Dáil Éireann debate -
Thursday, 19 Jun 2014

Vol. 844 No. 3

Cooke Report: Statements

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I welcome this opportunity for the House to debate the findings and recommendations of the report by Mr. Justice Cooke into claims of unlawful surveillance of the Garda Síochána Ombudsman Commission, GSOC. Mr. Justice Cooke's authoritative report assesses, in a balanced and measured way, the evidence for these claims.

As the House knows, The Sunday Times on 9 February 2014 claimed that the offices of GSOC had been targeted in a sophisticated surveillance operation which used Government-level technology to hack into its e-mail, Wi-Fi and phone systems. On 13 February 2014, after the publication of this article, GSOC submitted a report to the then Minister on the matter. In its report, which should have been submitted earlier as required by statute, GSOC explained that it had brought in a specialist IT company to conduct a security sweep of its premises in September 2013 which had initially identified two operational surveillance threats, and that a third such threat also emerged. Subsequently, on 8 October, GSOC initiated an investigation into these issues under section 102(4) of the Garda Síochána Act 2005. This provision enables GSOC, if it appears desirable to it, in the public interest, to investigate any matter indicating to it that a member of the Garda Síochána may have committed an offence or behaved in a manner that would justify disciplinary proceedings. The report by GSOC to the then Minister explained that the conclusion of the GSOC investigation under section 102(4) was that it "did not find any definitive evidence that GSOC was under technical or electronic surveillance. It did, however, uncover a number of technical and electronic anomalies that cannot be explained."

The House will recall that The Sunday Times claims led to a considerable level of comment and debate, resulting in a statement by the then Minister to this House, plus an appearance by GSOC commissioners and the then Minister before the Oireachtas Joint Committee on Public Service Oversight and Petitions. I will return to that later.

It is entirely understandable that these claims led to serious disquiet, which in turn had the potential to, and indeed did, undermine the continued public confidence in policing and the oversight of policing. That is why the Government decided that it was essential for these claims of unlawful surveillance to be examined in an independent, impartial and authoritative manner. It, therefore, appointed a former distinguished judge of the High Court, Mr. Justice Cooke, to carry out an independent inquiry into the claims, and this was approved by resolution of this House. I thank Mr. Justice Cooke for his work.

The terms of reference of the inquiry were, in summary, to establish the sequence of events and facts leading up to and relating to the investigation by GSOC into the security concerns; to examine all reports, documentation and other evidence relevant to that investigation; to review and assess any evidence of a security breach or attempted security breach at GSOC's premises; and to make any recommendations relating to improvements to GSOC's security, to legislation or otherwise. They were broad terms of reference.

The key finding of Mr. Justice Cooke is that it is "clear that the evidence does not support the proposition that actual surveillance of the kind asserted in The Sunday Times article took place and much less that it was carried out by members of the Garda Síochána". The report by Mr. Justice Cooke also analyses in detail the evidence in relation to the three threats identified by the security sweep of GSOC's premises. Much has since been written and spoken about these threats, and it is important to look at the findings of Mr. Justice Cooke in this regard.

First, it was alleged that a handheld wireless device associated with audio-visual, AV, equipment, located in the area of the GSOC boardroom was connecting and transferring audio data to an external "Bitbuzz" hotspot. This device became known as device 4B. It was further claimed that the device had been reconfigured and it was suggested this was evidence of interference. Mr. Justice Cooke finds as "not convincing" the accounts of device 4B authenticating a connection to the external "Bitbuzz" hotspot, as "Bitbuzz" would have had a record of the MAC address of device 4B if the connection had been made and authenticated. Mr. Justice Cooke found it "highly improbable that the haphazard performance of such a ... device constituted the planned means of covert eavesdropping on GSOC in a sophisticated surveillance exercise by any agency equipped with a capability of 'intelligence-service level'".

Mr. Justice Cooke goes on to add that: "the possibly sinister characterisation attributed to its abnormal behaviour appears now to warrant reconsideration in view of the fact that: a) it was not microphone enabled as had been assumed; and b) its original default password was publicly available and had not been changed." On this last point, Mr. Justice Cooke noted that as the password was publicly available it could have been that a service engineer had, in the past, benignly reconfigured the device as part of checks or maintenance.

The second threat related to the detection on an iPhone of what was considered a "fake" base station displaying a UK mobile phone country or network code operating in the vicinity of GSOC's offices. It was claimed that this "spoofed network" was "good evidence of a localised intelligence-gathering or interception device, symptomatic of something in the nature of a dedicated 3G IMSI grabber or interceptor". Mr. Justice Cooke, in his inquiry, sought evidence from a mobile phone provider who reported that it had been testing new 4G equipment in September and October 2013 in Dublin, including close to Upper Abbey Street. These tests included connecting to the group's test bed in the UK, and the particular detected 5 digit country or network code was one that was allocated exclusively to that test bed. The company considered it likely that these tests may have caused the detection of the code.

Mr. Justice Cooke found that the network which was found to be operating in the vicinity of GSOC's offices was "highly likely" to have been that attributed and generated by the mobile provider testing its new 4G installation; and that "it is clearly more probable that the iPhone scan detection of the country-network code was not caused by the presence in the vicinity of the offices of an IMSI catcher".

The third threat was an unexpected reaction to a security test on a polycom unit teleconferencing device in the office of the GSOC chairman. An "alerting test" was conducted on the polycom device, involving playing music down the open phone line. Immediately following the test, at 1.45 a.m. there occurred an anomaly of a "ring-back" to the device. It had claimed that the "likelihood of a wrong number ... at the time of an alerting test is so small it is gauged at virtually zero". It had been further claimed that the ring-back may have been the result of a response from an "attacker-listening station" which was triggered by the illegal listener hearing the music and then deciding, without thought or consideration, to ring back to test the phone line to ensure it was working.

Mr. Justice Cooke challenged some of statements in relation to this matter. He found that "the 'ring-back' reaction to the alert test of the Polycom unit remains unexplained as a technical or scientific anomaly". He observed that "there appear to be some technical factors which cast doubt upon the explanation that there had been mistaken human intervention in the monitoring of a tap upon the phone line". He concluded that "whatever the explanation may be, there is no evidence that the ring-back reaction was necessarily attributable to an offence or misbehaviour on the part of a member of the Garda Síochána".

Mr. Justice Cooke made the point that in the "world of covert surveillance and counter-surveillance techniques, it is ultimately extremely difficult to determine with complete certainty whether unexplained anomalies of the kinds identified in this instance were or were not attributable to unlawful intrusion". He acknowledged that "further tests and investigations might be conducted with a view to finding explanations for the anomalous behaviour" of the wireless device and the Polycom unit. He concluded that "having regard to the absence of evidence that the anomalies in question were in fact exploited for the purpose of illicit surveillance and to the fact that their threat potential has since been eliminated it may be questionable whether such further investigations would be justified". It is important to emphasise that neither of the other two threats revealed evidence of unlawful surveillance. Mr. Justice Cooke found a perfectly rational and lawful explanation for the detection of a UK mobile network, which was originally depicted as the most sinister of the threats. It was suggested that it involved the use of Government-level technology.

With respect to the actions of GSOC in commencing a public interest investigation, Mr. Justice Cooke found that "it is also clear, however, that the investigating officers and the members of the Commission acted in good faith in taking the steps in question once presented with the ... Report" on foot of the initial security sweep. It is important to be clear that Mr. Justice Cooke expressed satisfaction that the steps taken by GSOC since September 2013, when vulnerabilities were identified, "are adequate to rectify the defects and vulnerabilities and sufficient to enhance the security of the relevant areas and the equipment used in them". He recommended that "GSOC should more frequently carry out a thorough and suitable counter-surveillance examination of its offices, communication and IT equipment and data storage facilities to ensure that its protection remains adequate and that the risk of new surveillance techniques being deployed against the Commission or its personnel is reduced as much as possible". These are sensible precautions. It is right that GSOC has already taken action to strengthen its security. Mr. Justice Cooke recommended that in any revision of the Garda Síochána Act 2005, "consideration should be given to clarifying the precise scope of the competence to be accorded to GSOC to conduct investigations of its own initiative under section 102(4)". He said that in the context of the proposed legislation to establish an independent Garda authority, "it may be desirable to consider simplifying the somewhat complex provisions [in the 2005 Act] governing the making, admissibility and investigation of complaints".

As I have already said, the Government welcomes the publication of the Cooke report and accepts in full its findings, conclusions and recommendations. We are currently implementing a comprehensive programme of reform in the areas of policing and justice. This includes the plan to establish an independent Garda authority by the end of the year. We have committed to providing that future appointments to the position of Garda Commissioner will be made by means of open competition. As part of this programme of change, the Government is committed to the introduction of new legislation to reform, strengthen and clarify the remit and operation of the Garda Síochána Ombudsman Commission to ensure it is fit for purpose and to ensure further that the men and women of the Garda Síochána, as well as the wider public, can have the fullest confidence in its workings. This is extremely important for the force and, as I have said, for the members of the public. An oversight body like GSOC plays a critical role in our democracy. It is also critical in terms of having confidence in the Garda.

The Cooke report will inform how we will proceed with reforms in this area. I refer in particular to the proposed new Bill to reform the workings of GSOC. We need to examine precisely how it is working at present. It is clear that the 2005 Act needs to be amended and further strengthened. There is no doubt that more robust provisions are needed. We will take the point made by Mr. Justice Cooke about clarifying the legal basis for public interest investigations. The question of the thresholds for initiating such an investigation is extremely important. I have been discussing these issues with representatives of a wide range of groups. They have made a range of recommendations about how the actual investigations are handled at present. I believe those recommendations would smooth the process of the work that is done when matters are referred from GSOC back to the Garda. The proposed new Bill will further clarify and strengthen the provisions relating to the preparation and implementation of protocols relating to co-operation between the Garda and GSOC. I understand from the meetings and discussions I have been having that the implementation of the protocols in question, which were put in place by the former Minister, Deputy Shatter, has led to quite an improvement of the various cases by the Garda and GSOC.

The claims made by The Sunday Times of unlawful surveillance of GSOC and the subsequent emergence of issues relating to the vulnerability of GSOC's security systems have led to a difficult period for GSOC and the Garda Síochána. I appreciate the disquiet felt by the Garda. I appreciate where GSOC's concerns came from. It is vital now and in the future that the public has strong confidence in the Garda Síochána and in the system of oversight of the Garda Síochána. I believe that confidence demands action on the part of both organisations, not one or the other. I have asked the Garda Síochána and GSOC for their responses to Mr. Justice Cooke's report. I will refer the report to the Joint Committee on Justice, Defence and Equality, where all of these issues can be considered and discussed in detail. I want more than a formal report, however. The interim Garda Commissioner has spoken about the force taking a new attitude to critical friends like GSOC. I want to see evidence of that sooner rather than later. I think Deputies will agree the bottom line is that these organisations are not mutually opposed. Each of them has its own important responsibilities. They are devoted to the preservation of peace and the creation of a context within which individuals can go about their business without fear and in which both systems are trusted by citizens. That is essential.

The claims of unlawful surveillance have been independently investigated. GSOC's security has been reinforced. The relevant law is being clarified and strengthened. There will be further debate on these issues at the joint committee. It is important to learn lessons from what has happened and take all necessary measures to ensure continued public confidence in our system of policing oversight. The Government commissioned Mr. Justice Cooke to prepare a report to get the clearest possible picture of the events surrounding the allegations of surveillance and the initiation by GSOC of a public interest investigation. At that time, the former Minister, Deputy Shatter, made statements to the House and to the joint committee outlining the facts as he had been given them. Now that we have the Cooke report, I believe Members of this House should reflect on the responses they gave to the then Minister. In light of how significantly ad idem the results of the Cooke report are with what the then Minister told this House, we must all consider the advantage of developing a measured and reflective response to significant issues such as these, rather than making an immediate judgment. I look forward to hearing the views of Members of the House on these issues.

Deputy Niall Collins

Fianna Fáil, which has welcomed the publication of the Cooke report, was the first party to propose the establishment of an independent review panel to investigate the entire issue. We argued that this body should be composed of people with technical expertise, a judicial figure and an international police force member. Unfortunately, this model was not pursued.

Moreover, the immediate fallout out from the Cooke report on unlawful surveillance raises broader concerns regarding the relations between the Garda Síochána Ombudsman and the Garda. Those questions remain to be answered.

In addition, there are serious questions to be answered regarding the possible bugging of GSOC's offices. The Government, however, has put a very successful spin on some of the contents of the report along the lines of, "This matter is now settled, there is nothing more to see here". That is far from the case. In fact, the more we are told, the more questions arise. Commenting after the publication of the report, the GSOC chairman, Mr. Simon O'Brien, stated: "There is still an outstanding anomaly and in the words of the judge, as he says in these rather febrile areas, it's difficult to know whether that could be in relation to unlawful intrusion ... So, question marks still remain." Questions do indeed remain and it is about time we found out the answers to those questions.

With regard to the possibility of bugging, I would observe in response to the report that absence of evidence is not evidence of absence. I expect Mr. Justice Cooke would agree with me on that point, given his references in the conclusions of the report. For example, he stated in paragraph 15: "It is ultimately extremely difficult to determine with complete certainty whether unexplained anomalies of the kind identified in this instance were or were not attributed to unlawful intrusion." In other words, there is no conclusive evidence either way with regard to the bugging of GSOC.

It is important to emphasise that the Cooke report vindicates the actions of GSOC. The investigating officers and members of the commission acted in good faith, the report observes, in investigating the alleged bugging of the offices. This undermines the criticism by the former Minister for Justice and Equality, Deputy Alan Shatter, of the commencement of the investigation. He tried to play the man and not the ball, he sought to undermine GSOC without seeking the full evidence of what was going on, and he dismissed the need for further investigation of the issue when these allegations were published. On 19 February 2014, Mr. Justice Cooke was appointed to review the GSOC bugging scandal. At that time, the former Minister tried to transform GSOC from a victim of this episode into the villain. The fact that GSOC did not report this crime to the former Minister or the Garda is a damning indictment of the gross mismanagement of the sensitive relationship between the force, GSOC and the Department of Justice and Equality. It was a toxic triangle of distrust. I hope the Minister, Deputy Fitzgerald, as someone who brings a new approach to the Department of Justice and Equality, will work to build the trust which was lost over the past three years.

The report's contents and conclusions are of little comfort to ordinary citizens given the evidence of the dysfunctional relationship and clear lack of co-operation between An Garda Síochána, GSOC and the Department of Justice and Equality. For public confidence to be restored in the role and competencies of GSOC, legislation is needed to strengthen and extend its powers and remit. I hope the Minister will be in a position to bring that legislation before the House as soon as possible. However, the Government's current legislative proposals fall significantly short of what is necessary to ensure a strong and robust ombudsman commission that will protect the rights of both gardaí and citizens. The Protected Disclosures Bill 2013, which is currently progressing through the Houses, deals with whistleblowers generally and is not designed to take into account the specific needs of GSOC. The ombudsman commission needs new powers of inquiry to investigate the operation and administration of An Garda Síochána and not simply complaints made by individuals about individual members of the force.

Turning to the specific findings of the report, Mr. Justice Cooke describes as "not convincing" the accounts that a wireless AV remote control device for audio and video equipment in GSOC was connecting and transferring data to an external "Bitbuzz" hotspot in a nearby café. This finding has been queried by IT experts. The judge also found that an alleged fake UK 3G network, which was detected on an iPhone as operating in the vicinity of GSOC's offices, was "highly likely" to have been caused by the testing of a new 4G installation by a mobile provider. This finding is in contradiction with Verrimus's original findings.

On the third alleged threat, the "ring-back" to a telephone line in GSOC's offices in the early hours of the morning, the judge found that it was impossible to "categorically rule all possibility of covert surveillance", but said it was clear the evidence does not support the proposition that actual surveillance of the kind asserted by The Sunday Times took place. Mr. Justice Cooke made the point that in the world of covert surveillance and counter-surveillance techniques, it was extremely difficult to determine with complete certainty whether unexplained anomalies were or were not attributable to unlawful intrusion. We agree with that assertion. It is clear to us, however, that a number of key questions arising out of the report need to be answered. If these matters are not clarified, questions will remain over what exactly happened at the GSOC offices. I hope the Minister can offer some answers in this regard.

First, it remains to be clarified as to why there was tampering with the media device, named in the report as device 4B, installed in the conference room of GSOC and which sought to connect with a Wi-Fi hotspot in a nearby café. Who installed this device? Verrimus indicated that it exchanged 120 data packets with the Wi-Fi network. Nobody provided Mr. Justice Cooke with any proof of content of these data packets, but it has been argued that the cafe's Wi-Fi could have been hijacked by a third party and used to gain access to GSOC data.

Questions also remain regarding the possibility of physical surveillance at GSOC's offices. The presence of a white van and two men outside the premises coincided with the fake UK mobile signal which sought to gather data from GSOC's networks. Verrimus only detected this UK mobile signal and data-seeking when the white van was present outside GSOC's offices, which seems like more than a coincidence. Mr. Justice Cooke noted that testing of a 4G installation network was likely to be responsible for this. That was not proven, however, and the judge's methodology has been questioned in this regard. The question remains as to why Mr. Justice Cooke accepted mobile operators' conclusions but not those of Verrimus.

The hands free land-line test by Verrimus on Mr. Simon O'Brien's telephone using music blasts at 1.40 a.m. resulted in someone calling back the telephone at that time. This will seem odd to any objective observer and would seem to indicate that someone was connected to the line. Who made that call and why? Was it to check the line was working after Verrimus's music test? Mr. Justice Cooke stated that there was no explanation for this occurrence. Perhaps the Minister will be able to enlighten us.

One of the most unusual incidents dealt with in the report is the account of the Verrimus staff member leaving Dublin. Why was this individual, having gone through security at Dublin Airport, sought out and photographed by an unidentified individual? It is claimed that this was a tactic by other surveillance operators to show that those carrying out investigations of bugging had been identified and noted by those on the other side. This is another question that is unanswered in the report and dismissed by those briefing the press from the Government side.

One of the most disturbing aspects of the report is its reference to the involvement of the Department of the Taoiseach in seeking to meddle in the Cooke inquiry. On 25 February, a caller alerted Verrimus and GSOC to an alleged attempt to place a member of the security forces on the inquiry team in a bid to manipulate the outcome. Subsequently, there was an unsolicited offer from the Taoiseach's office to place someone who apparently had 20 years security experience on the inquiry team.

Questions remain about the role of the Taoiseach and the former Minister for Justice and Defence in any alleged attempt to place a mole on the inquiry team. Who was this man? Why did the Department of the Taoiseach seek to appoint an individual unsolicited to help with the report? In her reply in this debate, will the Minister clarify this matter for the House? It may have been that the Taoiseach was acting in good faith in his actions but in order to ascertain that fact, we must know more about the circumstances surrounding the approach.

One area of criticism I would have of the report overall was the very limited remit of the terms of reference which tied the hands of Justice Cooke. In that sense, it was not an independent investigation into whether GSOC was bugged. The judge was only given the power to investigate the Verrimus report, which had already been conducted, and not to carry out fresh investigation. None the less, the work of the judge is to be commended given the terms of reference put forward by the Government.

The Government, unfortunately, cannot be commended on its approach the Cooke report and the matters which gave rise for the need to investigate the alleged bugging of the GSOC offices. Serious questions remain about the Government's handling of this controversy. Before any investigation was conducted and without any knowledge of whether GSOC had been bugged, the Government made every attempt possible to dismiss the very serious concerns raised by GSOC and others. Instead of seeking the truth, the Government's reaction to this controversy was to dismiss the concerns entirely, undermine the office of the independent Garda watchdog and attempt to manipulate the reporting of this issue.

This Government's approach to resolving the current matters of concern undermining public confidence in the administration of justice is to establish commissions of investigation and not follow through on their recommendations. We are still awaiting Government action on the Guerin report which called into question the deficiencies in Garda management and the Department of Justice and Equality.

In order to fully address the issues raised in the report, tackle the central allegations at the heart of the matter and restore public trust in the oversight system of the Garda and its relationship with GSOC, action must be taken now. Reform of An Garda Síochána and the establishment of an independent policing authority are central for improved morale in the Garda force and in the citizens' confidence in its police service. We need an independent police authority to manage the monitoring, supervisory and oversight functions of An Garda Síochána. We need new legislation which increases independence and impartiality of the Garda Síochána Ombudsman Commission. We need honesty from this Government in regard to the contents of the Cooke report which raise further serious questions which remain to be answered. We need a new approach from the Department of Justice and Equality which recognises its failings and acts to address them.

The Minister will be judged as a success or failure in this House on these matters. Fianna Fáil has been vocal in raising concerns surrounding these issues and will be pursuing a constructive approach in supporting reform in our police service. We will support the Minister in seeking to re-establish the public's confidence in our justice system, a confidence that has been shattered over the past three years. I hope the Minister will be brave enough to take the necessary steps to implement that goal.

Deputy Pádraig Mac Lochlainn

In the shadowy world of modern surveillance, it is extremely difficult to definitively prove that surveillance has taken place. As said in various media interviews, it is not like in the old movies where one can unscrew one's telephone and find a bug or take the mirror from the wall and find a bug behind it. It is very difficult to prove but what we can say with certainty is that such was the toxic relationship between the Garda Síochána Ombudsman Commission and senior management of An Garda Síochána, the Commission entertained the possibility that elements of An Garda Síochána - authorised or unauthorised - had it under surveillance illegally. That is an incredible situation to have reached.

Let us rewind the tape back to the Kieran Boylan affair. Kieran Boylan was a convicted major drug dealer suspected of being responsible for €1.7 million worth of cocaine and heroin discovered by the national drugs unit in a very solid operation in October 2005. He was in custody suspected of being involved in this major drugs find but somehow by July 2008, the charges were dropped against Kieran Boylan without any explanation. There is a range of other issues which give rise to serious concerns about why this was the case. There are suspicions that he was a Garda informer and that situations were resolved for him because of that relationship. It would be quite remarkable if that was the case because usually informers are the small guys who help to bring in the big fish. One could argue that there is a public interest in that type of situation where one gets to the big players by working with the smaller ones. However, in this case, a big player - a major convicted drug dealer - was suspected of assisting gardaí in not only capturing but imprisoning smaller drug dealers. It was a reverse of the usual approach and that is why it caused such huge public concern. If true, it would be absolutely shocking and appalling.

The Garda Síochána Ombudsman Commission initiated its public interest investigation after all of these very worrying developments. It is very clear from its own report that the Garda Síochána Ombudsman Commission was delayed by a lack of co-operation from senior Garda management over a four-year period. We had a situation where all the protocols of senior Garda Síochána management releasing documentation to the commission within a 30-day period were, in almost all cases, broken. In one case, documentation was not submitted to the commission even after four years. This very important public interest investigation was repeatedly delayed because of the appalling lack of co-operation from the senior management of An Garda Síochána.

I understand that GSOC released not only a seven-page summary document of its report to the Department, but submitted a 600-page report on all of this to the office of the former Minister, Deputy Shatter, and to the Director of Public Prosecution. There is a very detailed report around the Kieran Boylan affair, all of the issues and all the concerns in the Minister's office. I ask the Minister to release that report into the public domain, although I appreciate she will have to do so on a redacted basis, because it will be very revealing about the real challenges the Garda Síochána Ombudsman Commission faced in trying to get to the truth of something that was clearly in the public interest. If the concerns prove to be true - I am not saying they are - it would be a major scandal in terms of what was happening. Some of the people who were being asked to co-operate with documentation were suspected of having facilitated this whole arrangement. That was the scale of what we were dealing with at that time.

In its seven-page summary, GSOC stated that it felt - this is very serious - that the lessons of the Morris tribunal had not been learned in terms of the handling of informers, which was core to many of the corruption issues in regard to the Morris tribunal, and the retention of contemporaneous notes. There was no way to see why decisions were made, what happened and so on. GSOC had grave concerns around all of this.

It is incredible that for months after this seven-page summary was published, the former Minister, Deputy Shatter, kept schtum. He did not say a word about the fact that for four years, senior management in An Garda Síochána did not release some documentation and delayed other documentation for years which was crucial for GSOC to do its job in the public interest.

Nothing was said about that by the then Minister, Deputy Shatter, for months. Finally, under sustained pressure from the Opposition, protocols were drawn up which I hope will now ensure that An Garda Síochána senior management fully co-operates with the Garda Síochána Ombudsman Commission, GSOC, so that it can be seen to do its job in the public interest. That was the environment that led to the remarkable situation where the three members of the Garda Síochána Ombudsman Commission entertained the potential that elements of An Garda Síochána, either authorised or unauthorised, were surveilling illegally upon them. That is a profound issue.

We know now that GSOC brought in Verrimus following a recommendation from its sister organisation in England. Verrimus is an internationally respected security organisation. Many of its staff have experience in the security world. They know it very well and they understand the techniques and modern technology used as well as the evasion techniques used to cover people’s tracks. They know what they are doing. A company of its stature advised GSOC that there were a number of potential threats. I still believe that given the type of expertise involved, in addition to the other issues Verrimus uncovered, given the lack of co-operation, procrastination and resistance GSOC faced from senior Garda management in the new dispensation in which members were being held accountable for their actions, it was justified in setting up a public interest investigation to take matters to the next level.

We will never know for sure what happened. It is difficult to get definitive evidence. However, what we do know is quite alarming. Everyone was waiting for the report last week. As Opposition spokespersons we were all asked by the media whether we were on stand-by to give a response. We said we needed a chance to read through the report or at least to read the conclusions and recommendations before giving a response. We waited and eventually at 8.45 p.m. the report was released on the evening in question. The Minister gave a simultaneous press release at Government Buildings and she appeared on the "Prime Time" programme to convey the Government’s message on it. Essentially, the message was that there was nothing to see and it was time to move on. I am interested in the latter part of the message because one must learn the lesson and put in place a response.

I am still not convinced there is nothing to see. When I read through the entire report a number of issues gave rise to concern, not least conclusion 15. Reference has been made to it but I will read it into the record because it is useful. It states: "in the somewhat febrile world of covert surveillance and counter-surveillance techniques, it is ultimately extremely difficult to determine with complete certainty whether unexplained anomalies of the kinds identified in this instance were or were not attributable to unlawful intrusion." Mr. Justice Cooke acknowledged in conclusion 16 that there may be a need for further investigation but he does not recommend it. However, it is not quite a case of there being nothing to see. Despite the media briefings during the day that GSOC was going to have egg on its face, Mr. Justice Cooke acknowledged in conclusion 11 that it had acted in good faith. One could ask what else it was to do when presented with those matters. I acknowledge that he criticises GSOC's decision to go ahead with a public interest investigation and he also criticised its failure to inform the Minister when the investigation was completed. GSOC argues that its interpretation of the legislation is somewhat different.

I draw the Minister’s attention to the reference in the report to the white van with blacked out windows on the street. Many Verrimus operatives are former intelligence agents trained by MI5 or the CIA. They are not greenhorns. They know the techniques of surveillance. They felt it noteworthy to report the van to Mr. Justice Cooke and to put Verrimus’s reputation on the line. I find that intriguing. They also drew attention to the man going into the coffee shop with a bag and an object in a box. What worries me most however is the incident in the airport where a man with a bag over his shoulder sought to take a photograph. The operatives turned away but he took a photograph when they turned around again. That is known as being burnt in the surveillance world; when the opposition sends a clear warning.

Mr. Justice Cooke acknowledged that if spying took place it was on Verrimus not GSOC. I am very concerned about those matters, in particular given the type of people who reported them, because they know what surveillance is and they understand the techniques. That demonstrates to me that surveillance was taking place. Something was going on that was sanctioned by agencies of this State. I do not buy into a low-level criminal interest in GSOC. Somebody sanctioned by this State felt it necessary to be involved in some level of surveillance. That is my view based on what I read in the report. I appreciate that the terms of reference given to Mr. Justice Cooke meant that as a retired High Court judge he could not convict somebody nor could he send someone to prison. He could not press charges based on the evidence he had. The threshold was set high. However, he could clearly not rule out that something had happened. He was in a dilemma and he erred on the side of caution. That is fair enough. I appreciate that he had a job to do, but the terms of reference were somewhat limited.

We will never know for sure what happened but I am giving my tuppence worth. I believe that something toxic happened due to the relationship between senior management of An Garda Síochána and GSOC. Some things had not changed in terms of the culture that was so exposed by the Morris tribunal, one that revealed an abuse of power and that was supposed to have been reined in by GSOC and the new Garda Inspectorate.

The Joint Committee on Justice, Defence and Equality met the Police Ombudsman for Northern Ireland in the North last week. Its members have the same security clearance as any police officer. It has a responsibility to look for everything. When it commences an investigation in the public interest it demands full co-operation. There is some conflict with the PSNI about that at the moment but the ombudsman is very clear that its members have access to everything in the course of carrying out investigations. There is no such thing as security concerns or the view that they are not up to the same standard as members of the police force.

One could ask why no Minister or spokesperson on behalf of the Government has said one word in anger about the fact that for four years the former Garda Commissioner refused to hand over documentation to GSOC in a public interest investigation. Concerns were expressed that a major convicted drug dealer got away with €1.7 million worth of heroin and cocaine without explanation because he was working as an informer to pinpoint smaller drug dealers to make some gardaí look good. That is the allegation. That is extremely serious yet when GSOC sought to investigate the matter thoroughly in order to allay public concern it was utterly frustrated over a four-year period. Nobody in government has said a word in anger about all of that. Nobody in government has said it is absolutely outrageous that the senior management of An Garda Síochána did not fully co-operate and give every item of documentation sought in order to reach a speedy conclusion to the investigation. It is clear that GSOC found itself in a situation where it could not do its job. It is deeply worrying that it got to the point that it entertained and still holds the view that it was possibly being surveilled upon by elements of this State.

It is clear that Verrimus believes there was physical surveillance, not just Internet surveillance. These are extremely serious matters.

We are discussing a review today, not a commission of investigation, because Mr. Justice Cooke did not have the ability to compel documents or witnesses or make adverse findings of fact. It was merely a review and I accept that he gave it the best he could. There are contradictions in his review. He struggled with having to decide and could not reach the threshold he required. The report raises more questions than it answers and I worry that a person in an agency of the State felt it was acceptable not to co-operate with a public interest investigation by the Garda Síochána Ombudsman Commission, GSOC. Further, this person then felt it acceptable to keep a close eye on the affairs of an independent ombudsman who functions on behalf of the people to investigate our concerns.

Will the Minister release the 600-page report by the Garda Ombudsman into the Kieran Boylan affair? The Minister may take advice from the Attorney General as to whether to redact it but it should be released into the public domain so a spotlight can be shone on the period. The former Minister for Justice and Equality, Deputy Shatter, failed to make a statement expressing a view on how long it took the investigation to receive documentation and the fact that some was never handed over. Will the Minister do so?

We will never know some things but the Government can assist with other things. There is consensus on the fact that the powers of the Garda ombudsman must be strengthened. We must amend legislation so that all ranks of gardaí, from those on the front desk to the Garda Commissioner, must co-operate fully with investigations carried out by the Garda Síochána Ombudsman Commission. This must be done quickly and without procrastination. We must have an independent Garda authority to hold all gardaí to account. We need a new beginning.

I have played football and served on community groups and committees with members of the Garda Síochána. The overwhelming majority are people of outstanding decency and character, patriots who seek to serve the State. However, a corrosive culture exists all the way up to top-ranking senior management and it has failed those gardaí. They are demoralised and need a fresh start. I am proud of the vast majority of the men and women of the Garda Síochána and how they have served us through the years but I am ashamed of the behaviour of some of them. I am ashamed of some of the issues that necessitated the investigation carried out by Mr. Justice Cooke. Whatever we do, those issues must be resolved. We must use this crisis as an opportunity for a new beginning. The Garda Síochána is a service, not a force. We must ensure the men and women who join that service can be confident they can progress through the ranks if they have the ability. When they speak out against wrongdoing they must be heard and protected. When members of the public raise issues those matters must be fully investigated by a strong ombudsman that is not blocked in any way. These are the challenges that lie ahead.

Deputy Clare Daly

This discussion reminds me of "The Twilight Zone". There have been enormous problems in the Garda Síochána and this may be the most serious in many ways. The idea that the Garda oversight body was under the surveillance of the organisation it was supposed to oversee is appalling for the State to consider. Have we dismissed the possibility that this surveillance may not have happened? I think we have not.

The way this report has been handled since publication has been bizarre. The Guerin report consisted of 336 pages of comprehensive analysis and there was massive media interest and analysis. This is a 65 page report that has been thrown into the public realm. Very defined viewpoints have been taken on this immediately to peddle a myth. There has been no media interest and today we discuss it on a Thursday afternoon with only a handful of Deputies present.

The problem is the reality does not reflect the contents of the report. As soon as the report was published, the acting Garda Commissioner told us it exonerated the Garda from any wrongdoing. The former Minister for Justice and Equality, Deputy Shatter, said the report was proof positive he did a brilliant job. I think the Minister for Justice and Equality, Deputy Frances Fitzgerald, echoed those sentiments earlier. The former Garda Commissioner, Mr. Martin Callinan, previously said there was no question of any garda being involved in such wrongdoing. GSOC said it was all right too as it was said to have acted in good faith. The problem is everyone is capable of saying a black page is white but this doesn't make it true.

The roots of the problem lie in how the report was constructed and its terms of reference. Many issues were not explained and this remains the case. Regarding terms of reference, the Government set an incredibly narrow focus for the investigation. The focus was on whether GSOC acted proportionately and reasonably in initiating a section 102 investigation into Garda misconduct in the public interest. GSOC was only ever lawfully able to investigate wrongdoing by gardaí. Lawful behaviour by gardaí would not be the subject of a public interest inquiry. The report focused on this rather than asking whether attempts were made to bug GSOC and, if so, by whom. This is what the report should have been about. To my mind the report was established in a way precisely to prevent this from happening.

The limited terms of reference were reinterpreted even more narrowly by the former Justice Cooke as he took the allegations in The Sunday Times article as his yardstick rather than the section 102 investigation. The Minister's office and press office adopted this approach too and the media ran with it. One of the first quotes from the Department of Justice and Equality on the matter stated that the report concluded "the evidence does not support the proposition that actual surveillance ... took place", much less that it was carried out by members of the Garda Síochána. Of course the phrase omitted the important qualifying words that were in the middle, that actual surveillance of the kind asserted in The Sunday Times article took place. It also ignored the fact that Mr. Cooke referred to The Sunday Times article as claiming to deal with Government-owned technology when in fact the The Sunday Times referred to Government-level technology, which is an entirely different matter. He made a statement based on a false conclusion.

This was taken up by the rest of the media ad nauseam. We had significant examples and even The Irish Times, the so-called paper of repute, led with headlines stating "Cooke report finds no evidence of GSOC bugging". In fact the report found it could not exclude the possibility that some form of illicit eavesdropping may have taken place, which obviously is a very different headline. The spin around this is quite incredible and, in some ways, borderline sinister. What is in the report does not reflect what people are saying about it. This point must be made because it means we have a problem and we need to see what the Government will do.

There are many unanswered questions. Mr. Cooke is a former judge so I am not being derogatory in referring to him as mister. I would like to put on record that Mr. Cooke goes to some length in his introduction to emphasise the limitations of the report. He has been much more honest than the Government because he makes this very clear.

He states he had no authority to make binding findings of fact, much less definitive ones. He states the report does not have the authority to adjudicate on disputes of fact and that he was reliant on the voluntary co-operation of the parties concerned. He is also at pains to point out this is just his personal evaluation and opinion. In other words, the conclusions of the report are not as comprehensive and rigorous as the Minister, Taoiseach and Tánaiste have tried to point out, because the conclusions are not judicial. They were not reached by way of an independent statutory inquiry conducted by a sitting judge with powers of compellability. In fairness, Mr. Cooke has been quite clear on this. It is a non-statutory paper review and exaggerating Mr. Cooke's past employment of being a judge is trying to give the report a veneer of judicial backing when in actual fact it is not. This is a paper review of secondary evidence rather than an investigation based on first principles. We are exactly where we were before the report was published and this matter is not over.

Deputy Mac Lochlainn is quite correct; we must consider this issue in the context of the background of what was going on at the time. I will not repeat the points, but the background comprised the Kieran Boylan affair; inordinate delays, over which GSOC went to the length of holding a public press conference to show the massive level of non-co-operation it was receiving from An Garda Síochána when attempting to call it to account; and hundreds of outstanding cases on relatively minor matters where gardaí were supposed to be disciplined but nothing was taking place. We found out subsequently that around this time the former Commissioner, Mr. Callinan, contacted the four Garda representative organisations and asked them to issue a public statement that they had no faith or confidence in GSOC. This is quite incredible. Two of the organisations, the AGSI and the GRA, did so. The body charged with oversight of the Garda experienced sinister happenings, and this is not disputed, at a time when these issues were in the background. It had a serious responsibility to deal with them because of the huge implications. I must be honest and state we are still none the wiser in this regard.

Mr. Cooke has no technical expertise himself and the world of surveillance is incredibly high-tech. As the former Minister, Deputy Shatter, did before him, Mr. Cooke favoured one so-called expert report over another without any further serious analysis. In this context it is not surprising he reached the same conclusions more or less as GSOC did, that there was no definitive evidence of unauthorised covert surveillance, but neither is there definitive evidence that there was not. In particular, there is no definitive evidence that it was not attempted. Mr. Cooke did not seem to take any account of this, although it was allowed for in the terms of reference.

The biggest weakness of the report is that no examination of lawful surveillance was done. This was never investigated. Deputy Wallace put this issue to the former Minister, Deputy Shatter, on a number of occasions, as did I, but he never answered. Why was this point not answered? Did the former Minister not ask? Did the Garda Commissioner not ask? How does one know if one does not ask the question?

The Minister is correct to state the report concludes there was no evidence of Garda involvement, but we must ask how much emphasis we can place on this statement when it was made in the backdrop of not investigating or interviewing a single garda. No attempt was made to seek the information, no request was made for a report from the Garda Commissioner to detail the access storage or logbooks of IMSI catchers, and the possibility of rogue gardaí being involved was not analysed. Let us remember that senior gardaí were at the heart of the highly sensitive GSOC investigations into the Kieran Boylan case. Is it beyond the realms of possibility that some of these people might have had a vested interest in surveillance on GSOC? The fact these questions were not asked in some ways is not the fault of Mr. Cooke, but it comes back to the limited terms of reference that were in place. It severely weakens the report in its entirety.

Lawful surveillance was never investigated and let us be clear about this. If one were starting off, surely it would be the first thing one would rule out, because if there was lawful surveillance one would not have to go any further. We know lawful surveillance by the Revenue Commissioners, the Defence Forces and the Garda Síochána is permitted. In most, but not all, cases it must be the subject of a judicial order. Our law allows a situation under section 7 of the Criminal Justice (Surveillance) Act 2009 for senior gardaí to authorise other senior gardaí to conduct surveillance. This is perfectly lawful, could have happened here, and so would have been outside the remit of the Cooke inquiry. We still do not have answers with regard to this situation. There are a huge number of other practical issues which have not been answered by Mr. Cooke. The most significant of these is that of the significant anomaly identified by Verrimus, namely, the ring-back. Mr. Cooke offers no explanation for this and does not even attempt to put one together. He states it is unexplained. The most significant breach is still unexplained.

This in and of itself is bad enough, but there are still a number of other questions which are unanswered. Other Deputies have referred to issues such as the photographers at the airport. Who were they? Mr. Cooke said they were likely to be members of the Garda security branch. This is who he thinks they were. Is it appropriate that the Garda security branch would be out at the airport taking pictures of an organisation it knew was there to do work on behalf of GSOC? Does this not need further questioning? I think it does. His take on the device in the media room, because he does not really know, is that it the person inside GSOC who leaked the issue to The Sunday Times could have been the person who tampered with the device. This is what he states in the report. Does the Minister accept this? Does she think GSOC itself could have been behind one of the anomalies? This is what Mr. Cooke states. He has raised it as a possibility. We have the issue of the identified person who tried to tamper with Verrimus's evidence to the Cooke inquiry. Who is this person? The person claimed to be acting on behalf of An Garda Síochána. I would like more information on this. All of these instances exist and they all remain unexplained.

Mr. Cooke accepts the information given by the GSOC commissioners that their phones were subject to ambient listening, because the phone batteries were dying within a two-hour period. The batteries of these phones do not die any more. It has stopped. Since the issue came into the public domain the GSOC commissioners' phone batteries do not run down, which is pretty strong proof of an element of surveillance or ambient listening being in place. Mr. Cooke does not seem particularly interested in this and does not give it any attention. This is a huge weakness because he seems to suggest it was Verrimus which was under surveillance. It may be because surveillance is unregulated in Ireland, and in this sense probably lawful, that it was outside the remit of his report. I am not sure. I find it striking he does not seem to appear in any way concerned that Verrimus might be the subject of ordinary surveillance while conducting work for GSOC, or is even curious about identifying those who might have been responsible. To me this is a pretty serious deficit. In fairness to Mr. Cooke, he states this type of examination could only be done as the subject of a statutory investigation. Here we are, back where we started, with the need to conduct a proper statutory investigation in order that we really get to the truth and get to the bottom of all these issues.

Mr. Cooke deals with the GSOC question and states it acted in good faith, although there is a bit of a slap for it. He states section 102 was premature. He absolutely ignores the fact that under section 103 if it felt it did not have to disclose a section 102 investigation in the public interest, it was lawfully entitled not to do so.

He does not in any serious way address that point. He also seems to place emphasis on the fact, nearly suggesting, that in order to be allowed to conduct a section 102 investigation GSOC had to have the evidence, when of course the entire purpose of its investigation was to get the evidence to ascertain whether its suspicion of surveillance was backed up.

I believe he has just done enough in this report to allow GSOC to state there was something in it for the commission but to prevent the option of its being obliged to take a judicial review, because the only way of overcoming this report is by taking such a review and the only body that would have a sufficiently strong legal interest in that is GSOC. There has been an effort in the report to make Verrimus and The Sunday Times out to be the demons but I am unsure whether legally they would have enough of an influence or an interest in taking a judicial review.

Unless the Government decides to look at this in a different forum, all the questions I have thrown out here remain unanswered and must be seen in the context of the bigger picture, where there has been a huge amount of recognition of the need to move forward on issues of Garda accountability. Everybody now accepts there will be an independent police authority and a beefed-up GSOC. However, it will not be possible to move on in the future unless the truth about the past is known. How could GSOC work with An Garda Síochána with these issues unanswered? It is not fair to either party that this situation would pertain. In justice to all concerned, Members must go back to the drawing board on this. The only way to find out what really happened is to have a properly constituted commission of inquiry. It also is necessary given the level of the breakdown in trust and the breakdown in procedures that clearly existed. While it was no secret that this was the case with regard to former Commissioner, Martin Callinan, and GSOC, it also is the case with many of the higher ranks inside the Garda. As recently as a couple of weeks ago, representatives of Garda organisations went public to state that GSOC was not a fit body for their Members to approach. There is a huge problem in this regard and it will not be possible to move forward in the manner indicated by the Minister without addressing the issues of the past. This is the living past.

Moreover, Members should remind themselves that they are not dealing with some kind of Mickey Mouse outfit here. Verrimus is a company of serious repute with high credentials and it has stood over its findings and the manner in which it has conducted itself in this situation. In fairness, nothing in this report contradicts that position on its part. When the Minister responds to this debate, I ask her to deal with the issue of lawful surveillance, because there are a number of areas where lawful surveillance could have taken place and Members would be none the wiser. However, they do know with absolute certainty that unusual events were happening, such as attempts to breach surveillance, unusual physical sightings of people who were unexplained, photographers and the like. There still are no answers, and the Minister's new reign, as it were, will be judged on whether she is prepared to rock the boat. My own feeling is that the possibility of vindication of the gardaí who were bugging GSOC would be enough to bring down the Government. Therefore, I am not surprised that the report did not find that, but the questions still remain.

Deputy Alan Shatter

I welcome publication of the Cooke report and the careful and detailed consideration given by retired High Court judge John Cooke into reports of unlawful surveillance of GSOC's offices. These matters, of course, first came to public notice in a revelation in an article in The Sunday Times of 9 February 2014. I welcome Mr. Justice Cooke's finding that the article contains misinformation and that "it is clear that the evidence does not support the proposition that actual surveillance of the kind asserted" in the article "took place and much less that it was carried out by members of the Garda Síochána". As Minister for Justice and Equality, I dealt with these matters in a straightforward, truthful and comprehensive way on the basis of information available to me. Both inside and outside this House, the Taoiseach and I were pilloried for referencing GSOC's statutory obligation to report its conducting a public interest investigation to me, as the then Minister for Justice and Equality, and I welcome the conclusion of Mr. Justice Cooke that such mandatory obligation exists, as I informed the Dáil, under section 103 of the Garda Síochána Act 2005.

On RTE's "Morning Ireland", the day after publication of the Cooke report, the chairman of GSOC, Mr. Simon O'Brien, explained GSOC's failure to provide a statutory report until 13 February 2014, four days after publication of the The Sunday Times article, on the basis that "events overtook us" and referenced The Sunday Times article. I note that Mr. Justice Cooke recounts that on 25 November 2013, Mr. O'Brien recorded in his personal log:

This investigation is now closed. I need to think about reporting. This will be difficult, we have found nothing.

I do not regard the explanation of Mr. O'Brien given on RTE as credible and I believe the only reasonable conclusion to be drawn from the fact that no report was furnished to me was that the finding of "nothing" in the public interest investigation was an embarrassment. What was said on RTE is sadly an indicator that GSOC has not learned from these events.

There of course always will be tensions between a police force and an independent body established to investigate allegations of police misconduct. However, in late September and early October, when GSOC first learnt of two of the alleged technical anomalies, new protocols had only just then been put in place, at my urging, to resolve difficulties that had arisen between An Garda Síochána and GSOC. Its approach to the matter, therefore, should not have been "heavily influenced by the atmosphere of frustration and tension that had arisen ... between GSOC personnel and the senior ranks of An Garda Síochána" as referenced by Mr. Justice Cooke. I believe it also is disturbing that when appearing before the Oireachtas Joint Committee on Public Service Oversight and Petitions, the GSOC commissioners were so imprecise and unclear in their presentation as to fuel speculation that my first statement to the Dáil was inaccurate in circumstances in which it was entirely based on their verbal and written briefing. No effective steps were taken by them to correct that perception. The work GSOC does is of crucial public importance and it is essential that there is public confidence in the leadership provided by GSOC commissioners, that they comply with and respect their statutory obligations, that when conducting an investigation they assume those subject to the investigation are innocent until proven guilty and that they truthfully present to the Minister of the day, as well as to the public, actions taken by them. In this context, I believe the conduct of GSOC's commissioners and the narrative and conclusions of Mr. Justice Cooke raise genuine concerns as to GSOC's capacity to undertake and comply with its statutory duties under its present leadership. This is an issue that must be addressed before any additional statutory powers are extended to that body by new legislation.

As Members of the House are aware, the Cooke inquiry was announced on 19 February last. Eight days later, on 27 February, the Guerin inquiry was announced. Each was requested to report "within eight weeks" or "[as] soon as may be thereafter". The documentation, public bodies and individuals of relevance to the Guerin inquiry were far more extensive than those of relevance to the Cooke inquiry. Many more allegations were made by Sergeant McCabe than there were issues to be considered by Mr. Justice Cooke. There was, however, a connectivity between the two reports. The reports and documentation of GSOC, the manner in which GSOC undertakes investigations and reaches conclusions, its statutory role and engagement with An Garda Síochána, its relationship with the Minister for Justice and Equality, the circumstances in which it deems it appropriate to conduct a public interest investigation and its competence and professionalism were of relevance to both inquiries.

There is an extraordinary and stark contrast between the approach of Mr. Justice Cooke and that of Mr. Seán Guerin SC in their dealings with GSOC and in the manner in which they conducted their inquiries. Although the issues to be addressed in the Guerin report were more extensive than those to be addressed in the Cooke report, Mr. Guerin completed his report within a much shorter timeframe - nine and a half weeks - than Mr. Justice Cooke, who completed his in 15 weeks. On 6 May, the Guerin report was furnished, together with a little-noticed letter in which Mr. Guerin expressed his regret for failing to furnish the report within the time period mentioned in paragraph 8 of his terms of reference. An examination of the report illustrates the extent to which he inexplicably focused on the request that he report within eight weeks of 27 February last and ignored the latitude given to him to report "[as] soon as may be thereafter", the latter being language clearly facilitating his taking such time as was required to properly complete his work. I am very puzzled as to why Seán Guerin did not take the additional time necessary to properly complete his work and why he rushed to judgment.

In contrast, Mr. Justice Cooke, in paragraph 5.9 of his report, notes that he did not conclude his inquiry within a period of eight weeks, and explained that "the correspondence exchanged in dealing with conditions, objections and queries raised on behalf of GSOC and of Verrimus as its 'servant or agent' " affected the time required to conduct the inquiry and that the timescale was "prescribed before it was known that GSOC would be simultaneously required to cooperate with two Inquiries".

Both reports recount that GSOC instructed Arthur Cox Solicitors to assist them with the inquiries and in the preparation of documentation and statements. Both reports recount that GSOC's lawyers prescribed conditions to be complied with for reading documents regarded as sensitive, confidential or privileged. Judge Cooke had no difficulty in agreeing appropriate arrangements and in attending at GSOC's offices to access and read all relevant documentation. I do not understand why Mr. Guerin did not do the same.

In addition, to comply with fair procedures, Judge Cooke met with the GSOC Commissioners and their lawyers, raised questions for them to answer and ultimately met with them:

to clarify some points that had arisen during the inquiry and to afford them an opportunity... to comment upon the conclusions to be expressed in the report.

Mr. Guerin's approach to GSOC and others affected by his report could not have been more different. Four days after Judge Cooke had attended at GSOC's offices to examine documentation, Mr. Guerin received a letter from GSOC's solicitors raising what the Guerin report refers to as, "preliminary legal and practical issues" and which stated that GSOC had, "voluminous relevant documents" and "was anxious to cooperate". Bizarrely, for some reason I do not understand, Sean Guerin, in his report states, "there was no practical reality to 'voluminous documents' being reviewed at that late stage". He criticises GSOC for not making relevant documents available to him earlier. He affords no recognition to the fact that GSOC was simultaneously engaged in two separate inquiries and, unlike Judge Cooke, he never met with any member of GSOC. Moreover, in his letter of 6 May to Martin Fraser, Mr. Guerin acknowledges that GSOC's seeking safeguards relating to making documentation available to him was, "not unreasonable". However, in that letter, he complains that he was given no indication of GSOC's concerns, "until the process of drafting the final report was well underway", and that he had, "no opportunity to review such documentation with the care required". This is astonishing. I would like to know why Mr. Guerin thought he had no opportunity to review GSOC's documentation with the care expected; why the drafting of the final report was "well underway" without his having read and considered this documentation without meeting others affected by his conclusions; why he completely failed to observe fair procedures in accordance with constitutional and natural justice. His terms of reference allowed him all the time he needed to properly complete his work. What was his hurry?

With regard to GSOC, Mr. Guerin partially explains his failure by attempting to minimise the importance of GSOC's role and recounts that it became involved in a small number of the cases he reviewed. This assertion is disingenuous. For example, GSOC was central to determining complaints of Garda misconduct with regard to serious offences committed by Jerry McGrath, one of which involved an alleged catastrophic Garda failure which, if it had not occurred, may have resulted in McGrath being held in custody on the tragic day in December 2007 when he murdered Sylvia Roche Kelly.

It was right that Mr. Guerin met with Sergeant McCabe for as long as he deemed necessary. It is a mystery to me, however, as to how he believed he was properly fulfilling his remit and his obligation to observe fair procedures to reach accurate conclusions and make recommendations by meeting for 19 hours with Sergeant McCabe, but meeting with no one else whose good name, reputation and credibility could or would be affected by his report. Unlike Judge Cooke, he made no arrangements to meet with any persons so affected, to raise any questions with them or to give them an opportunity to address any draft conclusions reached by him. There would have been, of course, no difficulty in his doing so; he simply chose not to.

Paragraph 2 of the terms of reference enabled Mr. Guerin to interview not only Sergeant McCabe but also:

any other such person as may be considered necessary and capable of providing relevant and material assistance in his review... and to communicate with An Garda Síochána and any other relevant entity or public body in relation to any relevant documentation and information and to examine what steps, if any, have been taken by them to investigate and resolve allegations and complaints [referred to him].

I believe most people would regard me, as the then Minister for Justice and Equality, as a person who could have provided relevant and material assistance. I believe that fair procedures and the principles of natural and constitutional justice required that Mr. Guerin should have interviewed me or at the very least, communicated his concerns and questions to me in writing and afforded me the opportunity to address them and also to address his draft conclusions which he had to know would render my continuing in the office of Minister for Justice, Equality and Defence, untenable.

I believe had I been given the opportunity, I could have provided comprehensive information detailing the substantial attention I gave to allegations made by Sergeant McCabe and to use Mr, Guerin's words, my heeding and acting on what he had to say. In doing so, I could have also detailed obstacles and difficulties of relevance that would have shed light on aspects of the background into which he had no insight. I also believe there was no basis for Mr. Guerin's conclusions that there were grounds for concern that I did not understand my independent statutory role, as there was no question, as he suggests, of my simply accepting the views of the Garda Commissioner without question. Unfortunately, I was given no opportunity by him to address these matters and I believe these conclusions reached by him to be substantially outside the remit of his terms of reference. The result of Mr. Guerin's report was to render my continuing as Minister untenable and, as a consequence, I resigned my position. That is done. However, the process involved and the failure to adhere to fair procedures has serious and wider implications.

I believe all of us should be entitled to know that we cannot, by way of any form of inquiry or review or other means, be secretly put on trial; have charges levied against us of which we have no knowledge; be prosecuted without being informed of the evidence and convicted without being given the opportunity to speak or defend ourselves. I believe that the unprecedented approach to this review and examination or preliminary inquiry which was undertaken and conducted must never be repeated. I believe no one in the future, requested to undertake such a task, should be enabled to take onto himself or herself the role of investigator, prosecutor, judge, jury and executioner and to ignore entirely fair procedures prescribed by our courts and which are specifically prescribed for the undertaking of a statutory inquiry under the provisions of the Commissions of Investigation Act 2004.

I do not believe it was ever envisaged that a preliminary inquiry and scoping exercise to determine whether a statutory inquiry should take place could be so utilised as to undermine totally the fair procedures architecture which is a central core of the Commissions of Investigation Act 2004. Preliminary inquiries or reviews should not facilitate the bypassing of essential human rights protections incorporated in the 2004 Act. For my own part, I never anticipated that a practising senior counsel, asked to consider independently the serious issues detailed in his terms of reference, could or would so ignore basic principles of constitutional and natural justice and fair procedures which have been repetitively pronounced upon and endorsed by our courts at the highest level. These principles are crucial to the rule of law and ignoring them places in peril a value system crucial to the well-being of all our citizens and of all who reside in the State. To ignore them is to endorse the creation of kangaroo courts as dramatically depicted in Franz Kafka's book, The Trial.

It is clear from the Guerin report that its author understood what was required in the context of fair procedures. For example, in chapter 5 of his report, he castigates An Garda Síochána for not affording Sergeant McCabe an opportunity to comment on evidence uncovered in an investigation resulting from a complaint he made and references his entitlement to so comment as being an "important procedural right" and the failure to enable him to do so as resulting in, "a fundamental procedural flaw in the investigation." Moreover, he states, in the context of the statutory inquiry that he recommends to examine further Sergeant McCabe's allegations:

[following] an opportunity to hear evidence from the individual members and officers of An Garda Síochána and civilians, including victims of crime, involved in these matters, a different view of the facts could emerge.

The startling omission from his report is an acknowledgement that, "with the benefit of an opportunity to hear evidence" from me, as the then Minister for Justice and Equality, or from some others, "a different view of the facts could emerge" as to my dealing with Sergeant McCabe's allegations and my taking heed of his concerns. Of course, even if this had been expressly stated by him, it would have been no substitute for applying to me the ordinary rules of fair procedure instead of rushing to judgment with obvious consequences.

I believe that I am entitled to an explanation for the approach adopted in the preparation and finalisation of the Guerin report and to an explanation as to why conclusions were reached and a factual finding made that, as Minister for Justice and Equality, I did not heed what Sergeant McCabe had to say, without my being interviewed or a single question put to me or to departmental officials. I believe I am entitled to know, as are Members of this House, why the Guerin report was so hastily and prematurely completed in comparison to the approach and time taken to complete the Cooke report. My accusation is that it is a fundamentally flawed preliminary inquiry and report and an unprecedented rush to judgment. As a prosecuting counsel, Mr. Guerin must know that the manner in which he conducted his role and some of the conclusions reached by him would not withstand court scrutiny.

Unfortunately, I do not have the time available in this debate, to detail all the omissions and inaccuracies in the Guerin report which I could have addressed had Mr. Guerin interviewed me. There is, however, a particular issue to which I wish to refer.

Chapter 19 of the report deals with the role of the Department of Justice and Equality. In paragraph 19.89 the report purports to summarise "advice" received from an official in the Office of the Attorney General, of whom I make no criticism, on 18 December 2013. It states:

The substance of the advice related to the three booklets of allegations that were received by the Minister under cover of the letter of 4 September 2012 from Sergeant McCabe's solicitors. The advice was to forward the two booklets relating to complaints of malpractice and corruption to the Minister "without further ado". It was said that, if there was any issue with such a course of action, it was for Sergeant McCabe's solicitors to say so earlier in the correspondence. The advice in relation to the third booklet was that it be returned to Sergeant McCabe's solicitors, in light of the existing proceedings in relation to alleged harassment.

Paragraph 19.90 states: "It is unclear whether or not the documents were ultimately forwarded to the Commissioner."

Any reading of this extract from the Guerin report could only conclude that officials were advised to furnish two files of documentation to me in December 2013 and that, having received these files, I did nothing. In fact, Mr. Guerin has misquoted the letter, which actually advised that the two files concerned be furnished by officials of the Department of Justice and Equality to the Garda Commissioner and that no copies of the documents be retained in the Department. It makes no reference whatsoever to their being furnished to me.

The first I learned of this letter was upon my reading of the Guerin report and I sought a copy of it following my resignation. As it was at my request that departmental officials sought advice from the Attorney General's office, I do not know why this letter was not furnished to me upon its receipt in the Department, nor was I at any time verbally briefed on its existence or content, contrary to the impression that may have been given by the Secretary General of the Department in his recent presentation to the Joint Committee on Justice, Defence and Equality.

Crucially and inexplicably, Mr. Guerin omitted a substantial portion of the letter from his report. The missing portion leaves no room for doubt that, on 18 December 2013, it was the view of the Attorney General's office that the existing statutory mechanisms for addressing Sergeant McCabe's allegations should be relied upon and no mention is made of the need for a statutory inquiry. Critically, the advice contained in this letter, written approximately two months before Mr. Guerin's appointment, is the exact opposite of the course of action recommended in the final chapter of the Guerin report, a course of action I am criticised in the report for not taking.

I doubt that at the time the Guerin report was furnished to the Taoiseach and he sought the advice of the Attorney General on it, the Attorney General was aware of the full content of this letter. I believe it is probable that all the Attorney General and Taoiseach knew of it was derived from paragraph 19.89, which is open to the mistaken conclusion that I failed in some respects in my statutory obligations as Minister. If the report had accurately and comprehensively detailed the full content of the letter and my background involvement in seeking advice from the Attorney General's office, the letter could not have formed the basis for any such conclusion.

In my letter of resignation I expressed support for the holding of a statutory inquiry, as it is clear from the Guerin report that there existed correspondence, documentation and information that should have been but was not furnished to me as Minister, and there are clearly issues of importance that should be comprehensively and transparently addressed in the public interest. It is important that, prior to the terms of reference being finalised and cast in stone, there be a further opportunity for them to be considered in the House. I am conscious that I do not have the time, nor would it be appropriate, to address these matters in detail today. I merely wish to briefly reference four matters.

If the statutory inquiry is to be comprehensive, it should include all cases dealt with in Bailieborough Garda Station which have given rise to complaint. There is a matter which has been the subject of articles in the Irish Independent, which included a report of Deputy Micheál Martin meeting an individual who alleges she was the victim of a sexual assault and her complaint was not recorded on the PULSE system and did not result in a prosecution. I understand from the newspaper report that Deputy Martin was to provide information on this matter to the Taoiseach and I presume he has done so. This case should clearly form part of any statutory inquiry.

It is clear that, in mistakenly finding that I paid insufficient heed to Sergeant McCabe's allegations, the Guerin report substantially ignored the relevance of action taken with regard to the fixed charge notice issue. This action included seeking and obtaining a report from the independent Garda Inspectorate, fully accepting recommendations made by the Garda Inspectorate and, when new allegations emerged, asking the Garda Síochána Ombudsman Commission to conduct an investigation. The terms of reference should ensure this omission is not repeated, as there is a clear connection between this matter and any consideration of the extent to which I took Sergeant McCabe's allegations seriously.

Sergeant McCabe's conversations and dealings with the Garda confidential recipient are also of relevance if the full background is to be understood, as are any steps taken by the then confidential recipient. It is my view that the terms of reference should be so extended. All of these matters have been in the public domain and it is in the public interest that they be fully examined.

Any recording or transcript made of Mr. Guerin's 19 hours of conversation with Sergeant McCabe should be provided to the statutory inquiry to assist it in its work. I presume such material exists, and this matter should be clarified.

I stand by the rule of law, the personal rights protected by our Constitution and the European Convention on Human Rights, the core principles of constitutional and natural justice and the core values of this State and the European Union, whose objectives include ensuring that justice is not arbitrary and that no body or individual can trample on such rights, including the right of all to receive a fair hearing where allegations are made against them. The issues I have raised today are of a general importance that is far greater than any impact on me personally resulting from recent events.

Deputy Seamus Kirk

I am grateful for the opportunity to briefly comment on the report of Mr. Justice Cooke. On 26 February last, 286 gardaí were operating in County Louth. They cover the entire county and are located in 13 stations, including Dundalk Garda station, which has 120 staff members, and Drogheda Garda station, which has 93 members. Before commenting on the Cooke report, I place on record my respect for members of An Garda Síochána, especially those in County Louth who protect and serve our community. The 286 gardaí in the county deserve full respect given the level of work they do to make neighbourhoods significantly safer and their attention and support.

I also wish the Minister for Justice and Equality, Deputy Frances Fitzgerald, well in her new role. She has been appointed to a challenging Department, on which I am sure she will bring her expertise to bear. I hope she is successful in that role and I look forward to working with her to ensure the justice system operates satisfactorily in County Louth and beyond.

I will make a number of points on foot of the publication of the Cooke report. Overall, the Government's credibility in recent months in respect of the functioning of the justice system has evaporated. There appear to be a number of unanswered questions, including the role, if any, the Taoiseach played in the resignation of the Garda Commissioner.

Mr. Justice Cooke states in paragraph 15 of his conclusions: "[I]t is ultimately extremely difficult to determine with complete certainty whether unexplained anomalies of the kinds identified in this instance were or were not attributed to unlawful intrusion." The report also vindicated the actions of the Garda Síochána Ombudsman Commission in stating that "the investigating officers and the members of the [Garda Síochána Ombudsman] Commission acted in good faith" in investigating the alleged bugging of their offices. This conclusion undermines the criticism made by the former Minister, Deputy Shatter, of the commencement of the investigation.

The closure of rural police stations, which is a significant worry, constitutes another attack by the Government on rural Ireland. Coupled with the closure of a number of post offices and the lack of support and resources for the Leader programme, it is obvious that there is an urban-rural divide, and rural areas need to be represented and respected.

I urge the Taoiseach and the Minister to respond urgently to the Cooke report by reviewing the role of the Garda Síochána Ombudsman Commission to make it more transparent. It is also necessary to strengthen and extend the power and remit of the Ombudsman.

We have not been given answers to a number of questions. Was GSOC bugged and, if so, who bugged it and for what reason? Why did GSOC decide not to report the matter to the Minister and Garda Síochána? These questions need to be answered and responsibility for doing so rests with the Taoiseach. I urge and implore the Taoiseach to take action to ensure the Garda Síochána, the Garda Síochána Ombudsman Commission and the Department strengthen their relations and do what they have been appointed to do.

According to the mission statement GSOC "will be an active driver of ever-improving police accountability". Greater interaction and trust between the relevant bodies is required and they must work together to achieve the common goal of serving and protecting our communities.

Serious questions remain about the Government's handling of this controversy. Before any investigation was conducted and without any knowledge of whether GSOC had been bugged, the Government made every attempt possible to dismiss the very serious concerns raised by GSOC and others. Instead of seeking the truth, the Government's reaction to this controversy was to dismiss the concerns entirely, undermine the office of the independent Garda watchdog and attempt to manipulate the reporting of this issue.

The lack of communication between all parties is quite worrying. Now, more than ever, they need to work together. The security of our towns and villages is of upmost importance. I know from first-hand experience the level of professionalism there is within An Garda Síochána in County Louth. Due to the fact that ours is a Border county, considerable pressure is put on the Garda Síochána's resources. The level of co-operation between An Garda Síochána and the PSNI is playing a significant role in co-ordinating policing in the Border counties.

Acting Chairman (Deputy Catherine Byrne)

The next speaker is Deputy Harris, who is sharing his time with Deputies Martin Heydon, Alan Farrell and John Paul Phelan. All have five minutes each.

Deputy Simon Harris

I welcome the opportunity to contribute to this debate on the Cooke report. In this House, and, indeed, in political institutions in general, we are used to people grabbing headlines and we are used to people making allegations, but what we are not used to is such people stopping once the news cycle moves on to coming back and standing by the headlines that they grabbed and the allegations that they made.

It is important in this debate that we remind ourselves of what exactly were those accusations, allegations and headlines. The first one, that GSOC was being bugged by An Garda Síochána, was clearly found not to be the case. That is not my view. It is conclusion one, on page 48, of the Cooke report. Regarding the second allegation, that Government-owned technology had been used to hack into e-mails, again, the independent Cooke report, on page 52, paragraph 12.2, found that not be the case.

The third allegation was the constant criticism and sneering by some of the Government's assertion that GSOC should have reported to the Minister for Justice and Equality about any public interest inquiry. The leader of Sinn Féin, Deputy Gerry Adams, ridiculed that assertion in this House. In a statement, on 11 February, he stated:

GSOC are not obliged to report to Minister Shatter in the same way as the Garda Commissioner is, and for good reason. The Ombudsman Commission is appointed by the President, not the Government.

Deputy Adams is not here and no representative of his party is here, but I am sure somebody is watching in from a distance. Deputy Adams was wrong. Mr. Justice Cooke found him to be wrong. The Deputy constantly barraged the Taoiseach in this House. He asked the Taoiseach to apologise for ever asserting the truth. The truth is a new phenomenon for Deputy Adams and it is something he is coming to terms with, but he might come in and apologise and correct the record of this House, and correct his public press statement of 11 February which was wrong.

We now find Members of this House stating that while there was no evidence that GSOC was bugged, we also cannot state categorically 110% that it definitely was not. Can we get real? This is getting ridiculous. One cannot live like that, one cannot legislation like that and one certainly cannot hold a rational political debate like that if one refuses to debate the facts and if one refuses to accept the independent findings.

I listened to Deputy Clare Daly and others talking about vans and cameras and I want to make a point as a citizen of this Republic. If there were vans and cameras, has it dawned on anybody that there was a foreign security firm, effectively, a spying firm, operating in this country? Would it have been remiss of the security services in this country not to have been alert to the fact that there was a foreign security firm operating here?

Having made these points and put the debate in context, it is important to note that there are lessons to learned, both from the Cooke report and from the general debacle and saga that we have had between GSOC and An Garda Síochána and other broader justice issues. I wish to make three points.

On the new police authority - the Minister is having a consultation day in Farmleigh tomorrow - Mr. Justice Cooke refers, on page 53 of his report, to the importance of using the opportunity of establishing that new authority to define and revise the relationships between GSOC, the Garda Commissioner and the Minister. This is a really important opportunity. Those lines of communication, co-operation and clarity need to be clearly established.

Page 50 of the report further outlines this issue when it states that the suspicion which GSOC displayed towards An Garda Síochána was "heavily influenced by the atmosphere of frustration and tension that had arisen in relations between GSOC personnel and the senior ranks of the Garda Síochána". Tension is healthy, and I respect the comments made by Deputy Shatter in that regard, but no tension that leads to such a level of frustration and suspicion can be tolerated. Clearly, there is a need to look at the relationships and the structures between GSOC and An Garda Síochána.

The security anomalies within GSOC, while not evidence of covert surveillance, also need to be addressed and GSOC needs to be conscious of that. While the report found no evidence of covert surveillance, it found that there were security vulnerabilities.

We also need to look at GSOC, which was established by this House. I heard Deputy Kirk speak on behalf of Fianna Fáil and bemoan the limitations of GSOC. His party, in the previous Government, set it up. They gave it the responsibilities but they did not give it the teeth. They decided that the gardaí could never make a complaint to it. They were the ones who put the structures in place and now they are the ones doing what they always do when in opposition, throwing mud at whoever is the Fine Gael Minister for Justice and Equality. They established it; we are going to fix it. We must not get into this political scenario where we delegate responsibility to organisations such as GSOC which, it is important to note, the report found and the Minister has echoed, acted in good faith. We must support them. We must have confidence in an Ombudsman's commission.

The reforms have begun. Tomorrow, in Farmleigh, is an important day in terms of what a police authority should look like in this country and I ask the Minister to take my suggestions on board.

Deputy Martin Heydon

I am delighted to have the opportunity to speak on the Cooke report here today and I am delighted that the Minister is present.

The detail that came out of the Cooke report and the furore at the time is a good example of how we must be careful to not have trial by media. The establishment of the Cooke investigation that led to this report was crucial. One takes the sting out of the sensational headlines, one has a detailed analysis and the facts with which one ends up, as has been stated here earlier, transpire to be very different from what was portrayed at the time. There is a lot of concern about the damage that has been done throughout that process.

Plenty of commentators in the media attacked any politician who questioned where the leak had come from initially as if we were trying to circumvent or distract from the overall case as they had found it. They acted like judge and jury in the issue and did not even want to look at where it came from. In the light of the details of the Cooke report and the details that have come out, it is now even more relevant where that leak came from and what was the motivation behind it. I do not hear those media commentators being nearly as loud as they were.

The Cooke, Fennelly and Guerin reports are important for us to address issues and deficiencies in how An Garda Síochána is run, in the oversight and in the relationship between the State, the Oireachtas and the force. This period has also been quite damaging from the perspective of the morale of the force and public confidence in the Garda. If there is a need for a cultural change in how we police in this country, then we must address that but the outcome of any changes must be that we have a police force that has the full confidence of the public and is motivated and enthused in the role it plays.

I have a number of close friends who are members of An Garda Síochána. I am taken aback by the sacrifice that they make in their role of public service and how importantly they treat it, and by the bravery they show in protecting the citizens of the State and the sacrifice that they make not only for their personal safety, but on a family basis. Working nights is never nice and is very difficult. In particular, I know one couple close to home where both the husband and wife are gardaí and they meet each other coming in and out the door, taking it in shifts to mind the children such is the level of sacrifice.

As a public representative, I work closely on the joint policing committees in Athy and Newbridge and the County Kildare Joint Policing Committee. To see the community gardaí working with the State authorities, the local authorities, residents' associations and politicians is a good way of addressing issues and working together to solve problems.

A couple of years ago, a number of Garda stations in south Kildare were closed and I attended one large public meeting where members of the community which lost the Garda station were very upset. I quickly realised they were upset not at losing the building, but at the sense of losing their garda. Everyone seemed to have this local garda's mobile number. He was, and still is, the quintessential local community garda who was available to the community 24 hours a day seven days a week. Their fear was that they would lose him and it was a testimony to the high regard in which he was held. While that station has closed, the garda got a new squad car and does regular policing in the area. He does his patrols and has clinics in the area. While the community would have liked to retain its station, his role in the community is maintained. In any reform, as we look to establish an independent policing authority before the end of this year, we must ensure that we reinforce the supports to such gardaí who have gained the respect of their whole community.

Investment in resources to aid gardaí in their day-to-day role is crucial if we as a Government are to regain their trust, that we are all working together, supporting each other, and proving that our regard for the job that An Garda Síochána does is not just lip-service.

From my discussions with the Minister, I know she understands the responsibility that is now on our shoulders not just to reform but also to embolden the men and women who police this State. I look forward to working with the Minister in delivering a new era of policing, while not losing the strengths of the force.

Fine Gael is the party of law and order. Some media commentators may have thought that we lost our way in this regard, but we certainly have not. As we head into a new period of reform, I have great confidence in the Minister's ability to bring about that change by drawing on the strengths we have.

County Kildare has one of highest ratios of population to gardaí. This has been a problem for historical reasons. The county has seen a huge population explosion and over 200,000 people now live there, but the number of gardaí stationed there does not reflect that growth. We need extra Garda resources, including a fair slice of the recruits graduating from Templemore. In addition, we need adequate resources for the existing gardaí. I look forward to working with the Minister to ensure that such resources are delivered.

Deputy Alan Farrell

I welcome the Government's acceptance of the findings and conclusions of former Judge Cooke's inquiry. That inquiry was tasked with examining the sequence of events and the facts which led GSOC to begin a public interest investigation in October 2013. However, Judge Cooke found that "evidence does not support the proposition that actual surveillance ... took place and much less that it was carried out by members of the Garda Síochána."

Before addressing the findings of the Cooke report, I am encouraged that we have had an independent and thorough examination into the serious allegations that GSOC had been under surveillance by members of An Garda Síochána. This was the only appropriate course of action as anything other than an independent investigation into such issues would not have had such a degree of credibility and certainly would not promote public confidence in the oversight of An Garda Síochána. After all, it is of fundamental importance that there is public confidence in the force in order to allow its members to carry out their duties to their fullest potential.

Earlier today, Fianna Fáil's current justice spokesperson, Deputy Niall Collins, said the inquiry should be composed of a judicial figure, suitable technical experts and an independent international police force member. Deputy Collins will find that, by allowing Judge Cooke to engage the services of professionals in this area, the Government ensured that technical advice was taken into account by Judge Cooke when he considered the evidence before him. Judge Cooke had a broad mandate to carry out an independent investigation in the manner he saw fit, which was given to him in the terms of reference.

Deputy Collins's suggestion that the Government curtailed the Cooke investigation is simply an untruth. It is clear that the Government did no such thing. By stating that the Taoiseach would try, in some way, to manipulate the outcome of the inquiry, is nothing more than an attempt by Deputy Collins to tarnish the office of An Taoiseach once again. It is irresponsible to suggest that the office of An Taoiseach would attempt to place a mole in the inquiry team. This is an example of Deputy Collins mud-slinging for political gain. Perhaps the Deputy could stick to facts in future and acknowledge them.

For the record, the Department of the Taoiseach has stated that Judge Cooke was appointed by the Government to carry out an independent inquiry. The Department of An Taoiseach provided him with administrative assistance in the setting up of that inquiry including the provision of office space. As Judge Cooke's report states, the Department of An Taoiseach received a letter containing an unsolicited offer of assistance as an investigator from an individual whose CV indicated 20 years' experience in the intelligence services as an officer in the Defence Forces. The Department of An Taoiseach acknowledged receipt of the letter, stating that it would be passed to Judge Cooke, which it was without comment or endorsement. As the report also points out, the offer was not taken up. This is yet another example of Deputy Collins getting the wrong end of the stick in attempting to tarnish the Office of An Taoiseach.

Regarding the findings outlined in the report, Judge Cooke found that the accounts which alleged that device 4B - wireless audio and video media equipment, which was installed in a conference room within GSOC - had been connecting to the external Internet hotspot in a nearby cafe, as being "not convincing". In fact, this equipment was not even microphone-enabled as originally thought and, therefore, its capability of actually transmitting information of use would have been very limited in this case.

Furthermore, in relation to the claim that a fake UK 3G network was actually an IMSI catcher, which was being used to track and intercept mobile phones, the report outlines that this was "highly likely" to have actually been a mobile phone company testing its 4G service in the vicinity of GSOC. The likelihood of this being the case was further confirmed by the mobile phone company itself.

Another point which has been outlined in the report as not having any evidence to support its connection to An Garda Síochána is the call-back to the landline teleconferencing phone, following its being subject to an alerting test. While it is not clear as to what caused this call-back, it is clear that, as Judge Cooke said, there was no evidence to link it to "an offence or misbehaviour on the part of a member of the Garda Síochána."

GSOC's public interest investigation of October 2013 concluded that GSOC "did not find any definite evidence that GSOC was under technical or electronic surveillance. It did, however, uncover a number of technical and electronic anomalies that cannot be explained."

I wish to echo the call of the Minister, Deputy Fitzgerald, for a new culture of co-operation between GSOC and An Garda Síochána. I wish to highlight something that came to my attention this afternoon, which I find quite troubling with respect to establishing such a culture of co-operation. When the Irish Independent quoted Deputy Niall Collins as saying "Shatter tried to make GSOC villains rather than victims of bugging allegations", I was quite appalled to find that GSOC re-tweeted it. That is highly questionable, given that GSOC's own mission statement says it will provide and promote efficient, fair and independent oversight of An Garda Síochána. It is neither fair nor independent of GSOC to involve itself in the political process. An element of cop-on must be used by the commissioners in that regard, or by the person pressing the tweet button.

I ask the Acting Chairman to allow the remainder of my remarks to be read in to the record.

Acting Chairman (Deputy Catherine Byrne)

I will indeed.

Deputy John Paul Phelan

I welcome the appointment of the new Minister for Justice and Equality, Deputy Fitzgerald. I have not yet had the opportunity to do so in the House, so I wish her the best of luck. She was my boss in a previous existence elsewhere in this building. Her character will be well suited to the difficult role she will have to fulfil in the coming period in Government.

I wish to echo what previous speakers have said about the general discussion on the Cooke report and other investigations which have either been completed or are currently ongoing. The ultimate duty of this House and of the Government is to ensure that the public have confidence in the Garda Síochána. It would be remiss not to acknowledge that that confidence has been somewhat shaken over the past few months or even longer.

As Deputy Heydon pointed out, morale within the Garda force has been at a very reduced level in recent months. For the effective administration of justice in any democracy, it is important to have such public confidence in the police force. That is why I welcome the fact that the Minister is committed to introducing reforms in that area, including the establishment of a policing authority. In addition, extra powers will be given to the Garda Síochána Ombudsman Commission which has an important role to fulfil. I fully support and endorse those measures.

As regards the Cooke report, a lot of conspiracy theories have been floated in this Chamber and elsewhere concerning the technical anomalies that were found by the original GSOC analysis of this issue when it first arose. However, GSOC itself has pointed out that it did not find any definitive evidence that it was under technical or electronic surveillance. That was the finding of the initial report carried out by GSOC. It did, however, find a number of technical or electronic anomalies that could not be explained.

Mr. Justice Cooke stated in his report that the evidence does not support the proposition that surveillance of the kind asserted in the Sunday newspaper article took place or that it was carried out by members of An Garda Síochána. These are the most important sentences in the reports. Surveillance and counter-surveillance is a difficult area in which to determine with absolute certainty what is going on. Both of the reports that have been prepared independently on this matter point out there was no evidence of electronic or technical surveillance of the headquarters of GSOC. One can have all the smoke and mirror conspiracy theories one wants but these are the two most important sentences as far as I am concerned.

Mr. Justice Cooke stated in his report that the officers of GSOC acted in good faith in their initial investigation because they were trying to get to the bottom of the anomalies they had identified. The investigations failed to show there was electronic surveillance of the type suggested in the original media coverage. It is difficult to prove a negative, however, and that is why certain Members of this House and others are still saying that questions remain unanswered. I do not subscribe to those assertions because it has been shown that the technical anomalies identified in the GSOC headquarters were not of a type that would lead anybody to believe beyond any reasonable doubt that there was electronic surveillance. It is important that the Minister continues her efforts to build a proper relationship between GSOC and the Garda Síochána in order that the public has full confidence in the Garda.

Deputy Ruth Coppinger

When this information first came to light several months ago, the Government's first reaction was to round on GSOC with the spurious excuse that it had not informed the Minister or proceeded in the correct manner. We are seeing more of this attitude today. The Taoiseach stood over the criticism of GSOC, and even though it was the perceived victim, he managed to turn it into the culprit. The suspicion was that somebody in the Garda was eavesdropping on GSOC, but instead of investigating it properly, the Government has continued with the policy of "move along, nothing to investigate". Fine Gael has lost considerable ground on this issue. The collapse in its vote was in large part due to this matter, as well as to economic issues. Why has Fine Gael taken such an authoritarian stance on the Garda? It is partly due to the party's history and the close professional connection between the former Minister for Justice and Equality and the former Garda Commissioner, but it is also because the Government and the establishment rely on senior gardaí to protect their interests, especially in times of austerity.

Contrary to what the previous speaker has said, the Cooke report is an exercise in smoke and mirrors. It was used by some in the media to suggest to the public that the Government has been vindicated. However, its terms of reference were set by the Government to ensure only certain questions would be asked or answered. For example, two possible surveillance operations, one electronic and the other physical, are mentioned in the report but are not examined in any true sense because they fell outside the terms of reference of the investigation. How can the Government claim it has been vindicated and that nothing untoward took place when nobody from the Garda or the Defence Forces was interviewed? There was no investigation of records of surveillance equipment in Garda operations or the stock of equipment. The question of whether legal surveillance was sanctioned was never asked.

Recent months have shown us that we need a Garda force that is democratic and accountable at central and local level. Will the Minister investigate why gardaí were assigned this week to guard a water meter in Edenmore in Dublin city from a peaceful protest among residents? Does she consider that a good use of Garda resources?

I represent a massive urban area in west Dublin with one Garda station for a population of 100,000. It is regularly the case that Garda cars are unavailable to respond to calls from ordinary residents who become the victims of crime. I could cite numerous such cases from the past six months and I have personally witnessed this happening. In some cases involving serious attacks on women, including muggings and sexual assaults, gardaí did not even attend the scene of the crimes. This is a daily occurrence in the area I represent. I know one woman who was a victim of domestic violence and had obtained a protection order against her husband. Her husband subsequently called to her house and caused problems. I was with this woman on two occasions when she contacted the Garda only to be told there was no Garda car available to help her. Similarly, I have experiences of women who had obtained protection orders and barring orders that were not served by local gardaí in defiance of court orders. I am sure this is happening because gardaí in Blanchardstown are overrun and cannot police the population assigned to them with the resources they have been given.

These types of incidents are encountered regularly by Deputies and councillors. They confirm what I have always believed as a socialist, namely, that the Garda and the Army are part of the State and are used to defend the establishment and the status quo, including the right to private property and the system of capitalism, at all costs. However, assisting ordinary men and women experiencing crime and problems arising in their daily lives is not the Garda's top priority. We need a proper investigation of the Garda and what happened in respect of GSOC, with much broader terms of reference and experts in surveillance equipment. However, we also need a democratic police force that is accountable to local communities and at a central level.

Deputy Joan Collins

It is no great surprise that the Cooke report failed to find hard evidence for the bugging of GSOC. It is in the nature of modern electronic surveillance not to leave evidence. The anomaly of the ring-back of the Polycom unit remains unexplained. We are as informed now as we were prior to the report's publication. When the issue arose in February, the reaction of the then Minister for Justice and Equality, Deputy Shatter, the Taoiseach, senior gardaí and their friends in the media was to ignore the possibility that an important agency of the State may have been put under covert surveillance. It was not even on the radar. In a similar manner, the Taoiseach's response to Deputy Clare Daly when she raised the issue of Corrib yesterday was to refer to outsiders and all sorts of distractions. It was a defensive tactic to undermine opposing opinions and the facts.

Are these people wrong and should we dismiss the Corrib issue and the way citizens in the area were treated abysmally by the forces of the State? I do not believe so. On this side of the House we raised the issue of whistleblowers but we were dismissed, as we were when we raised the penalty points matter. I was told I was a disgrace and we were nearly run out of the Dáil Chamber. We were treated like pieces of dirt, but because of the persistent approach of Deputies Mick Wallace, Clare Daly and Luke 'Ming' Flanagan and me, we have come to a stage at which, unfortunately, there has been a third investigation in ten years involving the Garda, after the Morris and Smithwick tribunals. We must try to address the issue.

I welcome the Minister's indication she will set up an independent police authority and address the question of appointing a Garda Commissioner and other personnel. Without a strong Opposition, that would never have happened, as the whistleblowers would not have had the stamina to take some of the abuse suffered by Maurice McCabe and John Wilson. Their role has been admitted in this Chamber. This is not just about the Guerin or Cooke reports, as the issue involves events aired over two years in this Chamber.

An accusation was made by the Taoiseach that the Garda Síochána Ombudsman Commission had not informed the Minister of its concerns and had hired specialists to carry out a sweep of its offices. It was erroneously stated in the Chamber that there was a legal requirement for GSOC to report this, and as such the victims were portrayed as culprits. There was much emphasis on the possibility of a mole in GSOC leaking information to the media, but a concern in either the Government, the Garda or the media about leaks to journalists is laughable. The report was released by the Government at 8.45 p.m., with certain sources in the media briefed beforehand. The spin was that GSOC was not bugged, although nobody can claim that for certain and we will never know if GSOC was bugged. The real issue is that a body with very limited powers, which by no means had an aggressive approach to investigating complaints against gardaí, felt such antagonism from senior gardaí to its existence that it seriously considered the possibility that it was bugged.

A number of Deputies have praised the role of gardaí, implying that anybody on this side of the House has no respect for the gardaí in our communities. I have worked closely with community gardaí in my area, particularly community garda Paul Leahy when he was beaten up in his home. We took part in a fund-raiser for his cause, and we have also worked closely with gardaí to set up Operation Trident in the Crumlin area. That was an undercover operation which was very successful. I am from a working class community and we have a healthy questioning of gardaí and whom they represent. As a socialist, I see the senior parts of the Garda, the Civil Service and the political establishment as representing the interests of the wealthy in this country and international capitalism throughout the world. There must be transparency and accountability in trying to bring these institutions down to the ground floor, as the further away people are from citizens, the more we see bureaucratic problems and corruption. That is a fact. The more groups and institutions are brought into the community, the more accountable they can be in representing ordinary people.

The Garda is not resourced the way it has been, as Deputy Coppinger noted. In Terenure a German taxi driver who was previously an engineer, and whose skin colour happens to be black, has been terrorised in his apartment over a number of weeks. Last weekend he was nearly burned out, along with the rest of those who lived in the apartment block. The incident was reported in the newspapers but the problem was that gardaí did not arrive in time, and when they came they did not even take statements. There are still many questions to be asked about how gardaí can do their job, if they are meant to take statements, for example, when a person's life has been threatened. My constituency is a working class area and there have been many cases in which we have questioned the role of gardaí or how they approach issues. It is up to us to try to change this and work with the gardaí in the community, on the streets and in other areas. There must be a total change in the role of the State, as well as the question of whom the gardaí represent and support.

Deputy Regina Doherty

At the outset, I wish the new Minister well in her role. She has a heavy task of work to do in the coming months.

Since the foundation of the State there has been great respect from the Irish people for An Garda Síochána. The GSOC bugging controversy set off a chain of events, and political and media responses have served to damage the reputation of An Garda and left GSOC in the invidious position where even the dogs on the street know it is not fit for purpose. I welcome the very detailed consideration and due process given by Mr. Justice John Cooke into reports of unlawful surveillance of the offices of GSOC. As should be the case with any such inquiry, it was of particular importance that Mr. Justice Cooke took the time required to properly conduct his review in accordance with his terms of reference given by An Taoiseach and that he fully engaged with GSOC and applied fair procedures in the conduct of his inquiry. It is clear from the content of the report that he did so.

It is vital that there is strong public confidence in the Garda Síochána and in GSOC. That is why I found it especially damaging that both the media and the Opposition parties saw fit to consistently point the finger at An Garda Síochána as being the obvious culprit in the alleged bugging scandal. It was repeatedly raised at Leaders' Questions by the Opposition after the leak in February to The Sunday Times. That is why it is vital that we had an independent and rigorous examination, especially in circumstances in which it was suggested that such surveillance might have been carried out by the Garda or at a Government intelligence level.

When it comes to enjoying the confidence of people, credibility is crucial. Trustworthiness is paramount and it goes to the root of public confidence that we must have in GSOC. It is fair to say that at this point it is understandable that people might feel disillusioned by some of the actions of GSOC. The report's findings reveal a culture of paranoia operating within GSOC, and the reality is that Mr. O'Brien and his fellow commissioners, Ms Foley and Mr. Fitzgerald, launched an investigation into the possibility their offices were being bugged by gardaí when there was scant evidence this was the case. What is important and profoundly disquieting is that trust had broken down so much between GSOC and some senior gardaí that Mr. O'Brien, the chairman of the commission, believed it possible that security had been compromised by An Garda Síochána. It is essential for a culture of co-operation between the Garda force and GSOC and that both the public and the Garda have confidence in the body.

Mr. Justice Cooke noted that GSOC was under a statutory obligation to report to the Minister at the time. This did not happen and nobody seems to have asked the commission why not. While Mr. Justice Cooke found that GSOC's commissioners "acted in good faith", it is clear that we only know about the alleged bugging because someone within GSOC leaked it to The Sunday Times. The relevant point today is that we still do not know who that person is. What is the status of that investigation? When will we know what progress is being made on it?

An excessively suspicious mindset existed within GSOC which seems to have clouded its interpretation of the findings of its own internal sweep. Allowing for its suspicions, if the alleged bugging was as serious as GSOC believed it to be, why did it not report it to the Minister or the Taoiseach? I am sorry to say that GSOC has sustained reputational damage and has to sort out its internal security. Equally, the Garda Síochána has to understand that independent oversight is not a token gesture. It must co-operate with GSOC in the same way it expects the general public to co-operate with it.

Lessons should be learnt on all sides. I welcome the fact that the new Minister for Justice and Equality is planning immediate legislative action to strengthen GSOC and Garda oversight in general. The Minister has also said she will address an issue raised by Mr. Justice Cooke, who recommended that the precise scope of GSOC investigations under section 102(4) of the Garda Síochána Act 2005 should be clarified. The 2005 legislation has been found wanting. We need bodies that are very robust and trustworthy so that public confidence can be restored, particularly confidence in An Garda Síochána. The mistrust between GSOC and An Garda Síochána did not happen by accident; it happened by design, over years of difficulties arising from the legislation which established GSOC. A formal route must be established for a garda who has been under investigation to have access to some appeal or arbitration when seeking redress if he or she feels the outcome of that investigation was unfair. There must be strong improvements in what GSOC can do in respect of the spirit of its remit while also supporting and respecting An Garda Síochána in its daily duties.

The serious misgivings of some of the members of An Garda Síochána about GSOC are fundamental to the mistrust between the two organisations, and that arises from the legislation establishing GSOC. We need action, not just words, and thankfully that is happening under the current Minister. One change the Minister will make in July is that the Commissioner will be subject to oversight by GSOC. Alongside that is the move to establish the policing authority and to strengthen the GSOC legislation, all of which is extremely welcome. There must be obligations on both sides, on GSOC and An Garda Síochána, to work together and share information. This requires more than protocols and legislative change.

It is our fundamental right to trust the force that polices us and it is a fundamental right for that force to have confidence in the entity which regulates the policing structure. The public does not have confidence in GSOC today, but the Government is moving to ensure that we have confidence in both organisations.

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I thank Deputy Regina Doherty for ending the contributions to this debate on that very appropriate note. It is absolutely essential for our society, as a democracy, to have confidence in An Garda Síochána. It is equally important to have confidence in GSOC. I thank all the Deputies who have contributed to the debate today. It has been wide-ranging, with many thoughtful contributions from various Members.

I want to respond to one of Deputy Mac Lochlainn’s points, with which I agree. I was glad to hear him say there is an agreed agenda, which everybody supports. He said we have to strengthen GSOC, which is absolutely true. Several Deputies said that the Garda Síochána Act 2005 was not robust enough and was not an adequate response to the Morris tribunal and the various points arising from that. The Deputy spoke about co-operation with GSOC, about people co-operating with investigations and the importance of an independent Garda authority. I believe there is wide consensus on that across the House.

Several Deputies, including Opposition Members, said today that they did not want their recent comments on An Garda Síochána to be misunderstood as meaning that they do not value its work. I welcome that because it is important to have balance in the debate on policing. While pointing out shortcomings, serious difficulties and some systemic issues, and investigating the points made by whistleblowers, we must equally acknowledge the work done by so many members of An Garda Síochána and their defence of the State over decades. The work of policing has to go on while we deal with the many critical issues that have arisen in recent weeks and months. That was a noticeable feature of the debate today.

I have listened with great interest to the contributions. I note that Deputy Coppinger and, I think, Deputy Joan Collins, spoke about Government spin and Government trying to vindicate itself with this report. There is no question of such an approach. The Government’s approach in initiating the report from Mr. Justice Cooke was to get at the truth of the alleged bugging of GSOC. We did not set out to vindicate the Government but to get at the truth of the allegations initially reported in The Sunday Times and of the investigation undertaken by GSOC. We have a balanced report and evidence. Had I delayed publication of the report I would have been criticised. The report was redacted, there was a Cabinet meeting and I published it immediately after that. I welcome the report.

The claims that GSOC was under surveillance, and the suggestion that members of the Garda Síochána were involved, raised profound concerns of significant public interest. Everybody in this House shared those concerns and wanted and was rightly anxious to know the truth. I again thank Mr. Justice Cooke for a balanced and measured examination of the allegations and the care with which he assessed all of the available evidence. I ask that the response to the report be equally balanced and measured, and acknowledge his clear findings. Some contributions today did not do that.

The key finding was the report's statement: "[I]t is clear that the evidence does not support the proposition that actual surveillance of the kind asserted in The Sunday Times article took place and much less that it was carried out by members of the Garda Síochána". We asked a retired judge to prepare this report and that is what he said. He also analysed in considerable detail the three threats identified in the security checks which were carried out, and no fair reading of this analysis could conclude that there is evidence of surveillance. For example, Mr. Justice Cooke found a perfectly rational and lawful explanation for the detection of the UK mobile phone network, originally presented as the most sinister threat because it allegedly suggested a level of technology associated with Government agencies. The explanation was that a new 4G network was being tested in the vicinity of the GSOC offices. That is a fact that he found out. He also found out that there was no microphone in a particular device, although it had been suggested there was.

It is true he concluded that one of the threats - the ring-back reaction to the alert test of the Polycom unit - remains "a technical or scientific anomaly". An anomaly is not evidence, however, and it is certainly not evidence of surveillance. It is very important for all of us to come to evidence-based conclusions about such important matters. It does a disservice to our system of policing and oversight of policing for the most profound concerns to be maintained on the basis of supposition as a substitute for evidence.

It is unhelpful that suggestions that cast wholly unwarranted doubt on the integrity of individuals and bodies have been made without any basis in evidence. Mention was made during this debate of the Department of the Taoiseach's contact with Mr. Justice Cooke in relation to technical investigation. What was put on the record of the House here today is simply not true. As the Cooke report stated, the Department of the Taoiseach received a letter "containing an unsolicited offer of assistance as an investigator from an individual". The Department acknowledged receipt of the letter and stated that it would be passed to Mr. Justice Cooke, which it was without comment or endorsement. As the report pointed out, "the offer was not taken up". Mr. Justice Cooke made it clear in the report that it was not seen as relevant to the points with which he was dealing.

I have to make it clear that another argument we heard, that the report's examination of claims of unlawful surveillance did not deal with the possibility of lawful surveillance, is a complete red herring. Telephone interceptions have to be authorised by the Minister for Justice and Equality. There would be no question of a Minister authorising interceptions in relation to the Garda Síochána Ombudsman Commission. Lawful surveillance does not arise outside very specific circumstances that are governed by statute. It is judicially authorised, except in emergency circumstances. The operation of the law is subject in an ongoing way to judicial oversight.

The Government and I accept in full the findings and recommendations of Mr. Justice Cooke's report. I ask others to accept them too. As I have said, I am referring the report to the Joint Committee on Justice, Defence and Equality, where there will be an opportunity for further debate. I have asked the Garda Síochána Ombudsman Commission and the Garda Commissioner for their responses to the report. Some of the legislative proposals I intend to introduce were recommended by Mr. Justice Cooke in his analysis. He believes the law regarding public interest investigations undertaken by Garda Síochána Ombudsman Commission needs further clarity. I look forward to engaging with Deputies again on these issues. I welcome the opportunity we have had to comment on this important report.