Tag Archives: Terms of Reference

Tonight since 8pm.

In the Dáil.

A debate has been under way in relation to a Fianna Fáil Private Members Motion on the terms of reference of the scoping exercise into the death of Shane O’Farrell.

It follows the family of the late Shane O’Farrell highlighting the Department of Justice’s rejection of terms of reference drawn up by District Court Judge Gerard Haughton who was appointed by the Minister for Justice Charlie Flanagan to chair the scoping exercise into the 23-year-old law student’s death.

Earlier: “We’re Hoping To Get Support From Other Parties” [Updated]

From top: Lucia O’Farrell outside Leinster House yesterday; Terms of reference submitted by Judge Gerard Haughton for a scoping exercise into the death of Lucia’s son Shane O’Farrell; terms of reference from the Department of Justice

This morning.

Lucia O’Farrell spoke to Dr Gavin Jennings on RTÉ’s Morning Ireland following her and her family’s protest outside Leinster House yesterday.

The family believe that the Minister for Justice Charlie Flanagan and his department are narrowing the terms of reference of a scoping inquiry to be carried out by District Court Judge Gerard Haughton into the death of Lucia’s 23-year-old son Shane.

Shane was cycling home in Carrickmacross, Co Monaghan, when he was struck by a car driven by Zigimantas Gridzuiska and killed on August 2, 2011.

After meeting with the O’Farrell family, the judge had put forth his own terms of reference for the scope earlier this year.

His terms made reference to the Constitution and the European Convention of Human Rights and outlined that he would review: the criminal prosecution of Zigimantas Gridzuiska over Shane’s death; Zigimantas Gridzuiska’s previous prosecutions; the review of Shane’s case by the Independent Review Mechanism; the criminal investigation by GSOC; the subsequent disciplinary investigation by GSOC; and documentation gathered for Shane’s inquest.

However, these have now been omitted from the minister’s terms of reference and the family believe they have been “watered down” greatly.

During this morning’s interview, Dr Jennings and Lucia were discussing the difference between the judge submitting that he review the previous investigations and Department of Justice’s terms of reference stating the outcomes of previous reports and investigations will be taken into account when they had this exchange:

Lucia O’Farrell: “That may well sound well and good [that previous reports will be taken into account] but that’s taking on board that the investigations were done correctly and we can prove there’s serious flaws in those [investigations] and inaccuracies…”

Dr Gavin Jennings: “What investigations are these, Lucia?”

O’Farrell: “The investigation is, one of them, was by the Garda Síochána Ombudsman Commission, which was seven years and there are two very serious flaws in that.

“One being that the GSOC report stated that the guards were unaware that Zigimantas Gridzuiska was outside the jurisdiction, reoffending two weeks before he killed Shane [while on bail].

“And we have a letter from both the PSNI and the prosecution [service] in Northern Ireland saying the guards were fully aware of this. They had contacted them.

“Also bail, in relation to Shane [his death] was fixed at €500 despite eight offences following the killing of Shane. That bail was never taken from him.

“And we have, in the GSOC report, it states that the judge estreated the bail. We have a letter form the Supt who prosecuted the case saying bail wasn’t estreated.

“So the public…our family are entitled to the truth. The public are entitled to the truth. But the members of the Dáil and Seanad voted for a public inquiry and the Government and Minister [for Justice Charlie Flanagan] has disrespected the will of the democratically elected people of this country. And we need to get the terms of reference right to give the judge the right tools to do his job.

“Which is looking at all of the circumstances of the case. That’s what was looked for and voted on in the Dáil and Seanad, to look at all of the circumstances.

“Looking at an outcome of a report is not doing what was voted on in the Dáil.

“And the terms will not allow the inquiry to assert the full and relevant facts in Shane’s case and it appears to be in an attempt to curtail the scope of the inquiry and further delay this.

“We are eight years and three months [since Shane’s death] and we have been, the only word I can say is: abused. Abused by the Department of Justice.”

Jennings: “Ok.”

O’Farrell: “As [the late former member of the UN Human Rights Committee] Nigel Rodley said: Delay, deny, lie.”

Jennings: “Lucia O’Farrell, thank you very much for speaking to us. That’s Lucia O’Farrell, the mother of Shane O’Farrell who was 23 when he was killed by a hit-and-run driver in 2011.”

The O’Farrell family have been campaigning for several years for not only the matters leading up to Shane’s death to be investigated but, also, for their concerns about matters which occurred after Shane’s death to also be examined.

In March 2018, the Dáil voted by a majority of two to one for a commission of investigation to be set up to investigate Shane’s death.

The same motion was carried in the Seanad in February 2019.

Listen back in full here

Previously: Shane O’Farrell on Broadsheet

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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.

RTE reports:

“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.”

Anyone?

Previously: ‘Examples Of What Is And Was A Cover-Up’

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From top: Fine Gael TD John Deasy, Fianna Fáil TD McGuiness;  Minister of State with Responsibility for Disabilities Finian McGrath, of Independent Alliance, and Fine Gael TD Helen McEntee 

This morning.

In the Dáil.

Following Minister of State with Responsibility for Disabilities Finian McGrath’s publication yesterday of the terms of reference for the Commission of Investigation into the case of ‘Grace’ and the foster home she lived in for 20 years…

Waterford Fine Gael TD John Deasy called on members of the Dáil to be sceptical of what the HSE has said to date about the Grace case and set out examples of why he believes there was and is a cover-up in relation to the foster home.

Kilkenny Fianna Fáil TD John McGuinness said by accepting Mr McGrath’s terms of reference, and excluding other victims – 46 other people lived in the home – Dáil members were “heaping further abuse” on the families affected by the foster care home in the southeast of Ireland, saying: “We are now the abusers in this case.”

Mr McGuinness also recounted the harrowing experiences of other victims at the foster home.

Following their contributions, and that of other deputies, Mr McGrath announced that he is going to amend the current terms of reference – to make it explicit that the cases of the 46 other people would not be investigated in the second phase of the commission of investigation.

From the debate…

Mr Deasy said:

What we discovered, myself and John McGuinness [Fianna Fail TD from Kilkenny] was that the first casualty was always the truth when dealing with the HSE and this issue. And I’d like to give you some examples of what is and was a cover-up.”

“The legal advice from the HSE from day one was to make Grace a ward of court to protect her. The HSE refused to do so. The reason? They had concerns about a judge asking awkward questions about HSE failings in this regard.”

“In June 2008, at the HSE Vulnerable Adults Committee, of the HSE, three options were discussed: one, do nothing; two, make her a ward of court; three, give the birth mother information under an FOI and risk her being made a ward of court as a result. It was noted at the meeting that, and I quote, ‘this would lead to a disastrous day in court as it would appear the HSE had done nothing’. The HSE took option one, did nothing, and denied the information the birth mother was entitled to under the FOI.”

“The agency caring for Grace were then refused any information, medical or otherwise, because the HSE didn’t want the agency to discover their failings. Conor Dignam found that to be a breach of duty, in the duty of care to Grace because she suffered trauma needlessly and started to self-harm as a result.”

The agency then went about making her a ward of court themselves which would they legally mandate information to be imparted and would allow a solicitor to instruct for Grace. The HSE then told the agency not to do it. And said the agency could not take actions unapproved by the HSE. They were reminded, the agency, that the HSE was it’s sole funder.”

The whistleblower told the HSE they were going ahead with wardship, the HSE contacted her manager and board of directors and pressurised them not to proceed. The HSE wrote to her line manager with fabricated information, alleging poor professional conduct.”

“The High Court then chose the whistleblower as the legal committee for Grace when she again asked for information regarding medical and psychological care, the HSE again refused. The HSE then wrote to the High Court, this is my favourite part, they wrote to the High Court saying the whistleblower wasn’t fulfilling her duties because she didn’t have the proper assessments and information even though they were the ones withholding the information. Pretty twisted stuff that was kafkaesque.”

Then, one HSE official innocently gave the whistleblower a psychological report on Grace when her HSE bosses found out, they accused her, the whistleblower, through a solicitor, of being aggressive and abusive and not a fit person to represent Grace.”

“When the HSE official who gave the report originally and innocently found this out, she actually signed a statement setting out it was a complete fabrication by the HSE. For five years, the Conal Devine report sat on a shelf, the HSE refused to give it to anyone.”

“On March 5, 2015, the PAC [public accounts committee] announced it had received a disclosure about non-publication of the Devine Report. The next day, the HSE first wrote to the gardai to seek the go-ahead to publish. When they came before the PAC, that’s some coincidence.”

When they came before the PAC, they told us the protected disclosures had been fully investigated, they had not been. They told there were no procurement issues, Dignam found that there were. They told us that the people who decided to keep Grace in placement in 1996 had all retired, they had not. They told us that the gardai had stopped them publishing the [Devine] report, the gardai had not. They told us they apologised to Grace and her mother, they had not.”

“So was this a conspiracy, a cover-up? Yes its was. As I said before, this was a concerted and organised attempt to hide information and conceal the truth by a clique of HSE managers. This was an orchestrated attempt to protect officials and an organisation who fail people in State care in a catastrophic manner on a number of levels.”

Mr McGuinness said:

“The terms in relation to the terms of reference is one that now cannot be amended, is my understanding. And yet it’s a motion that actually needs to be amended. And following our discussion with you last night, minister, and the whistleblowers, I believe that you should amend this motion.”

It is simply not possible that we should, or it is not acceptable that we should carry this motion today in the context of the terms of reference when we know so much about this that is wrong. And what we are doing here, in this debate, and in accepting your terms of reference, we’re heaping further abuse on those families. We are now the abusers in this case. That is what is happening here. And let me explain why, minister, you know, you know this.”

“The whistleblower, first and foremost, exhausted every single avenue in the HSE, they tried everything to highlight the case and they weren’t listened to. They were forced to come to the public accounts committee to deal with a procurement issue about the reports that have cost this state almost €400,000 and it was out of that examination that came the story, not just of Grace, that’s a neat way of packaging it. It’s not just Grace, it’s Grace and 46 others that we need to look at. So we need to find out what happened within the HSE that covered up all of this scandal since 1982 – that’s what we need to do.”

We need to go back before Grace and we need to maybe humanise this story. What about the young girl, at 12 years of age, that was taken out of that home? And this was before Grace. Taken out of that home because her mother was told by the school that she was attending school, bruised and beaten and neglected. And when that mother made complaints in 1992, to the health board, she was told to shut up. She was told not to repeat those stories. And she was threatened legally.”

“When she took her child out of that care. She then had to seek care in Northern Ireland. Because the South Eastern Health Board wouldn’t support her. How disgusting is that?”

“And she’s not going to be included in this report? And let’s put real words on it. She was battered, bruised, she was sexually abused, financially abused. And sexually abused anally so that today that woman has a life of pain and suffering and you’re not going to investigate her case? We should be ashamed of ourselves.

What about the young boy that was there? Who, when he heard about Grace came out and said: if only I had spoken up about what happened to me then Grace might not have happened at all. And he carries that burden with him, he carries that burden with him.”

“And then Grace. She turns up at the day care centre five-foot high, five kilos and they say, the doctor’s report says that she was ‘slim and well’. Now if that’s not an attempt to cover up what was happening in that home, then, I don’t know what is.”

“She was battered, bruised, sexually abused anally, deprived of her money, neglected. Is neglect not abuse in itself? And you’ve listened to some of the parents. I listened to a parent this morning for one hour and she cried about the abuse that her daughter suffered. And she cried about the quality of life that she now has.”

“And I spoke to the carer this morning who cried bitter tears again, over the fact they were not being listened to. This was a major cover-up by the HSE. It was an astonishing set of events that has led to lives being destroyed and we are now here, discussing a set of terms of reference that are inadequate and that were not recommended by DIgnam.”

He said, and you know this minister, stop covering up. You know this. His terms of reference are far more robust than what you have put in here and he refers to the fact that the other cases need to be investigated. I fully support the investigation in terms of Grace but the other ones, the other ones, they would not, minster, and you know this. You know this. And you’ve heard the public commentary last night. Where you were being told that we are further abusing these families and these individuals because we’re neglecting to take on board what the whisteblowers actually said, what Dignam actually said. And if we pass this, in this house, we should be ashamed of ourselves. I certainly won’t support it.”

UPDATE:

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Further to the contributions of Fine Gael TD John Deasy and Fianna Fáil’s John McGuinness (above) and other deputies…

Minister of State with Responsibility for Disabilities Finian McGrath said:

Nobody will be excluded. It was always my intention that there would be second phase to this commission to investigate the care and decision-making in respect of others, as well as Grace. Nobody will be excluded. And I say again, leas ceann comhairle, nobody will be excluded.”

“However, and I accept this one, I have listened to Brendan Howlin, David Cullinane, John McGuinness, and Margaret Murphy O’Mahony, I have listened, and to other deputies, to the concerns expressed here and for the avoidance of any doubt, I’ve decided to recommend to Government that we make this completely explicit in the terms of reference.

“I want to repeat: that my objective was to have a clear focus on the care of Grace, as a first phase of this work and I’m standing by this. There have already been a series of reports into the care of Grace but the facts of actually what happened and the reasons for certain key decisions are still not clear. And I accept your arguments on that. The commission provides to call witnesses and to hear the evidence so that we can finally learn the truth.”

“…I intend to circulate revised terms of reference to put at ease the minds of those who are concerned about the imperative for the cases of others to be investigated in a second phase.”

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Former health minister Dr James Reilly, top, at the publication of the terms of reference for the Commission of Investigation into Mother and Baby Homes, above, this morning

Meanwhile…

More to follow.

Previously: Reputable History

The Magdalene Report: A Conclusion

That Reilly Prone Overnight Spin Cycle In Full

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Protesters at yesterday’s demonstration in support of Migrant X

On a Friday night.

More as we get it.

Previously: This Story Doesn’t Make Sense

Not In Our Name

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[Gemma O’Doherty’s investigation into the death of Fr Niall Molloy for the Irish Independent in 2010]

In December last year, Justice Minister Alan Shatter appointed barrister Dominic McGinn, SC, to examine how gardaí in the Garda Serious Crime Unit investigated the 1985 murder of Fr Niall Molloy in a house near Clara, Co. Offaly.

The Garda Serious Crime Review Team’s investigation – led by Detective Inspector Christy Mangan – was launched due to the work carried out by former Irish Independent journalist Gemma O’Doherty.

Following the Garda Serious Crime Review, the DPP determined in August last year that no further prosecutions should be made.

On Tuesday, Sinn Féin TD Gerry Adams asked Minister Shatter if Gemma O’Doherty will be interviewed by Mr McGinn in relation to his report.

Minister Shatter, in a roundabout way, said no.

He said:

As I have previously informed the House, Mr. Dominic McGinn, Senior Counsel, is at present carrying out an independent examination of the report of the Serious Crime Review Team relating to the Garda investigation into the death of Fr. Niall Molloy.

This independent examination will, in accordance with the terms of reference, comprise two main elements—
1. Counsel will examine what is a very detailed report that, for legal reasons, cannot be put into the public domain in its current form, and will prepare a report which can be put into the public domain on any issues of public interest which may arise from the report, and
2. Counsel will identify matters, if any, of significant public interest or concern that would warrant examination by a further inquiry and in respect of which such further inquiry would have a reasonable prospect of establishing the truth.

Accordingly, Mr. McGinn’s terms of reference involve an examination of the Garda Serious Crime Review Team’s report and not a new investigation or evidence gathering exercise. The Serious Crime Team report deals comprehensively with the issues of concern raised by the family and others as requiring further inquiry, including arising from detailed statements made to the Team by a representative of the family and the journalist referred to.

Mr. McGinn will be aware of these issues from his examination of the report and associated statements. A liaison officer has been appointed by An Garda Síochána to assist with any requests for clarification.

As I have previously stated, my priority is to allow the Senior Counsel to carry out the examination so that the maximum amount of information can be put into the public domain at the earliest possible date, at which point I will also of course fully consider the outcome of the examination concerning any further inquiry. While Mr. McGinn’s terms of reference require that he complete this examination as soon as possible, it is not possible to provide a precise timescale in this regard. I expect, however, that his work is well advanced at this point.

Transcript via Kildarestreet.com