Joint Committee on Justice, Defence and Equality debate -
Wednesday, 28 May 2014

Guerin Report: Department of Justice and Equality

Chairman

The purpose of this part of the meeting is to have a discussion with Mr. Brian Purcell, Secretary General of the Department of Justice and Equality, regarding the findings made in chapter 19 of the Guerin report. It may also include matters referred to in chapters 1, 20 and 23 of that report. On behalf of the committee, I welcome Mr. Purcell and his colleagues.

The format of the meeting will see Mr. Purcell invited to make an opening statement, which will be followed by a questions and answers session. Mr. Purcell has supplied members of the committee with a detailed opening statement, but I understand he intends to read from a shorter version at this point. We may raise other issues during the course of the meeting. As we have already had a long session, some two and a half hours, Mr. Purcell will excuse us if we seem a little tired. It has been a long day so far.

Before beginning, I draw the attention of witnesses to the position in regard to privilege. They should note that they are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by the committee to cease giving evidence on a particular matter and they continue to do so, they are entitled thereafter only to a qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. Members should also be aware that, under the salient rulings of the Chair, they should not comment on, criticise or make charges against a person outside the Houses or an official by name or in such a way as to make him or her identifiable.

I invite Mr. Purcell to make his opening remarks.

Mr. Brian Purcell

I understand that my opening statement has been circulated to members. My aim is to be as helpful as I can in their deliberations. If they will permit, I will add a few key points.

As the committee is aware, recent events have led to the establishment of the Fennelly commission of investigation, which will have an opportunity to hear from all sides regarding what was an unprecedented, complex and difficult matter. A further commission is to be established following the publication of the Guerin report. In addition to these inquiries, the Government has outlined a comprehensive system-wide reform plan that represents a sea change in the way policing will be delivered. This process is being led by the Minister, Deputy Fitzgerald, who has announced a number of measures.

Legislation is being prepared to establish an independent Garda authority by the end of this year. This is a major reform initiative that will transform the relationship between An Garda Síochána and the Government. In future, Garda Commissioners will be appointed following an open competition. This process will be undertaken by the Public Appointments Service, PAS, and means that the post of Commissioner will be filled with regard to best recruitment practices.

Legislation is being drafted to strengthen the remit and powers of the Garda Síochána Ombudsman Commission, GSOC. As the Minister has stated, the measures in prospect will bring the Garda Commissioner within the scope of the complaints that can be dealt with by GSOC and increase the capacity and remit of GSOC to initiate reviews of Garda practice and procedure without reference to the Minister.

The Garda Inspectorate is to carry out a follow-up review of the Guerin report, covering serious crime investigation, management and operational and procedural issues, taking into account the implementation of recommendations already made by the inspectorate in earlier reports and also work currently under way by the inspectorate.

Crucially, the Protected Disclosures Bill, as introduced by the Minister, Deputy Howlin, will include provisions to enable a Garda whistleblower to report concerns to GSOC for independent investigation. This will mean that Garda whistleblowers will, from now on, have a strong legal framework within which to report concerns, strong legal protection against penalisation and the opportunity of a fully independent legal examination of their concerns.

A review of the performance, management and administration of the Department of Justice of Equality will also be undertaken by independent experts before the summer recess.

These measures are designed to transform oversight and accountability and, taken together, will constitute a fundamental change in the way the Garda is managed and relates to the Government and the Department.

As I outlined in my statement, the Department has a broad remit. On the Garda side, the Department's purpose can be said to be one of supporting the Garda on the one hand and seeking to achieve appropriate accountability to the Government on the other. The context for all of this has evolved over decades when the very existence of the State was under threat. It is now clear, and the Department recognises fully, that the arrangements for dealing with Garda whistleblowers did not prove fit for purpose. In so far as that may have involved shortcomings on the part of the Department, I have no hesitation in apologising to all those who have been affected by those shortcomings, including the whistleblowers themselves.

In considering the issues before the committee, we need to consider the Garda Síochána Act 2005, which is the framework provided by the Oireachtas within which the Department and Garda operate. The Act distinguishes between the roles of the Minister and the Commissioner, the Minister being responsible for policy and direction and the Commissioner being responsible for independently running the force. The framework includes independent oversight by GSOC and independent inspection by the Garda Inspectorate. It also provides for the role of confidential recipient.

The tools in the Act provide for the Commissioner to account to the Government and Minister through the Secretary General. There is a duty on the Commissioner to keep the Minister and Secretary General fully informed on various important matters and the Minister is in turn accountable to the Houses of the Oireachtas.

I say this not to seek to pass the parcel but rather to point to the complex web that exists to ensure the operational independence of the Garda Síochána while at the same time ensuring accountability. The extent to which this framework has worked or not worked, and why, will no doubt be teased out by the forthcoming commission of inquiry. In fairness to the staff of the Department, I have to make clear my belief that we were at all times motivated by one thing alone, which was to act in the public interest within the law. In that context, I believe that we acted in a reasonable manner within the structures in place at the time. A lot has worked. An Garda Síochána has had notable success on the crime detection and security fronts. Some things have not worked and we may have been slower than we might have been in responding to those.

The truth is that the structures put a lot of reliance on the relationship between the Garda Commissioner and the Minister and Department. Given the sensitive issues being dealt with, mutual trust and confidence is and has always been crucial in this relationship and this has been built up over a long period of time, not during the term of any single officeholder. The legislation provides for a duty to account and to provide information supplemented by the independent oversight mechanism of GSOC. We do not have a separate investigative set-up in the Department. It is always a challenge in dealing with complex agencies to avoid “regulatory capture” and this is where lessons can be learnt as we, collectively, consider what enhanced structures and processes should now be put in place.

This raises the legitimate question of whether over a long period we could have done better in learning lessons and improving Garda accountability. Yes, we could have done. I cannot say that we have always, at all times, achieved a perfect balance in managing critical policy and operational issues across the huge range of justice and equality responsibilities. Most assuredly, I acknowledge that the Guerin report has given rise to a grave situation which I must devote my utmost effort and attention to resolving though specific and targeted changes.

Some of the relentless criticism of the Department and the excellent people whom I have the privilege to lead as Secretary General is not well founded. I recognise, however, that confidence in the Department has been damaged and must be quickly restored. There is in the Department a determination to change what needs to be changed and to turn recent events into an opportunity to learn key lessons and put them into action.

As Secretary General of the Department, I hope to engage with members of the Committee to explain matters as best I can. I also look forward to the outcome of the committee’s current consultative process in contributing to the ongoing work to identify the best way to address the weaknesses that have been exposed. Having said that, and as I have explained in my written statement, I hope members will understand that I am somewhat constrained in what I can deal with.

I fully appreciate these matters are of legitimate interest to committee members. The difficulty is that, although it would be much easier in many ways to come in here today and fully answer their questions, I must respect the fact that the Fennelly commission has to undertake the work it has been charged with by the Government and these Houses.

The Government has also decided that a commission of investigation will be established following publication of the Guerin report so some constraint must also be applied to those issues. The commission in that instance has yet to be established and its terms of reference have not yet been fixed. I will, therefore, try to assist the committee as best I can on the issues Mr. Guerin raised about the Department but I hope it will understand that it may not be possible as yet to deal in detail with matters which must be left to the commission of investigation.

The report raises fundamental issues about the statutory framework and various agencies of the justice system, including the Department of Justice and Equality. Of course, the nature of Mr. Guerin's review meant that he did not find himself in a position to comprehensively address these broader issues. Presumably because of the timescale involved and because his primary purpose was to consider whether a further inquiry was necessary, at which all parties would have an opportunity to present their cases, he did not seek any views from the Department or the Minister on why it responded as it did to the complaints made by Sergeant McCabe. Neither, for reasons which he outlined, did Mr Guerin have the benefit of the GSOC perspective on these matters. Inevitably, this means that the legal analysis contained in the report and the understanding of the policy issues involved are incomplete. The commission of investigation will provide an opportunity for these to be teased out fully.

As he emphasises in his report, the purpose of the review was not to make any findings of fact or to determine any disputed question either of fact or law. Mr. Guerin questions the lack of formal submissions, etc., to the Minister. In hindsight, the lack of such material which, had it existed might have been of assistance to Mr. Guerin, is regrettable, although this reflects a practice that Ministers might often be briefed orally on particular matters and draft replies prepared in line with that briefing. It is, however, absolutely the case that the Department and the Minister were aware of the ministerial functions, scope and limitations of the provisions in sections 42 and 102 of the Garda Síochána Act 2005 and of the functions and provisions of the confidential recipient regulations. The Department had a very detailed and nuanced understanding of these legal provisions which I will go through in detail.

I accept that the record keeping meant that Mr. Guerin does not have the full picture of the thinking in the Department on the action it took and the advice it gave or, indeed, of the then Minister's thinking. I emphasise that before all of this came to light and as part of a review of risks around communications, information and records, I commissioned an internal project which is well under way to address our record keeping and other related matters.

It has undoubtedly been the practice of the Department and successive Ministers to place considerable reliance on what they are told by the Garda Commissioner of the day. There are obvious reasons for this. The Government appoints a Garda Commissioner because it has confidence in her or him to run the Garda Síochána, whose functions include detecting crime, preserving law and order and national security. If the Department or the Minister were not in a position to place such reliance on what the Garda Commissioner said, this would have the most serious implications. By law, the Garda Commissioner has the function of directing and controlling An Garda Síochána. He or she is also responsible for the maintenance of good order and discipline within An Garda Síochána.

There is a further crucial point which does not appear to be analysed in the report. The Minister had been advised by the Garda Commissioner in his report that the investigations into Sergeant McCabe’s substantive allegations had been based on earlier reports made to the confidential recipient. The Minister and the Department, naturally, knew of the provision in the confidential recipient regulations providing that all allegations made through the confidential reporting mechanism have to be notified to GSOC, in accordance with arrangements agreed with GSOC, and would have been conscious of the rationale for this, namely, that GSOC would have knowledge of the allegations and the response and could initiate an investigation in the public interest under section 102 of the Garda Síochána Act 2005 if it thought it appropriate. This was, as it was intended to be, a substantial reassurance for the Department and the Minister on the existence of independent oversight in relation to the investigation of the allegations. This is aside from the fact that the Garda files on these matters were referred to the Director of Public Prosecutions who directed no prosecution.

Neither the Department nor the Minister is an investigatory body or has investigatory powers. The Minister does have powers under the Garda Síochána Act 2005 to require the carrying out of investigations, but it is important to understand the detail of those powers in order to analyse Mr Guerin’s key findings in relation to the Minister and the Department and I will be happy to expand on this, in so far as I can, for the committee’s information.

None of what is set out here is intended to minimise the difficulties which have arisen. We had already recognised that the legal provisions for dealing with whistleblowers were proving inadequate and that there should be a mechanism for complaints to be made directly by members of An Garda Síochána to GSOC. It is intended simply to set out why the advice which was given and the decisions taken within the Department were considered reasonable given the structures in place at the time.

As I stated in my letter to the clerk of the committee, I will be happy to return at a future date to discuss these issues in detail with the committee when the various commissions in being and to be established have issued their findings.

Chairman

I thank Mr. Purcell for his presentation. Several issues arise from it and from his correspondence with the committee. As he is aware, the committee wrote to the Government at the time requesting that, among other things, the circumstances leading to the retirement of the former Garda Commissioner be referred to the Fennelly commission. The committee reserved its right to revisit these issues any time. We recognise that under the terms of reference we cannot follow what is happening in a court or tribunal.

However, this is neither a court nor a tribunal but a commission of investigation, which is different. It is not mentioned in the terms of reference. Even though there were numerous opportunities to change standing orders over the years, that did not occur. I maintain that we are perfectly within our remit to raise questions with respect to that issue, even though the commission is inquiring. The reason we are concerned is that it is a matter which in our view could be cleared up very quickly and easily and which should be. This is a forum where it could happen and where Mr. Purcell could inform the committee very clearly and in plain English what exactly happened on that night. I invite him to do so now.

Mr. Brian Purcell

I have said already that I wanted to make it clear that in my appearance before the committee I am anxious to assist in every way I can with the matters raised in the invitation. However, as I have indicated, I am precluded from discussing certain matters. I have said already that I am quite happy, at the appropriate time after the commissions have reported, to discuss it in full with the committee. I have sent a copy of the letter I received from the Fennelly commission for information. I drew the attention of the committee to the fact that the commission states it will treat my reply and my statement in confidence, save to the extent that it may be required under the provisions of the Act, particularly section 12, to disclose them or to include them in its reports in accordance with section 32 of the Act. Further, the commission's letter refers to section 11 of the Act stating that, subject to certain exceptions, it requires the commission to conduct its investigations in private.

The committee's letter makes it clear that they intend for me to give my evidence in public. Accordingly, any inquiry by the committee which impinges on paragraphs N and O of the commission's terms of reference - or, indeed, any of the terms of reference of the Fennelly commission - is highly likely to undermine and prejudice the work of the commission and will run counter to the commission's procedures to conduct its investigation in private. It would also mean that I would be giving evidence in public and in advance of any other witnesses relevant to the Fennelly commission who would be giving their evidence in private and who would already have heard or read any evidence that I gave in public if I did so.

I have already mentioned the Oireachtas standing order to which the committee referred, which states that a matter may not be raised in such a way that it appears to be an attempt to encroach on the functions of the courts or a judicial tribunal. I acknowledge that although the standing order does not specifically refer to a commission of inquiry, because the standing orders predate the 2004 Act, the intention is clear. Accordingly, I asked the committee to take this into consideration and to refrain from inquiring on any matters that impinge upon any of the terms of reference of the Fennelly commission. Having regard to the above, the committee's own terms of reference cannot be used to undermine or prejudice the specific remit given to Mr. Justice Fennelly by way of resolution passed in the Houses of the Oireachtas to inquire into matters within its terms of reference. The terms of reference of the joint committee on justice, with its remit of inquiring into the administration of the Department, cannot be used to undermine or prejudice the Fennelly commission's work, a task given to it by the Oireachtas.

Furthermore, on the matter of the Guerin report, the Government has decided and made public its decision to establish a commission of investigation under the Act to investigate the issues identified by Seán Guerin in his report as warranting further inquiry. As the establishment of the commission is imminent, I am deeply concerned that my giving of evidence in public to the committee at this point would in the same way potentially undermine and prejudice the work of the intended commission.

I stated in my remarks that I regard the Guerin report and the proposed commission of investigation in a slightly different light, although I remain very concerned about my giving of evidence in public to this committee or, indeed, anywhere else where I might be asked to give it, as it has the potential to prejudice and impinge on that commission of investigation, the establishment of which is imminent. However, I am prepared to answer questions relating to the Guerin report to the best of my ability, but I ask the Chairman to give me some leeway, in the context of how I may answer the questions about the Guerin report, to take account of the issues I have raised. My position is clear with regard to any issues that are covered by the terms of reference of the Fennelly commission. I have circulated the letter I received from Mr. Justice Fennelly in respect of that matter. Members of the committee will have had an opportunity to read it and to consider it.

I have never before found myself, and I hope never again to find myself, in a position where in any way I might be seen to be anything other than the absolute maximum of assistance to any committee of the Houses of the Oireachtas, but I think this is a rather unusual position to be placed in where a commission of investigation chaired by a Supreme Court judge has been established whose work is already under way. It seems to me to be a rather unique situation in that what could be seen as a parallel inquiry is proceeding while I am being asked to give evidence relating to matters covered by the terms of reference of the Fennelly commission. I am unfortunately in a position where I have to say I simply will not be able to answer questions relating to that matter. I hope that the committee will understand the difficult situation in which I find myself. I appreciate the point made by the Chairman and I reiterate my commitment that at such a time as the Fennelly commission completes its deliberations and produces its report - regardless of the outcome of that report and whatever findings it may make - I will be quite happy to come in to this or any other committee to discuss any matters of relevance that the committee seeks to inquire into.

Chairman

I thank Mr. Purcell. Our advice is that the commission of investigation rules do not preclude the committee from looking at any of these matters, nor do they apply to this committee. We received this advice today in advance of the meeting. There are numerous ongoing investigations into the Department of Justice and Equality. We have seen the retirement of a Garda Commissioner, the resignation of a Minister and a number of other issues which need to be dealt with. Mr. Purcell will excuse members of the committee and myself for being extremely concerned about what we have seen and what we have heard to date. That is the reason we were glad to have the opportunity to meet with Mr. Purcell this evening in order to attempt to clear up some of these matters.

We are looking for the truth and we are looking for facts - to know what happened on the night that the Garda Commissioner decided to retire and to find out what led up to that decision. We are advised that this is within the committee's terms of reference and that it concerns the administration of the Department. I again invite Mr. Purcell to make a statement on that matter and to inform the committee what happened on the night and the sequence of events. It could be helpful to the tribunal, because the truth cannot change if it is the truth.

Deputy Finian McGrath

On a point of order, it is important that the Secretary General accept that the members of the committee, including myself, will not accept any stonewalling or holding back. He should be answerable to the committee. Our legal advice is the opposite and it is important that he answers the questions-----

Chairman

Deputy McGrath, I ask you to desist. That is not a point of order. Let us continue.

Deputy Finian McGrath

I do not think it is acceptable for a Secretary General to come in here and say that and hide behind section 12.

Chairman

I know that. We accept your point. I have already asked-----

Deputy Finian McGrath

I am very disappointed.

Chairman

I invited the Secretary General to make a presentation on that particular issue.

Mr. Brian Purcell

I have already stated in some detail, both in writing and orally, the situation of this particular issue and the questions that have been asked.

It is reasonable to assume that any commission, including the Fennelly commission, in trying to establish the veracity or truth of accounts - truth was mentioned and it goes without saying that it will obviously be a key issue in respect of any evidence that is given - would like to obtain the evidence of the individuals concerned independently and without any of the persons involved or witnesses being influenced by what others might have said or may be saying. In those circumstances, for one person, in this instance me, to be putting into the public domain his account, which others might then have regard to in preparing their statements for the commission, could clearly hamper the approach the commission might take. It would definitely have the potential to undermine or prejudice the work of the commission.

Chairman

I will ask some further questions, if I may. Section 40 of the Act states: "The Garda Commissioner shall account fully to the Government and the Minister through the Secretary General of the Department of Justice, Equality and Law Reform for any aspect of his or her functions." Will Mr. Purcell indicate how this operates in practice?

Mr. Brian Purcell

How that works in practice is, effectively, any information that the Garda Commissioner gives to the Secretary General for onward transmission to the Minister can relate to any aspect of his or her functions. This can happen either in the course of normal business or following a request from the Secretary General or the Minister. Section 40 of the Act provides that the role of the Secretary General is to brief the Minister on any matters of accountability relating to the Commissioner's functions.

Chairman

What form does such communication usually take? Is it done in writing, by e-mail or by word of mouth?

Mr. Brian Purcell

Communication between the Commissioner and the Secretary General can take a number of forms. Sometimes it will be in writing, sometimes orally in person and sometimes by means of telephone calls. It can take any form.

Chairman

So the Commissioner can visit the Secretary General in his office. What happens out of hours when all offices are closed, when an emergency arises and when the Commissioner must communicate something of urgent importance to the Secretary General?

Mr. Brian Purcell

In most instances it would be done by telephone call if it was outside normal office hours.

Chairman

Would there be instances when the Secretary General and the Commissioner would be obliged to meet personally, particularly if the emergency was sufficiently serious?

Mr. Brian Purcell

There might be instances but they would be rare enough.

Chairman

Have such instances occurred in the recent past?

Mr. Brian Purcell

When we have actually had to meet outside normal hours?

Chairman

Yes, out of hours.

Mr. Brian Purcell

Yes, I have met the Commissioner outside what would be regarded as normal hours. Then again, people such as the Garda Commissioner and myself, but particularly the Commissioner, who deals with an operational 24 hour service, probably do not work hours which might be considered to be normal working hours. The answer is yes, I would have met the Commissioner outside normal nine to five working hours. That, in itself, would not be all that unusual. The normal course of contact outside normal nine to five working hours would be by means of telephone call. I do not want mislead, in any way, the committee so what I am saying is that most of the meetings I have had with the Garda outside what would be regarded as normal working hours, I would not have considered all that unusual. That is the just the nature of the work we do and nature of the hours we both sometimes have to work. Indeed, it is not just ourselves who work them.

Chairman

Where would such meetings typically take place when offices are closed?

Mr. Brian Purcell

Even outside normal working hours they could possibly take place in an office.

Chairman

Such as in the Department.

Mr. Brian Purcell

Such as in the Department or in Garda headquarters.

Chairman

Is it usual for such meetings to take place in the home of the Garda Commissioner?

Mr. Brian Purcell

This is moving in the direction-----

Chairman

It is, yes.

Mr. Brian Purcell

-----of the point I covered earlier on. I have answered the questions as best I can in respect of the procedural aspects but if the Chairman is asking me about the meeting I had with the Commissioner-----

Chairman

No, I am not. I was talking in general terms. Generally speaking, would that happen occasionally or has it happened more than once?

Mr. Brian Purcell

No. As I said, I have no wish to try to obstruct the committee but I find myself in a very difficult situation in dealing with this in the context of the work that is under way at the Fennelly commission. Of course it is unusual for a meeting such as that to take place in the home of the Commissioner, as indeed it would be for it to take place in my home or the Chairman's home.

Chairman

Indeed, it would be unusual. If a national emergency of some sort arose and if such a meeting had to occur in Mr. Purcell's home or that of the Commissioner, how would it be arranged? Would Mr. Purcell just arrive at the Commissioner's front door or would he make a telephone call before doing so?

Mr. Brian Purcell

Even if I speak hypothetically, there is only so far I am going to be able to go.

Chairman

Yes, hypothetically speaking.

Mr. Brian Purcell

Even hypothetically. I need to state that now.

Chairman

That is okay.

Mr. Brian Purcell

I would not turn up unannounced at anyone's door.

Chairman

I thank Mr. Purcell.

Senator Katherine Zappone

I thank Mr. Purcell for his presentation. I wish to pose questions in respect of a couple of points he made. During his presentation Mr. Purcell stated, "Neither the Department nor the Minister are investigatory bodies or have investigatory powers." My question in that regard relates to issues raised in the Guerin report. Why was an investigation not undertaken by the Department into the allegations put forward by Sergeant McCabe and, in particular, why was such an investigation not conducted in 2012 when the confidential recipient wrote to the Minister regarding allegations made against the Garda Commissioner? Such an investigation would be required under the terms of the 2007 regulations, section 8 of which states: "On receipt of such a report, the Minister, unless he or she has reason to believe that the allegation contained in it was not made in good faith or is false, frivolous or vexatious, shall cause the allegation to be investigated or take such other action as he or she considers appropriate in the circumstances."

Mr. Brian Purcell

Am I correct in believing that the Senator has posed her questions in the context of the Guerin report?

Senator Katherine Zappone

Yes, as I stated before I posed them.

Mr. Brian Purcell

As I mentioned at the outset, I am concerned about the issues involved in terms of any commission of investigation that is imminent. However, I will try to answer any questions. As a result of the fact that I must be very careful about what I say and, effectively, because this may be something that will impinge on the workings of a commission of inquiry that is going to be established in respect of the Guerin report, I am going to be cautious but I will provide some detail on this. The committee will have to bear with me in that regard, even if it takes some time to go into the detail.

In the report, Mr. Guerin mentions in his analysis that it is apparent that the Minister was invited to exercise two specific functions. One was to cause an inquiry to be held under section 42 of the 2005 Act and to cause the allegation to be investigated or take such other action as the Minister considered appropriate in the circumstances. He commented that:

What is important about these specific Ministerial functions is that they enable the Minister to ensure that an investigation, in the true sense, independent of An Garda Síochána, can be conducted into matters that might be the subject of a complaint made to the Minister.

He goes on to state:

From the papers I have seen, I have had difficulty finding material which demonstrated that the Department identified and understood the significant independent statutory role which the Minister had to perform in respect of these matters. The practice adopted when matters were brought to the Department's attention was invariably to refer the issues that had been raised to An Garda Síochána. While it would, of course, be entirely reasonable to expect that, where a complaint is made, opportunity will be given to the person the subject of the complaint to respond to it, it is a different matter altogether to be entirely satisfied by that response.

In effect, Mr. Guerin summarises the process of determining Sergeant McCabe's complaint went no further than the Minister receiving and acting upon the advice of the person who was the subject of the complaint. His conclusion was, for whatever reason, that the approach adopted had the result that there was no independent investigation of Sergeant McCabe's complaints and that there is a cause for concern as to the adequacy of the investigation of the complaints made by Sergeant McCabe to the Minister for Justice and Equality, and a sufficient basis for concern as to whether all appropriate steps were taken by the Minister for Justice and Equality to investigate and address the specified complaints.

While Mr. Guerin emphasises at the start of his report that he has not made any findings or determinations, clearly these are critical conclusions. In analysing them it is helpful to recall key facts and legal provisions. The allegation against the Garda Commissioner centred on the contention that the Garda Commissioner had been guilty of misconduct for listing a superintendent for promotion who in essence had allegedly been in neglect of his duties by permitting seriously inadequate policing practices in his Garda district. It might be mentioned here for completeness that promotions to the rank of chief superintendent are made by Government on the basis of the outcome of competitive interviews by a board which under the relevant regulations is composed of two independent persons from outside the Garda Síochána, one of whom is the chair of the board and a deputy Garda Commissioner.

It is important to note that no direct allegations of misconduct were made against the Garda Commissioner. They were made against the superintendent in question and, to some extent, against other members. With the greatest respect, it is submitted that in all the circumstances, the characterisation of the action of the Minister and the Department as merely receiving and acting upon the advice of the person who is the subject of the complaint is open to question.

The Garda Commissioner is the person who has the statutory function of directing and controlling An Garda Síochána and of carrying on, managing and controlling generally the administration and business of the Garda Síochána. More particularly, the Garda Commissioner is responsible for discipline in the force. While Mr. Guerin's report now raises serious issues about the nature of the Garda Commissioner's response to the Department, it is submitted that the formal written advice and assurances of the Garda Commissioner to the Minister on the adequacy of investigation into Sergeant McCabe's substantive allegations cannot fairly be characterised as merely taking the word of the person against whom allegations have been made.

It was also clear from the Garda Commissioner's response that a substantial file had been submitted to the Director of Public Prosecutions, DPP, who had directed that there be no prosecutions. While Mr. Guerin mentions this, he did not discuss its significance. It meant that the Minister could be assured that the investigation files had been examined independently by the Director of Public Prosecutions who had not directed any prosecutions.

As I mentioned earlier, there is a further crucial point which Mr. Guerin does not appear to analyse in his findings. The Minister had been advised by the Garda Commissioner in his report that the investigations into Sergeant McCabe's substantive allegations had been based on earlier reports made to the confidential recipient. The Minister and the Department naturally knew of the provision in the confidential recipient regulations providing that all allegations through the confidential reporting mechanism have to be forwarded to the Garda Síochána Ombudsman Commission, GSOC, as explained earlier, and would have been conscious of the rationale for this, namely, that GSOC would have sight of the allegations, and the response, and could initiate an investigation in the public interest under section 102 of the 2005 Act if it thought it appropriate. This was, as it was intended to be, a substantial reassurance for the Department and the Minister on the existence of independent oversight regarding the investigation of the allegations.

The Minister was faced with a formal written assurance by the Garda Commissioner of the position regarding the superintendent on which he placed reliance to an extent successive Ministers would be likely to have done, augmented by the fact that the DPP had been involved in the matter and in the context where GSOC had sight of the allegations and outcome, and could have instigated its own independent investigation.

With all that has become known since, it might well have been better if a different course of action had been taken but the Department would say that the advice it gave the Minister was reasonable based on what was known at the time and on the statutory provisions in place, which we have since widely acknowledged to be less than satisfactory. That is one of the reasons the amendments to the Protected Disclosures Bill are being taken and why careful examination of the powers that relate to the remit of GSOC is under way.

If the Minister, despite all these factors, had been minded to cause any further investigation of the allegations, the obvious option would have been for him to refer them to GSOC under section 102 of the 2005 Act rather than cause an inquiry under section 42 of that Act. Mr. Guerin did not consider this point but, in any event, the Minister would have been faced with two issues in that regard. First, he would have had to satisfy the tests for referral to GSOC under section 102, namely, that it would have had to appear to him to indicate that a member of the Garda Síochána may have committed an offence or may have behaved in a manner that would justify disciplinary proceedings. This would be happening in circumstances where the Garda Commissioner effectively assured him that the opposite was the case. Second, the Minister would have been aware that GSOC already had sight of the allegations and the outcomes and could have initiated, but chose not to, its own investigation under section 102 on the very grounds that the Minister would have used to refer the allegations to it.

As regards the request from Sergeant McCabe's solicitor for an inquiry under section 42 of the 2005 Act, the crucial difficulty that arose in that regard was the fact that consent was not forthcoming despite repeated reminders to Sergeant McCabe's solicitor to transmit the material to the Garda Commissioner. While Mr. Guerin acknowledges this, no explanation was forthcoming in the report as to why the consent was not forthcoming, other than references to Sergeant McCabe losing all faith in his superior officers. No decision could properly be made to establish such an inquiry without the complaints being first put to the Commissioner.

Chairman

Can I get clarification? Is Mr. Purcell saying he looked for permission to forward the information to the Commissioner and he did not receive it?

Mr. Brian Purcell

This was in regard to the three dossiers of complaints.

Chairman

Yes.

Mr. Brian Purcell

Yes, we did. We wrote on perhaps five occasions to the solicitor requesting his permission to refer these dossiers to the Garda Commissioner because in order to make an informed choice regarding whether a section 42 or a section 102 inquiry would be taken, the Minister had to have something other than allegations. This is not in any way a reflection on Sergeant McCabe but when someone makes allegations, allegations are not facts. Establishing an inquiry either under section 102 or section 42 is a significant step to take so in that context, some response was required and the only person who would have been in a position to provide that response, other than Sergeant McCabe, would have been the Garda Commissioner.

While the point was not reached where a decision was to be made on holding an inquiry under section 42, and acknowledging fully the reality that Mr. Guerin did not find any material containing a specific analysis of that, the Department fully appreciated the existence of section 42 as a potential option but understood also the limitations of section 42. It had already been noted that in an inquiry under section 42, any information, document or thing provided by a person to that inquiry is not admissible in criminal proceedings. That contrasts sharply with an investigation by GSOC following a referral by the Minister of a matter under section 102 of the Act or in cases where GSOC was determined to carry out such an investigation because that can be a full criminal investigation.

There are other aspects of section 42 which, while not discussed in the report by Mr. Guerin, are important in understanding the potential for its use in inquiring into serious allegations of misconduct. Section 42 enables the Minister, with respect to any matter considered by him or her to be of public concern, to by order appoint a person to inquire into any aspect of the administration, operation, practice or procedure of An Garda Síochána or the conduct of its members and make a report to the Minister. On the face of it, that is a broad-ranging power.

Indeed, section 42 was amended by the Criminal Justice Act 2007 to extend its scope to the conduct of members and to provide for the compellability of witnesses, in that non-compliance by any person with a section 42 inquiry may be brought before the High Court and treated as contempt. Crucially however, there is no power to administer the oath to any person appearing before a section 42 inquiry, unlike, for example, inquiries under the Tribunals of Inquiry (Evidence) Acts or the Commissions of Investigation Act. This also is in contrast to the statutory predecessor of section 42, which was section 12 of the Dublin Police Act 1924, which was used in the inquiry into the death of Brian Rossiter that reported to the then Minister for Justice, Equality and Law Reform in 2007. The 1924 provision provided that evidence-----

Senator Denis O'Donovan

Chairman, may I raise a point of order?

Deputy Finian McGrath

Is the Secretary General talking down the clock here?

Mr. Brian Purcell

No.

Deputy Finian McGrath

Is this a strategy of talking down the clock?

Senator Denis O'Donovan

May I raise a point of order?

Chairman

No, you cannot.

Deputy Finian McGrath

No time for questions. He will not even answer the questions.

Chairman

Sorry, hold on please, Deputy.

Deputy Finian McGrath

It is not acceptable.

Chairman

I will ask the Deputy to leave the room if he persists.

Deputy Finian McGrath

I am not accepting this. It is not acceptable that a senior civil servant would appear before the committee and carry on like that.

Chairman

The Deputy will be obliged to leave the room.

Deputy Finian McGrath

Talking down the clock.

Chairman

No.

Deputy Finian McGrath

That is unacceptable.

Chairman

Senator Zappone has asked a question.

Deputy Finian McGrath

A few simple questions-----

Chairman

Please.

Deputy Finian McGrath

-----and the Secretary General also is costing the taxpayers more money-----

Chairman

Please, leave the room.

Deputy Finian McGrath

-----by this fudge and by hiding behind legislation.

Chairman

If the Deputy keeps interrupting, I will be obliged to ask him to leave.

Senator Denis O'Donovan

May I raise a point of order?

Chairman

Briefly.

Senator Denis O'Donovan

I seek direction from the Chairman. The Secretary General has given a statement that has been read into the record.. I perceive it to be most unusual that in each case where he either avoids an answer or gives an answer, there is a carefully prepared written script. Is this normal? If it is, it is a deviation from the normal rules. Why does he not answer viva voce, off his own bat?

Chairman

Okay. Senator Zappone has asked-----

Senator Denis O'Donovan

I ask the Chair to rule on that.

Deputy Pádraig Mac Lochlainn

It is a farce.

Chairman

No, one moment. Senator Zappone has-----

Deputy Pádraig Mac Lochlainn

With all due respect Chairman, this is farcical. There is a situation in which-----

Chairman

Please. I will suspend the meeting if members keep this up.

Deputy Pádraig Mac Lochlainn

-----there will be a commission of investigation into the Guerin report.

Senator Katherine Zappone

I have some questions to ask the Secretary General in respect of what he is saying. Moreover, I asked a question.

Chairman

Senator Zappone has questions to ask and the Deputy's turn will come.

Deputy Pádraig Mac Lochlainn

Okay, but it is absolutely farcical.

Chairman

Please. The Senator has questions to be answered. She asked the questions.

Deputy Pádraig Mac Lochlainn

While I have great respect for Senator Zappone, what has happened thus far is farcical.

Chairman

Does Senator Zappone wish to ask some further questions?

Senator Katherine Zappone

Yes, I would love to ask the Secretary General a couple of questions on what he already has said to date.

Deputy Finian McGrath

Not ten minute answers, please.

Senator Katherine Zappone

The first question pertains to whether I am correct in my understanding of some of the things the Secretary General has said. Effectively, my question asked why no investigation was undertaken in respect of section 8 of the regulation. I was not asking about an inquiry. First, is my understanding correct that the Secretary General was saying that as others were doing it, the Department did not have to? Second, am I correct in understanding that part of the Secretary General's answer to my question as to why the Department did not undertake an investigation in terms of an allegation against the Commissioner was that the Department did not undertake an investigation because the only way of finding out the answers here was to go to the Commissioner himself, even though the allegation was against the Commissioner? In light of the things the Secretary General is saying, my third question is whether he now regrets he did not undertake an investigation.

Chairman

There are three questions and I ask the Secretary General to be as brief as possible in responding to them.

Mr. Brian Purcell

Chairman, I made the point at the beginning that this is not the normal situation. I have outlined in detail the issues in respect of the Fennelly commission and what I am saying here is that even with regard to the Guerin report, the Government already has announced it is going to set up a commission of investigation into this and that is imminent. I believe the terms of reference will be decided shortly. This puts me in a very unusual position and I am trying to be helpful to the committee but I must be cognisant of the fact that with regard to questions I am answering, they will be seen by other people as evidence being given and in those circumstances-----

Senator Katherine Zappone

Mr. Purcell, the investigation has not been established. We are in the present moment-----

Chairman

Senator, through the Chair.

Mr. Brian Purcell

Senator, that is exactly what I said but-----

Senator Katherine Zappone

-----and the questions are now.

Mr. Brian Purcell

-----it is imminent.

Chairman

Through the Chair, please.

Mr. Brian Purcell

It is imminent but I must be careful. This is not the normal situation in which I, as Secretary General, would find myself in front of the Joint Committee on Justice, Defence and Equality or any other committee. This is not a normal situation. An investigation was carried out when the complaints were made to the confidential recipient. The Garda Commissioner would have had carried out an investigation into those complaints. Once that investigation was carried out, under the terms of the same set of regulations - I think it is section 10 - the Commissioner is then obliged to refer the allegations and the outcome to the Garda Síochána Ombudsman Commission, GSOC, for its consideration in accordance with agreements that are in place. On top of this, in this particular case something in the region of ten volumes of files were sent to the Director of Public Prosecutions, DPP, who directed no prosecution in respect of these cases. I have outlined this and have tried to be careful, not for reasons of running down the clock.

The position in respect of the Garda Commissioner is that an investigation is carried out by someone at chief superintendent level. It then is investigated by an assistant commissioner in the Garda and a further investigation is taken by a deputy commissioner. These investigations are endorsed by the Commissioner, who sends back a report and, as I said, at the same time it goes to the DPP. I referred earlier to the third crucial element of this. While I am not in any way saying that Mr. Guerin did not look at this, I am saying it is not covered, perhaps because for the reasons he outlined clearly in his report he did not have an opportunity to consider the perspective of the Garda Síochána Ombudsman Commission. However, GSOC would have had the allegations and would have had the report on what the Commissioner had done in respect of those allegations.

As for the Minister, I outlined how the relationships between the Garda Commissioner and the Minister, the Garda Commissioner and the Secretary General of the Department and the Garda Commissioner and the Department are based on trust. The Commissioner is responsible for the maintenance of order and discipline within the force. Neither the Department nor the Minister is an investigatory body. We do not micro-manage the Garda and the Commissioner has responsibility in law for the operation of the Garda. The Department and the Minister are faced with a situation if we have reports coming back from the Garda Commissioner regarding matters of serious concern such as these, where substantial investigations have been carried out by the Commissioner, where it has gone to the DPP and where we know it also has gone to GSOC. For the Minister then to make a decision to establish an investigation under section 102, in circumstances in which the Garda Commissioner is stating there is no breach, no criminal offences and no breach of discipline, effectively one would have a situation in which one could loosely say it is not a commission of investigation one needs but a new Commissioner. I refer to a situation in which one does not accept the bona fides of the Garda Commissioner, who is charged under statute with the management of the force, in circumstances where there have been three elements - I acknowledge I am repeating myself - namely, the Garda investigation, the files going to the DPP and the papers going to GSOC.

One should bear in mind that the Garda Síochána Ombudsman Commission is the independently appointed statutory body that has the remit of investigating complaints of malpractice in An Garda Síochána. As it would have had it, the assurance was there that it had seen the same allegations and had received the report from the Garda Commissioner. Had GSOC considered that something was wrong, it would have been in a position to take action. Consequently, in such circumstances, the Minister would have to decide he was not going to accept what the Garda Commissioner had told him, he would be ignoring the fact that the DPP had decided there was no criminal prosecution to be brought, and he would be ignoring the fact he was aware of the position in respect of the body charged with the investigation of complaints against members of the Garda, which is GSOC, not the Minister for Justice and Equality, not the Department of Justice and Equality and not the Secretary General of that Department.

Knowing that in those three sets of circumstances those matters had been investigated, the Minister then would have had to say that he did not accept what the Commissioner was saying - the Minister might not have to say that he does not accept what the DPP says because that only relates to criminal offences - and that he was ignoring the fact that the body that is statutorily appointed-----

Chairman

We have been over that.

Senator Katherine Zappone

On the last question I put to Mr. Purcell, I did not hear his answer but I did hear him give his answer again. In light of what Mr. Purcell has said to us, would it be safe to assume he does not regret that the Department did not undertake an investigation?

Mr. Brian Purcell

I hear what Senator Zappone is saying. What I am trying to say is, of course, with the benefit of hindsight I might say that, knowing what we know now, and when we have a situation where a commission of investigation is now being set up, maybe we would have looked at it differently. Every one of us can be wise with the benefit of hindsight. What I am trying to say, I suppose, is that I am entirely satisfied with the way this was viewed and the analysis that was done, despite the fact that Mr. Guerin SC said there were no findings of fact. Certainly, anyone reading the report might say he is pointing in a direction that a proper analysis of this was not done. What I am saying is that a proper analysis of this was done and, in the circumstances and given the limitations of the structures that were in place at the time, it was reasonable.

Chairman

Can I intervene there for a moment? When were these allegations received by the Department? Roughly, on what date?

Mr. Brian Purcell

I think it was in 2012. When it went to the Garda, these were investigated and it transpired that they were the same as allegations that had been made before that date and that had been investigated at a time prior to that.

Chairman

The report, at Chapter 19.88, states there was "an impasse" - Mr. Purcell mentioned that earlier - and it was resolved eventually by advice from the Office of the Attorney General, "but not until December 2013". What is that about?

Mr. Brian Purcell

That refers to another. Later on in 2012, separately to the confidential recipient, three further dossiers of allegations came to the Department. It was those dossiers that I was referring to when I mentioned that we were aware that Sergeant McCabe had issues with referring these matters to the Garda Síochána. Indeed, in some ways, and going back to Senator Zappone's question about whether we have regrets now, of course, as we stated, the procedures and structures in place for dealing with Garda whistleblowers were not fit for purpose. If one looks at it the whole idea of a confidential recipient receiving in confidence reports from a member of the Garda and then the confidential recipient having to refer it to the Garda Commissioner for investigation by other members of the Garda, while not in any way suggesting that they would not carry out a proper investigation, is, I suppose, what goes to the heart of the changes that are being considered and, indeed, that this committee is looking at. In hindsight, in response to Senator Zappone, none of us would feel that it is appropriate that investigations of complaints against a member of Garda by another member of the Garda can properly be carried out by carried out by the Garda itself. I think I have answered the question. Of course, we do have-----

Chairman

Can I intervene again? I am sorry, I am not clear on this point. Mr. Purcell stated that in September 2013 further allegations were made, this time to the Department, that there was an impasse as to what to do with these as to whether or not they could be sent on to the Commissioner, and that such impasse was not resolved until a letter was received from the Attorney General's office in December 2013, which was a full year and a bit away from the time they were received. That seems like a very long time.

Mr. Brian Purcell

There was correspondence - I think I mentioned this earlier - between the Department and the solicitors acting on behalf of Sergeant McCabe because it was through the solicitor that these three dossiers had come in. There was correspondence, going from the Department to the solicitor, asking for permission stating that we needed to refer these matters to the Garda Commissioner. There was also another issue in relation to when they were originally sent in, that they were saying there were records attached to the allegations, and despite what it said, there was nothing attached and we were inquiring about that. I think Mr. Guerin SC refers to that in his report.

Those letters were going to the solicitor seeking the permission. We felt that this was necessary because we were aware Sergeant McCabe, in other correspondence, had made clear the fact that he did not think it was appropriate. In fact, if I am correct, Costello & Co. - I cannot remember the individual solicitor's name - had stated in the original letter that came in with these complaints that they did not think it was appropriate that either the Garda Síochána or GSOC would investigate these matters and that is why they were calling for a section 42 investigation. They thought the matters were so serious that GSOC could not investigate them. However, the facts of the matter are that GSOC has the power to investigate anything up to and including deaths. Those are the circumstances.

Chairman

When did the Attorney General get involved in this, giving advice to the Department on these matters? How did that occur? Did the Department look for information?

Mr. Brian Purcell

Advice was sought from the Attorney General-----

Chairman

As to what to do with these?

Mr. Brian Purcell

-----as to what to do with these.

Chairman

At Chapter 19.89, the report states:

The advice was to forward the two booklets relating to the complaints of malpractice and corruption to the Minister "without further ado".

That was in December 2013. Does that mean that the Minister did not know about or had not seen these in all that time?

Mr. Brian Purcell

The three dossiers of complaints?

Chairman

Yes, that were received, as Mr. Purcell stated, in September 2012.

Mr. Brian Purcell

We were obviously aware of the dossiers.

Chairman

But the advice was to forward the two booklets relating to the complaints of malpractice and corruption to the Minister without further ado.

Mr. Brian Purcell

That was actually a mistake. The advice was not to refer them to the Minister without further ado. The advice was received was actually to refer them to the Garda Commissioner without further ado. That was actually a mistake made in the quotation in the Guerin report. It was not that they should be referred to the Minister without further ado. It was that they should be referred to the Garda Commissioner without further ado. That, as I stated, what went to the heart of the issue we had in regard to those where we were seeking to get the permission of Sergeant McCabe to send them to the Garda Commissioner.

Chairman

Were they sent to the Commissioner then?

Mr. Brian Purcell

They were not sent to the Commissioner because, in a considerable number of the allegations in the three dossiers, there was overlap between what was already being investigated. Some of the other allegations that were in the three dossiers had been investigated in the context of - the Chairman may recall in the report there was a reference to - an investigation by one of the Garda assistant commissioners, during which investigation two boxes of reports were-----

Chairman

I have just one other question. Mr. Guerin states he does not have a copy of the letter of advice from the Attorney General. Where is that? Has Mr. Purcell got that?

Mr. Brian Purcell

I cannot recall the detail. If the Chairman says that is that Mr. Guerin said, I have no reason to doubt it.

Chairman

Mr. Guerin states: "seeking advice, ... I do have a copy of the letter furnished by the office of the Attorney General, advising the Minister in relation to the matter".

Mr. Brian Purcell

Sorry, Mr. Guerin does or he does not?

Chairman

The letter given to the Minister. Is that available?

Mr. Brian Purcell

The advices from the Attorney General?

Chairman

Yes.

Mr. Brian Purcell

Obviously, we have the advices from the Attorney General.

Chairman

Can Mr. Purcell furnish to the committee?

Mr. Brian Purcell

Again, I am, at this stage-----

Chairman

Sorry, I know that.

Mr. Brian Purcell

I am trying to be as helpful as I possibly can, knowing that a commission of investigation will be coming up to examine all of these matters in some detail, to listen to the allegations and, presumably, to interview all of those involved, from Sergeant McCabe to myself. Given the nature of the allegations involved, I presume the commission of investigation that will be established here will have to interview everybody against whom an allegation is made.

As one will see from the report, some of the allegations are very serious.

Chairman

Was the Minister given the letter with the advice from the Office of the Attorney General at some stage before he resigned?

Mr. Brian Purcell

I do not actually believe the Minister was given that advice. However, this was tied up with circumstances in which papers had gone to the Garda Commissioner earlier. There was a problem in Sergeant McCabe's view in regard to that particular issue. I refer to the three dossiers in respect of which there was a significant overlap between some the earlier allegations, the two boxes of papers that were produced during the course of the assistant commissioner's investigation and a third dossier advising that the matter be sent back to Sergeant McCabe as it related to a civil case

Chairman

I want to go back to Senator Zappone.

Senator Katherine Zappone

Could Mr. Purcell state whether any written or oral advice was provided to the Minister by his departmental officials regarding the McCabe allegations?

Mr. Brian Purcell

As I said earlier, there were ongoing discussions with the Minister on these matters. It is probably important to remember, and I am sure the committee will recall, that while the allegations had been made there was a substantial overlap in terms of time with a significant number of allegations that were made by Sergeant McCabe about the fixed-charge notice processing system, or the penalty points issue, as it is referred to by some commentators. Occurring in parallel was the penalty points issue, in respect of which complaints were made and referred to the Garda. An investigation was set up by the Garda Commissioner and led by Assistant Commissioner O'Mahoney, who in turn produced what has become known as the O'Mahoney report into the penalty point allegations. In addition, another report was sought. The Garda Commissioner referred the report to the Garda Síochána professional standards unit to examine it in conjunction with the O'Mahoney report. It made a number of recommendations. The Minister, in addition to asking the Garda Commissioner to investigate the allegations made by Sergeant McCabe in order that he could be satisfied further that a proper and full investigation had been carried out, asked him to examine a random 1% of all cancellations. That was done by Assistant Commissioner O'Mahoney. Following on from that, the Minister referred the O'Mahoney report, the Garda Síochána professional standards unit report and all the relevant documentation to the Garda Síochána Inspectorate so it could examine them to determine whether there was a need for further recommendations. Subsequently, or around the same time, if I am not mistaken, the Minister referred the O'Mahoney report and the professional standards unit's report to this committee, which in turn sent it to the petitions committee, which held various hearings. These developments were occurring at the same time as the others. The report from the inspectorate was produced-----

Chairman

Let us go back to the question.

Mr. Brian Purcell

What I am saying is that during the time in question there was ongoing engagement with the Minister in regard to Sergeant McCabe. Much of it concerned the penalty points issue but we did have engagement on the allegations made by Sergeant McCabe on the other matters, which we have considered. Letters were sent from the Minister to the confidential recipient. That, in effect, shows that there was consultation.

I mentioned earlier that the report stated there was no analysis, and that the documentation was sparse. This was regarded by Mr. Guerin as an issue. To be honest, it would have been better had we kept minute details on the notes regarding any conversations that took place in that regard, but to say that there was none is not true. There was engagement, discussion and analysis. As I stated, I went into detail explaining the analysis of what was happening. I refer to the three points - the Garda Commissioner, GSOC itself and the Officer of the Director of Public Prosecutions.

Let me make one point that may not be strictly related. There was a lot of commentary that nothing happened with regard to these allegations and the penalty points issue but, as I have indicated, there were a significant number of developments. In fact, the report that was commissioned by the Minister from the Garda Inspectorate in one way proved just how independent the inspectorate was. The inspectorate produced a report that was very hard hitting and damning of the way the fixed-charge processing system functioned.

Senator Katherine Zappone

In my question, I was trying to ascertain whether Mr. Purcell believed or whether we can conclude that the Department provided sufficient advice to the Minister in regard to these issues. It sounds as if there was a lot of engagement on the investigation of gardaí by gardaí, with the involvement of GSOC, and that this might have been the main type of work and an analysis that was occurring as distinct from the provision of a sufficient amount of advice to the Minister from Mr. Purcell's Department.

Chairman

Is that true?

Mr. Brian Purcell

There was a considerable amount of engagement; the records may not have existed. Maybe we would have been better off had we had more engagement. Whether that would have resulted in anything different, I really do not know. Mr. Guerin has pointed out - I cannot remember the exact phrase used - that issues arose in regard to documentation. I am not for a moment suggesting Mr. Guerin is wrong in that regard. We have acknowledged that we would certainly have been better off had there been more documentation. It may even have been-----

Chairman

I am sorry for interrupting but another issue arises. It is stated in paragraph 19.80 of the Guerin report that the Garda Commissioner replied on 26 February 2013 to the Secretary General's letter on 20 December and that it was received in the Secretary General's office the following day. It is stated that the letter provided a detailed account of the outcome of the Garda investigation into the 12 incidents identified in the confidential report of 23 January 2012. These details are summarised. It is stated in the next paragraph that it is not apparent what further steps, if any, were taken on foot of the letter from the Garda Commissioner. Was the Minister shown that letter? If so, what was the outcome?

Mr. Brian Purcell

What letter?

Chairman

That of 26 February 2013. There is a lot about it in the report. An example is in paragraph 19.80. Was the letter forwarded to the Minister? The report states it is not apparent what further steps were taken on foot of that letter.

Mr. Brian Purcell

That letter was sought in the context of further correspondence that had come in from Sergeant McCabe. The letter effectively confirmed what had been in earlier correspondence. I revert to the fact that it covered the allegations that had been considered by the Garda Commissioner in the reports mentioned - the DPP - and had gone on to GSOC.

Chairman

What happened then? Was the Minister aware of or shown that letter?

Mr. Brian Purcell

I am not entirely sure whether the Minister actually saw the letter itself. However, the letter covered the various points that had already been made but gave a little more detail. There were ongoing conversations on the whole issue of allegations made by Sergeant McCabe. Some concerned penalty points and some concerned other matters. It might have been the case that the letter itself did not go directly to the Minister.

Chairman

The report also states a summary was not submitted and perhaps not prepared until late February 2014. It seems there was a long delay.

Deputy Marcella Corcoran Kennedy

I thank Mr. Purcell for attending the committee. The Minister for Justice and Equality indicated that she wanted to see reforms in the Department and the Secretary General said he had commissioned an internal report too. Does he see himself leading those reforms in the Department?

Mr. Brian Purcell

Yes, I do. The Government announced far-reaching reforms, the most far-reaching of which is the establishment of the policing authority, which will essentially be a watershed in how policing is delivered in the State. As I outlined earlier, there is also the open competition for the Garda Síochána Inspectorate and the extension of the Garda Síochána Ombudsman Commission’s remit to include the Garda Commissioner, as well as the removal of time limitations. The Protected Disclosures Bill will enable Garda members, whether they are whistleblowers or ordinary members, to make complaints to GSOC. These are substantial reforms.

While the commentary in the Guerin report will be considered in some detail by a commission of investigation, obviously there will be considerable discussion in terms of the witnesses appearing before that commission. Clearly, the reform programme that will be in place will be a highly challenging one. There will also be a review of how the Department of Justice and Equality is managed, performs and is administered. This has come in wake of the Guerin report. This will be a significantly challenging task. The Minister, and the Government from the Taoiseach down, have given a clear indication they are committed to what the Minister herself described as a sea change in the way policing is delivered.

Yes, I believe I am the right person. I am capable of dealing with this. Yes, I am fully committed to it.

Deputy Marcella Corcoran Kennedy

I am sure, like all Departments, the Department of Justice and Equality has enormous quantities of correspondence coming in. Mr. Purcell referred earlier to the fact there are several sections in the Department. What section was dealing with the information coming in from Sergeant McCabe and his solicitors? Who is heading up that section?

Mr. Brian Purcell

It would be the division that deals with the Garda. There is an assistant secretary, Mr. Michael Flahive, in charge of that particular division.

Deputy Marcella Corcoran Kennedy

When correspondence comes to the various sections, is there a process in place whereby someone makes a decision on what the Minister will or will not see? How is that arrived at? Is the Secretary General consulted on that? Is the Minister’s private secretary consulted on it?

Mr. Brian Purcell

It depends. In some instances, if correspondence is directed directly to the Minister, it would go through the Minister’s private office and onto a tracking system. Other correspondence might be referred directly to whatever division deals with it. In this instance, it was that particular division. It would then be dealt with and, in the normal course of events, whatever unfolds, it might or might not go to the Minister, depending on the issues involved. In some instances there could be oral briefings, or files would be sent up without oral briefings. It all depends on whatever the particular matter at hand would be.

Deputy Marcella Corcoran Kennedy

For example, in considering whether correspondence should be referred to GSOC, what kind of threshold is involved? How is that arrived at and who arrives at that?

Mr. Brian Purcell

The threshold is quite a high one. It is the section 102 inquiry I referred to earlier. The threshold is that the Minister must be satisfied that there may have been a criminal offence committed by a member of An Garda Síochána or a breach of discipline. That threshold is quite high. The ombudsman commission has exactly the same power to initiate a section 102 investigation. That is why I was explaining earlier that we were aware it had the documentation regarding the allegations, which gave some assurance that this matter had been considered by the independent body. The threshold is quite high. That was what I was referring to when I was responding to the Senator. For the Minister to take an allegation or allegations and refer it to GSOC for a section 102 investigation in circumstances in which the Garda Commissioner had already said there was nothing wrong and the DPP had said there was no criminal offence - that rules out the criminal offence element from the beginning - then the Minister would want to be absolutely satisfied that a serious offence was committed to discard the advice of the Garda Commissioner.

The Commissioner is the person in charge of the force and statutorily charged with maintaining its good order and discipline. One has to place some credence in a report by a Commissioner. If one does not believe the report the Commissioner gives, effectively one is saying one does not accept his word on it. There is a trust element there.

Deputy Marcella Corcoran Kennedy

The report stated there were no formal memorandums or advices furnished to the Minister in this case. Is that the norm?

Mr. Brian Purcell

It is not all that unusual for oral briefings to take place. The very fact that the Minister sent a letter to the confidential recipient meant he was aware of what was there. There would have been some discussions at the time. It is not always the case that a written submission will go up.

One of the outcomes of any situation such as this is that anyone, on seeing anything to do with the matter crossing their desk, will say, “Look at that. Would I normally send it up? Maybe not, but I am not taking any chances in this instance.” This leads to a massive increase in the number of things flying up the line. That is an understandable reaction to the situation in which we found ourselves of late regarding these matters.

Deputy Marcella Corcoran Kennedy

I note that several letters were issued in the name of the Minister’s private secretary. Are all of these coming from the Minister’s private secretary or are they coming from certain sections within the Department or even the Secretary General? How is that decision made?

Mr. Brian Purcell

Responses might go up to the Minister’s office and in some instances the Minister would sign them. In others, they could be signed by the private secretary.

Chairman

I think the question relates to letters emanating from a section which are signed off in the name of the private secretary but which the private secretary may not have seen at all.

Mr. Brian Purcell

No, any letter that would be signed by the private secretary would go up to the Minister's private office.

Chairman

Can letters be signed on behalf of the private secretary without his knowledge?

Mr. Brian Purcell

No.

Chairman

I think that was what the Deputy was asking.

Deputy Marcella Corcoran Kennedy

The other question I had concerned letters coming from the Commissioner. Would they normally come directly to Mr. Purcell or would they go to the Minister? I was curious about the letter that the Minister did not see and the fact that it went directly to Mr. Purcell rather than to the Minister. In what circumstances would that have been the norm? Is it usually the case that if an issue had been brought to Mr. Purcell's attention, he would be asked to bring it to the Minister's attention or would it go directly to the Minister?

Mr. Brian Purcell

If a letter comes in that is addressed to me, it would come directly to me and would generally be sent to whatever division of the Department would deal with that matter. If a letter came into me, that is the route it would go.

Deputy Marcella Corcoran Kennedy

I understand there was a time lag in respect of that item of correspondence. I am trying to find out the procedure in the Department for dealing with that.

Mr. Brian Purcell

Procedurally, the norm is that the Commissioner would write to the Secretary General of the Department.

Deputy Marcella Corcoran Kennedy

Acting on it is the key thing. How long does it take to act on it?

(Interruptions).

Chairman

Deputy McGrath is out of order. He will have his chance in a moment - all the time he wants.

Deputy Marcella Corcoran Kennedy

My question concerns what happens when something comes in that is addressed to Mr. Purcell but action is required, particularly if there is a request to bring it to the attention of the Minister. What is the procedure for dealing with that so that it gets to where it should be as quickly as possible? How is that decision made?

Mr. Brian Purcell

I am talking in general terms. If the letter comes to me for onward transmission to the Minister, the norm would be that if a response is to go out or if a matter is to be examined, it would not generally go to the Minister until someone had dealt with it and prepared whatever the response was going to be. If there was an issue that needed to be examined before a response could be issued, the norm would be that this would happen before it would go there, because otherwise a situation would inevitably arise where a letter comes in and the first thing is what is the response. That would be the normal procedure.

Chairman

Even from the Garda Commissioner?

Mr. Brian Purcell

If a letter comes in from the Garda Commissioner, it would generally be about a particular issue. If a response had to go out or a particular consideration had to be made in respect of it, regardless of what it was, that would generally be done beforehand. Something would happen with it unless, of course, something was just sent in solely for information or did not require anything to be done. One would get instances where something did come in that was solely for information, but generally the type of correspondence one would get would require further action depending on the exact circumstances.

Chairman

Can Mr. Purcell talk about the famous letter from the Commissioner where there was a major delay in bringing it to the Minister's attention even though it was specifically requested that it be brought to his attention?

Mr. Brian Purcell

That is covered specifically by the terms of reference of Fennelly commission. It is also specifically covered by the letter that Mr. Justice Fennelly sent to me that has been circulated to members of the committee. Despite what anyone might think, I have tried my best to answer questions.

Chairman

Has Deputy Corcoran Kennedy completed her questions?

Deputy Marcella Corcoran Kennedy

Yes.

Deputy Niall Collins

I thank our visitors for attending here today. Does Mr. Purcell appreciate that the position he has taken here today in respect of the answering of questions amounts to obstruction of the work of the Oireachtas and this committee?

Mr. Brian Purcell

At the beginning, I said-----

Deputy Finian McGrath

I would appreciate it if Mr. Purcell could give short answers because he is talking down the clock.

Chairman

The Deputy cannot keep interrupting.

Deputy Finian McGrath

He should get an award for "Yes Minister".

Chairman

Could the Deputy have a bit of respect for Deputy Collins as he is asking the questions?

Deputy Finian McGrath

"Yes" or "No" would be nice.

Chairman

If the Deputy wishes to leave the room, he should do so but he keeps interrupting. Deputy Collins has the right to ask questions and get a response so the Deputy should not interrupt.

Deputy Finian McGrath

Mr. Purcell is talking down the clock.

Chairman

Will the Deputy leave the room and let us get on with the business at hand?

Deputy Finian McGrath

I will not leave the room.

Chairman

I can ask him to leave if he keeps this up. He will get his chance in a moment.

Deputy Finian McGrath

I do not want to have to sit here and listen to ten minute answers to short questions.

Chairman

I will ask the Deputy to leave the room and he will have to do so. He will have to withdraw if I ask him to do so I ask him not to put me in that position.

Deputy Niall Collins

Mr. Purcell cited parallel inquiries. There are many examples in society where organs of the State carry out parallel inquiries. One could have the Revenue Commissioners and the Office of the Director of Corporate Enforcement or one could have the Garda and the Revenue Commissioners carrying out parallel inquiries. The position Mr. Purcell is taking today is not sustainable or credible because we saw in our terms of reference that the issue of the premature retirement and departure of the former Garda Commissioner would be front-loaded in the commission of investigation. That was not granted. The Houses of the Oireachtas also voted a budget of €2 million. Mr. Purcell could clear up all of this but he has taken this position. There are so many other factors feeding into the position he has taken. It is really untenable. Does he appreciate the significance or the gravity of that? I am not aware of any other Secretary General who has attended a committee and taken a position similar to that of Mr. Purcell.

Chairman

Could Mr. Purcell give a brief answer and we will move on?

Mr. Brian Purcell

Is Deputy Collins aware of any other incidents where a Secretary General has been brought in to be quizzed on issues that relate to the terms of reference of a commission of investigation set up under the Commissions of Investigation Act 2004?

Deputy Niall Collins

Is Mr. Purcell aware of any such incidents?

Mr. Brian Purcell

I am not.

Deputy Niall Collins

What we and the public find difficult to understand is why we cannot be told the truth because the truth in whatever fashion or manner it takes, unvarnished and all, is the truth. Nobody is asking Mr. Purcell to deviate from that.

Mr. Brian Purcell

Could I make something clear? I was going to say "with the greatest respect" but I do not like using that phrase. I am concerned that if someone asks why I cannot tell the truth, there is almost an implication that I am not telling the truth or am lying. I do not think the Deputy is doing this. I want to make it crystal clear to anybody who is listening or who reads the reports of this that this is most certainly not the case. I find myself in a very unusual position. The Deputy asked a question. I am not aware of any other Secretary General who has found themselves in this position. I am trying to be of as much assistance as possible. I do not want to be accused of running down the clock. I have said that I will come forward to this committee or anyone else at the appropriate time to discuss this but I do not agree that I am obstructing the committee. I find myself in a situation where-----

Chairman

We have been over this.

Deputy Niall Collins

My line of questioning is not implying that Mr. Purcell is telling anything but the truth.

Mr. Brian Purcell

I accept that.

Chairman

Can the Deputy ask a specific question?

Deputy Niall Collins

I have a couple of questions. We are all waiting in line. In arriving at the position he is maintaining here regarding what he is prepared to answer and what he is not prepared to answer, did Mr. Purcell consult, take advice from or correspond with the Taoiseach, his own Secretary General, Martin Fraser, or any officials within the Department of the Taoiseach?

Mr. Brian Purcell

I did not consult the Taoiseach or anyone in the Department of the Taoiseach regarding the position I am taking. I did not ask them for their advice on this.

Deputy Niall Collins

I ask the same question in respect of the new Minister.

Mr. Brian Purcell

I have not discussed my appearance at this committee with the new Minister.

Chairman

I will intervene to remind everyone of the advice I gave at the start of the meeting. Members should be aware that under the salient rulings of the Chair, members should not comment on, criticise or make charges against a person outside the Houses or an official by name in such a way as to make him or her identifiable.

Deputy Niall Collins

I have not done that.

Chairman

You did. You should not comment on or name somebody. I bring that ruling to everyone's attention.

Deputy Niall Collins

At the start of the meeting the Chairman put a number of questions to Mr. Purcell. His position is that he is not going to discuss his visit to residence of the former Commissioner, Martin Callinan. Did he have occasion to visit Mr. Callinan's residence on other business?

Mr. Brian Purcell

No.

Deputy Niall Collins

If the committee in its collective wisdom decided to invite the Taoiseach, the former Minister, Mr. Purcell and the Secretary General of the Department of the Taoiseach to appear before us together, would that be an issue for Mr. Purcell?

Mr. Brian Purcell

What the committee does in terms of who it invites or for what reasons is a matter for the committee. It is not a matter for me.

Deputy Niall Collins

I think it is something we will have to consider in time.

Chairman

We can consider that later. Does the Deputy have a question for Mr. Purcell?

Deputy Niall Collins

I have a number of questions and I am not delaying.

Chairman

I know.

Deputy Niall Collins

The committee will have to discuss the option of bringing before us the Taoiseach, the former Minister, the Secretary General at the Department of the Taoiseach and Mr. Purcell.

Chairman

We can discuss that at a future meeting.

Deputy Niall Collins

Let us have more information put into the public domain. The public deserves that.

Chairman

Let us proceed with the questions.

Deputy Niall Collins

In regard to the whistleblowers, what was Mr. Purcell's reaction to the McCabe-Connolly transcript and its contents? When did he become aware of it and what, if anything, did he do about it? I refer to the comments by Mr. Connolly regarding what the former Minister would seek to do to Sergeant McCabe.

Mr. Brian Purcell

I cannot remember precisely when I became aware of it. It was obviously whenever it first came out. The Deputy's question was on what I thought.

Deputy Niall Collins

What did he think and what action, if any, did he take when he became aware of it?

Mr. Brian Purcell

At some point I spoke to the confidential recipient about the issues that had been raised. I spoke to Oliver Connolly and I had a conversation with him about the particular issue. He expressed to me his concern about what had happened and the fact that he regarded the taping of a private telephone conversation as something that should not have happened.

Deputy Niall Collins

What about the contents of the transcript?

Mr. Brian Purcell

What did I think of the contents?

Deputy Niall Collins

It shone a light into an area of dysfunction.

Mr. Brian Purcell

When I heard what was being alleged as the transcript, I was very surprised because, based on my own knowledge of the then Minister, it did not sound to me like something he would have said to anyone. It did not in my mind represent an accurate description of the type of person the then Minister was or that he would say such things and from that point of view I was very surprised that anyone would have said that. I thought it inconceivable that the Minister would have had such a conversation with the confidential recipient and, in those circumstances, I would have been very surprised that the confidential recipient would say something like that.

Deputy Niall Collins

In Mr. Purcell's conversations with Mr. Connolly on the transcript, did he deny any of the contents or details of the transcript?

Mr. Brian Purcell

The conversation I had with him largely involved him setting out his own views. He said that he thought what had happened was wrong. He felt it was in breach of his constitutional rights that someone should tape a private conversation and then make it - whatever - if he did. I think he also said to me he thought it was unlikely that he would say anything like that. I told him that if he did not make those comments, he should say so. That was it.

Deputy Niall Collins

He did not deny the contents of it and he was more concerned about the fact that the conversation was recorded than by the substance of what was said. That is effectively what Mr. Purcell is saying.

Mr. Brian Purcell

The best way of describing it was that he did not confirm or deny that he said anything. That is probably the best description. It sounded to me like something that would have been totally out of character. I think at one point he may have said to me that he felt it was not something he would have said.

Chairman

A number of members still wish to contribute.

Deputy Niall Collins

Did this not set off alarm bells for Mr. Purcell? As Secretary General of the Department, when all this was being reported in the media and then this explosive transcript became known, can I be forgiven for thinking there was complete disregard and inertia? He may have thought Maurice McCabe dreamed up the entire conversation. From what he is telling us, Oliver Connolly did not deny anything.

Mr. Brian Purcell

He did not confirm it either. As I said, he did not confirm or deny. I think I told him at the time that I felt the lack of an explanation or clarification ran the risk of bringing the office of confidential recipient into disrepute but, again, he did not confirm or deny that he had said that. He told me he had met the-----

Deputy Niall Collins

Did it not dawn on Mr. Purcell this was a symptom of a wider problem?

Mr. Brian Purcell

As I said already, I found that what was being reported as the contents of the transcript - bearing in mind that my recollection is that it was not a taping or a transcript of anything the Minister said - was a taping of something that someone claimed the Minister had said. I spoke to the former Minister about it, and he told me that under no circumstances would he ever have made comments like that. I said already that, knowing the Minister as I did, there is no way, in my view, that he would have made the comments attributed to him.

There was no way the description being put forward in my mind represented anything the Minister might have said. The only precise thing I can remember from it is one of the quotes,"If he thinks you're doing that, you're finished," or something like it. There is no way he would have said anything like this and that is what I found very strange about it. I thought it was very strange; I could not see how that would have been the case.

Chairman

I am conscious that we are almost two hours into this discussion and we had a two and a half hour meeting earlier.

Deputy Finian McGrath

Who was given most of the time?

Chairman

I am anxious to move on.

Deputy Niall Collins

It is also reported - I think it is a fact - that there is a tape of the conversation, but I will move on.

Mr. Purcell said in his opening statement which was circulated to us in advance that he considered the Department had acted "in a reasonable manner" in dealing with the whistleblowers. How can he reconcile this with the Guerin report statement: "The deficiencies identified in the investigations considered in this review, if they were widely replicated, would be a challenge to public confidence in the criminal justice system itself"? He considers the Department acted reasonably, but he and Mr. Guerin are poles apart. Is this the Department circling the wagons? It is adopting a defence of the realm and now contesting the Guerin report. What Mr. Purcell maintains in his opening statement is at massive variance with the quotation taken from the report.

Mr. Brian Purcell

I explained in detail to Senator Katherine Zappone that in a situation where the Commissioner had reported on something and was followed by an assistant Commissioner and a deputy Commissioner, he endorsed that it had been investigated properly. There is then a situation where it goes to the Director of Public Prosecutions who says no prosecutions are warranted. One is assured by the knowledge that it also went to GSOC and that it had the opportunity to consider whether it felt further action was warranted in the circumstances. Bearing in mind what I said about the relationship between the Secretary General and the Commissioner or the Minister and the Commissioner, it is built on a level of trust. As I said in my opening remarks, it is a trust that has been built up over decades and a relationship that was built during a period when there was a real threat to the security of the State. There was necessarily a close relationship which, as I said, did not happen during the term of one single officeholder. That was how it had developed over a long period. When one has this, what I am saying is that the response was reasonable. I do not know, with the benefit of hindsight, whether we would do the same thing again. Again, a lot of boils down to the level of trust. However, I go back to what I said. The programme of reform will ensure this will not happen again because if one has a situation where the remit of GSOC is extended to cover complaints made by gardaí - it was only in particular circumstances that it could do so - with the enactment of the Protected Disclosures Bill 2013 which will establish GSOC as the authority that will deal with Garda whistleblowers, it will not arise again. My own belief is that the most far-reaching reform that will be introduced in the packages the Minister is driving forward is the establishment of an independent policing authority that will change on a permanent basis the relationship between the Garda Commissioner and gardaí and the Department and-or the Minister.

Deputy Niall Collins

On a number of occasions the new Minister has failed to express confidence in Mr. Purcell as Secretary General following publication of the Guerin report.

Chairman

That is completely irrelevant and I ask the Deputy not to go down that route. It is a question for the Minister.

Deputy Niall Collins

No, it is not and Mr. Purcell is happy to deal with it. He is outlining a reform and a work programme. Why does he believe the new Minister has failed to expressed confidence in him? Does he believe he can do his job properly in the absence of her doing so?

Mr. Brian Purcell

I can perfectly understand how a new Minister in the Department in the circumstances in which she has come in would not rush on her first day in office, if asked whether she could express full confidence in the Secretary General, to say "Yes." If she did, the Deputy would be the first to jump down her throat and ask, "On what basis are you saying that?" While I accept that it is not a comfortable position for me to be in, I can understand perfectly why the Minister would take that approach. If the roles were reversed and she was Secretary General, I would obviously want to see for myself whether I should have confidence. I am happy enough to answer that question. I am trying to be as of much assistance-----

Chairman

Of course.

Deputy Niall Collins

It was a reasonable question to ask.

Chairman

Agreed.

Deputy Finian McGrath

I am disappointed with the way the Secretary General has dealt with this issue because I do not accept he can hide behind legislation to avoid answering a few simple questions. As we move along, however, he is answering some of the questions asked. Did he consult today the former Minister on his position and what he would say to the committee?

Mr. Brian Purcell

No, I did not.

Deputy Finian McGrath

Mr. Purcell accepted the valid point raised by Deputy Niall Collins on the concerns of the new Minister for Justice and Equality, yet when I asked questions earlier, he seemed to be a little more tetchy. That is the point I was trying to make. People have genuine concerns about letters hanging around offices for two weeks without a Minister receiving them. How does Mr. Purcell respond to this?

Mr. Brian Purcell

As I said to Deputy Niall Collins, when the Minister arrived in the Department, in the circumstances in which she had arrived - it would not be the norm - I completely understand why in her first interview when she was asked that question, she was not in a position to make that judgment. If the roles were reversed, I would be in exactly the same position, but what the Deputy is asking me is different. He is talking about a particular letter. I have said that it is covered in the terms of reference and that I am trying my best to be as helpful as I possibly can be in very difficult circumstances - even in a set of circumstances in which there was no commission of investigation.

In fact if there was not a commission of investigation, as I said in my opening remarks, it would probably be easier in many ways just to simply answer the questions. However, it is not that I am answering the questions, or, as the Deputy believes, not answering the questions, because of some desire to obstruct the work of the committee - far from it. I think I have gone some considerable distance despite the concerns I expressed at the time in relation to the Guerin report. I have tried to answer the questions as openly and as fully as I possibly can in the circumstances. However, I have said what I have to say. I have told the committee my views in relation to matters covered by Mr. Justice Fennelly's commission of investigation and I am not sure what more I can add to that.

Chairman

We have been over that again and again.

Deputy Finian McGrath

The Secretary General's oral submission mentioned maintenance of services, the effectiveness of the justice system, governance and the performance of the Department. That is what I am talking about. I do not know why we are all defensive about what is going on here.

Chairman

Does the Deputy have a specific question?

Deputy Finian McGrath

I do not why you are accusing me of trying to-----

Chairman

Deputy-----

Deputy Finian McGrath

I just want to know what is going on in the Department of Justice and Equality and for the Secretary General to answer a few simple questions.

Chairman

Let me be helpful. Does the Deputy have a specific question at this point?

Deputy Finian McGrath

Yes. I have a few more specific questions.

Chairman

Could you ask them, please?

Deputy Finian McGrath

I welcome the Secretary General's apology to the whistleblowers. Many of us were concerned over why these whistleblowers were not taken seriously at the very beginning of the process by the Department of Justice and Equality. Why did this happen?

Mr. Brian Purcell

I have already said that if there is a belief that nothing was done or it was not taken seriously, that is not the case. I have already outlined in some considerable detail the various things that happened in relation to the whole penalty points issue for want of a better description: the establishment of the investigation by the assistant commissioner; the examination of an additional random 1% over and above the cases that were mentioned in the allegations that were being made; the referral then of the O'Mahoney report to the professional standards unit in the Garda Síochána; following on from that the former Minister's referral of the report to the Joint Committee on Justice, Defence and Equality; the Joint Committee on Justice, Defence and Equality then referring it to the Joint Committee on Public Service Oversight and Petitions; and the Minister then referring them to the Garda Síochána Inspectorate and the extensive and far-reaching report it carried out not only into the particular allegations but into the system itself. As I said, at one point during a discussion with Garda associations someone said the Garda Síochána Inspectorate was not independent. By God, when it produced that report, it certainly showed for all that it was independent.

I think that in itself was a very clear indication that the former Minister and everyone else took these allegations very seriously. Is it fair to say, and perhaps the Deputy will have a view on this, that nobody took those penalty points accusations seriously? One should just look at what happened with the penalty points and the various stages.

One other thing that I forgot to say was that the former Minister then referred them to GSOC and GSOC at the moment is looking at them. That is a clear indication of the level of seriousness with which the allegations were taken. To be honest, in my view it was taken very seriously.

Chairman

Let us have the next question.

Deputy Finian McGrath

I believe Mr. Purcell said or quoted someone as saying that the Department of Justice and Equality was not fit for purpose. Did I hear him say that in an earlier intervention?

Mr. Brian Purcell

No, the Deputy did not hear me say the Department of Justice and Equality was not fit for purpose.

Deputy Finian McGrath

Was it the reaction to the whistleblower?

Mr. Brian Purcell

What I said was that the structures in place-----

Deputy Finian McGrath

The structures in place to deal with whistleblowers were not fit for purpose.

Mr. Brian Purcell

-----the mechanisms in place for dealing with Garda whistleblowers were not fit for purpose. I was trying to explain in answering previous questions-----

Chairman

We have been over that. Next.

Deputy Finian McGrath

Regarding the management structures in the Department of Justice and Equality related to the Guerin report, where is Mr. Purcell's office located relative to that of the Minister? Is it 10 m away or on the other side of the building? Where exactly is it?

Mr. Brian Purcell

No, it is on the same floor of the same building.

Deputy Finian McGrath

How far away would Mr. Purcell be from the Minister's office? How many metres?

Mr. Brian Purcell

Across a corridor.

Chairman

Very close, so. Next question.

Deputy Finian McGrath

Does Mr. Purcell find it strange if his office is across the corridor that there is correspondence lying around for two weeks? The public find it very strange.

Mr. Brian Purcell

We have been here already.

Chairman

We have covered that already.

Deputy Finian McGrath

The public find that very strange.

Chairman

Okay. Next question.

Deputy Finian McGrath

As Secretary General, is Mr. Purcell in regular contact with the Commissioner and the Minister by phone or by text, both inside and outside office hours?

Mr. Brian Purcell

Yes, I am in regular contact with both the Commissioner and the Minister. That is part and parcel of the job. A lot of the contact would be within normal working hours, but there would be contact outside normal working hours.

Chairman

We covered that at the start.

Deputy Finian McGrath

Would Mr. Purcell be aware that the Minister for Justice and Equality in any Government would be in regular contact with the Garda Commissioner by text or by phone?

Mr. Brian Purcell

There would be some contact. There would not be as much contact between the Minister and the Commissioner as there would be between the Commissioner and me. I explained earlier on that the procedural relationship would be more between the Commissioner and the Secretary General.

Deputy Finian McGrath

So there would not be this extra close relationship between the Commissioner and the Minister for Justice and Equality.

Mr. Brian Purcell

No, as I said-----

Deputy Finian McGrath

The Commissioner would more frequently deal directly with the Secretary General.

Mr. Brian Purcell

The Commissioner would deal more with me than with the Minister of the day. That would be the way of it.

Deputy Finian McGrath

I spoke to a former Minister for Justice and Equality and if there was a letter going from a Commissioner, a text would be sent to notify the Minister to expect an urgent letter to arrive shortly. Would that not go on in Mr. Purcell's reign?

Mr. Brian Purcell

I do not know what any former Minister may have said to the Deputy. I am not sure what the question is to me.

Deputy Finian McGrath

I want to establish if there is a regular close relationship between the Commissioner and the Minister for Justice and Equality on major issues, not on regular small day-to-day stuff, but on serious issues.

Mr. Brian Purcell

No. I know where this is going and it is in relation to the issues that are covered by the terms of reference. I have said that the relationship is there with the Minister. On a procedural basis the contact is really between the Secretary General and the Minister. That is not to say that there would not be some contact. If the Deputy is asking me if the Commissioner would ring the Minister and say, "Listen, I've got something very urgent; I'm sending it through to you", that would be quite unusual. By the way, I have said I cannot comment on what a previous Minister for Justice and Equality would say. All I can do is base it on my own experience during my time as Secretary General.

Chairman

That is also in section 40 of the Act.

Deputy Finian McGrath

I wish to outline where I am going here. There seems to be a distance in relationships between the Secretary General, the Minister and the Commissioner, which regarding efficiency in the Department of Justice and Equality is not very professional. I think it is aloof. That leads on to my next question. Would Mr. Purcell describe his relationship with the former Minister for Justice and Equality as a close relationship or was there a coldness about the office?

Mr. Brian Purcell

The relationship between-----

Deputy Finian McGrath

I am referring to the relationship between Mr. Purcell and the former Minister for Justice and Equality. Would there have been a very close relationship?

Mr. Brian Purcell

It was a very good working relationship. There has to be a good working relationship between a Minister and a Secretary General. Again, all I can do is base it on my experience.

Deputy Finian McGrath

Based on his experience. Grand.

Chairman

Next question.

Mr. Brian Purcell

Again-----

Deputy Finian McGrath

Sorry, I interrupted. Mr. Purcell wants to finish that.

Mr. Brian Purcell

I do not think any inference should be drawn from what I would say my relationship with the Minister was to anything that might be-----

Chairman

Mr. Purcell stated it was a good working relationship procedurally.

Deputy Finian McGrath

A good working relationship.

Deputy Pádraig Mac Lochlainn

Does the Secretary General believe the prepared statement he read into the record today defending the Department's role with regard to the criticism in the Guerin report which led to the resignation of the Minister for Justice and Equality is consistent with his assertion that he does not want to prejudice the Fennelly commission by commenting on any of the issues?

Mr. Brian Purcell

I am not entirely sure what the question was.

Deputy Pádraig Mac Lochlainn

It is very clear.

Mr. Brian Purcell

If the question is whether I think by answering questions on Guerin-----

Deputy Pádraig Mac Lochlainn

I will rephrase the question. Does Mr. Purcell believe the detailed written statement which he prepared for today - his detailed rebuttal of the findings of the Guerin report which led to the resignation of a Minister for Justice and Equality - in defence of the Department's role in advance of a commission of investigation is consistent with his other arguments that he cannot comment on the matters to do with the resignation or retirement of the Garda Commissioner, or the correspondence issues he will not deal with, because he does not want to prejudice the Fennelly commission? How is it consistent to hold these two positions?

Mr. Brian Purcell

The opening remarks I made, in which I set out particular issues on matters covered in Mr. Guerin's report, refer solely to that particular report. I stated this in the letter I sent to the clerk to the committee, I mentioned it in my opening remarks and I said in turn that I had deep concerns about answering questions on the Guerin report. My view was that the difference with the Fennelly commission is that the commission itself was established and its terms of reference were set out, the judge is in place and he has commenced his work. He has written to me and, I believe, to others, so the work of Mr. Justice Fennelly's commission is already under way. The difference between this and the Guerin commission is that, while I still have concerns that by giving evidence here there is a potential that it in turn may prejudice or undermine the commission, it has not yet been established and its terms of reference have not been set out. It is a problem, and this is exactly what I meant when I spoke about the difficult position I am in when trying to deal with this. I have set out why I could not answer questions on Mr. Justice Fennelly's commission or anything relating to the terms of reference, and have tried to adopt as open, honest and frank a manner as I can in trying to facilitate the work of the committee. I am not sure whether the committee is trying to do this, but I almost get a sense that members are saying that because I answered questions on the Guerin report, I should answer them on the Fennelly commission. By asking about my approach in dealing with questions - and I do not accept the word "rebuttal", but people have different interpretations - I feel the committee is trying to use the fact that I have been as open-----

Deputy Pádraig Mac Lochlainn

Mr. Purcell had a prepared statement-----

Mr. Brian Purcell

-----as I can in dealing with the questions under Guerin-----

Chairman

I think we have got the point. I am anxious to move onto the next question.

Deputy Pádraig Mac Lochlainn

Does Mr. Purcell consider the fact that a Garda Commissioner and a Minister for Justice and Equality have resigned within a few months of each other to be extraordinary and of public interest?

Mr. Brian Purcell

Yes, it is certainly unusual, and obviously anything that is unusual is generally of interest to the public.

Deputy Pádraig Mac Lochlainn

Does Mr. Purcell think his role as Secretary General of the Department in the middle of all of the circumstances which led to these two resignations is of public interest?

Mr. Brian Purcell

I can see how it would be, yes.

Deputy Pádraig Mac Lochlainn

Does Mr. Purcell think his knowledge of all the facts which led to the resignation of the Garda Commissioners is of public interest?

Mr. Brian Purcell

I can see why it would be of interest to the public, yes.

Deputy Pádraig Mac Lochlainn

Does Mr. Purcell think his role in all of the circumstances in this report which led to the resignation of the Minister for Justice and Equality is of public interest?

Mr. Brian Purcell

Yes.

Deputy Pádraig Mac Lochlainn

Does Mr. Purcell think his performance today is in the public interest?

Mr. Brian Purcell

I am only repeating what I have already said-----

Chairman

We have got that already.

Mr. Brian Purcell

I have made clear my position on Mr. Justice Fennelly's commission and-----

Chairman

We have got that. I am anxious because time is moving on. We have had this point again and again. Next question.

Deputy Pádraig Mac Lochlainn

With reference to the Guerin report, the assistant secretary, Michael Flahive-----

Chairman

I read out the instruction that members should not comment on, make a charge against or name an official.

Deputy Pádraig Mac Lochlainn

There is no charge.

Chairman

Or comment on.

Deputy Pádraig Mac Lochlainn

The assistant secretary is referenced in the report a number of times. Does Mr. Purcell think it would have been useful if he were here today to answer questions also?

Mr. Brian Purcell

Referenced in the-----

Deputy Pádraig Mac Lochlainn

In the Guerin report.

Mr. Brian Purcell

I am here. I am answering the questions.

Deputy Pádraig Mac Lochlainn

Would it have been useful if he were here with Mr. Purcell?

Mr. Brian Purcell

I am here. I am answering the questions. I was invited to come here and I have come, despite, as I stated, deep concerns-----

Chairman

We appreciate that.

Mr. Brian Purcell

I have acknowledged from the get-go that the committee has a legitimate interest in everything that is going on. I made it clear-----

Chairman

We appreciate that.

Mr. Brian Purcell

-----at the beginning that the only issue as far as I am concerned regarding answering any questions is whether they relate to Fennelly or Guerin. The issue is not whether or not I will answer them; it is timing in the context of other-----

Deputy Pádraig Mac Lochlainn

When the person is appointed to oversee the commission of investigation to examine the Guerin report, does Mr. Purcell think he will have prejudiced the findings by his deliberations today?

Mr. Brian Purcell

I certainly do have concerns about this, which is why I outlined at the beginning-----

Deputy Pádraig Mac Lochlainn

I will rephrase the question. Does Mr. Purcell think his prepared statement, which he prepared in advance of questions, will have prejudiced the potential findings of the commission of investigation? This is his line of argument.

Mr. Brian Purcell

I am worried about it, yes. I explained the reasoning. I may be mistaken in answering questions on the Guerin report. It may be wrong for me to do that.

Chairman

No commission has been established yet.

Mr. Brian Purcell

I have outlined the reasons I thought there was a difference between the two. In the interests of trying to be co-operative and helpful to the very important work being carried out by the committee I have tried to be as open as possible.

Deputy Pádraig Mac Lochlainn

I do not think Mr. Purcell regards our work as important at all.

Mr. Brian Purcell

Sorry?

Chairman

Are we finished?

Deputy Pádraig Mac Lochlainn

No, I am not finished.

Chairman

Next question, please.

Deputy Pádraig Mac Lochlainn

According to the Guerin report, the first correspondence came from the Department of Justice and Equality on 11 May 2009, then led by the former Minister, Dermot Ahern. What was Mr. Purcell's role in the Department at that stage?

Mr. Brian Purcell

Before I answer this question, I must say something. At the tail end of the last engagement Deputy Mac Lochlainn stated that he felt I did not believe the work of this committee was important. I say straight to the Deputy that he is wrong about this. I would like the Chairman and other members of the committee to understand what Deputy Mac Lochlainn has said about my views, and it is interesting that he can speak for me-----

Deputy Pádraig Mac Lochlainn

I would like Mr. Purcell to answer the question, please.

Chairman

In the interests of moving this on, will everybody please speak through the Chair, ask questions as briefly as possible, and answer questions? Time is moving on and I will call a halt to this at 7.30 p.m.

Deputy Pádraig Mac Lochlainn

There is a question to be answered.

Mr. Brian Purcell

I will answer Deputy Mac Lochlainn's question. At the time in 2009-----

Deputy Pádraig Mac Lochlainn

May 2009.

Mr. Brian Purcell

-----I was head of the Prison Service.

Chairman

I thank Mr. Purcell. Is that it?

Deputy Pádraig Mac Lochlainn

That will do.

Senator Denis O'Donovan

I have just a couple of questions. Following on from Deputy Finian McGrath, am I correct in believing that the Minister, Deputy Varadkar, recently stated that the Department of Justice and Equality was not fit for purpose? If that is the case, is Mr. Purcell concerned about such remarks by a senior Minister? How can they be addressed?

Chairman

Does Mr. Purcell wish to answer?

Mr. Brian Purcell

I have no pride - I can answer that question. I do not believe that the Department is not fit for purpose. We have acknowledged, and I am acknowledging now, that the structures that were in place for dealing with Garda whistleblowers were not fit for purpose. As part of the reforms that the Minister, Deputy Fitzgerald, is introducing, the extension of the remit of the Garda Síochána Ombudsman Commission, GSOC, and the Protected Disclosures Bill will address that issue. I cannot see the logic in having a system in which someone goes to a confidential recipient with a problem, only for the confidential recipient to have to have it investigated. In other words, gardaí investigating gardaí. It is far from an ideal situation. It is not fit for purpose.

I do not accept the description, even if it was from the Minister, Deputy Varadkar. I did not hear what he said, but I saw the reports. I do not accept that the Department of Justice and Equality is not fit for purpose. I might briefly say why.

Chairman

Briefly, please.

Mr. Brian Purcell

We cover a wide range of areas. We are one of the largest Departments. In fact, we perhaps cover a broader range and remit than any other Department.

Chairman

We are very aware of that at this committee. Does Senator O'Donovan have a further question?

Senator Denis O'Donovan

Mr. Purcell outlined the position and I do not want to go over it,-----

Chairman

Please do not.

Senator Denis O'Donovan

-----but what constitutional or legislative authority entitles him not to answer the important questions on what happened with regard to demise of former Garda Commissioner Callinan? I am puzzled by Mr. Purcell's stance and am slow to accept it. What legislative or constitutional prohibition is preventing him from giving us a factual account of what happened and telling the truth? I am not saying he is not telling the truth, but I have great reservations about his hiding behind or giving precedence to a commission that is not yet established while giving second-class treatment to the committee through our Chairman.

Mr. Brian Purcell

Briefly, let me say that I am not hiding behind anything. I am expressing my genuine concern that, if I answer questions and give witness in public to issues that are covered by the terms of reference of the Fennelly commission, I will potentially be undermining or prejudicing the work of that commission. In addition, I would be unfair on myself, in the sense that I am giving evidence in public unlike other witnesses who will appear before that commission. I will appear before it as well, as the committee has seen from the letter that Mr. Justice Fennelly sent to me. It is unfair on me, although that is not my primary concern. Rather, it is the potential to undermine or prejudice the work of the commission. It is nothing else. In my discussion with Deputy Mac Lochlainn, while he might not have intended to do so, it sounded like he was saying that, by trying to be helpful on the Guerin report, I was effectively undermining my own position in respect of Fennelly when it was-----

Chairman

We have got that.

Senator Denis O'Donovan

This is important. By way of clarification, am I correct in saying that, apart from Mr. Purcell's reservations and concerns, which I accept but doubt from a legal point of view, there is no actual statutory or constitutional prohibition on him outlining the information today?

Mr. Brian Purcell

The Commissions of Investigation Act 2004, under which the Fennelly commission was set up, is clear on this. I also mentioned the standing orders, although I do not have them in front of me.

Senator Denis O'Donovan

Has Mr. Purcell been interviewed by Mr. Justice Cooke regarding the Garda Síochána Ombudsman Commission, GSOC, bugging?

Chairman

That is a totally different matter.

Mr. Brian Purcell

I do not mind answering. No, I have not.

Senator Denis O'Donovan

I have a final point. Mr. Purcell mentioned the various avenues of investigation in terms of the whistleblower situation, the O'Mahoney report, which has been discredited, and the files sent to the Director of Public Prosecutions, DPP. Is it not fair to say that the DPP would only recommend a criminal prosecution where the level of evidence was beyond reasonable doubt? Surely someone in Mr. Purcell's Department or with the former Minister or former Garda Commissioner should have raised concerns that, leaving aside the question of a criminal prosecution arising from the issues raised by the whistleblowers, there was a significant lack of action on the part of someone in the Department, the former Minister or the former Garda Commissioner. The DPP would only recommend prosecution where a high bar was met, namely, it could lead to a successful conviction.

Mr. Brian Purcell

I have covered this matter already to some extent, but I will recap. I will start by saying that we acted reasonably, given the structures in place at the time. The structures for dealing with whistleblowers were not adequate. For this reason, they are being changed as part of the reforms.

If one examined any of these cases in isolation, one might view it in the way being described by the Senator, but the matters had been investigated by the Garda and considered by the DPP from the criminal offence perspective. Crucially, they were sent to GSOC under the terms of the relevant section in the confidential recipient regulations. When the cases are examined together, the action taken was not unreasonable. As I made clear, we now know that the structures in place for dealing with Garda whistleblowers were not adequate or fit for purpose.

I might make the point that I am only referring to the Garda because that is the matter being discussed, but it is probably fair to say that structures elsewhere for dealing with whistleblowers, be they in the Civil Service, the public sector or the private sector, are not adequate. This is one of the reasons for the Minister, Deputy Howlin, introducing legislation to deal with the situation.

Chairman

Unfortunately, I must speak in the Chamber at 7.40 p.m. I must excuse myself.

Senator Martin Conway

I have a question.

Chairman

I know, but Deputy McGrath wishes to contribute. I suggest that Senator O'Donovan take the Chair in the interim. Is that agreed? Agreed. I apologise again.

Mr. Brian Purcell

That is fine.

Senator Denis O'Donovan took the Chair.

Acting Chairman (Senator Denis O'Donovan)

Did Senator Conway wish to ask a question?

Senator Martin Conway

Indeed. I have listened in amazement to Mr. Purcell's testimonial. I appreciate the time he has given. My question is on a letter, although not the one subject to the upcoming inquiry. Are there other letters of public interest that were significantly delayed in being brought to the Minister?

Acting Chairman (Senator Denis O'Donovan)

Can the Senator be more specific?

Senator Martin Conway

I am led to believe that there are. I am asking the Secretary General if he can enlighten the committee in that regard. My understanding is that the letters in question are not subject to the terms of reference of the Fennelly commission of investigation.

Mr. Brian Purcell

If the Senator could tell me what exactly he is asking about I could perhaps respond.

Senator Martin Conway

I am asking if there are other letters that would be of significant public interest and would indicate that there was a delay in the matter being brought to the former Minister's attention. With respect, the Secretary General should know if there are letters that are of significant public interest and would indicate that there was a delay in the issue being brought to the attention of the former Minister.

Acting Chairman (Senator Denis O'Donovan)

Is the Senator saying that the letters would have some influence on the Fennelly investigation?

Senator Martin Conway

We are not allowed to speak about the Fennelly investigation. I am asking if there are other letters that should have been brought to the former Minister's attention sooner than they were prior to this particular scenario.

Acting Chairman (Senator Denis O'Donovan)

That is a very general question.

Senator Martin Conway

I am looking for an answer to it.

Mr. Brian Purcell

The volume of correspondence that comes the Department is huge.

Senator Martin Conway

I am not referring to regular run-of-the-mill correspondence, I am referring to-----

Acting Chairman (Senator Denis O'Donovan)

Senator Conway should give the Secretary General an opportunity to respond.

Mr. Brian Purcell

The volume of correspondence and e-mails that comes through the Department is huge. I could say there are no such letters but I would be leaving myself wide open to someone coming up with something. The Senator would need to be more specific.

Senator Martin Conway

Was there a period when the former Minister was ill or unavailable and correspondence that should have been brought to his attention was not?

Acting Chairman (Senator Denis O'Donovan)

Again, Senator Conway, that is a very general question.

Mr. Brian Purcell

I am not trying to be obstructive. It is possible that if someone is out of the office owing to illness that there would be a delay in correspondence or anything else being brought to their attention. I am aware that there was a period when the former Minister was absent owing to illness. I am sure he would have no problem with my saying that. The Senator will be aware that when a person is absent from the office due to illness nobody wants to disrupt their recovery by contacting them unless absolute necessary. People would naturally hold on to information until such time as the person returns to the office.

Senator Martin Conway

I appreciate I am probably over time but I have one final question. Who would make the decision as to whether something was of significant importance that the Minister should be made aware of it, even if ill?

Mr. Brian Purcell

It depends on what it is. If it was important enough to have come to my attention and I thought the Minister needed to be made aware of it, I would do it. As I mentioned earlier, much of the time letters received by the Department are distributed to various divisions for preparation of responses. Procedurally that is how they would be dealt with.

Senator Martin Conway

Thank you.

Deputy Michael McNamara

Throughout the Guerin report there are references to correspondence received from Sergeant McCabe's solicitors between September 2012 to May 2013. This information is listed under the heading, Sergeant McCabe's Solicitor Resumes Direct Contact with the Department. Obviously, various allegations were made by Sergeant McCabe in that correspondence. Can Mr. Purcell say why the correspondence was so protracted from September 2012 to My 2013?

Mr. Brian Purcell

I covered this earlier. The correspondence was protracted because there had been issues with Sergeant McCabe not wanting matters to be brought to the attention of the Garda Síochána. In this particular instance, the solicitor acting on behalf of Sergeant McCabe stated specifically in the correspondence that he felt the matter was so important it should not be investigated by An Garda Síochána or the Garda Síochána Ombudsman Commission. As I pointed out earlier and as the Deputy will be aware, GSOC is the independent statutory body charged with the remit of investigating any elements of wrongdoing by members of the Garda Síochána up to and including deaths. Therefore, it cannot be the case that something is so important that it cannot be investigated by GSOC. There was a real concern, because of concerns expressed by Sergeant McCabe, that if we were to send the material to the Garda Síochána that in itself would become an issue. It was for that reason that there was protracted correspondence. Mr. Guerin commented in his report that he did not know why no response was given. I do not know either why no response was given but no response to the question we asked was given. While I cannot be exactly certain I think on five occasions we wrote to the solicitor asking for this to happen.

Deputy Michael McNamara

Was the initial letter received in September 2012 from Sergeant McCabe's solicitor, to which several documents were enclosed, brought to the attention of the former Minister and, if so, did he do anything with it or just sit on it?

Mr. Brian Purcell

I also covered this point earlier. The initial letter contained a reference to some records being attached but there were no records attached. That was one of the issues queried. The records which it was stated in the letter were being submitted were never sent in despite requests for them. I said earlier that there was an overlap between the material submitted at that stage via the solicitor with some of the other allegations and there was also an overlap between the material submitted and material that had been investigated by, I think, the assistant commissioner or, perhaps, deputy commissioner in the context of the internal Garda investigation to which I referred at length when the Deputy was not here. In that context, all of this was going on during the period concerned. I also explained earlier that none of this happened in isolation. At the same time, there was an extensive process in place in regard to what has become known as the penalty points issue, which involved numerous reports and referrals to the Garda professional standard unit, this committee, the petitions committee, the Garda Síochána Inspectorate and, ultimately, GSOC. There was ongoing engagement on that front.

The issues relating to Sergeant McCabe all occurred at a parallel time to the issue with the penalty points. I made that point earlier just to emphasise that it was not the case that nothing was happening with regard to Sergeant McCabe during that period.

Acting Chairman (Senator Denis O'Donovan)

Many of those points have already been covered, Deputy. I do not wish to stymie your questions but it is probably a little unfair on Mr. Purcell to have to answer the same questions.

Deputy Michael McNamara

I appreciate that and I apologise to Mr. Purcell. In the ordinary course of events I would have been present throughout the meeting.

Senator Martin Conway

It is still good to get a refresher.

Deputy Michael McNamara

I try to attend committee meetings in their entirety. There was a parliamentary party meeting today of an exceptional nature-----

Mr. Brian Purcell

I understand.

Deputy Michael McNamara

-----but that is not of Mr. Purcell's making.

Chairman (Senator Denis O'Donovan)

There are extraordinary matters taking place as well. I do not wish to stymie your questions, Deputy McNamara. Please proceed.

Deputy Michael McNamara

The report refers to an impasse arising out of the correspondence being resolved by advice from the Office of the Attorney General. Why was that advice obtained? If Mr. Purcell dealt with that earlier, there is no need to answer but if he has not, I would appreciate an answer. Second, there is a reference to the advice obtained in paragraph 19.89. At the same time Mr. Guerin says that he has not seen the advices. It is a little unusual that he refers to the advices and characterises them without having seen them. Does he fairly characterise it? The more important issue is why those advices were sought.

Mr. Brian Purcell

I think he did see the advices.

Deputy Michael McNamara

I am sorry, he saw the advices but not the copy of the letter seeking the advices. Why were those advices sought in the first instance?

Mr. Brian Purcell

I think they were sought because we had become concerned. There was a concern that we were not getting anywhere in terms of the engagement with the solicitor for whatever reason. I do not know the answer to that, but we became concerned about it. There is a point I made earlier which I will repeat again. In that particular section of the report relating to the advice, there is a mistake in what Mr. Guerin referred to. He was referring to the advice being given that the material or the documentation should be sent without further ado, which I think is the phrase used, to the Minister, whereas in fact what was in the advice was that it should be sent to the Garda Commissioner. I made that point earlier just to clarify things.

Deputy Michael McNamara

Is that an error in Mr. Guerin's report?

Mr. Brian Purcell

I would say it is probably just a typographical error, but I would not regard it as an error.

Chairman (Senator Denis O'Donovan)

In other words the report should have stated the Garda Commissioner rather than the Minister.

Mr. Brian Purcell

Yes. The advice was that the documentation should be forwarded to the Garda Commissioner.

Deputy Michael McNamara

Is Mr. Purcell in a position to put on the record the entire letter received from the Attorney General's office?

Mr. Brian Purcell

I covered this earlier.

Deputy Michael McNamara

I apologise.

Mr. Brian Purcell

I explained the circumstances and I will not go into the detail of the concerns I have with a pending commission of investigation. As the other committee members will confirm, this has been dealt with extensively. Despite my concerns about a commission of investigation coming up and the fact that I am here as a witness, I have tried to be as open as possible and tried to be as consistent as possible to the point, as I also said, that I might well be wrong in being as open as I have been with regard to these matters. I certainly hope it does not come back to haunt me from that perspective. However, I asked at the beginning to be given some leeway. I said I would try to answer all of the questions in so far as I can, and I have done that. I think I have been as open and forthcoming as I can be.

Deputy Michael McNamara

So the answer is "No", Mr. Purcell is not in a position to put the entire-----

Mr. Brian Purcell

No. With a commission of investigation about to take place, legal advice and so forth-----

Acting Chairman (Senator Denis O'Donovan)

Just to follow that and by way of clarification, would you expect in the normal course of events that when the commission of investigation is up and running under the terms of reference that are set out, this advice from the Attorney General will be made available to the commission?

Mr. Brian Purcell

Absolutely. The commission will be entitled to get everything and anything we have that it wants.

Deputy Michael McNamara

Presumably it will be published then.

Mr. Brian Purcell

I presume so.

Deputy Michael McNamara

Was the Minister immediately furnished with the letter of 18 December 2013 from the Attorney General's office?

Mr. Brian Purcell

No, I do not think he was furnished with that immediately. One of the issues in that regard was that we had already had the situation where matters had been investigated by the Garda. The difficulty and what we had been trying to resolve was the fact that Sergeant McCabe had a problem, and his solicitor had already indicated that he also had a problem, with this going to the Garda, but the advice was to send it to the Garda. To some extent events overtook what was happening. The Deputy might recall that the advice was received just before Christmas and from January on we were into the run of appearances by the Garda Commissioner and Sergeant McCabe at the Committee of Public Accounts, then we were almost straight into the allegations of the bugging of the Garda Síochána Ombudsman Commission headquarters and everything that went with that and the establishment of the Cook report. Then there was the inspectorate report and allegations being made and given to Deputy Martin. There was all of that. Essentially, events overtook what was happening.

There had been considerable overlap, as I described earlier, but I suppose events overtook it.

Deputy Michael McNamara

Mr. Purcell said the Minister was not immediately furnished with the letter of 18 December. When was he furnished with the letter?

Mr. Brian Purcell

To be honest, I am not sure that the Minister was given that letter from the Attorney General's office. As I said, the advice was that the material should be sent to the Garda Commissioner. Everyone was aware there were issues here relating to this, and that it had been the subject of the protracted correspondence.

Deputy Michael McNamara

He might never have received the letter.

Mr. Brian Purcell

I do not think he did.

Deputy Michael McNamara

Mr. Purcell referred to it as the letter from the Attorney General's office. Was it from the Attorney General or from an official in the office?

Mr. Brian Purcell

I am certain it was not. It was from one of the officials in the Attorney General's office.

Deputy Michael McNamara

Before that letter from the Attorney General's office, what materials were furnished to that office at the time the advices were sought and what, if any, steps were advised to be taken on foot of that?

Mr. Brian Purcell

I am not entirely sure what was furnished to the Attorney General's office. I think, in fact, the advice may have been requested through a telephone call that may have been made at the time.

Deputy Michael McNamara

This is all about whether or not there was a statutory inquiry and whether he delayed in holding a statutory inquiry. Was advice ever given that there should have been a statutory inquiry?

Mr. Brian Purcell

Advice given that there should have been a statutory inquiry?

Deputy Michael McNamara

Yes, prior to the letter of 18 December, which Mr. Purcell said was not furnished to the Minister.

Mr. Brian Purcell

No. Earlier I went into some detail explaining the situation relating to sections 102 and 42. The simple answer to the Deputy's question is, "I do not think so".

Acting Chairman (Senator Denis O'Donovan)

In fairness, Mr. Purcell has been here for almost three hours. We were due to finish at 7.30 p.m.

Deputy Michael McNamara

I greatly appreciate Mr. Purcell's indulgence.

Acting Chairman (Senator Denis O'Donovan)

It is probably frustrating for him that he must answer the same questions.

Deputy Michael McNamara

It is also frustrating for me as a public representative that I could not be here for the entire meeting. There were exceptional circumstances.

Acting Chairman (Senator O'Donovan)

I understand.

Deputy Michael McNamara

Mr. Purcell said that after Christmas we were into the whole crisis.

Was the letter of 26 February 2013, which is referenced in paragraph 19.80, furnished to the former Minister for Justice and Equality?

Mr. Brian Purcell

Again, I have been through this in some detail. The letter that came in on 27 February just gave a bit more detail in regard to the issues that had been investigated by gardaí. I went into considerable detail explaining how the analysis of the issues was such that we knew the situation had been investigated by gardaí - by a chief superintendent at an early stage, at a later stage by an assistant commissioner and subsequently by a deputy commissioner. The investigations had been endorsed by the Commissioner who had written to the Minister and in turn, the Minister had written back. The ten volumes of files were sent to the DPP's office and that office took a decision not to prosecute. One of the things I mentioned earlier was a crucial point that was not covered in Mr. Guerin's report because, as he outlined in his report, he did not have the GSOC perspective on what happened, namely, that under the confidential recipient regulations of 2007, there is a requirement for any complaints-allegations that are referred by the confidential recipient to the Garda Síochána to be referred to GSOC, as well as the response to those allegations or complaints. I use the word "crucial" in this regard because that gave an assurance that not only had it been investigated by gardaí and been sent to the DPP, it had also gone to the one body that has the independent statutory remit for investigating complaints about gardaí. It was in that context that the whole thing was proceeding. As I said, that was the reasoning behind this.

Deputy Michael McNamara

I appreciate that Mr. Purcell dealt with this earlier and has very kindly dealt with it again just now. He said that the letter of 18 December was not furnished to the Minister but specifically, was the letter of 26 February furnished to the Minister at the time?

Mr. Brian Purcell

I cannot recall. It may not have been furnished to the Minister but what was in it was further detail that related to the earlier correspondence that, in turn, related to the earlier investigations that had been conducted by gardaí, the DPP and which had been sent on to GSOC.

Acting Chairman (Senator Denis O'Donovan)

In fairness to Mr. Purcell, he has said at least twice already, in response to the accusation that nothing was being done, that a series of things were going on, some of them overlapping - including the O'Mahoney report, the GSOC investigation and so forth. There was a lot happening and Mr. Purcell clarified that point earlier. The issue was not lying idle or being covered up. I ask Deputy McNamara to conclude as we are running out of time.

Deputy Michael McNamara

I do not know how Departments operate and this meeting is providing an interesting insight into that. Is it normal that such letters would not be furnished to a Minister in the context of the volume of correspondence coming through? Is it normal that letters from the Attorney General or the Garda Commissioner would not be furnished to the Minister?

Mr. Brian Purcell

There is certainly an issue with the volume of correspondence coming through. It is the case, as I mentioned earlier, that sometimes briefings are given orally to Ministers about particular matters. There would not always be a trail although, as I said earlier, one of the side effects or consequences of everything that has happened is that there is and will be a significantly-increased volume of things going to the Minister. People are asking "should that go up?" and are not taking a chance and sending things up the line. Some things would go through to the Minister while other things would not. Sometimes there are oral briefings and other times not. Occasionally, it must be said, sometimes mistakes are made. I am not saying that sometimes it does not happen that something should have gone on but did not go. There can be any number of reasons why something would not go.

Deputy Michael McNamara

Mr. Purcell mentioned oral briefings which is interesting because Mr. Guerin's report focuses very much on written evidence, when letters and written files were furnished and so forth. Is much of this dealt with by way of oral discussion and briefings rather than extensively written instructions, correspondence and so forth?

Mr. Brian Purcell

Sometimes it is. As I was saying earlier, this ran in parallel with the whole penalty points issue. That was a very big issue that was going on in parallel to all of this so there would have been discussions internally in regard to what was happening with the various allegations made by Sergeant McCabe. It was not the case that the particular set of allegations we are now discussing were there, in isolation. There were other things going on in regard to Sergeant McCabe, particularly the penalty points issue. Sergeant McCabe and the allegations made by him were very much a live issue. However, I am not saying that the letter to which the Deputy is referring went to the Minister; I actually do not think it did go. What I am trying to do here is to set the context and explain that the particular contents of that letter referred back to the investigation that was carried out at an earlier stage which was the subject of correspondence, was examined by the DPP and was sent on to GSOC. I must make it clear that it was not sent by us to GSOC. Under a section in the confidential recipient regulations, there was a requirement for the Garda Commissioner to refer the documentation to GSOC. I am just trying to explain the circumstances.

Deputy Michael McNamara

In view of that context and the fact that Mr. Purcell has repeatedly reiterated that the Department and the former Minister were dealing with Sergeant McCabe's allegations at the same time as the fixed charge and penalty points issue, does he think it is accurate to state that the Department or the former Minister did not take seriously Sergeant McCabe's allegations?

Mr. Brian Purcell

No, I do not think it is accurate to say that and I said that earlier. I have outlined the extensive action that was taken by the former Minister in regard to the penalty points, including referral to the Garda Síochána and the establishment of the investigation that became known as the O'Mahoney investigation. In addition to the Sergeant McCabe allegations being investigated by the O'Mahoney investigation, the Minister also asked the Garda Síochána to investigate a random 1% of all cancellations, other than the ones that were covered by the allegations and that was done. The matter was also looked at by the Garda professional standards unit which made recommendations. The Minister then referred both reports to the independent Garda Síochána Inspectorate, which in turn produced a report which, as I said earlier, nailed once and for all anyone's doubts about whether it was independent. It produced a very hard-hitting report about the actual operation of the fixed charge notice processing system. On top of that, the Minister referred the O'Mahoney report and the professional standards unit report to this very committee, as Deputy McNamara knows.

In turn - and if I am correct - that was then sent to the Joint Committee on Public Service Oversight and Petitions.

On top of all that, the Minister subsequently referred the penalty points allegations and all the other reports to GSOC for examination. That examination is ongoing. In the context of any statement to the effect that the allegations being made were not taken seriously, if one looks at the course of action which was taken and which I have described, I do not think anyone could reasonably say that these things were not taken seriously.

Deputy Michael McNamara

I thank Mr. Purcell for his patience and I apologise again for asking him to repeat what he said earlier.

Mr. Brian Purcell

The Deputy is welcome.

Acting Chairman (Senator Denis O'Donovan)

I thank Mr. Purcell and I apologise for the fact that our proceedings have gone on so long. I also thank everyone who came before us today and answered questions. We will adjourn forthwith and defer the private business until our next meeting.

The joint committee adjourned at 8 p.m. until 11.30 a.m. on Wednesday, 4 June 2014.