Author Archives: Legal Coffee Drinker

From top: Justice Peter Charleton; Former Garda Commissioner Martin Callinan (right) with former Garda Press Officer Dave Taylor; Former Garda Commissioner Noirin O’Sullivan; Today’s report.

This afternoon

Further to the release of Justice Peter Charleton’s Disclosures Tribunal report, we asked the eminently caffeinated Legal Coffee Drinker: what’s it all about?

Broadsheet: “Legal Coffee Drinker, what’s it all about?”

Legal Coffee Drinker: “The Report on matters dealing with the conduct of the Health Service Executive, the Child and Family Agency (TUSLA), RTÉ, Garda Headquarters and Garda officers concerning Sergeant Maurice McCabe and related matters, prepared by the Honourable Mr Justice Peter Charleton and published this lunchtime.”

Broadsheet: “So what are its conclusions?”

LCD: “Justice Charleton is hugely positive about Maurice McCabe, whom he describes as

‘…A genuine person who at all times has had the interests of the people of Ireland uppermost in his mind… an extremely serious state of lack of application to duty and failure to follow basic and fundamental procedures was at the heart of [his] legitimate concerns…

Maurice McCabe has done the State considerable service by bringing these matters to the attention of the wider public and he has done so not out of a desire to inflate his public profile, but out of a legitimate drive to ensure that the national police force serves the people through hard work and diligence.

He is an exemplar of that kind of attitude. Notwithstanding everything that happened to him, he remains an officer of exemplary character and has shown himself in giving evidence to the tribunal as being a person of admirable fortitude.’

The overall purpose of his report, he says, is to ascertain how such a man became the subject of a level of calumny and gossip which most people would find shocking.”

Broadsheet: “And what conclusion does he reach on this issue?”

LCD: “Justice Charleton says that the rumours about McCabe arose for a number of reasons:-

(i) A culture of Garda gossip

According to Charleton:

‘…by a natural process, following the investigation conducted in consequence of the allegation of Ms D, about which the tribunal makes no comment and can make no finding one way or another, it was inevitable that local gardaí should hear about the matter and that talk should begin. , talk against him began to grow.

He came to be seen by a substantial minority of his fellow officers as a pariah and someone who was heedlessly causing trouble.

Consequently, rumours grew out from the garda community and reached political and journalistic circles. closed and self-loyal organisations are ones in which an attitude can take hold and can be very hard to displace.’

(ii) An accidental mistake by an employee of the Cavan counseling organisation, Rian

Again, according to Charleton:

“Within the counselling organisation, Rian in Cavan, a mistake was made in transcribing an account of Ms D by mixing that up with the account of a Ms Y. In the result, the complaint of Ms D about an alleged and brief fully clothed encounter became a complaint of vaginal and digital anal penetration: a rape offence.

Yet, the transcription error turning the fully clothed alleged encounter, which the Director of Public Prosecutions had described as not disclosing an offence, became a rape allegation through a mistake…..

This must be one of the most unlikely coincidences ever to be accepted by any judicial tribunal. Yet, coincidence it was. All of the witnesses were honest. The computer analysis checks out absolutely correctly.

So do the paper files. When the mistake was discovered nearly a year later in 2014 when Maurice McCabe was even better known, the person who made it did all she could to rectify it.”

(iii) The perpetuation by the Cavan/Monaghan branch of TULSA of this mistake rather than rectifying it. (More here)

(iv) Failures on the part of the Northern Region Gardai to correct the error when they became aware of it

In addition to the failures of Tulsa, the Northern Region Gardai also played a role in perpetuating the erroneous Rian report.According to Charleton, this inaccurate report

‘…was sent to the assistant commissioner of the Northern Region. Garda Headquarters was immediately informed of the false report as if it had been true. When the report to the Northern Region was explicitly corrected and the error explained, the incorrect report to Garda Headquarters was never uncorrected.’

(v). RTÉ’s inaccurate reporting of the O’Higgins Commission Report

Sergeant McCabe’s position was further worsened by the fact that RTÉ, in its broadcasts of the 9th May 2016, wrongly implied that the O’Higgins Commission had been critical of him.

In fact, according to Charleton, RTÉ had completely misunderstood the message of Mr Justice O’Higgins, which was that the Gardai were to wake up and actually start doing its job properly.

(vi) A deliberate campaign to damage McCabe on the part of Dave Taylor and Martin Callinan

The Report is particularly critical of Superintendent David Taylor, describing him as”

“…a witness whose credibility was completely undermined by his own bitterness and by the untruthful nature of his affidavit in the judicial review proceedings that he intended to commence before the High Court, and while his motivation in bringing forward this allegation was to stop or undermine a criminal investigation rightly being taken against him.”

It does, however, conclude that Superintendent Taylor was right about one thing:

“[t]here was a campaign of calumny against Maurice McCabe. He himself was, along with Commissioner Callinan, the prime mover… Superintendent David Taylor completely understated his own involvement in a campaign of calumny against Maurice McCabe.

He claimed, for the first time, while giving evidence to the tribunal that he was acting under orders. That was not the case. The tribunal is convinced that he pursued a scheme that somehow evolved out of his cheek-by-jowl working relationship with Commissioner Callinan.

Their plan was that there was to be much nodding and winking and references to a historic claim of sexual abuse while, at the same time, saying that the Director of Public Prosecutions had ruled that even if the central allegation did not have credibility issues, what was described did not amount to an offence of sexual assault or even an assault.

Debbie McCann and Eavan Murray, were… like Cathal McMahon, another journalist nominated by Superintendent David Taylor in the dying days of evidence before the tribunal, encouraged to seek out Ms D and to publish a negative story about Maurice McCabe in relation to her allegation…. committed journalists who were looking for news [they] were very unfortunate to have come within the orbit of Superintendent David Taylor.

Commissioner Martin Callinan… personally felt the need to supplement [these] efforts of his press officer… by speaking to two Teachtaí Dála, Deputy John McGuinness and Deputy John Deasy, an to the Comptroller and Auditor General, Séamus McCarthy, in the most derogatory way about Maurice McCabe.”

Broadsheet: “Heavy stuff. A comprehensive and hard-hitting Report then so?”

LCD: “Not exactly. Although the conclusions of fact regarding Commissioner Callinan are the most striking feature of the Report, Charleton in no way subjects the Commissioner to the same level of criticism and exoriation as he does Superintendent Taylor.

Instead of focusing, as one might expect, on the deplorable behavior of the head of the Force, Charleton’s conclusions and recommendations at the end of the Report feature numerous matters unrelated to the issues under inquiry.

These include Garda failure to publicly direct traffic and the good character of Leslie Price de Barra, a veteran of the 1916 Rising.

Earlier portions of the report also quote from Hamlet, [Anton] Chekov and [Immanuel] Kant…”

Broadsheet: (coughing) “I beg your pardon?”

LCD: “German, 17th century philosopher.”

Broadsheet: “Ah. I thought you said….”

LCD: “AND he also quoted from an article he himself had written in the Irish Journal of Legal Studies (Vol 1 2010).”

Broadsheet: (slackens jaw)

LCD: “Choosing to opine on matters of history, philosophy and traffic control outside the remit of the inquiry, while entertaining, has the unfortunate effect of downplaying and soft-pedaling the findings regarding Commissioner Callinan and, in so doing, itself commits a further injustice to Sergeant McCabe.”

Broadsheet: “Any more soft pedaling?”

LCD: “It is also present in the Report’s attitude to subsequent Garda Commissioner Noirin O’Sullivan. Charleton takes the view that she was not involved in a campaign to smear Maurice McCabe, regarding Dave Taylor’s allegations against her as motivated by malice. However he does indicate that in some respects he doesn’t believe O’Sullivan’s evidence:-

“She reached out to Maurice McCabe and attempted to solve the workplace-related issues which surrounded him.

These efforts were successful at first, but were undermined by what she felt was the necessity to test where he was coming from in the very serious allegations of corruption that he was making before the O’Higgins Commission.

Her decision in that regard involved talking at length to officials in the Department of Justice and Equality. She is likely to have remembered that, contrary to her evidence, because she realised what was at stake.

It is also improbable that she did not have an inkling at the very least about Commissioner Callinan’s views. At the very least,

it was more than improbable that nothing emerged in the car journey with him back to Garda Headquarters from the meeting of the Public Accounts Committee on 23 January 2014.

It was disappointing to hear her evidence on this.”

Broadsheet: “Disappointing?”

LCD: “Effectively, what this is saying is that Noirin O’Sullivan, while not implicated in the smear of McCabe, was not truthful in her evidence – an extremely serious conclusion with regard to a former Garda Commissioner, and something which surely merits more than just ‘disappointment’.”

Broadsheet: “I’m sure Mr.Kant would have something stronger to say on the subject.”

LCD: (drains coffee)

Broadsheet: “Were he still with us, bless his mind. Thank you Legal Coffee Drinker for that comprehensive and illuminating yet depressing round-up. You are never a disappointment to us.”

LCD: *click*

Earlier: Justice Charleton On…

Shamefully Treated

From top: Leslie Buckley and Denis O’Brien; Justice Mr Peter Kelly; His judgment yesterday.

Yesterday, The High Court agreed to appoint inspectors to Independent News and Media following an application by the Office Director of Corporate Enforcement.

High Court President Mr Justice Peter Kelly said the appointment was “well justified” and “not disproportionate.”

We asked Legal Coffee Drinker what this judgement (which can be read in full here) is all about and what happens now.

Btroadsheet: “Legal Coffee Drinker  what is this judgement all about and what happens now?”

Legal Coffee Drinker: “It’s a judgment of Judge Peter Kelly, in which he states that he intends to make an order appointing inspectors to investigate and report on the affairs of INM.”

Broadsheet: “Under what law?”

LCD: “Section 748 of the Companies Act 2014 gives the High Court power, on the application of the Director of Corporate Enforcement, to appoint inspectors to investigate the affairs of a company where there are circumstances suggesting that the company has conducted its business unlawfully or in a manner unfairly prejudicial to shareholders or that persons connected with the management of the company have committed fraud, misfeasance or other misconduct towards the company or its shareholders. According to Kelly J, all of these circumstances were present, and it was in the public interest that an inspector be appointed.”

Broadsheet: “What were the particular matters which gave him concern?”

LCD: “They all related to former INM Chairman and Denis O’Brien board-appointee Leslie Buckley.In 2014 Mr Buckley sent back-up tapes of INM computer data for interrogation outside the jurisdiction by individuals external to the company linked to Denis O’Brien.”

Broadsheet: “And Mr Buckley’s reasons?”

LCD: “He says this was done for the purposes of obtaining information about the terms of a contract with Simon McAleese, solicitors for INM, which he felt was not beneficial to the company from a cost point of view.”

Broadsheet: “Right.”

LCD: “The actual data searches carried out in the course of the interrogation were against a variety of individuals including the journalists Rory Godson, Maeve Sheehan, Brendan O’Connor and Sam Smyth; two members of the Inner Bar, Jeremiah Healy S.C. and Jacqueline O’Brien S.C.; former board and staff members of the company including Joe Webb (former Chief Executive of the company’s Irish division), Karl Brophy (former Director of Corporate Affairs of the company), Mandy Scott (former Personal Assistant to the Chief Executive), Vincent Crowley (former Chief Executive of the company), Donal Buggy (former Director and Chief Financial Officer of the company) and the late Mr. James Osborne (former chairman of the company). Also included were Messrs. Andrew Donohue, Mark Kenny, Jonathan Neilan, Harriet Mansergh, Jenny Kilroy, Nick Cooper and Ann Marie Healy.

Broadsheet: “Ah here.”

LCD: “Kelly J said that it was difficult to see what the interrogation of information concerning at least some of those persons had to do with a cost reduction exercise in respect of the legal services being provided by Mr. McAleese.

Broadsheet: “And well he might.”

LCD: “The two Senior Counsel referenced had previously acted for the Moriarty Tribunal investigating allegations relating to the awarding of the second GSM licence to an entity controlled by Denis O’Brien.”

Broadsheet: “Who paid for this interrogation?”

LCD: “The costs of the data interrogation exercise were not discharged by INM, but by another entity controlled by Mr. O’Brien called Island Capital and were paid by an Isle of Man company called Blaydon Ltd beneficially owned by Denis O’Brien. No explanation was given for this.”:

Broadsheet: “Island capital, eh?”

LCD: “Island Capital, incidentally, subsequently sought to be paid of the order of €1 million by the company in connection with work allegedly undertaken by in respect of the disposal of the company’s shares in an Australian company APN – for which it allegedly provided no services. This request for payment was withdrawn when it was pointed out that it would have to be disclosed publicly.”

Broadsheet: “Cheeky.”

LCD: “A further incident occurred in the autumn of 2016 concerning the possible purchase of Newstalk, a radio station owned by interests controlled by Denis O’Brien. Group Chief Executive Robert Pitt and Group Chief Financial Officer Ryan Preston were concerned about Mr Buckley’s insistence on this purchase, which they felt was for an excessive price and subject to onerous conditions. As a result of their complaints, the board of INM constituted a special committee which cleared Mr Buckley of any wrongdoing.”

Broadsheet: “The board cleared Buckley?”

LCD: “Yes but subsequently, under threat of litigation, the board decided to establish an independent review.”

Broadsheet: “Well at least that’s something.”

LCD: ” However, an initial difficulty arose when one of the candidates proposed to serve on that review, Mr. Brian O’Moore S.C. was objected to by Mr. Buckley at Mr O’Brien’s behest.

Broadsheet: “My brain hurts.”

LCD: “The review, when it finally went ahead, didn’t get very far, because it was denied power to resolve disputes of fact. Essentially it could not resolve a conflict of testimony between Mr. Pitt and Mr. Preston on the one hand and Mr. Buckley on the other because it had no power to decide as to who was telling the truth.”

Broadsheet: “No more concerns after that surely?

LCD: “A further concern was possible wrongful disclosure of price sensitive information by Mr. Buckley to Mr. O’Brien. Kelly J referred to extensive communications in this regard without giving details of the specific information disclosed.”

Broadsheet: “This all sounds extremely serious?”

LCD: “Well, Kelly J clearly thought so. He writes: ‘[The company occupies a dominant position in the media sector in this country and there is an obvious public interest in its proper governance. It is in the public interest to discover everything about, in particular, the data interrogation issue so as to find out if there were wrongdoings carried on by the company in the conduct of its business or by persons connected with its management‘.”

Broadsheet: “Who were the inspectors appointed?”

LCD: “Sean Gillane, an Irish barrister and Richard Fleck, an English solicitor.”

Broadsheet: “And their terms of reference?”

LCD: “They have quite a few things to investigate:-

– the accessing by third parties (including but not limited to Trusted Data Solutions U.K. Ltd., Trusted Data Solutions LLC, DMZ IT Ltd., Specialist Security Services Ltd., Reconnaissance Group Ltd., Resilient Defence Ltd., John Henry, Derek Mizak, Keith Duggan, Shane Henry, Robert Breen and Ron Cole) from October 2014 or thereabouts, of the company’s informational technology systems and the collection, extraction and/or processing of data held therein (referred to hereinafter as the “data interrogation”);

– the role played by Leslie Buckley in relation to the proposed Newstalk acquisition;

– the proposed payment of a fee to Island Capital in March 2015 or thereabouts (the success fee) in connection with the disposal of the company’s holding in APN News and Media Ltd (the APN transaction)

– the board’s response to the disclosure and /or attempted disclosures made by Messrs. Pitt and Preston

– whether Leslie Buckley, between June and November 2016 or at any other time, disclosed to third parties (including but not limited to Denis O’Brien, Dominic Shorthouse and Dermot Hayes) information that was or is confidential to the company (including but not limited to legal advice received by the company)

– the overall governance of the company, having regard to the foregoing issues and any other issues determined by the inspectors to be relevant thereto.

Broadsheet: ” Thank you Legal Coffee Drinker. A lot to consider for INM there.”

LCD: [drains Nespresso] “Kelly j also stated that a free press is a cornerstone of a functioning democracy. So a lot for everyone to consider.”

Broadsheet:: ” Indeed yes. Thank you, Legal Coffee Drinker. It won’t be just the coffee…”

LCD: *click*

Broadsheet: “…to keep us awake from now on.. Right. Wonderful. Thank you very much. Lovely.”

Yesterday: An Inspector Calls

Áras an Uachtaráin

Before the Presidential Election campaign 2018 proper…We phoned legal Coffee Drinker to ask where exactly the Presidential manual is?

Broadsheet: “Hello Legal Coffee Drinker. where exactly is the Presidential manual?”

Legal Coffee Drinker: “The Presidential manual, such as it is, can be found in the Constitution of Ireland 1937. Article 12 says that there must be a President of Ireland, who shall take precedence over all other persons in the State and who shall exercise and perform the powers and functions conferred on the President by the Constitution and by law.”

Broadsheet: “How significantly super are these powers?”

LCD: “The powers of the President are set out in Article 13 of the Constitution. At first sight they look impressive:-

Article 13.1.1 – the power to appoint the Taoiseach
Articles 13.1.1 and 13.1.2 – the power to appoint and remove members of the Government
Article 13.2 – the power to dissolve and summon the Dail, and (at the President’s absolute discretion) to refuse to dissolve the Dail on the advice of a Taoiseach who has ceased to retain the support of a majority in Dail Eireann
Article 13.2.3 The power to convene a meeting of the Oireachtas
Article 13.3 – the power to sign Bills, making them legally binding Acts of the Oireachtas
Article 13.5 – the President is the Supreme Commander of the Defence Forces
Article 13.6 – the power of pardon and power to commit or remit punishment
Article 13.7.1- the power to address the Oireachtas
Article 13.7.2 – the power to address the public.
Article 13.10 – the power to exercise such other powers as may be given by law.
Article 26 – the power to refuse to sign a Bill and instead refer it to the Supreme Court for its constitutionality to be assessed.

The above powers are, however, substantially curtailed by Article 13.9, which provides as follows:

“The powers and functions conferred on the President by this Constitution shall be exercisable and performable by him only on the advice of the Government,save where it is provided by this Constitution that he shall act in his absolute discretion or after consultation with or in relation to the Council of State, or on the advice or nomination of, or on receipt of any other communication from, any other person or body.”

This effectively leaves the President with three main powers:-

– The power in Article 13.2 to refuse to dissolve the Dail as stated above (described as being in the President’s absolute discretion)

– The power under Article 26 to refer the constitutionality of a Bill to the Supreme Court under Article 26 – exercisable after consultation with the Council of State

– The power under Article 13.2.3 to convene a meeting of the Oireachtas – exercisable after consultation with the Council of State.

As discussed above, there is also in Article 13.7.1 a right to address the Oireachtas. However Article 13.7.3, states that every such message or address must have received the approval of the government.. So a President could convene a meeting of the Oireachtas under 13.7.1 but not necessarily be allowed to address it.”

Broadsheet: “Legal Coffee Drinker, how can I be President?”

LCD: *long pause*

Broadsheet: “Hypothetically.”

LCD: “By being elected President by the direct vote of citizens entitled to vote in Dail elections, held by secret ballot and according to the principle of proportional representation.”

Broadsheet: *fixes tie*

LCD: “But first, you have to be nominated as a Presidential candidate, either by (a) 20 members of the Oireachtas (b) the Councils of not less than four administrative counties, none of whom can nominate more than one candidate.”

Broadsheet: *loosens tie*

LCD: “You have to be 35 years or older, and be prepared to give up all other offices and emoluments for seven years, with the possibility of a further seven.”

Broadsheet: “I can live without emoluments for a few years.”

LCD: [drains Nespresso] “You also have to be prepared to make a following declaration, in the presence of members of Oireachtas and the judiciary, to promise and maintain the Constitution of Ireland.”

Broadsheet: “Whatever my people want.”

LCD: ‘You could be removed by by the Oireachtas, under Article 12.10 of the Constitution.”

Broadsheet: “Bring it on, say I.”

LCD: “Or removed by a five-member Supreme Court on the basis that you are or have become permanently incapacitated.”

Broadsheet: “Ah. There’s always a catch. A lot to consider there. Thank you very much Legal Coffee Drinker, you’ll always have our vote here at…

LCD: *click*

Broadsheet: “…the ‘sheet.  Great stuff. Lovely. Thanks.”

Earlier: A Second Bite


A Pro-Life demonstration outside the Irish Human Rights and Equality Commission

Gorugeen Fingleton writes:

I wondered would it be possible to ask Legal Coffee Drinker about legislation to combat the use of disturbing images.

The relevant law is The Criminal Justice (public order) Act 1994, section 7. In Criminal Law (Charleton, McDermott, Bolger 1999) they specifically mention the use of section 7 against anti abortion campaigners.

If this is quoted to a Garda they supposedly can act on it. However, when it was quoted recently the person was told that ‘higher ups’ have said the imagery is not illegal.

It’d be great to get some clarity on this…?

Legal Coffee Drinker responds:

“An interesting query! Section 7(1) of the Criminal Justice (Public Order) Act 1994 states as follows:-

“It shall be an offence for any person in a public place to distribute or display any writing, sign or visible representation which is threatening, abusive, insulting or obscene with intent to provoke a breach of the peace or being reckless as to whether a breach of the peace may be occasioned.”

As a minimum, it would need to be shown that the material was ‘obscene’ for it to breach Section 7(1). I have not been able to find any reported Irish cases on the point, but there is a recent relevant Australian decision.

In Fraser v County Court of Victoria & Anor [2017] VSC 83 (21 March 2017) the Supreme Court of Victoria (Emerton J) defined ‘obscene’ as “at the highest end of what is disgusting, repugnant, repulsive or offensive, having regard to contemporary community standards… images that are of the most seriously shocking type.”

Based on this definition, she held that the display of a poster featuring photographs of abandoned foetuses was the “display of an obscene figure in a public place” contrary to s 17(1) (b) of the Summary Offences Act 1966 (Vic).

This case represents a significant extension of the definition of ‘obscene’, previously defined by Australian courts [Crowe v Graham [1968] HCA 6; (1968) 121 CLR 375] as something which, by reason of the manner in which it dealt with sexual matters, transgressed the generally accepted bounds of decency.

Were it to be followed in Ireland, Emerton J’s definition would potentially prohibit the public display of anything offensive ‘having regard to contemporary community standards‘.

The difficulty is of course that even a short historical review shows many activities, exercised as of right in Ireland today, which would only a few years ago have been quite likely to satisfy this test.

If the definition of ‘obscene’ in Fraser is to be adopted for the purposes of suppressing posters by the pro-life movement, this could potentially have knock-on effects for freedom of speech and social change generally, a generation or so down the line…



From top:Ian Bailey in 1997; Garda witness Marie Farrell; Justice Nial Fennelly


The Fennelly Commission report was released last night.

Set up under Judge Nial Fennelly as a result of disturbing discoveries about the Garda investigation into the death of Sophie Toscan du Plantier, the commission took three years, nine barristers and 800 pages to come to its conclusions.

Eight hundred.

We asked ‘Legal Coffee Drinker’, what’s it all about.

Broadsheet: “Legal Coffee Drinker, what’s it all about?”

Legal Coffee Drinker: “It’s about two things. Firstly, the degree to which superior officers in the Gardai were aware of the surreptitious recording of non-999 calls in divisional Garda stations from 1985 onwards.

Secondly, the extent to which surviving recordings of such calls made to and from Bandon Garda station discloses misconduct by police officers in the Sophie Toscan du Plantier investigation.”

Broadsheet: “And what did the report conclude on this first issue?”

LCD: “It confirmed that the recording of non-999 calls had systematically taken place over decades without the knowledge or consent of parties to these calls. It confirmed that among the calls so included were calls between accused and their solicitors.

It confirmed that the Telecommunications Division in Garda HQ was aware that non-999 calls were being systematically recorded, having received at least one expression of concern about this from a member of the Gardai.

However it took the view that this knowledge was not shared by Garda hierarchy, who were entirely unaware that such recording was taking place. It also found that there was no evidence of any general practice of making use of the recordings, although it couldn’t rule out the fact that they might have been so used in specific cases.”

Broadsheet: “But… this wasn’t a practice confined to one particular Garda station?

LCD: “No, the practice of recording non-999 calls was routinely applicable to all divisional Garda stations, for many years, decades in fact.”

Broadsheet: “And Garda top brass didn’t know?”

LCD: “Previous Garda Commissioners gave evidence that they had believed recording was confined to 999 calls only. The Fennelly Commission accepted this and described the situation as ‘an extraordinary picture of almost complete ignorance’.”

Broadsheet: “Was there any attempt to query the assertions of the Garda Commissioners in this regard?”

LCD: “Where there is no documentation, and no member of the force who comes forward to give evidence of knowledge on the part of the Garda hierarchy, it can be difficult to challenge even unlikely assertions. The Commission did struggle a little to find an explanation for the complete ignorance. The suggestion was made to them that perhaps because the Garda hierarchy was based in Dublin, they were out of touch with what went on in country areas.”

Broadsheet: “The old Nuremberg defence (sucks teeth).”

LCD: “Well…”

Broadsheet: “What does the report tell us about the Sophie Toscan du Plantier investigation?”

LCD: “To understand this portion of the report, it’s helpful to start with a brief account of the case brought by Ian Bailey against the Gardai in relation to their conduct of this investigation.

He alleged mistreatment of himself and his partner Jules Thomas by a number of Gardai, including the late Detective Sergeant Liam Hogan, whom he alleged told him he would “be found dead in a ditch with a bullet in the back of your head”.

Also giving evidence for Bailey was Martin Graham, who accused Detective Garda Jim Fitzgerald of having given him cannabis for information against Bailey. Another witness was Marie Farrell, who claimed that Fitzgerald and others had coerced or induced her into making a false statement identifying Bailey, knowing it to be false, and further coerced or induced her into making further complaints that she was being threatened by Bailey.”

Broadsheet: “Do all these people crop up in the Report?”

LCD: “They do. Hogan, Fitzgerald, Graham and Farrell are clearly identifiable in the Report as Sergeant Alpha, Garda Delta, Mrs A and Mr S respectively.

The calls transcribed in the report include a conversation between Garda Fitzgerald and another garda regarding an assault alleged to have been carried out by Marie Farrell’s husband, Chris, on another man, Mr C.

In this conversation, Garda Fitzgerald suggests the possibility of Chris Farrell making a counter-statement for assault against Mr C advance of Mr C making his complaint. The other Garda (described as Garda Epsilon in the Report) responds by saying:

“Sure we can always pre-date it if it comes to it”.

Detective Garda Fitzgerald says:

“Exactly, yeah.”

Towards the end of the same telephone conversation, in the course of discussing actions open to Mr and Mrs Farrell in the event that Mr C were to make a complaint, the following exchange takes place:

Garda Fitzgerald: “And you can always say that sure he drew a punch and missed as you drew back, you know what I mean.

Garda Epsilon: “Yeah.”

Garda Fitzgerald: “He’s a man of the world, he knows what to say and do.

Garda Epsilon: “Oh yeah.”

Garda Fitzgerald: “What?”

Garda Epsilon: “Oh, we’ll cover him alright.”

In evidence to the Commission, Garda Fitzgerald said that he was talking about an actual assault on Mr Farrell by Mr C which Mr Farrell had told him had happened. Garda Epsilon indicated that he was not aware of any such assault.

There’s another recording of a conversation between Fitzgerald and Marie Farrell discussing the possibility of a further complaint of assault against her husband Chris by a person who had previously acted as babysitter for their children.

In it, Garda Fitzgerald appears to suggest that Mr and Mrs Farrell could seek to dissuade the babysitter from making a complaint by threatening to make their own complaint that they previously assaulted one of the children of Mr and Mrs Farrell.”

The conversation goes as follows:

Garda Fitzgerald: “No, no, no, but fucking going to the guards, they will in their bollix, ha.”

Mrs Farrell: “Oh, I know she is all mouth.”

Garda Fitzgerald: “She’s only ha? Do you know, put it this way, Mrs Farrell, you could also say we will go to the guards. When you were babysitting that you assaulted [a named child]. Ha?”

Mrs Farrell: “Yeah.”

Garda Fitzgerald: :D’you know what I mean? Be easy for [the named child] to say — or, you know, that he got a belt. Ha?”

When asked about this discussion by the Commission, Garda Fitzgerald said that Mr and Mrs Farrell had previously alleged to him that the babysitter was slapping the children.

He said that he had made the remark about it being easy for [the named child] to say that he got a belt to overcome what he perceived as a general reluctance on the part of Mr and Mrs Farrell to make statements of complaint, by assuring them that it would be an easy matter for the child in question to make a statement if he or she wanted to do so.”

Broadsheet:Hmm. Was that the only time Garda Fitzgerald came up in the Report?”

LCD: ” No. There’s another reference to a recorded conversation he had with Mr Martin Graham.”

Broadsheet; “The man who alleged he was given cannabis?”

LCD: “Yes. This conversation differs from the other recordings because it was recorded with the knowledge of Garda Fitzgerald. It took place in a car on a journey to Mr Graham’s home, and goes as follows:-

Garda Fitzgerald: “In case you go to pub tonight… I have a bit of money there you know, a little bit of stuff, you know, I’ve a bit – I’ve got a few smokes as well for you.”

Mr Graham: “Have you got some hash?”

Garda Fitzgerald: “I have cash, I’ve cash and I have something in a- and I have a few smokes here in the – you know, you said you were starved, were you.”

Garda Fitzgerald told the Commission that the reference to ‘stuff’ related to cigarettes and plug tobacco which he had purchased in a shop before they met Mr Graham at evening. He suggested that Mr Graham made the reference to ‘hash’ in order to entrap him.

The Commission also heard from the telecommunications technician who had recorded and transcribed the interview, voluntarily adding the words “Lighting a cigarette and laughing” into the transcript immediately after the reference to hash. The Commission felt that the technician had not been authorized to insert these words and they did not feel that Mr Graham was joking.

Broadsheet: “So what then did the Commission conclude about Garda Fitzgerald’s conduct?”

LCD: “It accepted there was a conflict of fact between Garda Fitzgerald and Garda Epsilon as to whether or not Mr C had previously assaulted Chris Farrell. However, it felt that the question of a fabrication of a complaint against Mr C did not ultimately arise because Garda Epsilon had been able to persuade Mr C not to pursue its assault complaint.

As regards the complaint made against the babysitter, it held that, although there were some ‘aspects of concern’, it was not possible to establish whether or not Ms Farrell had previously told Garda Fitzgerald about an alleged assault and therefore whether or not he had been suggesting the fabrication of evidence.

Finally, in relation to the hash issue, while rejecting the suggestion that Mr Graham was joking when he referred to hash, it found that Mr Graham’s request was not evidence that Garda Fitzgerald had expressly or impliedly offered to pay him for hash, in circumstances where the conversation with the reference to hash had been voluntarily recorded by Garda Fitzgerald.”

Broadsheet: “Anything about Sergeant Hogan?”

LCD: Yes. There was a transcript of a conversation between Sergeant Hogan and Garda Fitzgerald, regarding a statement made by one of their colleagues about Jules Thomas [partner of Ian Bailey’. In it, he had written:

“I knew she was making every effort to tell me the truth.”

Sergeant Hogan took issue with this portion of the statement, saying to Garda Fitzgerald:

“Fuck it, she wasn’t anyway…. Ah fuck it, it’s awful. When I see your friend then, like writing them stupid fucking statements, like I mean… what man…”

He continued:

“Yes, that statement has to get fucking chopped up anyway.”

There was also another conversation between Sergeant Hogan and a further garda (described as Sergeant Beta in the Report) which discussed amending a written statement of a witness who had said that he remembered someone having told him that Mr Bailey was in the pub on a particular night.

In the phone call Sergeant Beta expressed annoyance at the hearsay element of this statement, saying:

“[it] undermines the whole thing… I will take that out so to fuck will I?”

Sergeant Hogan’s response was inaudible.

The Commission Report also contained details of conversations that Sergeant Hogan had had with civilians and journalists regarding the Bailey case, in which he referred to Mr Bailey in pejorative terms.”

Broadsheet: “What sort of terms?”

LCD:A ‘cunning bastard“, “he’s fucking playing some game at the minute“, “he’s that cute“, “he has a temper threshold that, like he’d snap like that“, “beaten the one he’s living with, sure he’s beaten her to a pulp a few times“, “sex was the fucking motive“, “she did a runner if he got near her, you see, and that was it an the caught her.”

Broadsheet: “Gulp. And what conclusions did the tribunal reach on Sergeant Hogan?

LCD: “That he – and other members of the Gardai – were prepared to contemplate altering, modifying or suppressing evidence that did not assist them in furthering their belief that Mr Bailey was the murderer, but that there was no actual evidence of such alteration or modification having taken place as the statements objected to appeared unaltered on the investigation file.”

Broadsheet: “We don’t have any evidence to contradict their explanations and where no explanation is provided no harm was done?”

LCD: “A bit, yes. As with its conclusion on the systematic recording of tape recordings generally.”

Broadsheet: “So your overall conclusion?”

LCD: “The Garda Siochana is a mysterious place and keeps its secrets close. Also, the Hogan & Fitzgerald modus operandi is a little worrying, to say the least. This wasn’t Sergeant Hogan’s first case. His father commanded the Garda in West Cork for decades. Hogan himself was involved at a high level in the Catherine Nevin investigation and in investigating Martin Cahill. He’s a familiar figure in Irish true-crime books. Presumably there are recordings of his phone calls in other cases. It would be interesting to hear them.”

Broadsheet: “With consequences for appeals generally?”

LCD: “I think this report will have consequences for appeals generally in another respect. Unconstitutional recording of phone calls between an accused and their solicitors raise issues as to the lawfulness of the accused’s detention and any confession subsequently made by them. We done?”

Broadsheet: “Thank you very much Legal Coffee Drinker.”

LCD: “Give me a bit more notice next time.”

Broadsheet: “Of course, sorry. Thanks. Have a great weekend.”

LCD: “You’re still on the phone.”

Broadsheet. “Sorry bye.”


Earlier: “I’ll Face Him Down.”

Yesterday: Nothing To See Here


Former Rehab boss Angela Kerins

Further to yesterday’s post on the award of 75% of costs to losing party Angela Kerins in her case against the Public Accounts Committee, Broadsheet commenter Harry Molloy asked me to come back to readers when the full written judgment had been published. It is now available here.

The justification for the award of costs is set out by the Court at paragraphs 26-33 and appears to be as follows:-

(i) The PAC has an important function. Questions concerning the proper discharge of its function and the conduct of its members and the legal safeguards (if any) available to witness who appear before it are matters of public importance, involving questions of freedom of speech in Parliament, the separation of powers and the extent to which the court may intervene in the affairs of the Legislature.

(ii) Ms Kerins attended before the PAC in a voluntary capacity and much of what was put to her and said about her was damaging to her reputation personally and professionally. By bringing her action, Ms Kerins cast a light on the position of persons who volunteer to appear before the PAC. The institution of proceedings on her part was a proportionate reaction on her part to what had occurred and as such and the fact that she had a personal interest in the outcome of the application should not preclude her obtaining her costs.

The implication from the ruling was that Ms Kerins had not been well treated by the PAC and therefore it was justifiable for her to seek to clarify the law in relation to the position of witnesses appearing before it.

There is also an implication that she performed a public service in alerting potential witnesses to the risks of appearing before the PAC.

Although within the (very wide) parameters of the discretion laid down by previous case law, the ruling does break new ground in that it sanctions an award of costs to an unsuccessful litigant with a personal interest in proceedings on a matter of public interest where that litigant acted proportionately in bringing the proceedings.

It will be interesting to see what implications this ruling will have for Denis O’Brien’s costs in his recent unsuccessful application for parliamentary privilege. Will the richest man in Ireland be entitled to his costs on a losing case on the basis that he acted ‘proportionately’?

And, more pressingly, what does proportionately even mean?

*stirs coffee*

Yesterday: Compo Claim Madness



Angela Kerins before the Public Accounts Committee in 2014

The Public Accounts Committee will have to pay two thirds of former Rehab boss Angela Kerins’ legal costs after her failed High Court action.

Ms Kerins lost her personal injury claim against PAC [concerning two days of grilling about payments to the charity] after the court said it could not make any judgment on utterances made inside the oireachtas (see REDACTED for details).

So…why are ‘we’ lumbered with the bill?

Legal Coffee Drinker writes:

Order 99 Rule 1(1) of the Rules of the Superior Courts provides that the

“costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those courts respectively…”.

Order 99 Rule 1(4), further provides:

“…the costs of every issue of fact or law raised upon a claim or counterclaim, shall, unless otherwise ordered, follow the event…”.

This gives the courts a wide discretion in relation to costs which has been limited by rules laid down in case law.

The leading case is the decision of the Supreme Court in Dunne v Minister for the Environment [2008] 2 IR 775. The issue under appeal was whether or not an individual who had brought an unsuccessful legal challenge to the construction of a motorway near a site of archaeological interest should be entitled to their costs.

The Supreme Court held that that the normal rule was that the costs of every proceeding followed the event but that the courts always retained discretion in relation thereto.

There was no fixed rule or principle determining the ambit of that discretion and, in particular, no overriding principle which determined that it had to be exercised in favour of an unsuccessful plaintiff in specified circumstances or in a particular class of case.

The fact that a plaintiff was not seeking a private personal advantage and that the issues raised were of special and general public importance were factors which could be taken into account along with all other circumstances of the case in deciding whether there was sufficient reason to exercise a discretion to depart from the general rule that costs followed the event.

However, the two principles, in themselves, were not the determining factors in any category of cases which could be described as public interest litigation.

In that case the Supreme Court overturned an order awarding the unsuccessful applicant his costs, saying that:

“undoubtedly the fact that a plaintiff is not seeking a private personal advantage and that the issues raised are of special and general public importance are factors which may be taken into account, along with all other circumstances of the case, in deciding whether there is sufficient reason to exercise a discretion to depart from the general rule that costs follow the event.

However, insofar as the learned High Court Judge may have considered that the two principles to which she referred are in themselves the determining factors in a category of cases which may be described as public interest litigation, I do not find that the authorities cited support such an approach…”.

Recently United Left TD Joan Collins was awarded 75% of her legal costs in her unsuccessful challenge to the promissory notes issued by the Minister for Finance in favour of Anglo Irish Bank and the Educational Building Society.

The three-judge divisional High Court ruled that it was an exceptional case which merited a departure from the normal rule regarding costs. Given the exceptional nature of the litigation, it awarded her 75%.

In that case, Joan Collins had no ‘private personal advantage’ in the success of her legal claim. The Kerins case is different in this respect.

However the decision in Dunne, while acknowledging that lack of private personal advantage might be a factor to be taken into account in deciding on costs, did not absolutely rule out an award of costs in such a case.

The test which is applied in deciding on costs is ‘exceptionality’ – something which still leaves a lot of discretion to the trial judge.

In the Kerins case, the court appears to have regarded the issue involved as of sufficient public importance to override the fact that the case was of private personal advantage.


PAC must pay two-thirds of Kerins’ legal costs (RTÉ)