Speech by Alan Shatter TD, Minister for Justice, Equality and Defence during Dáil Statements on Allegations in relation to An Garda Síochána

I want to say, initially, that Deputy Martin was quite right to hand over to An Taoiseach last week material which he had received from a member of An Garda Síochána, Sergeant Maurice McCabe.

An Taoiseach acknowledged that they were serious matters and undertook to review them.

If Deputy Martin’s primary motivation was to have these allegations examined, the proper course of action would have been to let An Taoiseach, who made it clear that he was treating the matter as one of the utmost seriousness, proceed with that examination and respond to the Deputy.

Instead, the Deputy came into this House last Thursday brandishing a document which he said was in my possession for two years. What the Deputy’s allegations amounted to was this: very serious allegations against the Gardaí had not been addressed, I had done nothing about them and I had not responded to correspondence from Sergeant McCabe.

The manner in which Deputy Martin presented the matter understandably led most people to believe that the allegations made had never before been addressed, had only arisen since my appointment as Minister, that the cases concerned had only arisen during my time in office and he sought to copper fasten this impression by accusing me of undermining the administration of justice in this State. No timeline was given by Deputy Martin for the cases investigated by An Garda Siochana or which had come before our courts. Moreover, no distinction was made by him between operational matters which are the responsibility of An Garda Siochana and policy issues which are my responsibility, a distinction well understood by my Fianna Fail predecessors in Justice.

I intend to demonstrate to the House today that none of Deputy Martins political charges are true.

Deputy Martin has spoken much in recent days about the maladministration of justice. There are of course fundamental principles of justice that are crucial to this State. They concern fundamental constitutional and human rights and the rule of law – something to which I have been passionately committed throughout my adult life.

As Minister, I cannot opt to respect the rights of one person and ignore the rights of others. Put simply, while, of course, any allegations of wrongdoing must be taken seriously, allegations are not facts. I cannot proceed on an assumption that allegations made by one member of An Garda Síochána against many of his colleagues are correct and ignore the rights of those against whom allegations are made. This basic principle holds whether we are talking about An Garda Síochána or any other organisation, group or individual.

I have no doubt that many people outside this House must find the twists and turns in relation to what, by any standards, is a complex set of circumstances bewildering but I am sure that they clearly understand one thing: allegations are not facts and that basic fairness requires when allegations are made against people they should not be assumed to be guilty without hearing the other side of the story or without evidence. What is crucial is that the evidence for allegations made is carefully and properly examined. Allegations may ultimately be proved to be true, partially true or false. Where false, the original allegation need not in any way be malicious but may derive from a mistaken perception or understanding of events. Life is complicated, not everything is simply black and white.

As Minister I am solemnly bound to protect the rights of all citizens, be they Gardaí or anyone else, and to behave at all times in accordance with our laws.

I want to make it clear that I have no animosity towards Sergeant McCabe. I have previously acknowledged that important changes have been implemented with regard to the fixed charge notice system arising from matters raised by Sergeant McCabe. I have absolutely no wish to have a continuing public, or indeed private, dispute with a serving member of An Garda Síochána. I believe it is of crucial importance that whistleblowers are treated with respect and their allegations taken seriously. I will return at a later stage to one matter relating to the ticket charge issue.

Unfortunately, today, we have reached a situation where other allegations made by Sergeant McCabe have become caught up in partisan and divisive political debate. If all sides of the House can agree on one thing today, surely it is this: the legal arrangements for dealing with Garda whistleblowers have failed when these matters are being dealt with across the floor of this House where the Deputies opposite seek political advantage, and apparently do not mind what damage they might do to An Garda Síochána and those who serve in it. In the case of Sinn Féin, I will simply observe that old habits die hard. But I have to say frankly to Deputy Martin, that whatever political disagreements I may have had with Fianna Fail over the years, I think many of the former statesmen in his party would be appalled by the cavalier attitude he has taken to An Garda Síochána against whom he has made the most serious allegations without waiting to establish the truth or otherwise of them. I regret, in particular, the lack of regard he has shown to the Office of the Garda Commissioner, which is at present occupied by a person appointed by the Government of which he was a member – which no doubt made the appointment on the basis of their full confidence in him.

In fairness to members of An Garda Síochána, I cannot simply take at face value very serious allegations made against them and assume they are guilty until proven innocent. This is not the approach of our legal system nor is it compatible with concepts of Constitutional Justice and Human Rights. I also have to be careful in my presentation to this House today not to stray into areas that are matters in contention currently between Sergeant McCabe and the State and which are the subject of Court proceedings taken by him. I hope Members of the House will appreciate that, during this debate, we all have to respect the existence of two sets of legal proceedings which Sergeant McCabe has taken, one set initiated in 2009 which includes the Minister for Justice as a named defendant and a second set initiated in 2011 in which the Minister for Justice is not named as a defendant. In both sets of proceedings the Garda Commissioner is so named.

In relation to the allegations which Deputy Martin made in the House last Thursday and which he has repeated at every opportunity both inside and outside the House since then, I want to deal first of all with the entirely incorrect assertion that nothing had been done in relation to a series of serious allegations involving Garda misbehaviour.

The Garda Síochána Act, 2005, – introduced by the then Minister for Justice, Michael Mc Dowell – into this House contains clear legal procedures for dealing with alleged misbehaviour by members of An Garda Síochána. I am not going to make much of the fact that the behaviour which Deputy Martin characterised as maladministration of justice took place long before I took office. But the key fact is that all of the cases brought to my attention on 23rd January 2012 occurred in the 2007/2008 period and they were all addressed under the arrangements which the Government of which he was a member put in place, in the light of the findings of the Morris Tribunal. Far from nothing being done, it seems to me from my review of the papers relating to this matter, that those procedures were observed.

In 2008, Sergeant McCabe made a written complaint to Garda Headquarters alleging neglect of duty and other malpractice by Gardaí at Bailieboro Garda Station, and failure by the Superintendent to respond properly when Sergeant McCabe had brought these concerns to his attention. Sergeant McCabe also claimed that he had been victimised. A Chief Superintendent was appointed to investigate these allegations.

Later in 2008, the then Garda Commissioner received an anonymised complaint (which turned out to be from Sergeant McCabe) from the then Garda Confidential Recipient, Brian McCarthy, making allegations in relation to malpractice at Bailieboro Garda Station, and in relation to the failure of senior Gardaí at the station to respond to these concerns when they had been brought to their attention. An Assistant Commissioner was appointed to investigate these allegations.

The allegations covered cases such as the failure to notify a court in a child abduction case that the accused was already on bail facing serious charge; failure to properly investigate several cases; failure to forward a report relating to poor standards at Bailieboro Station; falsification of records; failure to deal with sexual harassment of a female Garda; and the giving of a direction to Sergeant McCabe to cease assessing and monitoring probationer Gardaí. In 2009, the Garda Commissioner received a further report from the same Confidential Recipient, in which Sergeant McCabe alleged harassment and victimisation arising by the making by him of the first report. Later in 2009, a further report was received from the Confidential Recipient again relating to harassment. The Assistant Commissioner, along with the Chief Superintendent, were appointed to investigate these allegations too.

In case Deputy Martin is concerned that this was not the correct procedure, it might be helpful to point out that Sergeant McCabe in 2009 wrote to the then Minister for Justice, Dermot Ahern, alerting him to the fact that he had made a complaint about malpractice and corruption in the Bailieboro Garda District. In this letter, Sergeant McCabe claimed that, although a preliminary report into his complaint had revealed bad practice and procedure, the Chief Superintendent for the Division had publicly rubbished the complaint, and the Sergeant called on the Minister to ask for an independent person to oversee the investigation. The Minister replied, through his Private Secretary, that the conduct of the investigation was a matter for the Garda Commissioner, in accordance with the Garda Síochána Act, 2005, that the Minister had no role in directing the Commissioner in such operational matters, and that, in the circumstances, the most appropriate action was to allow the Commissioner to complete his work and let due process take its course. I want to make it absolutely clear that I am not criticising the response of my predecessor to Sergeant McCabe although I accept, of course, that it might have been helpful to Deputy Martin if he had been aware of it.

The investigation by the Assistant Commissioner over a lengthy period culminated in the submission of 10 volumes of evidence to the Director of Public Prosecutions, who – of course independently – directed that no prosecutions were warranted. [The investigation did result in disciplinary action against a number of Gardaí]

It is very important to note that, under the legal procedures in place, the Confidential Recipient and, crucially, the Garda Síochána Ombudsman were informed of these matters. The thinking behind the provisions of the 2005 Act was this: the Garda Síochána Ombudsman was to be advised by the Garda Commissioner of complaints received by the Confidential Recipient so that it could initiate its own investigation in the public interest if it considered it warranted to do so. The fact that this could happen would also act as a form of ‘quality control’ in relation to any Garda investigation. The Garda Síochána Ombudsman Commission were informed in June, 2010 of the progress of the Assistant Commissioner’s investigation and, shortly afterwards, of the decision by the Director of Public Prosecutions. While GSOC dealt with a small number of relevant complaints which had been made to it – and which I will deal with in a moment – it does not appear to have felt it necessary to take any further action.

The Commission at the time comprised Mr. Dermot Gallagher, Mr. Conor Brady and Ms. Carmel Foley. Again, I am voicing no criticism of them as to how they dealt with this matter. But the essential facts are these: the allegations were dealt with under the procedures in place at the time, and the Confidential Recipient, the Director of Public Prosecutions and the Garda Síochána Ombudsman Commission fulfilled their statutory roles in relation to them. I doubt that any fair-minded observer would regard these as a set of allegations about which nothing had been done. I doubt, that Deputy Martin would have come into the Dail Chamber in 2009 or 2010 and made such charge against former Minister Dermot Ahern and accused him of undermining the administration of justice in the State.

I think it is only fair to note too that while many of the allegations referred to possible shortcomings in Garda investigations, and there were some shortcomings or failures identified, nevertheless a number ultimately resulted in successful prosecutions and convictions.

For the sake of completeness, I should mention also that there were complaints from Sergeant McCabe of alleged assault and imprisonment against the Assistant Commissioner who conducted the investigation. This, in turn, was investigated by a Deputy Commissioner who submitted a file to the Director of Public Prosecutions who directed no prosecution.

Of course, I understand that Sergeant McCabe did not accept the outcome of these investigations and that is his right. But I am sure the House will appreciate that there is no mechanism that can guarantee all complainants will be at all times fully satisfied with the outcome of all investigations. What is important is that there are procedures in place to deal with allegations and, as I have pointed out, the procedures put in place by the previous Government with regard to all of these matters were followed. Over three weeks ago I announced that I intended to introduce reforms to the current statutory provisions and procedures because from my experience of them I had concluded they were deeply flawed.

This brings me to the question of contacts between Sergeant McCabe and my Department and, in particular, the allegation that I took no action in relation to correspondence received from him.

On 23rd January, 2012 I received a report from the then Garda Confidential Recipient, Mr. Oliver Connolly, attaching a letter which had been anonymised but which turned out to be from Sergeant McCabe and which included 12 allegations against a named Superintendent (for either direct wrongdoing or not dealing properly with wrongdoing), a complaint against the Assistant Commissioner for the alleged assault and false imprisonment, and a complaint against the Garda Commissioner for permitting the named Superintendent to be on a panel for promotion to Chief Superintendent in circumstances where the Garda Commissioner knew, or ought to have known of, the alleged wrongdoing of the Superintendent. Not only were there accusations of malpractice but also of corruption in that Gardai were generally accused of engaging in falsifying records, erasing officials records, erasing reported incidents, destroying and altering official records, covering up serious investigations and “gross dereliction of duty on a massive scale”. In fairness to the rights of everyone involved I want to emphasise that these were – at the time – anonymous allegations and they should not be taken as evidence of anything.

I should explain that reports from the Confidential Recipient are only forwarded to me where an allegation is made against the Commissioner.

I took the letter so seriously that on 24th January, the following day, my Secretary General, at my request, wrote to the Garda Commissioner seeking an urgent report.

The Commissioner’s detailed response, received by me on 30th January, described the investigations that had been undertaken and the chronology of events and explained that, of the 12 allegations against the Superintendent, 11 had already been dealt with as part of the investigation by the Assistant Commissioner and Chief Superintendent. In other words, the January 2012 letter from Sergeant McCabe restated these 11 complaints which had already been dealt with under the Statutory Confidential Recipient Scheme. The Commissioner also explained that the 12th allegation in the January 2012 letter related to a case of ‘child pornography and rape of a minor in September, 2007 where the offender was a priest in the District’. The report went on to explain that this investigation centred on offensive and inappropriate behaviour with a 14 year old boy, and that it was apparent that the investigation was efficiently and speedily carried out, resulting in the priest being convicted and sentenced to 5 year concurrent sentences. The assurances which I received were essentially to the effect that these matters had been fully investigated in accordance with the law in place at the time.

On 7th February, I wrote to the Confidential Recipient and informed him of the response of the Garda Commissioner.

To support the political charge he levied against me, Deputy Martin saw fit to draw attention to cases involving a serious assault on Mrs Mary Lynch and the brutal killing of Mrs Sylvia Roche Kelly, which offences occurred in 2007. I certainly do not want to add to the trauma and distress which has been caused by these events by having these cases the subject of public attention again, but I do think it is important to set the record straight about them. In particular, Deputy Martin again raised yesterday in this House the murder of Sylvia Roche Kelly and its impact on all of her family. It would be, I believe, entirely wrong to leave unchallenged Deputy Martin’s inference that nothing has been done to address concerns about the Garda handling of these cases.

The House may be aware that Lorcan Roche Kelly, the bereaved husband of Sylvia Roche Kelly initiated High Court legal proceedings against the State in February, 2009 so the State has been aware of particular issues related to her murder since 2009. I say this in addition to the State’s awareness of such issues in the context of the broader investigation into her tragic death and prosecution of the perpetrator. Of course, I do not want to say anything which would in any way prejudice those current High Court proceedings. I do, however, want to extend my sympathy to Lorcan Roche Kelly and to all of the late Sylvia Roche Kelly’s family on their terrible loss in dreadful circumstances. I hope that there is some comfort in knowing that the individual responsible is presently serving a term of life imprisonment.

Deputy Martin talked of the need for an independent enquiry into matters that have understandably been raised by Mr. Roche Kelly. I can tell the House that, in June, 2009, he lodged a complaint with the Garda Síochána Ombudsman Commission to the effect that there was neglect of duty on the part of Gardaí in Tipperary and Cavan/Monaghan whom he believed failed to liaise properly in order to ensure that the relevant District Court was suitably advised that a person was on bail for other very serious offences when that person appeared before the District Court on another serious charge.

The Garda Síochána Ombudsman Commission initiated an investigation and, in the light of their investigation, subsequently referred the matter to An Garda Síochána on the basis that the matter should be considered as a less serious breach of discipline in relation to two Gardaí. A designated Superintendent, having investigated the case, decided that there was insufficient evidence to find either member in breach of discipline. While I do not wish to underestimate in any way the seriousness of what happened, the judgement of an independent body, GSOC, was that what was at issue was a less serious breach of discipline and I am advised GSOC did not make any finding under its statutory provisions of Garda misconduct.

I hope that Deputy Martin – and other members of the House – can accept that GSOC was the appropriate independent body to adjudicate on this matter. In fact, the bereaved husband wrote to the then Minister, Dermot Ahern, in 2009 about this distressing case. In one of his replies, sent through his private secretary, Minister Ahern expressed his sympathy and explained how a complaint could be made to the Garda Síochána Ombudsman Commission. Like everyone in this House, I share and understand the concerns that have been voiced in relation to this matter but it seems that Deputy Martin was unaware of the complaint made to GSOC and it’s determination and I suspect also unaware that Lorcan Roche Kelly had been in correspondence with my predecessor Mr. Dermot Ahern. I am sure that if Deputy Martin had been aware of this he may have taken a more considered approach to that taken in this House on Thursday last and again yesterday.

I want to extend my deep sympathy also to Mary Lynch who was the victim of a very serious assault. Subsequent to an individual being charged with that assault, he was charged with a further serious offence and granted bail by the District Court. A serious issue arose as to the adequacy of the information furnished to the District Court by An Garda Siochana at the time when bail was granted whilst I am advised that the bail application was vigorously opposed. Our courts are independent and such decisions are a matter for them. I do not feel it appropriate that I further address this matter as, while GSOC discontinued a complaint from Mary Lynch (because it was out of time) about aspects of how her own case was treated, I understand from what she has said publicly that she at present has another complaint before GSOC and I do not want to say anything that would be regarded as prejudicing the outcome of this complaint. It is, however, clear to me from a complaint properly made by Mary Lynch was that there was a failure by An Garda Siochana to inform her of the hearing and determination in the District Court of the criminal prosecution taken against the individual who assaulted her. Whilst the Court imposed two concurrent nine month sentences on the individual concerned, she should have had the opportunity to be present in Court. I am advised that, prior to my time as Minister, as a result of the failure to advise Mary Lynch to be present in the District Court on the day when a plea of guilty was entered by the defendant in her case and sentence imposed, An Garda Siochana internally addressed this failure.

I believe it is of considerable importance that the victims of crime are kept properly informed of progress made in the investigation and prosecution of their case and I am greatly concerned by any case where there is a failure to keep a victim informed. In this context, when in opposition, I brought forward in both 2002 and 2008, Victims’ Rights Bills to impose a statutory duty of Gardaí to inform victims of trial dates. Unfortunately in 2008 when Deputy Martin was a senior Government Minister his Government chose to vote down that measure. Such legislation is under preparation in my Department and will incorporate within it provisions in relation to victims of crime which are now incorporated into an EU directive and I expect the legislation will come before this House in 2015.

I do not intend to go into any detail today about correspondence with Sergeant McCabe about penalty points. This issue has been referred to GSOC and we should let them get on with their work.

I want to deal with the charge that I misled this House by claiming that Sergeant McCabe had not cooperated with the investigation carried out by Assistant Commissioner John O’Mahoney. It was expected by me that Sergeant McCabe would fully engage as a member of An Garda Siochana with Assistant O’Mahoney’s investigation team and that he would be interviewed. These are, of course, operational matters in which no Minister for Justice should interfere and, of course, any such interference would be rightly subject to public criticism

I have no interest in continuing contention with Sergeant McCabe about this matter, but the House will appreciate I cannot leave a charge of misleading it stand. I do not think it is disputed that, following furnishing to the O’Mahoney investigation team of formal allegations and documentation which originated from Sergeant McCabe and former Garda Wilson that there was no engagement between either Garda member with the investigation team before Assistant Commissioner O’Mahoney completed his report. What is at issue is an interpretation of events which preceded publication of that report. In what I said to the House I relied on material which I received detailing the content of a direction given to Sergeant McCabe on a related matter which included inviting him to participate in the O’Mahoney investigation and the fact that a letter had been sent from an official of my Department in December 2012 which, specifically, advised Sergeant McCabe that any further information which might be helpful to the investigation should be brought by him to the attention of his authorities within the force. This letter is one of a number of letters exchanged by my Department with Sergeant McCabe.

The situation is further complicated by the fact that between the finalisation of the O’Mahoney report and its publication, he declined to take up an offer from Assistant Commissioner O’Mahoney to meet with a member of his investigation team.

Clearly there is a difference of views and perception between An Garda Síochána and Sergeant McCabe with regard to this issue. I have explained the basis on which I made my statement and I can take it no further. However, I want to make it clear, because of some public comment that has been made, that there is no basis for the suggestion that the Garda Commissioner in any way misled me in relation to this matter. Nor is there any basis for an allegation that I in any way misled the House. I appreciate that different Members of the House may perceive these matters differently. It is unfortunate that perceptions are coloured on occasion by political differences.

There is one further set of allegations made by Sergeant McCabe which, for completeness, I should mention.

On 4 September 2012, solicitors for Sergeant McCabe wrote to me enclosing 3 booklets of documentation containing multiple allegations of Garda wrongdoing, and requesting the establishment of a special inquiry under section 42 of the Garda Síochána Act, 2005 containing multiple allegations of Garda wrongdoing, and requesting the establishment of a special inquiry under section 42 of the Garda Síochána Act, 2005. Some of these allegations related to penalty points and there was a cross-over with some of the earlier allegations which I mentioned.

The correspondence was marked strictly private and confidential. On 18th October my Office wrote to the solicitors seeking confirmation that they had no objection to the booklets being forwarded to the Garda Commissioner for his observations. Clearly I could not decide to establish a statutory inquiry without being aware of all the facts. My office also asked the solicitors to forward copies of PULSE records referred to in the documentation but which had not been enclosed.

When by 22nd November no response had been received a further reminder was sent to the solicitors by my office. A further reminder was sent by my office on 3rd January 2013. I think it is clear that if I was intent on ignoring allegations by Sergeant McCabe I wouldn’t have been so assiduous in trying to elicit responses from his solicitors.

At that stage, the solicitors replied saying that all the information had already been provided. In turn my office on 11th March 2013 replied pointing out the documentation provided to the Department of the Taoiseach related to different allegations, and again asked for the condition of confidentiality to be lifted to enable the matter to be pursued. On 1st May 2013, a further letter was received from the solicitors requesting a copy of the O’Mahoney report and repeating the assertion that the records had already been provided. Again on 22nd May 2013, my office replied seeking a waiver of confidentiality. I do not know why the waiver of confidentiality requested was not forthcoming. I was properly conscious, however, of the fact Sergeant McCabe had expressed serious concerns about the observance of privacy and confidentiality in relation to other correspondence and that he would expect that to be respected. What is clear is that I did everything possible to try and move this issue forward taking into account Sergeant McCabe’s position on the matter. I very much welcome the fact that I will now be able to provide this documentation to Mr. Sean Guerin SC.

Finally, I should mention that, while preserving the confidentiality requested by Sergeant McCabe, some of the issues raised by him revisited some of the matters of relevance to the earlier correspondence with the Confidential Recipient and, in this context, in late December 2012, my Secretary General wrote again to the Garda Commissioner as Sergeant McCabe had revisited some of these matters and he received a further detailed response from the Garda Commissioner in February 2013.

I can only assume that, had Deputy Martin been aware of the extent of both my engagement, and my Department officials engagement, in issues arising from allegations contained in the letter received by me on 23rd January 2012 and had he known of the events that had taken place in the preceding years, the charge he made against me would not have been made.

This brings me to the series of decisions which we took in Government yesterday
We did so against the background that the procedures for dealing with both whistleblowers and complaints which I inherited under the 2005 Garda Act had not operated in a way which had fully addressed the complex circumstances of this particular case. It was also our considered view that these matters could not be adequately addressed within the Dail Chamber or within an Oireachtas Committee.
So what we decided yesterday is not just designed to address this particular set of allegations but to look to the future to avoid this type of situation arising again.

Before this controversy erupted, I had already stated that, as far as I was concerned, the Confidential Recipient arrangements were not working. The Government approved my proposals yesterday to allow for legislation in tandem with Minister Howlin’s Protected Disclosures Bill to allow Gardaí to make complaints directly to GSOC. Pending the early enactment of that legislation we will be appointing an interim Confidential Recipient.

Mr. Sean Guerin SC is undertaking an assessment of issues and allegations from Sergeant McCabe since 2008. He is being asked to report his findings before the Easter recess and to make recommendations. The report will be published immediately and if he does recommend a Commission of Inquiry there will be one.

The Justice Committee will have hearings on Garda accountability arrangements and will, in particular, consider the amendments required to be made to the Garda Síochána Act 2005 with regard to the working of GSOC.

I know Members opposite maintain that a Commission of Inquiry is needed immediately. Deputy Martin and others clearly did so without knowing all the facts. It seems also that amongst the facts that Deputy Martin did not know was that both Sergeant McCabe and Lorcan Roche Kelly had each written to his former colleague in Government Mr. Dermot Ahern when Minister for Justice, whom I do not hold at fault in any way. I believe that the approach announced by the Taoiseach yesterday and agreed in Cabinet is the right course initially and there remains the possibility, following on from the consideration given to all these matters in the report of Mr. Sean Guerin, that an independent statutory inquiry may be required. Equally it may not and I do not wish to prejudge that issue.

My concern is as always that the full truth is known. From Deputy Martin’s contribution in the House last Thursday, and his dramatic appearance on the plinth last Wednesday, he ra