You may recall how, yesterday, the Minister for Disabilities Finian McGrath withdrew the proposed terms and conditions of a commission of investigation into ‘Grace’ and the alleged abuse she suffered at the home for 20 years.
His decision to remove them came immediately after stinging criticism of the proposed terms and conditions by Fine Gael TD John Deasy, from Waterford, and Fianna Fáil TD John McGuinness.
Mr Deasy alleged that there was a cover-up by the HSE, saying: ‘this was a concerted and organised attempt to hide information and conceal the truth by a clique of HSE managers‘.
Mr McGuinness recounted the experiences of other alleged victims of abuse who lived at the foster home and said if Mr McGrath’s terms and conditions didn’t include the 46 other people who stayed at the home, the State would be “heaping further abuse” on the families affected.
Specifically, Mr McGuinness said, before Grace, a 12-year-old girl was taken out of the home – after the school she attended told the girl’s mother she would attend school bruised, battered and beaten. Mr McGuinness said the girl’s mother made a complaint to the South Eastern Health Board in 1992 but was “… told to shut up. She was told not to repeat those stories. And she was threatened legally”.
This morning, the Dáil unanimously agreed expanded terms of reference which state the 46 other cases will be examined in a second module of the commission of investigation.
But it’s being reported that families of the 46 other cases and the whistleblowers remain unhappy with the revised terms.
“The whistleblowers added that while the revised terms state that phase two will undertake an investigation of the recommendations in the report of Conor Dignam SC, the terms omit Mr Dignam’s recommendation to look at “allegations of cover up”. This, they say, is of serious concern.”
Further to this…
Independents 4 Change TD Clare Daly TD spoke about the matter in the Dáil this morning.
And she raised concerns about the connection between law firm Arthur Cox, the HSE and Resilience Ireland, which last week published a 2015 report it was commissioned to do, by the HSE, on the Grace case.
Ms Daly said:
“Minister, I have to say, the entire manner in which this has been addressed has been utterly shambolic and wholly unacceptable and I really hope that this does not come back to bite us.
“And the reason why it is particularly important that we get things right in this case is that we know that the backdrop is, at best, I suppose, economical-with-the-truth information being given, but, at worst, deliberate misinformation around these issues in previous attempts to resolve them so forgive us if we’ve trust issues where the HSE are concerned: we think they are legitimate.”
“Now, yesterday, we went into the meeting with yourself. We wanted to raise the issue of the draft order – the statutory instrument upon which the terms of reference were based. The first response we got was, ‘well, sure, God, nobody else raised that’. We want to address the terms of reference. We had to commission legal opinion from Eame’s solicitors to explain why the order had to be changed and that the terms of reference could be ultra vires if you didn’t do that.”
“We then went on to actually submit changes to the terms of reference – none of which were included I might add.”
“Now, no doubt, minister, you will argue that the order and the terms of reference, in the manner in which they have been changed, will allow us to address all of the issues that we have raised and that is possibly the case. And I seriously hope that that is the case.”
“But I found it ironic this morning that one of the amendments that we specifically had posed was the problem that was highlighted by the PAC [public accounts committee] – the fact that earlier attempts by people to get to the truth, including Government ministers and Oireachtas committees were deliberately thwarted by persons or persons unknown in the HSE. It’s an absolute fact.”
“In terms of the information put out, that the gardai were blocking publication of the reports – not even allowing ministers see them – we know it now that that’s not true.”
“We know in the case that I raised with Minister [Leo] Varadkar about a vulnerable person remaining in that facility up to 2015, the minister efficiently asked: are we sending anybody to this? And the answer, very cleverly, he got was: don’t be worrying, Minister. We’re not sending anybody, it might be a private placement but that’s sorted.”
“It wasn’t sorted. So they didn’t actually care about the truth or the person at the centre of it; it was all about covering up for the organisation. And against the backdrop of the Devine Report, which had been hugely discredited, the Resilience Ireland report terms of reference drafted by Arthur Cox who were the legal team that represented the HSE in the Grace case. You couldn’t make this up. Heads have to roll over this.
“I really hope that the changes have got it right and that we be proven wrong on this but there’s a lot hanging on it.”
Readers may recall how the terms of reference of Justice Peter Charleton’s commission of investigation into allegations of a smear campaign against Sgt Maurice McCabe were published earlier this week.
And that one of the terms of reference calls for the investigation to find out if “Commissioner [Noirin] O’Sullivan, using briefing material prepared in Garda headquarters, planned and orchestrated broadcasts on RTE on the 9th of May, 2016, purporting to be a leaked account of the unpublished O’Higgins Commission Report, in which Sgt McCabe was branded a liar and irresponsible”.
This was in reference to an interview between RTE journalist Fran McNulty and RTE’s Crime Correspondent Paul Reynolds on Morning Ireland on the morning of Monday, May 9, 2016 – about the then as yet unpublished O’Higgins report.
The O’Higgins report wasn’t published until Tuesday, May 11, 2016.
Mr Reade also asked Ms Daly about what she said in the Dáil yesterday, concerning the inclusion of this report in the terms of reference.
Ms Daly told the Dáil yesterday:
I welcome some of the other terms of reference. I am delighted to see RTE included, because I actually made a complaint about that broadcast. RTE wrote back to me and gave out about the personal nature of my complaints and their hostile tone. It claimed they were without foundation and would be defamatory if I repeated them to a third party.
During the LMFM interview…
Michael Reade: “You told the Dáil yesterday that you made a complaint about the broadcast to RTE. RTE wrote back to you and gave out about the personal nature of your complaints and the hostile tone and I know that because I saw you saying that on RTE News last night. But that’s where the report stopped. And what I didn’t see on the news was what you went on to say, which was that, RTE claimed, that what you were saying was without foundation and would be defamatory if you repeated it to a third party. Was RTE threatening to sue you?”
Clare Daly: “No, I don’t think so. I think they were objecting strongly or the person from RTE who wrote it, like, was saying that, you know, if I was to repeat what I said in the complaint to a third party, it might be construed as defamatory which was just utterly ridiculous, as far as I was concerned. It was in the context of the news report and coverage and the complaint had been about the coverage by Paul Reynolds and, basically, the person who wrote back from RTE was making that remark to me, in the context of defending Paul Reynolds, telling me what a wonderful journalist he was and how he knew him well and…”
Reade: “But to say it’s defamatory,..”
Daly: “Yeah, I know.”
Reade: “…is that not suggesting you were making libellous statements which means they could choose to sue you?”
Daly: “Yeah, I mean, look it, I thought the choice of words was incredible and, as I was saying in the Dail, I was really glad that Justice O’Neill had included that coverage because a lot of people took exception to it, it was incredibly one-sided and it gave a very inaccurate account of what was actually in the O’Higgins’ report which is why we put in the complaint at the time…”
You may recall a post from last week concerning Garda whistleblower Keith Harrison.
It included excerpts from a letter sent by Mr Harrison’s solicitors to Garda Commissioner Nóirín O’Sullivan on May 20, 2016, outlining how he had been subjected to harassment and continued attempts to smear his reputation and undermine his credibility.
It was one of 14 such letters sent to Ms O’Sullivan by Garda Harrison’s solicitors.
Last October, during a meeting of the committee on justice and equality, Independents 4 Change TD Clare Daly repeatedly asked Ms O’Sullivan if she was privy to any information about allegations of mistreatment of Garda whistleblowers and Ms O’Sullivan repeatedly replied:
“I’m not privy to, nor did I approve, nor would I condone any campaign of harassment…”
Further to this…
Last night, Ms Daly returned to the matter of Garda whistleblowers and what Ms O’Sullivan knew, and when, in the Dáil. She told how she’s been in contact with 10 Garda whistleblowers – all of whom, bar one, are currently out sick.
Ms Daly was speaking during a debate on a report on Garda oversight and accountability compiled by the Joint Oireachtas Committee on Justice and Equality.
“This report is not just aspirational, containing ideas we have circulated for the craic; these are serious observations, made in part on the basis of the engagement we had with the oversight bodies and the Commissioner and her team and in part from our experience over recent times. In that context, I welcome the fact that the Minister will take on board some of the committee’s recommendations.
“That is a very welcome development. Without in any way being churlish, I believe it is an awful pity some of the recommendations were not taken on board previously.
“It is a matter of record that many of the recommendations contained in the report and the Minister’s Bill were made by us a number of years ago during the debate on the first GSOC and Policing Authority Bills. I am not saying this to score points, but people have suffered as a result of some of these provisions not being available during the two years since the most recent GSOC Bill was implemented…
“…We must be realistic about why the concept of oversight has gained popular currency and is being talked about by the dogs on the street. There is just one reason, that being, the heroic stance of a number of Garda whistleblowers who shed a light on an insular blue wall of silence, an organisation in which, contrary to what the Commissioner says, dissent was deemed to be disloyalty and punished accordingly. The order of the day was rats, death threats and serious intimidation of people who tried to do the right thing.
“The public perception of what a whistleblower is has been stood on its head. Now, being a whistleblower is identified as a position to be lauded, and one that makes a valuable contribution to improving the situation for all gardaí and members of society. There are many good gardaí and, for some time, they have believed that the situation will change. They stepped forward accordingly to join the ranks of the whistleblowers and improve matters.
“We have engaged with ten serving members of An Garda Síochána who have made protected disclosures of one sort or another. Under a change in the previous legislation, GSOC is now the confidential recipient and the vehicle through which gardaí make complaints. That service needs to be beefed up radically because GSOC does not have the time or resources to provide it adequately. It does not have the legislative power to compel Garda co-operation that it needs.
“Many cases have stalled because of delays in the Garda handing over material that GSOC needs to conduct its investigations. This non-co-operation continues today. It can be covered up as administrative delays and so on, but it impacts on the work being done.
“A number of the whistleblower cases in question are in the public domain, but others whose cases are with GSOC – in the instance of Keith Harrison, for more than two years – have had relatively limited meaningful engagement with GSOC because of delays with documentation and so on. In Nicky Keogh’s case, the GSOC investigation has practically concluded and disciplinary recommendations have been made, but the Garda has not agreed to GSOC’s involvement.
“These serious matters are ongoing. One must ask, if the situation is improving, why all these gardaí bar one are out sick. All have made allegations about bullying and harassment since coming forward, which is in direct contrast with the public statements of the Commissioner that she does not know of any harassment.
“We know that she has been directly informed of that harassment, as has the Minister. Most recently, serious allegations were made, and were widely covered in the provincial media, during an assault case after Christmas. In open court, evidence was produced of doctored witness statements. The people involved in the assault were also involved in a case in which a garda had been accused of involvement in the drug trade and so on. Criminal prosecutions are being impacted.
“The situation cannot be right if so many people are out sick. The case of the only garda who made a protected disclosure but who is not out sick is appalling. It involves a family law case. He received information to the effect that the judge, who was a family friend of his former wife, had held a meeting before the court case and then granted a protection order against him. He then made a complaint to the Garda. Not only was his complaint not investigated, but the senior garda involved initiated criminal proceedings against him for interfering with the judicial process when the circumstances clearly did not meet the criteria.
“That person, albeit a member of the Garda, was a victim, only to be revictimised by what the senior garda did. To add insult to injury for him and a number of other Garda whistleblowers, the very man who did that was brought by the Commissioner to attend our committee’s hearings into oversight as a witness for An Garda Síochána. Confidence among serving members is not developed if this type of behaviour is happening.
“The Minister will see from the committee’s recommendations that we want the Policing Authority to have more control over the Commissioner. This is not a new idea.”
The proposed Judicial Appointments Commission Bill 2016 was discussed at a meeting of the Joint Committee on Justice and Equality.
The 11-member Judicial Appointments Commission is to replace the 12-member Judicial Appointments Advisory Board.
The 11 members will include the Chief Justice, the president of the Court of Appeal or the High Court – as decided between them – the Attorney General, a serving barrister nominated by the Bar Council, a serving solicitor nominated by the Law Society, and six lay members.
The Irish Times reported yesterday that Chief Justice Susan Denham, who is due to retire in August, met with the Taoiseach Enda Kenny and Minister for Justice Frances Fitzgerald before Christmas – and then wrote to them earlier this month – to express her concerns about the commission.
In her letter to the Taoiseach this month, the Chief Justice is understood to have voiced strong reservations about the proposed lay majority, how the lay members of the commission will be selected, and about the fact the commission will include the Chief Justice, but not be chaired by the State’s most senior judge.
Further to this..
During the committee meeting on Wednesday, Independents 4 Change TD Clare Daly spoke about the proposed bill and mentioned a case, she felt, involved “a complete perversion of the course of justice” by a judge.
What Ms Daly said:
“We are all very new to this process. It is a different scenario for everyone here.
I do not want to repeat points that have already been made but we had tabled a number of amendments to [Fianna Fail] Deputy [Jim] O’Callaghan’s Bill.
Indeed, we had amended our own amendments before we got to the committee and events developed. In advance of today’s meeting, we prepared a detailed critique of the Minister’s heads of Bill but it is possibly too detailed in the context of where we are at now. Therefore, I will give my initial reaction to some of the broader points raised. I will probably forget lots but perhaps we will be able to go into more detail later.
First, on the membership of the commission, specifically the lay chairperson and lay majority, this is something that we wanted at the time of the publication of Deputy O’Callaghan’s Bill. We are happy to see that included in the Government’s general scheme.
It is important to say that this is not about “one in the eye” of the Judiciary or the legal profession. It is about a particular view of the judiciary. People with a legal background, very understandably, see appointment to the bench as a career progression and as something that should be controlled by experts.
However, for ordinary people, the appointment of judges is a social matter. They see judges as people who work for society, not for the legal profession, and therefore it makes sense for judges to be appointed by members of the society they serve and for them to be allied to the needs of society.
It is a difference of view and balance is achieved by equal representation on the appointments commission. The best way forward is to give both sides their due, so to speak. While it is unusual to have an even mix of lay people and legal experts on an appointments commission, it is interesting to note that when Scotland reviewed its procedures before introducing primary legislation, one of the points made was that a particular strength of the system was its even mix.
One of the problems I have is the inclusion of the Attorney General on the commission. I do not see any point in that at all. The Attorney General is a political appointee and at least in the early life of the commission, two of the judicial members will have been appointed under a political patronage system.
While I am not in any way casting aspersions on their integrity or their fitness for office, nonetheless they came into their positions in that way. I do not see the purpose of including the Attorney General on the commission. I do not see what insights or skills he or she might add and perhaps an additional member of the judiciary would be a better option.
There are points to be made about the legal members being nominated by the Bar Council and the Law Society. We would certainly have questions about that. Obviously, it is no secret that issues have arisen regarding senior members of the Law Society. There have been many cases of litigation and High Court proceedings in this regard.
We absolutely agree that the idea of merit should extend to the appointment of lay members of the commission but why would it not also extend to the appointment of the legal members? The latter should not be appointed just because they are in with the “in crowd” at the Law Society or the Bar Council or because it is their chance or turn. I do not like that.
We would prefer to see a system involving an open, public competition, with some minimum qualification requirements, like years in practice or some such. That could possibly be run by the Public Appointments Service, PAS, as per the lay members.
Alternatively, as has been suggested by others, the Bar Council’s nominee could be elected by the entire membership of the council, as in the recent selection process for the practising barrister panel of King’s Inn. A similar process could be engaged in by the Law Society.
We are of the view that the legislation should stipulate that the lay membership should exclude anybody who has practised as a solicitor or barrister, either over a period of time, for example, two to five years or forever. That is something worth considering.
The expertise of lay people and that being quantified in some way is necessary. I note that in the Minister’s heads of Bill, we have a list A and list B of expertise criteria. Our reading of it is that list A is fine but list B is very restrictive and would limit the types of people who would be able to come forward.
We believe it is important for a wide range of professions or disciplines to be allowed to be considered for the commission. Under list B as it stands, the only people who could qualify would be senior civil servants, solicitors and barristers. We definitely need to expand that category.
The explanatory memorandum provided notes about the types of lay expertise but we are keen to add to the A list people who have a background, for example, in sentencing, penal reform, perhaps addiction and working in the area of drugs. Such experience would be important.
Deputy O’Callaghan made some good points about how the lay people might bring their political views to the table, for example, pro-life, anti-abortion, pro-choice or whatever else. That is equally the case with anybody in society.
A legal person could similarly want to be involved in the commission for precisely the same reasons. We must test the expertise of all. We are talking about merit and that must apply to all members of the commission.
We proposed an amendment to Deputy O’Callaghan’s Bill about the making of appointments to the commission in terms of meeting the gender balance. That is a difficult issue because in the initial stages in particular one must recognise that currently there are huge gender imbalances in the legal and judicial profession and forcing a 50:50 split now would not give the best expertise because of this.
We must strike a balance between trying to achieve a gender balance, which will probably only come in time rather than insisting on it as an absolute. How we formulate that will be important.
Reference has been made about the diversity clause, which we believe should apply to the legal and judicial members as well. I do not wish to spend a huge amount of time on the issue but in terms of head 10, for example, the code of practice function, we think it is very novel. We had not suggested it and Deputy O’Callaghan had not either.
The basic idea is that the commission would create a code of practice based on its own research and the code of practice would be used, among other things, to draw up a list of selection criteria to which the commission would have regard in the appointment of judges.
There are some very good ideas in the Bill but we have concerns about it at the moment in terms of how it is phrased in the heads, for example, why a subcommittee of the commission is necessary to carry out the code of practice function rather than everybody on the commission doing it.
It is worth pointing out as well that it would not be possible to constitute a committee of seven members in proportion to the membership of the commission as given the way the numbers break down it is not mathematically possible for one to have people so one would not get the balance based on the proposed approach.
While giving the commission an important role in monitoring and implementing international best practice on the appointment of judges to inform the selection process is no bad thing there could be a certain long-fingering involved. I tend to agree more with Deputy O’Callaghan in terms of the points on head 22, his section 15.
By contrast, we would be leaning more in favour of his section 15 rather than the Minister’s head 22, which is about the list of requirements in relation to the appointment of judges. The Minister’s list is extremely thin and Deputy O’Callaghan’s has much greater weight and is far better in that regard. We would tend to err in that direction, without repeating any points.
On head 32, Deputy O’Callaghan’s section 23 on senior appointments is better as well. It is more sensible than the Minister’s suggestion, which relates to the appointment of the Chief Justice, President of the Court of Appeal and the President of the High Court.
Deputy O’Callaghan’s Bill empowers the commission to make a recommendation to Government for such senior appointments based on merit, a similar principle to all other judicial appointments.
As Deputy O’Brien said, we need to hear more about the constitutional issues. I agree with Deputy O’Callaghan about ranking. The candidates should be ranked. It will be up to the Government to pick one but given that the commission will be appointed to give its view on who the best person is for the job then the candidates should be ranked.
The power is vested in the Government because we are told it is required constitutionally and that the Government cannot be constrained in the manner in which is suggested throughout. I question some of what has been said and I would like to hear more in that regard.
We have a number of detailed points on the various heads but they are probably too detailed for the present discussion. They probably touch off the broad points to which we would refer in this regard. We are open in our approach. I agree with what Deputy O’Brien said about whether there should be nominating groups for lay people or a role for the Public Appointments Service or if we should have some middle ground in that regard. It would be important to get agreement but we are very happy with the overall balance and having a lay chair. We think that things could be progressed.
The Minister referred to the judicial council Bill and that element of the work. It is at least as important if not more important for us to address those issues. There was some talk that the Bill would be fast-tracked and done in tandem with this Bill. That is necessary.
Part of the project is to engender confidence in the judicial process. Not only have serious issues been highlighted about judicial indiscretion or the irrationality of judges in relation to cases involving me or others but it is almost a daily occurrence that members of the public find things difficult, in particular at District Court level, and do not have a mechanism to call into question poor practice by the Judiciary.
It is about justice being seen to be done. Only last week Deputy Wallace and I met a serving member of An Garda Síochána who told us that in a family law case a judge had intervened with his partner’s family and discussed the case with a family friend outside the norms of the court and gave the person a protection order against the individual.
It was a complete perversion of the course of justice that a judge would informally deal with a family law case in such a way and give an order. That judge is still serving. There are many such issues and there is an urgent requirement to address them.
From top: Irish Times Health Correspondent Paul Cullen; Independents 4 Change TD Clare Daly and health correspondent at The Irish Times Paul Cullen
You may recall the publication last week of Judge Maureen Harding Clark’s report on the symphysiotomy redress scheme.
And some of the subsequent criticism of both and the report and the media coverage of the report.
Senior lecturer at Birmingham Law School, Mairéad Enright wrote:
[Judge Clark’s report] is not the independent report survivors of symphysiotomy are entitled to under human rights law. The media have read it as diminishing SOS’s claim that the non-emergency substitution of symphysiotomy for Caesarean section without consent, as practiced in Ireland, violated many women’s human rights. However, this coverage has been insufficiently critical of this report.
“…It is a mistake to think of the story of symphysiotomy as one about ‘bad doctors’. It is a story about bad systems of knowledge, and bad cultures, which corner women, induce compliance, deny their autonomy and thereby wound them. Those cases are extraordinarily difficult to litigate because the assumptions which drive the old system persist in judicial reasoning and are exacerbated by an adversarial framing.”
“Outside the courtroom, we can find the same problems. What is striking about this report is that it uses constructs from those systems and cultures – valorising reproduction however painful, stoking a suspicion of women who claim their human rights, privileging medical literature over first person testimony – to silence protest. It deserves closer, and more critical reading and discussion.”
Further to this.
Yesterday, Independent 4 Change TD Clare Daly and Anti Austerity Alliance TD Ruth Coppinger raised Judge Harding Clark’s report and the media coverage – with Ms Coppinger naming Irish Times journalist Paul Cullen.
Clare Daly: The Harding Clark report into the symphysiotomy redress scheme has been described as deeply skewed, profoundly unfair, subjective and selective, intellectually dishonest, morally bankrupt, replete with false allegations, omissions, distortions, misrepresentations and contradictions, and biased throughout. Those who said that are being soft on Judge Harding Clark whose report cannot go unchallenged or uncorrected. She goes way beyond the terms of reference of her assessor report to the Minister for Health when all she was asked to do was deal with the activities and expenditure of the scheme. Instead, she deviated into personal and unsubstantiated commentary, which is highly inappropriate in the context of outstanding litigation. Her report is riddled with false allegations, such as alleging that leading campaigners against symphysiotomy had alleged they had the procedure when they had not. That is completely and utterly untrue.”
“The only interpretation one can draw from this report is that it is a defence of the uniquely Irish practice of non-emergency symphysiotomy. It serves to diminish survivors’ claims and is a further violation of those women’s human rights. Symphysiotomy as practised in Ireland is a human rights abuse and that is the case regardless of this report. There can be no denying that the State has been culpable in this but rather than address these matters honestly, the report has served to diminish the suffering caused and undermined the experiences of the women. There is a continued suggestion that the women were lying. Nobody who met these women could ever believe that.”
“Of course, Judge Harding Clark met hardly any of them. It was a paper review with no right to appeal any of her decisions. It was her opinion and her opinion only. It is hugely traumatic for the women involved that this horrific report has been published. I believe the Minister needs to intervene to have it withdrawn. It is hostile in its tone and it smears and discredits survivors rather than dealing with a bad and deliberate policy and a poorly-administered scheme. It needs to be withdrawn and we need clarification on this matter.”
Ruth Coppinger: “I, too, have been absolutely appalled by the media coverage and the commentary of certain people in the media in the last week in response to this report. I agree that the methods of assessment were defective. I agree with Deputy Daly on the policy of Judge Harding Clark of taking oral evidence and meeting only a handful of the women involved. If she had met more, she would have seen for herself some of the injuries and limping, etc., that these women endure. Using contemporaneous radiology in one particular case, the judge stated that a 2004 X-ray did not show injuries to the women and that therefore the injury had happened afterwards. The judge went way beyond her brief, showed her own bias and showed contempt for these women. I believe it is absolutely vital that this Dáil and the Government agrees to set aside time to have a proper analysis of this report.”
“There are a couple of myths that the report tries to knock down. The first is that symphysiotomy was a normal procedure practised in many countries, as argued by Paul Cullen, for example, in The Irish Times. In 1944, there were four of these operations in the national maternity hospital. In 1948, there were 43. That was because of the arrival of Dr. Alex Spain, an arch-Catholic, as head of the hospital, who refused caesarean sections and said that their result would be contraception, the mutilating operating of sterilisation and marital difficulty. It is utterly wrong to say that. They also argue that symphysiotomy was not dangerous. Clearly, it was. It was not a benign procedure. It was not used in other countries as a first resort; it was used as a last resort. This is the third whitewash report there has been. It is a disgraceful indictment of the system that it does this to women who were brutalised in Catholic Ireland of the past.”
Daly: “I have to say that there has been a certain rewriting of history again. We know that the majority of survivors never accepted this redress scheme to begin with. The Minister of State is dodging the key elephant in the room, which is that this report goes one step even further from that. It is riddled with factual inaccuracies, unverifiable anecdotes and is severely damaging. It is well known that people experience trauma and upset as victims of abuse if their stories are not believed. The report is done in a manner which disbelieves the testimony of the women involved. It makes outrageous claims. We know that not one woman anywhere submitted that she had consented to or was aware of that procedure, yet the judge said that she found it very difficult to believe that is the case. There is no evidence to support her view in that situation. This is the same judge who, when awarding payments previously, told the women they were getting the money to redress their “unhappy experience”. This was deliberate butchery that was carried out on people for ideological reasons.”
“What the report shows is a deliberate undermining of the human rights campaigners and groups whose work actually led to the setting up of this scheme to begin with, bad and all as it is. I remind the Minister of State that it took a former Minister to go to court to get the Guerin report withdrawn. We know the McAleese report into the Magdalen laundries was hugely criticised and controversial. The point that is being made here is that this document cannot stand. In and of itself, it abuses the women involved. It has to be withdrawn and considered further by this House.”
Coppinger: “There has been an attempt by the Catholic right to seize on this highly flawed report to argue against the whole question of Catholic control of maternity hospitals. There is no question that this was done and motivated by a Catholic medical theology. It is also argued very patronisingly that these women did not know the difference between a caesarean section, a symphysiotomy or anything else that was happening to them.I know women were kept in ignorance but I think most women would know if they had their pelvic bones broken.”
“The scheme relied on written and radiological evidence which was extremely unfair because proving a symphysiotomy happened over 50 years ago is incredibly difficult if medical records do not exist. In that sense, the scheme militated against the older women and some younger women were able to pursue their claims successfully. The fact there were 185 unsuccessful applications does not mean that 185 symphysiotomies were not carried out. As I said, it was difficult to prove. People were also only given 20 days to apply to the scheme which is highly restrictive in the context of gathering up information.”
“There is no way that this Dáil could or should stand over this report. A debate must take place in this Chamber to question the rationale of Judge Harding Clark.”
Independents4Change TD Clare Daly, Ceann Comhairle Seán Ó Fearghaíl and Justice Minister Frances Fitzgerald
During Leaders’ Questions which were held by Minister for Justice and Tánaiste Frances Fitzgerald.
Independents4Change TD Clare Daly raised the matter of Judge Iarfhlaith O’Neill’s investigation into allegations made by Garda whistleblowers – which is due to be given to Ms Fitzgerald next week – and informed the Dáil that she and fellow TD Mick Wallace have met with six new gardaí who have, or are about to, make further protected disclosures.
During their exchanges, Ceann Comhairle Seán Ó Feargháil interrupted to warn Ms Daly not to make allegations about Garda Commissioner Nóirín O’Sullivan in the Dáil, as to do so would be “inappropriate”.
Readers may recall how Judge O’Neill is investigating protected disclosures which allege that, within the gardai, there was an orchestrated campaign to destroy the reputation of whistleblower Sergeant Maurice McCabe.
Former head of the Garda press office Superintendent David Taylor was one of the people who made such a disclosure and has claimed that he was following orders from senior gardaí.
Readers may also recall how it has been reported that, in February 2015, phones and a laptop belong to Supt Taylor were seized by Garda Commissioner Noirin O’Sullivan’s husband Det Supt James McGowan – two months before Supt Taylor was arrested for allegedly leaking information to a journalist in relation to a Roma child being taken into custody.
In addition, readers may note that, last Sunday, in the Sunday Business Post,Francesa Comyn reported:
Taylor’s solicitors recently wrote to Fitzgerald and Enda Kenny highlighting the “fundamental” need for Taylor’s mobile devices to be handed over to the inquiry for an independent forensic investigation. The court heard that the government has not responded to the letter.
Further to this…
Clare Daly: “Tánaiste, five weeks ago, you referred to very serious protected disclosures from two senior gardai to a retired judge Iarlaith O’Neill for urgent inquiry. Now, the disclosures which allege that the Garda Commissioner Noirin O’Sullivan was directly involved in a systematic and organised campaign to discredit the whistleblower Maurice McCabe, with colleagues, politicians, journalist, were due to be investigated by the former judge who’s due to conclude and report back next week.”
“Now, he was given no powers of compellability, no terms of reference. Attempts made by other whistleblowers to have their cases also heard, as they too are the victims of bullying and harassment since making protected disclosures, were ignored. Despite the fact that their testimony and their experiences are current,they get to the very heart of the systemic problems inside An Garda Siochana, that what’s said in public and done privately are two entirely different things.”
“Now it was hardly an auspicious start to the inquiry, given that was its foundation and you’d be forgiven for thinking actually that it was put together as a fig leaf, maybe for you to take cover behind, for your lack of action in this regard. Now that view has been strengthened but we now we find out that, with a week to go, to the issuing of his report, the former judge has not requested any material from either of the two whistleblowers, he hasn’t met either man. He hasn’t even spoken to either man. In fact, the only interaction, about two weeks ago was a request to their legal teams to pass on the protected disclosure to the Garda Commissioner. You couldn’t make this up.”
“What sort of an inquiry do you honestly expect us to believe that this is because while this has been going on, we’ve had the Garda Commissioner appear at the justice committee, with senior officers who are at the heart of many of the protected disclosure complaints. At the same meeting, the Garda Commissioner misled the committee by stating that she wasn’t privy to information about a campaign of harassment against any member of the force when she was actually in direct receipt of 14 occurrences and letters outlining precisely that situation. She’s been the subject of a detailed section 41 complaint which she’d been briefed on. We’re awaiting the GSOC finding and she’s lost the support of the ranks of that force, by intervening in a partisan way in their legitimate pay claim with her threats of martial law.”
“So, my question to you, Tanaiste, is why have you allowed this situation to continue to the crisis point that it’s at? On what basis do you believe that you have the right to delegate, to retired judges, GSOC and to the courts, functions that are your responsibility in law, namely to hold the Commissioner to account?”
Ceann Comhairle Seán Ó Fearghaíl: “Tánaiste.”
Frances Fitzgerald: “Well I, I would have thought, deputy, that the court of appeal ruling today would have been a solid, a very intense reminder to members of this house that we should take stock and reflect before making allegations here. The good name and reputation, I would say, of all individuals deserves respect and fair procedures. You’re putting on the record various points about a report a judge is currently conducting and is due to report on, next week. You’re saying you have access to details about that. I don’t.”
“This is an independent report by a judge. And as the House is aware, I appointed Judge Iarfhlaith O’Neill to review allegations of wrongdoing set out in some protected disclosures made to me. In addition to reviewing the allegations, Justice O’Neill has been asked to report on his conclusions, it’s a preliminary report and to make any recommendations that he considers necessary in relation to any further action deemed appropriate or warranted. The report, the review has been commenced and he asked, he has been asked to report within six weeks – which will be next week – and I’ve no reason to believe that deadline will not be met. So that’s the situation we’re in. As soon as I receive that report I will consider it very carefully, examine the recommendations that have been made and the Government will decide on future action in relation to the points that you’ve made.”
“I asked Judge O’Neill to do this review because I was very concerned, as I have stated in this house previously, at the content on the material, in the material that I have received and that’s why I decided that should be done. The Garda Commissioner, for her part, has indicated publicly that An Garda Siochana will co-operate fully with any examination of these matters and, you know, how the judge conducts his business during this six weeks, is a matter for him. I would get the report, I will examine the report and will decide on action, I can assure you in relation to the issues that he’s examined. But I’d like to see his recommendations first.”
“This was a first , if you like, a first assessment that it would be extremely useful to ask a judge to examine the first instance, the material that had been, that had been given to me. Now if for any reason, he has concerns about the level of co-operation, during the six weeks, I’ve no doubt that he will make that very clear and I will certainly be reading his report with great interest when I receive it next week.”
Ceann Comhairle: “Deputy Daly, can I say that, generally speaking, it would be my desire to ensure that every leader here had an opportunity, during Leaders’ Questions, to raise matter of important public concern. And you’re doing that. We have absolute privilege here but we should be very, very careful how we use that absolute privilege. And it has been a longstanding precedent that we would not make allegations against people outside the House. You’ve referred to the protected disclosures – that certainly is a matter that is in the public media. But you have made specific allegations about a committee being misled by the Garda Commissioner – I think that’s inappropriate, I don’t think it’s something you should do – it certainly is not something you should now repeat.”
Daly: “I take my responsibility very seriously in that regard, Ceann Comhairle, I can state again very firmly that anything I said was not an allegation at all. It was not a use of privilege, it was details of facts which can be supported by evidence and I’ve no problem in standing over any of those points.”
“The Tánaiste makes the point that it’s up to the judge to carry out the inquiry, as he sees fit. He can only do that within the confines of the powers that he has. Can the Tánaiste confirm to the house that the judge has been given the authority to request the electronic information that supports the allegations at the heart of these matters? Because people’s good names are very important and at the heart of this matter is the muddying and the tarnishing of the good name of Sgt Maurice McCabe and of the horrendous nightmare that is being experiences by members of An Garda Siochana currently, who have made protected disclosures and not just the ones whose names are in the public domain but, subsequent to a lot of this happening, myself and Deputy Wallace have met with a further six serving members of An Garda Siochana who have all either made protected disclosures or are on the verge of doing so.”
“So, what I’m trying to get my head around is: what part of this do you think is normal? And is ok? We have an enormous crisis of confidence inside An Garda Siochana, primarily and largely centred in the role of the Garda Commissioner. The civilian head of An Garda Siochana, GSOC, the courts are investigating these matters – you seem to be okay with delegating your legal responsibility for doing precisely that to other and you won’t get away with it.”
During a debate on the Judicial Appointments Commission Bill 2016, Independents 4 Change TD Clare Daly recalled her day in Naas District Court yesterday.
Her appearance in court followed a bench warrant being issued by Judge Desmond Zaidan for her arrest on October 13 after she left the court – before her case was called.
Grab a tay.
Clare Daly: “I am absolutely delighted that the Bill has been tabled. People often correctly give out about politicians but at least we have to go before them once in a blue moon and there is some element of accountability and right to recall whereas the Judiciary is completely and utterly a law unto itself. It is great that so many judges perform so well but we are stuck with those who do not. While I am glad Fianna Fáil introduced the Bill, the measures will only go some way to improving the quality of the judges we end up with.”
“The idea that somebody could be in such a position of power because of political connections rather than merit and so on is absolutely reprehensible and I welcome the measures in this regard. However, we need to put the spotlight on this issue. Substantial reform in this area is critical. The lack of training and regulation of judges is a huge problem. When they behave irrationally, nothing can be done. The idea of justice not only being done but being seen to be done cannot happen in our State while the Judiciary is organised in the manner it is currently.”
“I would like tell to story and I assure the Chair that the story, even though it involves a court case, will not go into details of the case in front of the judge but it is a graphic example of what I am talking about. It is incredibly fresh in my mind because it happened today and it involved me and a judge in Naas District Court. The history of this case is that I was summonsed to appear before Naas District Court on a driving offence. I allegedly drove at a speed of 59 km/h in a 50 km/h zone. Three weeks ago, I was called in respect of the case. The case was not listed for a hearing on that date; it was to be the first mention in court.”
“When I arrived in court, the case was No. 188 on the list and the judge is well known in the area, for whatever reason, for not starting judicial proceedings on time. Even though the court is scheduled to begin at 10.30am, he regularly appears much later than that. There is also a tradition of cases being religiously taken in order. In every court sitting I have ever attended as an observer, defendant or plaintiff, the judge normally goes through the list, dispenses with the cases in which a court date is being sought and keeps back the cases that are due for hearing in order to efficiently administer justice and ensure the management of the time of all the people who end up in the court on the day, including those who take time off work to attend because they have been summonsed as witnesses or defendants, solicitors, gardaí, prison officers and so on.”
“My case was listed as No. 188 out of 188. The judge proceeded with the cases for the morning. I watched what was happening in them and then I instructed a solicitor on this minor driving matter and left the court at lunchtime. Later that day, I attended an Oireachtas committee meeting and I was not to know that the judge having reached case No. 175—–
Acting Chairman (Deputy Catherine Connolly): Is the Deputy relating this to the Bill?
Daly: I am. It relates to the fact that judges are not subject to any accountability whatsoever and to the huge costs the State can incur because of their irrational behaviour. When the judge was finishing up for the day, he had reached case No. 175 but decided to jump to the end of the list and call case No. 188. He called the solicitor before the court and asked him where was his client, even though I had instructed the solicitor, and what reason I had for not being there.
“The reason was I had been there in the morning and had watched how this judge had dealt with cases. I witnessed cases being called for which people did not turn up on similar charges or did not have a solicitor. No bench warrants or any other proceedings were dealt with. A judgment was simply given in those cases.”
“Judges are an incredibly powerful position. I respect our court system and I respect the fact that judges have discretion but that discretion has to be exercised proportionately and rationally and when it is not, there has be some body in place to call them to account. The judge could accuse me, without any recourse on my part, of disrespecting the court.”
“By doing that and issuing a bench warrant in those circumstances when I clearly was not a risk of absconding – the case not even listed for a hearing and he dealt with other cases earlier without issuing a bench warrant against those who were not there or who did not have a solicitor – the consequence of his action was that An Garda Síochána, which was an innocent victim, was subject to massive negative publicity that it had orchestrated this.”
“A sergeant had to leave his post in Newbridge, drive in a squad car to Swords and spend the day there vacating the order at enormous expense to the State. I had to return to Naas District Court today to listen to the same judge lecturing me about disrespecting his court without giving me an opportunity to say anything about his irrational decision.”
“Our laws provide that nobody can do anything about that judge but he is causing huge problems with regard to the administration of justice given the inefficiency of the court sittings in his district. This needs to be radically reformed. I am glad that Fianna Fáil opted to introduce the Bill today because it is long overdue. This is only one aspect of judicial oversight and we need to go further.”
“I acknowledge a judicial council is included in the Government’s programme but some outrageous decisions and behaviour are taking place in our courts. In fairness, the presidents of the District Court, Circuit Court and so on can do nothing about it. That cannot be allowed to continue.
“Judges have been appointed to areas or even communities in which they worked as a solicitor and this has led to conflicts of interest. They presided over cases involving people they formerly represented and proceeded to hear the cases, which is completely wrong.
“The option of challenging judges through a judicial review is not sufficient because one is putting oneself in a position of massive expense and accusing a judge of bias, which people do not want to do.”
“Other members have made points about some inconsistent decisions which have been made with far more awful consequences than mine. I wanted to use my case as an example of the utterly ludicrous behaviour of some of the people we have entrusted to manage our courts but no one can do anything about it.”
“The saddest point about the case I referred to is that the judge in question is the sitting judge in Naas District Court. This means he can stay there for as long as he likes. From looking at him today, he has a few years left in him. The court could have him for about 12 more years.”
“The expense to the State of having 100 gardaí, solicitors and people tied up every day while he operates his court place, like I described, is utterly ludicrous and in radical need of change. I support this bill as a first step in that process.”
From top: Car park of The Maldron Hotel, formerly Bewley’s Hotel, Newlands Cross, Dublin 22; the panel on last night’s Tonight with Vincent Browne and Vincent Browne
On Tonight with Vincent Browne.
The panel included Independents 4 Change TD Clare Daly; Irish Examiner journalist Michael Clifford; director of communications at Social Democrats Anne Marie McNally; and Gavan Reilly, of Today FM.
The show followed Noirin O’Sullivan’s appearance before the Joint Oireachtas Committee on Justice and Equality on Wednesday, of which Clare Daly is a member.
They discussed the ongoing Garda whistleblower controversies and, in particular, the meeting that took place between Fianna Fail TD John McGuinness and former Garda Commissioner Martin Callinan in a car park on the Naas Road on January 24, 2014.
Mr McGuinness has told the Dail that, at that meeting, Mr Callinan told him Sgt Maurice McCabe could not be trusted.
The panel talked about what else Mr McGuinness claims Mr Callinan said to him, without detailing what was supposedly said.
Readers may wish to note that, on RTÉ’s Six One on Wednesday, Fianna Fáil’s justice spokesman Jim O’Callaghan – who is also a member of the Oireachtas justice committee – told presenter Brian Dobson:
“I have confidence in here [Noirin O’Sullivan] and it’s not my part to be an investigator on this committee, this isn’t an investigative committee, there’s a judge who’s been put in place, Judge O’Neill, to inquire into the protected disclosures that were recently made, that is an investigative process and there will be a report produced at the end of that process and if that report is critical of individuals in high places whoever they are, I won’t be shy, nor will other members of Fianna Fail be shy about calling on those individuals to take responsibility. But what I’m not prepared to do, is just to call for somebody to resign in circumstances where allegations have been made against them but there’s no findings. In those circumstances, I do retain confidence in the commissioner.”
Further to this, from last night’s Tonight With Vincent Browne…
Vincent Browne: “Among the rumours that I’ve been hearing over the last while is that a senior Garda directed by an even more senior Garda sent text messages to other senior gardai and to members of the media, making horrendous allegations about a whistleblower and that a lot of these top echelons of An Garda Siochana were aware of this and may even have encouraged this. Now, it seems to me, if this is true and it isn’t the resignation of the Garda Commissioner that would be required but the resignation of an awful lot of people at a senior level. Have you heard this?
Michael Clifford: “It’s more than a rumour. I mean, a lot of what you said is in one of the protected disclosures but, as you said, Vincent, if it’s true, the issue is can it be proven? Can it be proven to a degree that it would for example, an official legal figure, whomever would be willing, would be satisfied enough…”
Browne: “It could be proved to be true or not to be true because the gardai have capacities to examine text messages, as we found out in the Elaine O’Hara murder trial, for instance, and they’d be able to look back at the text messages and see…”
Clifford: “If they wanted to…”
Browne: “But, sorry, there is available, the expertise, to look back at text messages…”
Gavan Reilly: “If the handset or SIM can be recovered which isn’t always necessarily a given.”
Browne: “What’s that?”
Reilly: “If the physical phone or the SIM card from which the text messages were sent is available to you – which may or may not be the case.”
Anne Marie McNally: “My understanding is that Keith Harrison is saying that he’s got evidence on his phone that will prove the allegations. But, if I’m reading it correct this evening, the judge that’s been appointed, according to the Commissioner’s testimony, he won’t actually have the power to examine phone records so I’m not sure if that extends to text messages but it would seem to be…”
Clifford: “He’ll be able to request it…”
Clare Daly: “Yeah.”
McNally: “He should be, yeah.”
Reilly: “That’s part of the problem of the inquiry that’s been asked of Iarlaith O’Neill, that because he’s existing in a very legal grey area, where it’s all very ill-defined where he’s not acting in a judicial capacity, he’s effectively acting as a kind of wise alderman but he has no powers of compellability or inquiry, as such, so all he can really do is ask people to cooperate and if they do, then he’s entitled to come up with an opinion, as eminent as it might be but that he’s ultimately flying blind. He doesn’t have the powers to demand anything of anybody. So, realistically, the scoping exercise…”
Browne: “So what’s the point?”
Daly: “Well that’s the question, isn’t it. And I mean obviously points have been made by the two…”
Browne: “You’re aware of what I’m talking about…”
Daly: “I’m absolutely aware of what you’re talking about…”
Browne: “My understanding is that when a senior garda person got a, got this text message, the reply was ‘perfect’ which would seem to imply that that person, that senior garda officer was aware of the plan to smear the reputation of the whistleblower in the most odious possible way that you could think of.”
Daly: “At the heart of the protected disclosures is precisely that, that there was an organised and orchestrated deliberate campaign, authorised at the top, including the current and the former commissioner to effectively do exactly what you’ve said – to demonise, to ostracize and put everybody off this whistleblower so that he would be a person that nobody would want to touch or listen to and I mean media people would have got that information, obviously a lot of guards, but politicians did aswell. And, you know, whatever about maybe…”
Browne: “Did politicians get them?
Daly: “Texts, part of the allegations that selected politicians were sent these messages also..”
Daly: “And given that message which…”
Browne: “Who were they?”
Daly: “Well, I don’t know, I know I definitely wasn’t one but it begs the question that even if, initially, some people believed it to be true, as I’m sure some people would, when it emerged around the O’Higgins Commission and the evidence that emerged in that, whereby the commissioner’s legal team had been instructed to undermine the credibility of Maurice McCabe and question his motivation and all of that came into the public domain, why wasn’t that the trigger for people to come forward? And say, ‘hang on a minute here, there’s a lot more to this than meets the eye. A huge problem now with the inquiry is that the present whistleblowers, the serving guards, who were live, who made protected disclosures, under Noirin O’Sullivan’s watch, they’re allegations of mistreatment and bullying are not being included in Iarlaith O’Neill’s terms of reference…”
Clifford: “What would be very interesting in that inquiry is whether the chairman or the judge asks in somebody, for example, [Fianna Fail TD] John McGuinness, who may have something to say. And he’s nothing to hide himself whatsoever but he may have something to say in relation to his meeting with former [Garda] commissioner Martin Callinan and did anything transpire there that may be of any use to Mr O’Neill trying to get to the bottom of this issue.”
Browne: “I think many of us know what John McGuinness says he was told by Martin Callinan.”
Clifford: “He hasn’t publicly stated it himself, I suppose for good reason, but he hasn’t. But I’m sure…”
Browne: “It is truly shocking. It would really..absolutely shocking. I think if viewers knew what was said, what John McGuinness says was said, I think they would be appalled…”
Reilly: “To go back to the very last point though, what John McGuinness and his meeting with Martin Callinan in a car park somewhere on the Naas Road. John McGuinness revealed that, on the Dail record, he was in the chamber, when he was speaking under privilege but I think he’s repeated it outside the chamber since, that Martin Callinan told him Maurice McCabe was, quote, not to be trusted. Now if that, that in most people’s eyes I think would qualify as an attempt by the most senior garda in force…”
Browne: “Yeah, but if that’s all that was said, you might think, well, yeah, yeah, yeah, but if that was all that was said…”
Reilly: “Well is it tenable for the commissioner at the time to be intervening as he did to cast those kinds of aspirations on the character of Maurice McCabe as he was…”
Browne: “OK but if…”
Reilly: “And for his assistant deputy commissioner not to know?”
Browne: “If that was all was said, that Maurice McCabe wasn’t to be trusted, if that was all was said, you’d say, well, all right, it was, shouldn’t have done it and all that, but my understanding is that very much more was said and of much more damning significance than that Maurice McCabe wasn’t to be trusted…”
Browne: “If what we’ve heard is true, the damage that’s been done will be nothing to the damage that will be done.”
From top: Independents 4 Change TDs Mick Wallace and Clare Daly, and Garda Commissioner Nóirín O’Sullivan at an Oireachtas committee meeting this morning
Garda Commissioner Nóirín O’Sullivan and other senior gardaí appeared before the Joint Oireachtas Committee on Justice and Equality this morning.
Their appearance followed reports of the two protected disclosures made by Sgt Maurice McCabe and former head of the Garda Press Office Supt Dave Taylor.
It’s been reported that Supt Taylor has admitted he was central to a smear campaign orchestrated by Garda management to destroy Sgt McCabe’s name and character, and that former garda commissioner Martin Callinan knew what was happening, as did his successor Noirin O’Sullivan, who was then a deputy commissioner.
Supt Taylor has alleged the campaign included text messages; the creation of an intelligence file on Sgt McCabe; the monitoring of his activities on Pulse, and making false allegations about him to both members of the media and politicians.
It’s also been repaired that Supt Taylor has claimed there is evidence of the campaign on his phone, or phones, that were subsequently seized as part of a separate investigation.
Readers will also recall that on January 24, 2014 – six days before Sgt McCabe gave testimony in private to the Public Accounts Committee – Fianna Fail TD John McGuinness met then Garda Commissioner Martin Callinan in the car park of Bewley’s Hotel on the Naas Road for a secret meeting, at which Mr Callinan told Mr McGuinness that Sgt McCabe could not be trusted.
It’s been reported that it was Mr Callinan who sought the meeting with Mr McGuinness.
Speaking of the meeting, Mr McGuinness told the Dail:
The Garda Commissioner confided in me in a car park on the Naas Road that Garda McCabe was not to be trusted and there were serious issues about him.
The vile stories that circulated about Garda McCabe, which were promoted by senior officers in the Garda, were absolutely appalling.
In addition, on RTE’s Morning Ireland on Monday, the solicitor of another Garda whistleblower Keith Harrison, Trevor Collins spoke to Cathal MacCoille, saying:
“[Harrison] has suffered and the victimisation, the intimidation, the ostracization that is ongoing… what I can say, without going into detail, is he has been the subject of surveillance, he has suffered victimisation, bullying harassment, as has his family. There has been a dissemination of rumour and innuendo which has been solely designed to undermine his credibility and that has been circulated within certain members of the media, certain politicians and his Garda colleagues.”
Mr Collins also highlighted how different Garda whistleblowers have suffered similar mistreatment and that Minister for Justice Frances Fitzgerald’s appointment of former High Court judge Justice Iarlaith O’Neill – to review Sgt McCabe and Supt Taylor’s claims – is a flawed inquiry if it doesn’t include the allegations of other whistleblowers.
Further to this… from this morning’s Oireachtas committee meeting:
Clare Daly: “Commissioner, you said you weren’t privy to any information about allegations of mistreatment of whistleblowers, that your knowledge was very much based on what was in the public commentary and, from what you’ve heard, but is that statement not contradicted by the fact that legal counsel for one of the whistleblowers wrote directly to you 14 times over a two-year period, outlining a litany of direct experiences that he had had in terms of surveillance, intimidation, and all the rest of it?”
Noirin O’Sullivan: ” Deputy, as you will be aware, I’m precluded from talking about individual cases but what I can say, in general cases, as I have said earlier, each individual’s experience is different, we are dealing with each individual separately and as an individual and, indeed with their representatives or their legal teams who raise issues with us and all of those are being addressed. We are in the process of retaining a professional expert to review all of these and indeed our experience to date is, because of the, as I say, these are single figure numbers, but nevertheless, each individual’s experience is so different, that actually what we believe is, the professional expert can help us to review our internal structures, our internal process and our approach to things. If there’s areas that we can strengthen, we’re very open to strengthening those but perhaps it is time for a consideration to be given to some kind of an independent entity where all of these issues go to and that people can have some reassurance that there is somebody independently looking at all of these matters and then that we ensure that the internal structures are there to strengthen and support individual needs.”
Daly: “I’ve no intention of going into details on any individual cases butmy question was is it the case, that you received direct contact on 14 occasions from a legal counsel, of one of the whistleblowers stating, and giving very specific information which I won’t give here, outlining his negative experiences as a whistleblower?”
O’Sullivan: “Deputy, again, I’m not able in this forum, in a public forum, to go into individual cases. I think it would be grossly unfair to individuals.”
Daly: “And I’m not asking you to do that, Commissioner. I’m just asking you could you confirm that you received 14 direct communications from legal counsel in relation to these matters. I think it’s a valid question, chair?”
O’Sullivan: “Deputy I have specific obligations under the Protected Disclosures Act, as the employer, to protect the individuals and to protect the identity of individuals and I am not in a position to answer any specific questions in relation to any specific individual or any specific correspondence received in relation to an individual, other than to say that every individual’s case is being treated individually and that we have structures in place to deal with that.”
Daly: “I’m not asking you, Commissioner, to detail any details about an individual case, but I am perfectly entitled to put a question, in terms of, particularly in the context of O’Higgins [inquiry], of the public assurances that we’ve got from your offices that the Garda Siochana are a safe place for people to come forward with information when that public, I suppose, statement is contradicted by other issues – we’ve a right to tease that out and I’d just like to ask you again – …are you perfectly happy to reiterate your statement that you are not privy to any specific allegations involving mistreatment of people who’ve come forward as whistleblowers?”
O’Sullivan: “I don’t think my answer to Deputy [Jim] O’Callaghan was in respect of allegations because I obviously have heard the public commentary in respect of allegations that have been made but I don’t think it is fair or even just to say that all that one has to do is look at what we have put into place, in an effort to support and to support our determination to ensure that people can bring forward facts. And I think the evidence speaks for itself in terms of the structures that have been put in place, in terms of the systems that have been put in place and in terms of the efforts that have been put in place. But without going into individual cases, I cannot go into individual cases and I’m sure …”
Daly: “Nobody has asked you, nobody has asked you to go into individual cases but there has been a huge amount of public statements, and you’ve done it again today to say that you are not privy to any of these complaints, if you like, or more specific examples that are in the public domain, I’m just asking you to either: it’s kind of a yes or no – can you confirm that you are aware or you’re not. Because you’ve said you’re not privy to it. My evidence is that you are but I mean, if you’re telling us you’re not, I’ll move on but could you just tell us whether you are or you’re not.”
O’Sullivan: “Well deputy what I did say was I’m not privy to, nor did I approve, nor would I condone any campaign of harassment or any campaign to malign any individual employee.”
Daly: “So you’re not aware of any circumstances where such claims would have been made, that hasn’t been brought to your attention?”
O’Sullivan: “That isn’t what I’m saying, deputy, what I’m saying is that I, personally, was not privy to, nor would I approve, nor would I condone any campaign against any individual.”
Daly: “So if you had been made aware, of any such allegations, what action would you have taken to deal with that situation?”
O’Sullivan: “Any issues that are brought to our attention by any individual are fully addressed and that is the case in terms of all of the individuals, have brought matters to our attention, or indeed any member of any representative of any individual, those issues are being addressed in the structures and the processes that we have there. As I say we are in the process of retaining an independent, professional expert to review those processes and it may indeed need to go beyond that but we can only do what we can do internally and what we have control of and that is why we have somebody independently being retained review either areas that can be strengthened, recognising that individual needs are different.”
Daly: “If everything is improving, you’ve said that the numbers of whistleblowers are single figures, could you explain maybe why all of those single figures, five at least, if not more, are presently out sick and have been on protracted sick leave for a period of time because of work-related stress.”
O’Sullivan: “Deputy, again, and I’m very conscience that we are speaking about single figure numbers and, even by extension, that could serve to identify individuals and I’m precluded from speaking about individual cases and, as the employer, I have a duty of care to all of the individuals and their circumstances but there are systems in place to support and to help the individuals concerned.”
Daly: “It’s very difficult to get an answer, chair.”
Daly: “I mean, obviously, some incredibly serious issues were raised here this morning and I do think that clarity is actually critical and I note Commissioner that, on a number of occasions, that you said that you weren’t privy to, nor aware of, nor approved any campaign to target whistleblowers and I’d just really like you to be concise around some of these issues, yes or no preferably. Like, is it your assertion that you were never directly made aware of any such allegations in relation to the targeting of whistleblowers?”
O’Sullivan: “Deputy, I can only repeat what I said. I am not privy to, nor would I approve, nor did I approve, nor would I condone, any actions such as targeting any individuals other than individuals engaged in criminal activity in the sense of targeting that we spoke about earlier.”
Daly: “Okay. I note you’re reluctance to answer again so maybe I’ll help by partly answering for you. I’m aware that you were directly made aware – I have the correspondence and your replies in my folder here – in relation to allegations of precisely such, a campaign of targeting in relation to whistleblowers. So what I’d like to know is what actions did you take on foot of hearing about those allegations?”
O’Sullivan: “Well deputy I’m sure you will appreciate that I’m not aware of neither who the disclosures are, the content of the disclosures, or the allegations that you are suggesting and in such circumstances it would not only be inappropriate but it would be impossible to comment.”
Daly: “I’m sorry, Commissioner, but I didn’t actually ask you to comment on any individual cases at all. I think that would be inappropriate, I was talking about the general processes which I think are incredibly fair questions, in the context of the seriousness of what is the case. And particularly, in light of your comments, that the system is changing, when really, on a fairly regular basis, evidence is being produced to say that things aren’t changing. And I’m wondering how you can, if you like, square that circle?”
O’Sullivan: “Well I cannot comment on something which I have not seen, I am not aware of and I think that there is a process that is being set up where there will be fair procedure and due process provided and Mr Justice O’Neill can address any issues arising from that.”
Daly: “I would just like to put on the record, chair, that I have seen that you have seen these allegations and, in that sense, I find your response quite upsetting actually in many ways. But I wonder maybe the last question that you could answer: how do you explain, if you’re not aware of any of these allegations, and yet these allegations are there and they exist both in terms of documented proof going back over years and, as you said yourself, huge conversation in the public domain, if you’re not aware of that and yet they still continue, is that not a huge problem? Particularly as they’re continuing in different parts of the country, in different regions. Supposedly, without any of your knowledge, is the issue really then that you have no authority amongst your members? That they’re flagrantly doing the opposite of what you’re telling them to do? And does that not put your position in jeopardy?”
O’Sullivan: “Deputy, I’m not in a position to comment, or indeed should I comment, or it’s impossible to comment on unsubstantiated allegations which are put into the public domain by elected representatives and others. And I’m very much aware of the unsubstantiated allegations which are in the public domain, I’m also aware that a process has been established where all of these matters can be afforded due process and fair procedure, to allow for proper examination of all these matters and I will fully cooperate, as will An Garda Siochana with that process.”
Mick Wallace: “Commissioner, did you admit that you gave instructions to challenge the credibility and motivation of Sgt McCabe, in relation to the O’Higgins report and my second questions, and I may have missed it, I don’t know, over the last couple of years, but you were sitting beside the former Commissioner Callinan when he described the whistleblowers [Sgt Maurice McCabe and Garda John Wilson] as disgusting. And I’m just wondering minister, Commissioner did you ever disassociate yourself from those remarks?”
O’Sullivan: “Well, firstly, deputy, the O’Higgins Commission which was your first question: At all times, my interactions with my legal advisors were based on legal advice and, as you know, there is lawyer-client privilege pertains to every citizen of this State, and including the Garda Commissioner and, as such, I cannot comment on any interactions between me and my legal advice and that is what my advice is. Secondly, in relation to my sitting alongside my predecessor, former commissioner Martin Callinan, a lot of play has been made of that issue and, you know again that was an interaction at a Dail committee, I am record as saying that the choice of words was unfortunate and what I actually wrote to the Commissioner Callinan was to withdraw those remarks because I do not believe they were said in the way that they came across.”
Separately but also during Ms O’Sullivan’s appearance, Cork Sinn Fein TD Jonathan O’Brien asked Ms O’Sullivan some very direct questions…
Mr O’Brien (above right) started by asking Ms O’Sullivan if she knew of any whistleblowers being put under surveillance.
From their exchange…
O’Sullivan: “Am I aware of any…”
Jonathan O’Brien: “Whistleblowers being put under surveillance?”
O’Sullivan: “Absolutely not, deputy.”
O’Brien: “Ok, are you aware of any intelligence files being opened in relation to whistleblowers?”
O’Sullivan: “Deputy, I’m aware of suggestions in the media, and in public commentary, but I am personally not aware.”
O’Brien: “You spoke, in relation to electronic materials which will be handed over if Justice O’Neill requires it. Can I ask is it one, two or three phones which were confiscated from the whistleblower [Supt Dave Taylor]?”
O’Sullivan: “I don’t think it’s appropriate, we have a number of ongoing live investigations and I don’t think it’s appropriate deputy to speak about individual investigations.”
O’Brien: “But will they be handed over?”
O’Sullivan: “Absolutely, every assistance and any requirement of Justice O’Neill will be fully met by An Garda Siochana.”
O’Brien: “And if there are intelligence files in relation to whistleblowers, will they also be handed over?”
O’Sullivan: “Deputy, I believe there are no intelligence files but if Mr Justice O’Neill requires any access to any area of An Garda Siochana, he will be made fully aware, given full access.”
O’Brien: “Will you undertake to find out if there are any intelligence files in relation to whistleblowers?”
O’Sullivan: “I am not aware of any intelligence files, deputy.”
O’Brien: “Will you ask if there are any intelligence files?”
O’Sullivan: “I can certainly ask but we do not, and I must state this categorically, protected disclosures are relatively a new phenomenon, we do not keep intelligence files. I hope you’ve heard form my colleagues here today, we have enough activities to keep us very busy and creating intelligence files on people who are causing harm to communities.”
O’Brien: “Are you aware of the content of the meeting between the Commissioner Callinan and Deputy John McGuinness?”
O’Sullivan: “Deputy, the first I became aware of that meeting, of the fact that even a meeting took place, was in the media. I am not aware and I have not been aware up to reading it in the media of any interaction between Deputy Commissioner, or sorry, former Commissioner Callinan and Deputy McGuinness in a car park.”
O’Brien: “So you’re not aware of any content which was discussed at that meeting?”
O’Sullivan: “Absolutely not.”
O’Brien: “Have you considered temporarily stepping aside as Commissioner while Justice O’Neill carries out his review? Given that there are a number of allegations that you had knowledge of a campaign to discredit a whistleblower?”
O’Sullivan: “Well, firstly, deputy, what I will do is reiterate my statement, I was not privy to, nor did I approve, nor would I condone any campaign against any individual….”