Clockwise from left: Garda Keith Harrison, Marissa Simms, Judge Peter Charleton and former Assistant Commissioner Kieran Kenny
At the Disclosures Tribunal.
Judge Peter Charleton continued to examine matters pertaining to Donegal-based Garda Keith Harrison.
Garda Harrison claims his working life has been difficult since he raised concerns about a garda being involved in the distribution of drugs in Athlone in 2008, and subsequently arrested the same garda for drink-driving in 2009.
At around 4pm today, Judge Charleton adjourned the tribunal’s proceedings after demanding that several gardai – including the former Assistant Commissioner Kieran Kenny and Chief Superintendent Anthony McLoughlin of the ‘B’ Branch – issue statements to the tribunal by 10am tomorrow.
He warned that if the deadline is not met, he may have to “say something else”.
He also made a 10-minute speech in which he said the tribunal was blowing a bugle “as loud as it possibly can to ask people to just wake up and start helping us, and, in blowing that bugle, I am not saying that there has been any concealment, any deviousness, any conspiracy, but what I am saying is that things could have been done a lot better and they ought to be done now.”
Judge Charleton’s demand follows the emergence of new evidence in the form of notes from a meeting held in Letterkenny Garda Station on October 8, 2013, which appear to link the former Assistant Garda Commissioner Kieran Kenny to moves made by An Garda Siochana in relation to Garda Harrison and his family.
The meeting took place two days after Inspector Goretti Sheridan and Sgt Brigid McGowan recorded a statement made by the partner of Garda Keith Harrison Marissa Simms, also at Letterkenny Garda Station, on October 6, 2013.
In that statement, it’s recorded that Ms Simms claimed Garda Harrison threatened to burn her during a row on September 28, 2013.
Ms Simms has since told the tribunal that Garda Harrison never threatened to burn her and that he told her she was going to ‘get burnt’ if she didn’t stop trying to please everyone.
In addition, the tribunal has heard of a statement made by Ms Simms’ mother Rita McDermott to Inspector Goretti Sheridan and Sgt Jim Collins on October 2, 2013 – four days before Ms Simms made her statement.
In her statement, Ms McDermott is recorded as saying: “Marisa has said that Keith threatened to burn her and the children…She is scared for her life. He said something about burning her and the children and something about take a good look at them children and you will only see them at weekends.”
At the meeting of October 8, 2013, it was decided that the statements of Ms Simms and Ms McDermott would be forwarded to both the Garda Siochana Ombudsman Commission (GSOC) and Tusla and that an investigation would get under way.
It has been Garda Harrison’s contention that An Garda Siochana manipulated Tusla to intervene in his family life for malicious reasons – a claim both agencies deny.
Subsequent to the meeting of October 8, 2013, a house visit was eventually made by social worker Donna McTeague to the home of Garda Harrison and his partner Marissa Simms on February 19, 2014 and, after concluding there were no issues of concern, Garda Harrison and Ms Simms received a letter from Tusla on February 27, 2014 to say the matter was closed.
In respect of the GSOC referral, it was sent to GSOC on October 9, 2013, as a Section 102 referral which concerns matters that indicate “the conduct of a member of the Garda Síochána may have resulted in the death of, or serious harm to, a person”.
Serious harm, the tribunal heard, is defined as
“injury that creates a substantial risk of death, causes serious disfigurement or causes substantial loss or impairment of mobility of the body as a whole or of the function of any particular bodily member or organ”.
Last week, under cross examination from Mark Harty, SC for Garda Harrison, George O’Doherty, Head of Corporate Services and Human Resources at GSOC, told the tribunal Ms McDermott’s statement was hearsay as it was third party evidence while there was nothing in Ms Simms’ statement to suggest such “serious harm” had been inflicted on her.
The tribunal heard that Mr O’Doherty rang Ms Simms about the statement GSOC received on October 9 – at which point she was in hospital with an infection – and that they shared another phone call on October 11, 2013, during which Ms Simms told Mr O’Doherty she did not want GSOC to deal with the matter.
While cross-examining Mr O’Doherty last week, Mr Harty told the tribunal that Chief Supt Terry McGinn – who is due to give evidence tomorrow – was told, “by Garda internal affairs” within 18 minutes of the section 102 referral being made, it was not an appropriate matter for a section 102 referral.
Mr O’Doherty said he wasn’t aware of this.
Asked if, as far as he was concerned, Chief Supt McGinn didn’t contact GSOC to withdraw the Section 102 referral, Mr O’Doherty said he wasn’t aware.
In any event.
Those in attendance at the October 8 meeting were Inspector Goretti Sheridan; Chief Supt Terry McGinn; Supt Michael Finan, Detective Inspector Pat O’Donnell and Carl Campbell, of Garda internal affairs.
And according to the notes taken during the meeting, by Chief Supt McGinn, which emerged this afternoon, she jotted down:
“Spoke to Supt O’Loughlin [sic] referral and A/C Kenny“.
The mention of Supt McLoughlin and former Assistant Commissioner Kieran Kenny follows Patrick Marrinan SC, for the tribunal, asking Garda Harrison earlier this week questions pertaining to his understanding of that meeting on October 8, 2013.
They had the following exchange:
Patrick Marrinan: “… I’m talking about an input into the meeting on 8th October. There doesn’t appear to be a scintilla of evidence to suggest that either Assistant Commissioner Kenny or the Commissioner of An Garda Síochána or anybody in Garda Headquarters had any input in relation to the meeting that took place on the 8th October and the referral of the matter to Tusla?
Keith Harrison: “Well, I’d disagree there, because we have seen and we know that Garda Carl Campbell had sent information to Internal Affairs, which is based in Phoenix headquarters, so there was information leaving the division and going to other areas in Garda management, and that’s there to be seen.”
Further to this…
The note of the meeting in October 2013, by Chief Supt McGinn, was given to Mr Harty SC, Garda Harrison just before 3pm today, while he was cross-examining Supt Eugene McGovern.
Mr Harty told the tribunal the note was given to Diarmuid McGuinness SC, for the tribunal, just 20 minutes prior to his receipt of it, and that the reference to discussions with Assistant Commissioner Kieran Kenny was something of which he knew nothing.
Mr Harty went on to say that, given the emergence of this note, he was very concerned that there are other documents that the tribunal has not seen, especially as this new note is “directly relevant” to the meeting of October 8.
Discussions of the note led to some tetchy exchanges between Judge Charleton and Mr Harty – with Judge Charleton claiming he was “under attack” before Judge Charleton later called for the statements by 10am tomorrow and adjourned the proceedings.
Initially, Judge Charleton said that he didn’t think the note was “the famous silver bullet that is being looked for” but said he is “very willing to listen to everything”.
Judge Charleton then suggested that Mr Harty continue to cross-examine Supt McGovern.
However, Mr Harty insisted that the matter wasn’t marginal as this was the meeting that prompted contact with the HSE/Tusla and GSOC.
Mr Harty said:
“There is no possibility that anybody could have believed that this document was irrelevant. And what my difficulty with that is, is that if I am receiving this now, what other documents am I not seeing that are directly relevant to this issue?“
The tribunal then heard that Chief Supt McGinn provided the document to the tribunal in June of this year.
Following on from that, Kathleen Leader BL, for the tribunal, said Diarmuid McGuinness SC, for the tribunal, was checking the tribunal’s investigators’ position.
As Mr Harty began to raise his concerns, Judge Charleton told him:
“I don’t think there is any point in actually feeding, you know, a great sense of conspiracy. It is not going to help anybody. It’s not going to help your client, for instance. It really doesn’t help me either. We are looking into this, there may be a perfectly innocent explanation. I tend to go for the chaos theory before I go for the conspiracy theory and that is the right way to approach things, Mr Harty.”
Mr Harty said he wasn’t trying to accuse anyone of any conspiracy but suggested that Mr Kenny should have made a statement to the tribunal. He also called for Mr Kenny to give evidence to the tribunal.
At that point, Mr Harty asked for time to speak with Mr Harrison to take instructions from him.
Judge Charleton said:
“I tend to wonder at the amount of heat and emotion being generated in relation to this, Mr Harty, and I am not happy about it… No, Mr Harty, I really am not happy about it. I mean, I think it’s the duty of counsel to pursue matters in accordance with what he regards as being important to the case, not necessarily to take instructions in relation to what counsel is to do on a matter.”
Judge Charleton and Mr Harty then had the following exchange:
Harty: “…My client was accused and asked, in fact by the Chair of the Tribunal, how he came to the conclusion that there were people outside the Donegal division who were running this conspiracy about him. This is directly relevant to a question that the Chair of this Tribunal put in incredulous terms to my client in the witness-box.”
Charleton: Mr Harty, I am now under attack.
Harty: No, sir.
Charleton: No, I am under attack and I don’t like it. I don’t think it’s fair to impugn the integrity of the person whose job it is to actually find the truth in relation to this matter. Now, I think what we ought to do is, I think you are right, we ought to adjourn for a number of minutes so that calm perhaps will return.”
Following a brief adjournment, Judge Charleton spoke for around 10 minutes before adjourning.
“All right. I think I need to say something now. I was asked to do this Tribunal in February of this year and indeed we started hearings I think in June and continued on through July. But the very first thing that I did was that I sat alone without the advice of counsel, apart from Ms. Leader, who was on board at that stage, and I made a statement in the two official languages of the State asking for cooperation, and in particular, thinking, perhaps naively, that this was going to be the most efficient tribunal that had been run for a number of years, I asked for people who actually knew things relevant to the terms of reference to write to the Tribunal and tell us what they knew.
“Now, some people did. Appreciating as well that as time goes on, certain issues crystallise as being of importance, if you like, a pivot in a case, it has been pretty clear, it seems to me, for the last couple of weeks that one of the important pivots in this case from which something perhaps might be made in terms of the book being thrown at Garda Harrison in consequence of the statement made on 6th October, was the 8th October 2013 meeting.
“Now, I, of course, have no idea as to whether there was a decision to throw the book at Garda Keith Harrison or if that happened, whether it was unjustifiable in the context. Just as, at this stage, having heard some of the evidence, I have absolutely no idea until we come to the end of matters and the matter has been considered as to how the statement on 6th October 2013 was taken, or indeed as to the veracity or otherwise of that statement in the context of the events that stretched back at that point about three years but focusing in particular on events which occurred in April, August and on the 28th September and on other dates.
“But it has been completely clear, as I said, that this conference on 8th October 2013, when there was a reference to GSOC under section 102 of the Garda Act, which refers to death or serious injury to a person, was made, and where also there was a reference to Tusla/HSE authorities, and, following on, it seems, later, where there was a reference indeed to discipline and also the start of a criminal investigation, was a serious and a pivotal point. Now, I know that. The Garda Commissioner is represented here, they know that.
“And today, for the first time, we have a reference to Assistant Commissioner Kenny somehow being consulted in relation to this and B Branch being consulted in relation to this, that is to say Superintendent O’Loughlin [sic]. There should have been reference to that in the statement, I believe, of Chief Superintendent McGinn, possibly – if he remembered it – in Superintendent McGovern’s own statement, I don’t know, but it’s not there, and we should also have had, in consequence of what the Tribunal asked for in February, a statement from Assistant Commissioner Kenny relevant to this and a statement from B Branch relevant to this, and we don’t. And we should have had.
“Now, that’s not the Tribunal’s fault. The Tribunal has asked for these things and, frankly, I can think at the moment of no excuse why they haven’t happened. I mentioned earlier in dialogue with Mr Harty, who has properly drawn this to my attention, that of course during the course of cases, be they criminal or civil, from time to time documents crop up and quite often perhaps in the past, courts in this country have made too much in relation to them.
“Now, whether it be the case that it is possible to say that a conspiracy in relation to Garda Harrison was widely promulgated as and of the meeting of 8th of October, whether it went back to an earlier date or not, again I have no idea but that certainly has been the focus of inquiries over the course of the last two to three weeks, and therefore, this matter is actually of importance. So what happened here in relation to this document?
“Well, Mr [Conor] Power has said that this particular diary entry was given to the Tribunal in June. One of the difficulties that we have is that until such time as things are actually typed up, that they are not searchable on our computer system.
“… We seem to have had this document, but I am having inquiries made overnight, and I don’t know why it didn’t come up, but, again, I can’t find that out in the course of the last 15 to 20 minutes, but certainly a complaint in relation to it is valid. So now the question is, what can I do in relation to it.
“Well, the duty that is cast on me, and on me alone, in relation to this matter, by the Oireachtas, is to investigate contacts between members of An Garda Síochána and Tusla in relation to Garda Keith Harrison. Now, a reference was made to Tusla, that is to say a formal reference, in consequence of this conference of the 8th of October 2013. As to what the motivation of the Garda Síochána was, is, of course, important, very important.
“We have heard from the Tusla witnesses, but we are not yet finished hearing from the Garda Síochána witnesses, and I don’t know where the evidence is going to go. What is certain to me is that this should have been referred to, and I have said this earlier, possibly in Superintendent McGovern’s statement – I am not going to ascribe blame to anybody at this stage – probably in Chief Superintendent McGinn’s statement. It’s not there referenced.
“And in addition to that, I am absolutely certain that the Garda Commissioner, in consequence of this Tribunal asking for their assistance as and from February, should have caused a statement to be taken in relation to this from Assistant Commissioner Kenny and from Superintendent O’Loughlin [sic].
“So what I am going to do now is the following: Firstly, I am going to adjourn overnight because we have to. Secondly, I am going to make inquiries as to this document and as to whether there is anything else that could possibly be there in handwriting that might be referable. Now, that search is going to be made.
“And, in addition, I am requiring Assistant Commissioner Kenny to have a statement available to the Tribunal at 10 o’clock tomorrow morning and Superintendent O’Loughlin of B Branch in Garda Headquarters to have a statement available to the Tribunal at 10 o’clock tomorrow morning and I am also asking for an additional statement from Chief Superintendent McGinn in relation to this particular issue. And although it’s interrupting the evidence of Superintendent Eugene McGovern, Superintendent McGovern, who is now giving evidence, I am going to ask him if he has a recollection in consequence of this to make an additional statement.
“Can I just emphasise one thing, please, and that is this: As I said to Mr Harty when he made the submissions, which have properly drawn attention to this matter, I tend to go for the conspiracy theory only when the chaos theory has been outruled, but this is not a case of the Tribunal now ascribing blame to anybody, but it is a case of the Tribunal blowing figuratively a bugle as loud as it possibly can to ask people to just wake up and start helping us, and, in blowing that bugle, I am not saying that there has been any concealment, any deviousness, any conspiracy, but what I am saying is that things could have been done a lot better and they ought to be done now.
“Now, in the event that things aren’t available to me at 10 o’clock tomorrow morning, it may be necessary for me to say something else. For the moment, that is all I am going to say, and I am not going to hear any submissions now, and I am going to sit again at 10 o’clock in the morning.”
At that point, Mr Power SC, for Supt McGinn attempted to clarify the name of Superintendent McLoughlin – as opposed to O’Loughlin – with Judge Charleton.
But Judge Charleton simply said “no” and left the room.
Readers may also wish to note that Assistant Commissioner Kenny has previously given evidence in relation to matters concerning Sgt Maurice McCabe and Tusla.
The tribunal heard he forwarded the false rape allegation, recorded against Sgt McCabe, to the office of the then Garda Commissioner Noirin O’Sullivan on May 16, 2014, despite being aware that the incorrect allegation was wholly different to the allegation that was made in 2006, and subsequently dismissed in 2007.
As he passed it on to Ms O’Sullivan, Mr Kenny didn’t advise her that the allegation was different to that of 2006.
In addition, the tribunal has heard how Mr Kenny did later receive a corrected referral from Tusla on May 20, 2014 but never forwarded this on to Ms O’Sullivan.
Det Supt Frank Walsh, who worked as private secretary to the commissioner until last year, told the tribunal in the summer that the false allegation against Sgt McCabe was still on file in the Commissioner’s office until the tribunal began earlier this year.
The tribunal continues.
Previously: Meanwhile, At The Disclosures Tribunal