will also have to consider the upcoming report of Judge Cooke on concerns of surveillance of GSOC.

I am committed to implementing this reform agenda, and I believe that in doing so I will have the support of members in this House, the support of members of the Garda Síochána, more widely support in the criminal justice system, and the support of the members of the public we all serve.

I look forward to hearing the views of members on all side on these issues, and I look forward, too, to engaging with you over the coming months on the response to those issues.