Special Criminal Court: Statements.

Minister for Justice (Mrs. Owen)

The matter on which I am about to make a statement to the House is one of great seriousness. As soon as I was informed of the Attorney General's advice yesterday evening that some recent decisions taken in the Special Criminal Court were unsound I ordered that the relevant prisoners be released. I instructed the Secretary of the Department of Justice to immediately investigate the circumstances around the problem.

I will give as accurately as I can all of the information I have at this time, as the investigation in my Department is still continuing. I will come back to the House to expand on the information I am giving today when the inquiry is completed. Either way, I will inform the House of the outcome of the inquiry.

The facts, in so far as they can be established at this stage, are as follows. On 2 July 1996 Judge Dominic Lynch wrote to me reiterating an earlier request to be relieved of his duties in the Special Criminal Court. I decided to accede to Judge Lynch's request and directed the courts division of my Department to prepare a memorandum for Government. This was submitted to the Government on 1 August and the Government decided on that day to relieve Judge Lynch from the Special Criminal Court and to appoint Judge Kevin Haugh to that court. A copy of the Government decision was forwarded to my Department by the Government secretariat in the normal way.

The Government's decision was photocopied and circulated by my office to various officials, including officials in the courts division. This is in accordance with standard practice for all Government decisions, and the standard practice is for the division dealing with the particular issue which is the subject of a Government decision to take the necessary steps to implement it.

The precise circumstances relating to the handling of the Government decision to relieve Judge Lynch by my Department are now the subject of a detailed inquiry and all those who had any responsibility are in the process of making a statement. I am aware at this stage of some of the facts. I have been advised that disclosure of partial information could be misleading to the House and possibly leave the propriety of the inquiry procedures open to challenge.

The decision was transmitted to the courts section of my Department. The warrant of appointment for the replacement judge was received by my Department and transmitted to the courts. What is clear is, for whatever reason, Judge Lynch was not informed of his removal and continued to serve on the Special Criminal Court.

On 3 October I received a letter written to me by the Attorney General on 2 October, 1996 indicating he had been in conversation with Judge Harvey Kenny who stated there was an impression among the Judiciary that Judge Lynch was still a member of the Special Criminal Court. The Attorney requested me to establish whether the Government decision had been notified to Judge Lynch and the President of the Circuit Court.

That letter was received in my private office and referred directly to the relevant section for attention without being brought to my attention. I have ascertained that draft letters were prepared by the courts division informing Judge Lynch and the President of the Special Criminal Court of the Government decision. These letters, however, had not been finalised up to yesterday. This aspect of the matter is also the subject of the inquiry now under way.

I received a letter on 5 November from the Attorney General stating he had noted that Judge Lynch still appeared to be functioning as a judge of the Special Criminal Court. That letter was received in my office on 5 November and I saw it that afternoon on my way to a meeting in Dublin Castle. I immediately phoned the principal officer in the courts division of my Department and asked him to clarify the situation. I attended the talks in Belfast yesterday and did not have further contact on the matter until I spoke to the Secretary of the Department later yesterday evening. I will return to this point later.

I am advised by my Department that shortly before 5 p.m. on 6 November an assistant secretary in the Department, who is not in the courts division, became aware that a serious problem had arisen in that division regarding cases in the Special Criminal Court heard since 1 August by a court that included Judge Dominic Lynch. The assistant secretary, who was unable to contact the Secretary of the Department and me at that time as we were both returning from Northern Ireland, consulted the Attorney General's office immediately to get advice on the course of action to be taken. The assistant secretary was advised by that office that as the cases affected appeared to relate to prosecutions that were in being, it should be left to the DPP's office initially to determine the appropriate course of action. On that basis my office contacted the DPP's office. The Secretary of my Department, who was returning with my private secretary by car from Baldonnel, having attended the talks in Belfast yesterday, received a call on his mobile phone at about 6.50 p.m. from the Deputy Commissioner of the Garda Síochána who informed him of the problems which had arisen. The Deputy Commissioner also indicated that, following consultation with the DPP he was making arrangements to have gardaí in place in case it became necessary to bring prisoners to a court or another location. My private secretary then informed the Secretary that correspondence had been received from the Attorney General who had queried the circumstances in which Judge Lynch still appeared to be hearing cases in the Special Criminal Court despite the Government decision of 1 August. The letter to which he referred was the one received by me on 5 November.

The Secretary has informed me that this was the first he had heard of any problem in relation to this matter. He had no knowledge that the Department had failed to issue notice of the Government decision to Judge Lynch and had no knowledge of the correspondence received from the Attorney General to which I have referred earlier. The Secretary immediately phoned the principal officer in the courts division of the Department for information. He was informed that notice had not issued to Judge Lynch, that the judge had continued to sit in the Special Criminal Court and that an issue arose about the validity of decisions made by the court in cases heard by Judge Lynch.

When he reached the Department at about 7 p.m., the Secretary immediately phoned the DPP in his office. The phone was busy but, when he spoke to him at about 7.20 p.m., the DPP, who said he had consulted counsel at length, confirmed the basic facts and said it appeared that the validity of the decisions made in the cases in question was open to doubt. He emphasised, however, that, as the issues raised did not involve a flaw in the criminal proceedings themselves but related to the capacity of the court to make valid decisions in the circumstances described, he could not purport to give formal legal advice on the matter. This would, properly speaking, be a matter for the Attorney General.

The DPP also said that if proceedings were instituted by the prisoners, they would need to be brought to court. He indicated that he was in contact with the Garda on this matter. The DPP finally said he intended to contact the senior legal assistant in the Attorney General's office to suggest that formal legal advice on the matter was a question for the Attorney General. The Secretary asked the DPP to ask the senior legal assistant to phone him either at his own office or the office of the Taoiseach, where he was due to attend an official-level meeting about an unrelated matter, immediately following the conversation between the DPP and the senior legal assistant.

The senior legal assistant phoned the Secretary at about 7.50 p.m. and said he believed that the advice he would be giving to the Attorney General would be to the effect that the court decisions already referred to were unsound for legal reasons. He hoped to be in contact shortly with the Attorney General who would probably take his own advice from counsel.

Following his meeting in the Taoiseach's office at about 9.30 p.m. the Secretary advised an assistant secretary in my Department, by phone, that the principal officer responsible for prison operations should be advised of what was taking place and of the possibility that prisoners whose cases had been heard by Judge Lynch, as a member of the Special Criminal Court, might be released very soon either to attend court or travel elsewhere.

At 9.44 p.m. the Secretary received, on his mobile phone, from the senior legal assistant in the Attorney General's office the formal advice of the Attorney General that the prisoners in question should be released as soon as possible. The senior legal assistant said that he was to be phoned with confirmation of the action taken when it was taken. The Secretary decided that the Attorney General's advice should be conveyed to the Minister and that the Deputy Garda Commissioner and the principal officer in the prisons division should be advised of the developments. The Deputy Commissioner indicated that, on the advice of the DPP, the prisoners, if released, would be rearrested and brought before the Special Criminal Court today. The Secretary, who knew from earlier in the day that I would be attending the "Michael Collins" film at that time, contacted my private secretary from his home and said that he needed to speak to me immediately. I spoke to the Secretary at about 10.20/10.30 p.m. and, having heard the legal advice and the Secretary's recommendation, I ordered that the prisoners be released. I also directed the Secretary to conduct an immediate investigation into all the circumstances and to report to me at the earliest opportunity. That investigation is now under way and all staff believed to have had an involvement in this matter have been asked by the Secretary to make written statements.

The Secretary has recommended — and I am accepting his recommendation — that in the particular circumstances which have arisen here, and in order to avoid any suggestion of a lack of objectivity, it would be right to have a person or persons outside the Department involved in this investigation. I have asked the Secretary to discuss this aspect of the matter with the public service division of the Department of Finance today. I also asked the Secretary to inform the Taoiseach's office of the situation. He contacted the Taoiseach's private secretary at about 11.50 p.m. and I am advised that the Taoiseach became aware of the situation at about 12.25 a.m. I spoke to the Taoiseach at 12.30 a.m. Following my conversation with him at about 10.45 p.m., the Secretary phoned the principal officer in the prisons division and conveyed my instruction to release the prisoners. He also advised the Deputy Garda Commissioner of the situation.

The principal officer in the prisons division informed the Secretary that, on the basis of his earlier phone calls, the prison governors had initiated the steps necessary to release the prisoners. In the case of Portlaoise Prison, extra prison staff needed to be on duty given the numbers involved and the need to ensure that proper order prevailed. This involved the recall of staff who were off duty. The Secretary asked both the principal officer in the prisons division and the Deputy Garda Commissioner to let him know when the prisoners were released and whether they had been rearrested. I was in touch with the Secretary by phone on several occasions during the night and asked him to inform me immediately the releases had taken place. The Secretary was advised at around 2 a.m. that all the prisoners had been released and rearrested and he conveyed that message to me. At 11.35 a.m. this morning the Secretary was informed by an assistant Garda Commissioner that on the advice of the DPP a further prisoner should be released from Portlaoise Prison as it had been confirmed that his case had also been dealt with by Judge Lynch subsequent to 1 August. That person has also been released on my instructions and has been rearrested by the Garda. About half an hour ago I was advised that five other persons who appeared before Judge Lynch in special courts since 1 August were granted bail. I have asked the Attorney General to advise me on this matter.

Those are the facts as I have them now. As I said at the beginning of my statement, this is a matter of great seriousness and it is right that the House should be given the facts. On behalf of my Department, I convey regret to all those who have been discommoded in any way because of its failure to follow standard procedures in this matter. There should be a full, speedy and impartial inquiry into all the circumstances of this case and the House should be informed of the outcome of the inquiry.

Mr. Callely

Sad and pathetic.

Mr. O'Donoghue

The Minister's speech contained a tremendous amount of obfuscation. It was an attempt to construct a smokescreen around this sorry saga and a blatant effort to ensure that the Minister for Justice would escape accountability and responsibility.

A Government decision was made on 1 August last, the Minister having been informed around the beginning of July that the judge in question wished to be delisted from the Special Criminal Court. Between 1 August and now a judge has been sitting on the Special Criminal Court, the most sensitive court in the land, and nobody in the Department of Justice or the Government, not even the Minister for Justice, noticed it. This is an extraordinary case. It means that the Minister for Justice has no interest in the most important court under her remit. The Special Criminal Court deals with the most sensitive cases and one would have thought that the Minister charged with responsibility would at the very least know from public soundings, the public press, radio or television that there was a judge sitting on the court whom the Government had decided should not be there following his request for delisting.

The Minister has blamed the officials in her Department and has said there will be an investigation. Who will investigate her role, the most abysmal of all, in this matter? She was at the Government meeting at which the decision about Mr. Justice Lynch was made. She was a party to that decision and it was her political responsibility to the public to implement it. She failed to implement it. This gives her little alternative but to resign.

The Tánaiste and Minister for Foreign Affairs, unusually for him in the context of his presence in this shambles of an administration, pointed in the direction of the Minister and described the situation as "embarrassing". We have been used to furtive whisperings from the Tánaiste but on this occasion he decided to state publicly that he has lost confidence in the Minister.

Minister of State at the Department of Justice (Mr. Currie)

Rubbish.

Mr. O'Donoghue

Who in this Government of so-called openness, transparency and accountability will accept responsibility and accountability for this disgrace? It appears that the Government will investigate every official in the Minister's Department who knew anything about the matter, find out where they went wrong and abdicate its responsibility. However, neither the Minister nor the Taoiseach, nor any member of the Cabinet, is entitled to escape responsibility. The Minister must carry the major responsibility for the matter because of its grave seriousness, because she is charged with the administration of her Department and because it is her duty to ensure that serious decisions are implemented.

The previous administration fell because a civil servant did not bring the existence of a file in the Office of the Attorney General to the attention of his then boss, the Attorney General. Will the Tánaiste and Minister for Foreign Affairs insist on the same level of accountability, openness and transparency that he insisted on then? Will the Minister for Social Welfare, Deputy De Rossa, who trumpeted high standards from the Opposition benches over a protracted period, attempt to escape his responsibility in this matter? Will he tolerate the presence in Government of the Minister who presided over this débâcle?

The Minister and the Government have held the laws up to public ridicule. The public's confidence in the criminal justice system has been undermined. While this has been ongoing for some time, when it happens with regard to a court which is of such pivotal importance and sensitivity, then somebody somewhere must accept responsibility, do the honourable thing and go. No amount of obfuscation and smokescreens can hide the truth, which is the failure of the Government to implement its decision because of the dereliction of duty by the Minister.

The Government allowed a judge to sit on one of the most important, if not the most important, courts in the country for a protracted period after it had decided he should not do so following his request to be delisted. The Government and the Minister did nothing about it. This would be a joke in a banana republic. It is a joke in this Republic.

Mr. Currie

Nonsense.

Mr. O'Donoghue

Somebody somewhere must pay for that joke. The failure of the Taoiseach and the Tánaiste to act immediately means that they furthered their conspiracy in the situation by allowing the Minister, who failed the Government and public so badly in this matter, to continue in office. I have not in the past asked her to resign. It gives me no pleasure to do so now.

Mr. Currie

The Deputy is enjoying it.

Mr. O'Donoghue

If the Minister insists on hanging on it is to be expected that she must be removed.

Ms O'Donnell

The Minister's speech left many of us none the wiser because we did not have the text. The decision to delist the judge was taken on 1 August. The Minister stated:

On 3 October I received a letter written to me by the Attorney General on 2 October 1996 indicating he had been in conversation with Judge Harvey Kenny who stated there was an impression among the Judiciary that Judge Lynch was still a member of the Special Criminal Court. The Attorney requested me to establish whether the Government decision had been notified to Judge Lynch and the President of the Circuit Court.

That letter was received in my private office and referred directly to the relevant section for attention without being brought to my attention. I have ascertained that draft letters were prepared by the courts division informing Judge Lynch and the President of the Special Criminal Court of the Government decision. These letters, however, had not been finalised up to yesterday.

This is reminiscent of the correspondence in the Brendan Smyth case. Officials in the Minister's Department confiscated or took her post and dealt with it without bringing serious matters to her attention. This is where the crux of the inquiry must lie. The Minister's officials kept her in the dark about this correspondence from the Attorney General and did not take the appropriate action to inform the courts about this fiasco.

Mr. M. McDowell

It was a cover-up.

Ms O'Donnell

Absolutely. It was difficult to follow the Minister's speech because we did not have the text. It served to confuse rather than to enlighten. It is a measure of her incompetence that the text of her speech was delivered only when she had almost finished reading it.

The figure of Justice is usually portrayed as blindfolded to indicate and to symbolise impartiality. However, it may more accurately explain the way in which the Minister blunders, unseeing, from one crisis to the next. She is flying blind, oblivious to disasters and unaware of matters for which she has political responsibility. She has failed to see trouble coming, and not for the first time. However, when it arrives on her desk she is incapable of dealing with it and all we get is minimal accountability. In the past, for example, the Minister has failed to recognise the public demand for tough action against crime. She failed to see that the rash of unsolved contract killings would create a situation where criminals believed that they could shoot whoever got in their way, be they gardaí or journalists. Her Department also failed to see the implications of deporting an unfortunate Algerian in contempt of a court order. In this, her latest blunder, she failed to notice the law pertaining to judges of the Special Criminal Court.

Section 41 (2) of the Offences Against the State Act, 1939, is not a difficult provision of law to understand. It provides that when the Special Criminal Court is exercising its jurisdiction it must consist of an uneven number of judges, not fewer than three. It now transpires that since mid-summer, the Special Criminal Court has been operating with a judge who was no longer validly a member of the court so that all its actions are tained with illegality. This is an extraordinary state of affairs, verging on GUBU, for any Government Minister to preside over.

It is all the more extraordinary because the provisions of the 1939 Act dealing with the appointment of judges are straightforward. Judges can be appointed and removed at will by the Government. There are no complicated procedures involved. The validity of the resignation of a judge of the Special Criminal Court was comprehensively analysed by the High Court and the Supreme Court less than ten years ago in a case involving Dominic McGlinchey. Everybody in the Department of Justice appears to have forgotten about this.

The result of this latest blunder means that 15 prisoners were released from their cells into the prison yard, rearrested and, at considerable public expense and Government embarrassment, brought under heavy guard to Dublin, in an attempt to validate their detention. It is ironic that one of the prisoners was charged with the crime of false imprisonment. This would be funny if it were not so serious. Among the other prisoners in the latest fiasco were those arrested in connection with the recent arms finds in Donegal and Laois and the shooting of Detective Garda Jerry McCabe. These were serious crimes. I note the Tánaiste has accepted this is an extremely serious and embarrassing matter for the Government. When crimes of this nature are not treated with vigilance and due competence, it sends out all the wrong signals to the people in Northern Ireland and in this jurisdiction.

Under the Constitution courts such as the Special Criminal Court may be established where ordinary courts "are inadequate to secure the effective administration of justice". If that test were applied to this Minister she would fail hands down. Her record in the Department of Justice reads like a roll of shame. Shortly after the Minister took office we had the Brink's-Allied robbery. The Minister denied that there had been prior intelligence about the raid, yet a newspaper correspondent had details of a confidential Garda memorandum that confirmed there was prior intelligence about the matter. We had the botched Duncan extradition case. There were ten escapes from closed institutions and 197 abscondings from open prisons this year and we also had the Urlingford sting. We then had the illegal deportation of the unfortunate Algerian in contempt of a court order and there is ongoing unabated use of the temporary release system because we do not have enough prison spaces. Tickets were sold through retail outlets for a theatrical event in Mountjoy Prison. The list reads like a roll of shame.

The Government recently published a document entitled Delivering Better Government. This glossy document refers to a brave new world where civil servants, and structures within the Civil Service, will be more accountable. The Ministers and Secretaries Act, 1924, states that if a grievous error is made by a civil servant or an official in a Minister's Department, the Minister is responsible irrespective of whether he or she knew about the matter. We are in limbo land in terms of ministerial accountability from this Government. We have the worst of all worlds. Ministers are not being accountable to the Dáil. Ministerial accountability means nothing to the Government. Any one of the catalogue of errors I outlined should have been enough for the Minister to resign——

Mr. Currie

Nonsense.

Ms O'Donnell

——but she blunders on. We have had minimum responsibility, blame and accountability from the Government, with serious implications for democratic accountability. If the Minister does not accept responsibility, it has a trickle down effect through the Civil Service and State boards, such as the BTSB. There is always an inconclusive end to stories. At the end of her speech the Minister said there would be a full investigation and maybe a tribunal of inquiry.

Mr. Currie

She did not say that.

Ms O'Donnell

Every matter ends inconclusively with words to the effect that such events will not happen again. Nothing ever happens to satisfy the appetite of the public for accountability.

Mr. Currie

To satisfy the Deputy's appetite.

Ms O'Donnell

The Justice portfolio does not thrive on this type of uncertainty and capacity for error. When lives are at stake the public must have the maximum level of competence, diligence and ministerial authority, in other words, the proverbial safe pair of hands. It has a right to expect the important office of Justice to be in a safe pair of hands. We did not get a full account of what happened from the Minister. She could not even manage to have her script here in time so Members could read it.

Mr. Currie

I suppose that is also a resigning matter.

Mrs. Geoghegan-Quinn

If I were the Minister of State I would remain quiet.

Mr. Currie

Is the late arrival of her script a resigning matter?

Ms O'Donnell

This latest blunder was not brought into the public domain by vigilance or competence, even belatedly, on the part of the Department of Justice or the Minister. It came into the public domain because of an astute defence lawyer. If it were up to the Department it would have gone on ad infinitum or until Deputy O'Donoghue or I tabled a question on the matter. One can imagine the route it would have taken. The litany of phone calls is a disgrace. It is like an advertisement for Telecom Éireann. The Minister's speech was a disgrace.

Mr. B. Ahern

The Minister is asking us to believe an unbelievable saga. On 2 July a judge asked to be delisted and the Government agreed on 1 August. The matter went through the system and around the end of September the Attorney General copped on that something was wrong. He sits at the Cabinet table on a weekly basis and I am sure meets the Minister on a daily basis. He is involved in the Northern Ireland talks and travels regularly with the delegation. He never raised or spoke about the issue. Last Friday he decided to raise it and last night the matter became a crisis.

Is the Minister asking us to believe that nobody in the Government, in the Department of Justice or in the courts section copped on to this? Is she asking us to believe that nobody in the Attorney General's office mentioned the matter? The Minister stated that the warrant of appointment for the replacement judge, which was obviously cleared at the Cabinet meeting on 1 August, was transmitted to the courts. The courts were informed that Mr. Justice Kevin Haugh was taking over the position and he was then informed. How could so many mistakes have happened in respect of one issue?

Does the Minister ever speak to the Attorney General? Does he only communicate with her by letter? The same issue of a lack of communication arose in the case some months ago regarding the shredding of an important warrant.

The Minister's private office is busy but nobody dealt with an important letter regarding a judge acting in the Special Criminal Court dealing with IRA people and serious offences. The Minister's private secretary was busy and sent that letter to the courts section, but nobody there believed it was important and did not inform the Minister until today. How can anybody with any commonsense believe that story? I cannot believe it; it is unbelievable. Does the Attorney General ever speak to the Minister about anything?

Dáil Éireann debate - Thursday, 7 Nov 1996

Dáil Éireann debate -
Thursday, 7 Nov 1996