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 Dáil Diary no 7 - 28th May 2016
On Wednesday May 25th, I shared 30 minutes in the Dail Chamber with Clare Daly on the Judge O Higgins Report, when we raised several issues that Minister for Justice Francis Fitzgerald needed to address. In her reply on Thursday she dealt with none of them. None of them. We have a Justice Minister who refuses to hold the Garda Commissioner to account, we have a Fianna Fáil / Fine Gael Coalition that seems content with the dysfunctional nature of how we do policing. This Fianna Fáil / Fine Gael Coalition, which has been dressed up as something else is worrying, and is unlikely to be good for this country. Is there anyone going to hold the Minister for Justice to account, or is perpetual spin going to win the day.  Instead of dealing with the important issues we've raised, the Minister has chosen to avoid the hard questions and engage in banal populism. She's pretends outrage that I might name some Gardai that were prepared to go to extreme lengths in order to undermine the credibility of Whistleblower Maurice McCabe. Has it dawned on the Minister that we wouldn't have to use the floor of the Dail to address the concerns of Whistleblowers, but for the totally deficient Protected Disclosures Act, but for the totally deficient Minister for Justice and Garda Commissioner? Might someone remind the Minister, while she's still there, that there is nothing inappropriate or unlawful with the exercise of Parliamentary privilege  - as much as she or her Party mightn't like it, it's called Democracy....

Here's the transcript of my Dail speech -
" Both Deputy Daly and I have read the reports in full and it would have been nice to have an hour each to address the many issues in them. However, to bring it back home first for a while, in the Tánaiste and Minister for Justice and Equality's press statement on the publication of the O'Higgins report, she would have us believe that the incidents detailed in the O'Higgins report could not happen now. She stated that "[the] situation has been significantly transformed" and lists, as an example, the new whistleblowing mechanism under the Protected Disclosures Act 2014 now permitting a serving garda to make a protected disclosure to GSOC for investigation. Although investigation by an independent body such as GSOC is an improvement on the internal investigations preferred by An Garda Síochána and the Government, an approach which does not pass constitutional muster due to the perception of bias, GSOC investigations into whistleblowing allegations suffer the same handicap as GSOC investigations into any citizen's complaint of Garda conduct, that is, GSOC cannot take an action or impose any sanction based on the conclusions of its investigations. The report of GSOC's investigation is referred right back to the Garda Commissioner for internal disciplinary action, if any.

The Minister, in that press statement, also refers to "an unprecedented programme of Garda reform" and the eventual introduction of the Policing Authority has been lauded as an example of this, despite the fact that the Government rubbished the need for such a body when we introduced a Private Members' Bill to establish an independent police board a year previously. The Minister states that she is forwarding a copy of the report to the Policing Authority and the authority has released a press statement stating that it "expects that matters which are within its oversight remit will be discussed further with the Garda Commissioner and her senior team in the Authority's ongoing engagement with the Garda Síochána".

The final legislation which established the current Policing Authority represents a significant row-back on what was originally promised by the Government in the wake of the Garda controversies and in their own heads of a Bill published in November 2014. The Policing Authority we now have is a much weaker version than its counterpart in the North or the board we envisaged in our 37-page Bill. Significantly, there is no role at all for the authority in Garda discipline, particularly in respect of Garda discipline and underperformance at management levels and senior rank. How can the authority be expected to oversee anything relating to the report of the O'Higgins commission when the Government's legislation did not give it the power to supervise or discipline, as recommended by other groups and as per the functions of the Northern Ireland Policing Board? Both of these issues - Garda indiscipline and underperformance at management levels and senior rank - were identified by both the Guerin report and the Garda Inspectorate report in November 2015 as fundamental issues within An Garda Síochána requiring urgent action.

The conclusions of the O'Higgins report reconfirmed these two fundamentals along with the other serious issues detailed in the Garda Inspectorate report of 2015, which is now gathering dust in the Minister's office. These issues include poor investigation techniques and detection rates, the absence of proper record or note taking, the absence of proper supervision and training, the appalling treatment of victims of crime and the massaging of figures and PULSE records by gardaí. The O'Higgins commission refers to evidence given that a new performance management system is about to be introduced in An Garda Síochána, suggests that it be implemented immediately and states that a systematic approach to management of performance for members and officers should be part of the culture of An Garda Síochána. Will the Minister please provide details on the proposed performance management system?

The Irish Human Rights and Equality Commission recommended that the Policing Authority discipline, appoint and dismiss all senior gardaí, including the Commissioner, and highlighted the need to align breaches of discipline and criminal offences identified by GSOC with disciplinary procedures within An Garda Síochána. In contrast to the Policing Authority in the Republic, the Northern Ireland Policing Board has a clear disciplinary and supervisory role provided for it in its legislation. Garda discipline remains an internal matter only for rank and file gardaí, to be doled out behind closed doors.

The Minister's press statement concludes by saying she has asked the Garda Commissioner to "indicate... what further measures might be taken to try to prevent the type of difficulties outlined in it in relation to An Garda Síochána arising again". I ask the Minister to commit to updating the House in this regard. I also ask the Minister to consider issuing a directive or an order in accordance with section 25 of the Garda Síochána Act 2005 requesting a full explanation of the allegations now in the public domain regarding her privately expressed views of Sergeant McCabe's motivation, credibility and, possibly, integrity. The Policing Authority does not have the power to issue a directive to the Garda Commissioner and so cannot be expected to satisfactorily address this issue.

I certainly would not take any comfort from the carefully worded and crafted earlier statement of the Garda Commissioner when she said that she does not and never did regard Sergeant McCabe as malicious. This statement clearly sidesteps the issue of whether or why she gave instructions to her counsel to submit to the O'Higgins commission that Sergeant McCabe was motivated by malice in his complaints when her public statements of support for McCabe were at that time directly at odds with any such instructions. What action, if any, has been taken by the Commissioner or the Minister with regard to the leaks that two members of An Garda Síochána were allegedly prepared to perjure themselves in their evidence to the O'Higgins commission in order to falsely impugn Sergeant McCabe's motives? This would have been a criminal offence under section 18 of the Commissions of Investigation Act 2004 but for the providing of a recording by Sergeant McCabe which resulted in the alleged withdrawal of these witnesses. It must be emphasised that Commissioner O'Sullivan had a very specific and personal role in this when acting in her capacity as assistant commissioner of human resources and chapter 13 of this report questions the decision she made in respect of the investigation sought by Sergeant McCabe.

In an effort to provide objective and independent clarification of this leak once and for all, in the interest of transparency and in order to prove a real sea change in Government attitude to Garda whistleblowers, will the Minister now confirm the accuracy or otherwise of the leaked transcript? Section 43 of the Commissions of Investigation Act 2004 sets out that she must now be in possession of the transcript and all evidence given and the O'Higgins commission is now dissolved. Will the Minister also commit to the publication of the relevant parts of the official transcript to the House?

In any event, section 40 of the 2005 Act, as amended by the 2015 Act establishing the Policing Authority, restates and reiterates that the Garda Commissioner is accountable solely and exclusively to the Government and the Minister and not to the authority. Furthermore, the Policing Authority has no ultimate role in respect of the hiring and firing of the Commissioner. There is a clear absence of any real sanction or power to compel compliance. The authority does not have either the carrot or the stick. Therefore, the referral by the Minister of the report to the Policing Authority would appear to be a cynical effort to kick the political football to touch and to an organisation that has been provided with no real legislative power to properly deal with or address the very serious issues that arise from this report. Unfortunately, it seems that, similar to GSOC, the new Policing Authority is at risk of becoming a convenient scapegoat for this Fine Gael Government's cowardice and reluctance to take political responsibility for real Garda reform.

I agree with the final part of the Minister's press release on the publication of the O'Higgins report when she states, "It would be an injustice to those who brought events to light in the public interest and those who have lived under the shadow of these events for a long time, if we do not take on board the lessons from these events". The O'Higgins commission noted in its conclusions that it is "glad to note the coming into effect of Directive 2012/29/EU in November, 2015 dealing with the rights of victims", given the appalling treatment of the victims of crime and the incidents in the report.

Before the Government and the Minister take credit for this development, it should be noted that the welcome protection set out in this directive has been imposed by the EU since the directive was adopted in 2012 but due to the absence of any domestic implementing legislation in the two-year time period, the protections only became available to Irish citizens by default in November 2015. This Government has still not drafted the necessary implementing domestic legislation to provide fully for these protections. This is the priority the Government provides to victims of crime in this country; it must be dragged kicking and screaming by the EU to protect its own citizens.

Sadly, the emergency of the allegations in respect of the Garda Commissioner, the questionable reliance on legal duty to avoid political responsibility, the delay and selective leaking of the report, the resistance of the Garda Síochána to outside investigation, as noted in this report, and the diluted and superficial reform undertaken by this Government leave little hope that the poor quality policing and the tragedies detailed in the O'Higgins report will not be repeated or that there is any reliable and satisfactory system of transparency in existence to investigate them when they recur.

Let us consider the Commissioner's statement today. Essentially, she admits that she gave instructions to challenge the credibility and motivation of Sergeant McCabe. The distinction she draws between challenging his credibility, which she admits, and his integrity, which she denies, is unreal. A lawyer cannot attack someone's credibility, that is, whether the person is telling the truth, without also attacking that person's integrity at the same time. Moreover, the Commissioner has now referred the two gardaí to GSOC for investigation. Her statement does not clearly indicate that she was not aware these two gardaí were planning to perjure themselves or provide false evidence to impugn Sergeant McCabe's motives until a recording was produced. It is incumbent upon the Garda Commissioner to clarify this for the record in light of the seriousness of these allegations, the question mark over the Commissioner's role and involvement in the investigation of Sergeant McCabe, as per chapter 13 of the report, given the treatment that Sergeant McCabe has endured in the past ten years and to reassure any future potential whistleblowers of her commitment in this regard.

The two people the Commissioner refers to are Superintendent Noel Cunningham and Sergeant Yvonne Martin who were at the meeting in Mullingar. The transcript was leaked. In it, Mr. Smyth says: "I appreciate that but my instructions are to challenge the integrity certainly of Sergeant McCabe and his motivation". Mr. Justice O'Higgins then says, "The integrity?", and Mr. Smyth replies, "His motivation and his credibility in mounting these allegations of corruption and malpractice". Mr. Justice O'Higgins then says: "In other words that he made these allegations not in good faith but because he was motivated by malice or some such motive and that impinges on his integrity. If those are your instructions from the Commissioner, then so be it", to which Mr. Smyth replies: "So be it. That is the position, Judge."

Mr. Justice O'Higgins then asked him whether these were his instructions from the Commissioner. Mr. Smyth replied: "Those are my instructions, Judge." The legal team for Sergeant McCabe insisted that Mr. Smyth go outside the room, contact the Commissioner and check whether this was definitely the road he wanted to go down, whether that was what he was really saying. He came back in and said: "Those are my instructions, Judge." He further said: "I mean this isn't something that I am pulling out of the sky, Judge, and I mean I can only act on my instructions."

Clearly the Commissioner thought she was going to get away with throwing Mr. Smyth under the bus on the integrity issue. However, she is not getting away with the fact that she found out in May from the recording of the fourth day that the evidence being put forward by Superintendent Cunningham and Sergeant Martin was totally false. What did the Minister do about it at the time? I will tell the Minister what she did: she did nothing about it. Is the Minister going to let that slip? Is the Minister going to allow the Commissioner to stay in her position? It beggars belief. She does not have a leg to stand on.

There are so many aspects to this and I do not really have time to go into the report. In the past two years myself and Deputy Clare Daly have raised issues 18 times about how the Department and the Commissioner have dealt with whistleblowers. Garda Nicky Keogh wrote to the Minister last week. He made allegations on 8 May 2014 to the confidential recipient, Judge Pat McMahon. After that, he said he was subject to five internal investigations and relentless harassment. He said he has been driven out and has been out sick since 26 December. He also says he has got no protection. The Minister will know this from the letter she received.

His letter went on to say that further to his letter dated 25 July 2015, he had made a protected disclosure to GSOC in respect of a flawed Garda criminal investigation into a conspiracy to supply heroin involving a member of An Garda Síochána in contravention of section 21 of the Misuse of Drugs Act 1977. He said he believed this was no more than a deliberate and unmitigated cover-up by the Deputy Commissioner, Donal Ó Cualáin. He said he believed that the investigation was similar to the internal Garda investigations into Garda misconduct in Donegal in the 1990s. He went on to say that the protection offered to him as a whistleblower under the terms of the protected disclosures legislation was completely disregarded and ignored by the Garda Commissioner, Nóirín O'Sullivan. In fact, he believes that as with other senior gardaí who have met the confidential recipient, Judge McMahon, on the question of Garda misconduct in Athlone, every effort has been made to break him mentally and financially. He said this orchestrated harassment could not have been done without the full knowledge and support of the Garda Commissioner, Nóirín O'Sullivan.

Sergeant Maurice McCabe would be buried by now if he had not taped the conversation. The Commissioner should be buried by now but the Minister is holding her afloat. I put it to the Minister that she is on a sticky wicket.

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