Frances Fitzgerald, listening to Garda Commissioner, Noirin O'Sullivan talking to the media. Picture: Mark Stedman/RollingNews.ie
IT’S A scenario that fans of Kafka would savour — the Department of Justice has asked the Garda Ombudsman to investigate a policing controversy.
To start its work, the Ombudsman has sought relevant documentation, held by the same Department.
But the Department has referred the request to the Attorney General, because of strict legal constraints surrounding the release of such documentation.
Legal experts believe it is doubtful GSOC will get what it wants, stalling, if not ending, the inquiry before it even gets started.
Last May, the Irish Examiner published yet another revelation on justice and policing scandals. It sparked outrage and political hand-wringing — and the establishment of yet another inquiry, more than four months ago now.
The “transcripts” scandal, as it was quickly referred to, is not dissimilar to the latest allegations engulfing the Garda Síochána.
Like the current complaints, these transcripts led to allegations, including in the Dáil, that there were efforts to undermine Sergeant Maurice McCabe.
Transcripts from Day Two and Day Three of the O’Higgins inquiry — set up to investigate complaints by Sgt McCabe about policing in the Cavan-Monaghan division — were incendiary.
In it, counsel for Garda Commissioner Nóirín O’Sullivan told Judge O’Higgins that his instructions from the Commissioner were to challenge the “integrity” of the whistleblower.
Queried by the judge, Mr Smyth said he would question the “motivation and credibility” of Sgt McCabe in making allegations of corruption and malpractice.
Asked by the chair was he suggesting Sgt McCabe was “motivated by malice or some such motive” and that this impinged on his integrity, Mr Smyth responded: “That is the position.”
Mr Smyth added: “I mean this isn’t something that I am pulling out of the sky, Judge, and I mean I can only act on instruction.”
Asked again was he “attacking the motivation and integrity” of Sgt McCabe, he responded: “Right the way through.”
Some months later, Mr Smyth made a clarification to the commission: that he never used the word “malice” and that he was in error in saying he had been instructed to challenge Sgt McCabe’s integrity, but rather his “motivation and credibility”.
Commissioner O’Sullivan dodged the potential bullet in explaining what legal instruction she gave to Mr Smyth (citing the legally-bound private nature of the commission’s hearings and legal privilege).
After growing political and public disquiet, on May 25, Ms O’Sullivan called on Ms Fitzgerald to request GSOC to investigate certain matters that led to these claims before the commission.
The Minister agreed, saying there was “significant public concern” and, after further consultation with the commissioner, referred the matter to GSOC on June 19.
As soon as the watchdog formally received the ministerial direction they immediately wrote to the Garda Commissioner seeking all documentation in relation to the matter.
In response to media queries, GSOC issued a statement on June 23.
“We have written to the Garda Síochána requesting that all documentation held by them in this matter be sent to GSOC. We will commence the investigation as soon as we receive this information.”
Some time later — GSOC has declined to say when — the Garda Commissioner replied that she couldn’t be of assistance.
In a statement supplied to the Irish Examiner, GSOC said: “The Ombudsman Commission sought documentation related to the matter arising from the O’Higgins Commission, which GSOC was asked to investigate, from the Garda Commissioner.
“The Garda Commissioner was not in a position to give us the documentation because of the terms of the Commission of Investigation Act.”
The statement finished by saying that they were “continuing to try and progress the matter”.
Section 11 of the act is clear: all business of the commission is conducted in private (save for certain provisions).
It states: “A person (including a member of the commission) shall not disclose or publish any evidence given or the contents of any document produced by a witness while giving evidence in private.” One of the exceptions cited is “as directed by a court”.
Anyone who contravenes this is guilty of an offence, punishable by up to five years in prison on indictment.
Section 43 of the act explains that once the commission reports it is dissolved and all its documents are to be deposited to the relevant ministry.
A spokesman for the Department of Justice confirmed it had received the records of the O’Higgins inquiry on April 25 last and added: “The Department has sought legal advice from the Attorney General regarding a request from the Chairperson of GSOC in the context of its investigation into certain allegations made following the publication of the O’Higgins report.”
Four months on, that’s where the investigation, such as it is, lies.
THE LAW
The signs of it going anywhere fast, if at all, are not encouraging.
Professor of Law, Shane Kilcommins, based at the University of Limerick, is an expert on evidence and jurisprudence. Asked could GSOC access the documentation it is looking for, he said: “It is difficult to see how this would be possible since investigations established under the legislation are conducted in private.”
He said Section 11 states that disclosure “with very specified and limited exceptions” is not permitted. “It is a criminal offence to contravene this position,” he pointed out.
He said Section 19 and 18 provide one exception to the disclosure of evidence – in order to prosecute a person for making a false statement to the commission.
This provision is there so that the commission can prosecute someone for making such a statement to it.
“A Section 18 offence can only be prosecuted either summarily or on indictment with the consent of the DPP,” said Prof Kilcommins.
This section does not appear to provide GSOC with a legal power to access evidence made to a commission — although it is probably the main avenue GSOC is exploring.
Specifically asked if Section 11.3 provided a possible route for GSOC, Prof Kilcommins said: “This is the provision that permits evidence to be disclosed when directed by a court — there would have to be very strong grounds for doing so given the privacy of the proceedings.
“Any subsequent criminal proceedings would be subject to the right to a privilege against self-incrimination.”
He said there was limited case law in the area, but noted that in 2009 the High Court refused to permit disclosure of the MacEntee Commission report into the Dublin/Monaghan bombings, citing that the investigation took place in private and that evidence of documents produced by a witness in evidence could not be disclosed.
For now, all eyes are on the Attorney General’s advice.
If Máire Whelan gives the nod, it is likely GSOC will have to seek a court order. Which, of course, could be challenged.
But the Attorney General could come to the conclusion there is no wriggle room in the legislation — and deny the GSOC request.
We could then have the scenario where an agency, directed by the Department of Justice to investigate something, can’t do so because the same Department won’t give it the information it needs to conduct its investigation. GSOC may even have to go to the courts to force it to.
All the elements of Kafka.
Cormac J O'Keefe
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