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Seanad Éireann debate -
Friday, 27 Apr 2007

Vol. 186 No. 24

Commissions of Investigation: Motion.

Acting Chairman

I wish to point out a correction to the Irish text of No. 2 on the Order Paper. The word "tromchúiseacha" should be inserted after the word "saincheisteanna" in the fifth line of the third paragraph.

I move:

That Seanad Éireann,

bearing in mind the public concern arising from the circumstances surrounding the death of Mr. Gary Douch, a prisoner who had been placed in a holding cell in Mountjoy Prison;

noting that the matter raises serious issues about the management and treatment of prisoners in need of protection or special attention;

and noting that it is the opinion of the Government that a Commission of Investigation represents the most effective method of examining the serious issues involved;

further noting that a draft Order proposed to be made by the Government under the Commissions of Investigation Act 2004 (No. 23 of 2004) has been duly laid before Seanad Éireann in respect of the foregoing matters referred to, together with a statement of reasons for establishing a commission under that Act;

approves the draft Commission of Investigation (Matters arising from the death of Mr. Gary Douch) Order, 2007 and the statement of reasons for establishing a commission of investigation.

This motion seeks approval for the establishment of a Commission of Investigation into the tragic death of Gary Douch. As Senators will be aware, the Commission of Investigation Act 2004 provides for the establishment of such commissions to investigate any matter considered by the Government to be of significant public concern. Such commissions are completely independent and in general will hear evidence in private.

A commission may direct any person to attend before the commission to give evidence, examine witnesses on oath and direct that documents be produced. A commission can authorise a person to enter premises, inspect documents and take copies, and it is an offence to obstruct such a person in carrying out his or her duties. It can direct costs to be paid in certain circumstances and it is an offence to make a false statement to a commission. A person giving evidence has the same immunities and privileges as a witness in court. The report of a commission must be published unless otherwise directed by a court.

The tragic circumstances which give rise to the motion before this House are as follows. On 31 July 2006, Mr. Gary Douch expressed concerns about his safety while imprisoned on C wing of Mountjoy Prison. He was moved from C wing and, unfortunately, placed in holding cell No. 2 in the B base area with five other prisoners. On the morning of 1 August 2006, shortly before 7 a.m., the holding cells in the B base area were opened. When holding cell No. 2 was opened, prisoners filed out and it was noticed that one prisoner was missing. Staff entered the cell and discovered Mr. Douch. Unsuccessful attempts were made to resuscitate him and he was brought to the Mater Hospital where he was pronounced dead. The indications are that Mr. Douch had died as a result of a vicious assault in the cell by another prisoner.

In the immediate aftermath of the death, I appointed Mr. Michael Mellett to carry out an independent inquiry into the circumstances surrounding the tragic death of Mr. Douch while in custody in Mountjoy Prison. He was asked to establish what action was taken by the Irish Prison Service, management and staff to safeguard Mr. Douch; to clarify whether Mr. Douch had expressed special concerns about his safety; to establish what procedures were followed and their adequacy; to establish the procedures used to allocate prisoners to the cell in which Mr. Douch died; to establish the level of monitoring during the night of 31 July and morning of 1 August 2006; and to make any observations and recommendations he saw fit.

Mr. Mellett had extensive experience in prison matters as a senior official in the Department of Justice, Equality and Law Reform but had retired from the Department a number of years before his appointment to carry out this inquiry. He was, therefore, fully independent of the Irish Prison Service and my Department in carrying out the inquiry. He carried out his task in a timely and totally independent manner and submitted a report to me last month. The report sets out the facts as he found them in forthright and unequivocal language. It is because of the material he has uncovered that the Government has decided a statutory commission of investigation with extended terms of reference is warranted. In accepting my invitation to conduct the inquiry Mr. Mellett took on a difficult task and did an excellent job. I acknowledge publicly the work he has done.

Since the death of Mr. Douch, interim steps have been taken to reduce the risk of a recurrence of an incident of this kind. The holding cell where the death occurred has been permanently taken out of service. Special arrangements have been put in place to deal with the situation where a prisoner seeks special protection, on foot of an interim recommendation from Mr. Mellett on 2 August 2006 which I immediately accepted and had implemented. I have issued two new committal directions which had the effect of diverting committals from Carlow, Kildare, Kilkenny, Laois, Offaly and Westmeath away from Mountjoy to the Midlands Prison and committals from Louth, Meath, Monaghan, Wexford and Wicklow away from Mountjoy to Wheatfield Prison. This direction lessens the danger of Mountjoy Prison being overwhelmed by any sudden surge of committals.

As with the case of all deaths in custody, the Garda Síochána was called to Mountjoy Prison and initiated a criminal investigation into the death of Gary Douch. A file was sent to the Director of Public Prosecutions and, as a result, an individual has been recently charged with causing the death of Gary Douch. The progressing of those criminal proceedings is a matter for the Director of Public Prosecutions and the judicial arm of the State. I have no role in those proceedings but I have a duty not to do anything or reveal any information that might prejudice those criminal proceedings. Although it was my original intention to publish the report of Mr. Mellett, the strong advice from the Attorney General was to the effect that the report should not be published. Therefore, in the circumstances, the House will appreciate that I am very much constrained in what I can say about the events of that night. I trust that Members of this House will exercise a similar caution when discussing this case.

In general terms I can say that Mr. Mellett, in his report, has identified a number of systems failures within the prison service, something I regard as very serious, which may have contributed to the death of Mr. Douch. The findings of the report have serious implications for the future management of our prisons and the Government has taken the view that a full statutory commission of inquiry is required to address the matter. While the terms of reference may be finalised only after the resolutions have been passed and the order made by the Government I advise the House that the intention is for the terms of reference to be as set out in bold in the script I have circulated.

It will be clear that prisoner A is the prisoner accused of causing the death of Mr. Douch. Mr. Mellett's report makes it clear that some of the most significant questions relate not so much to the victim and his management within the prison system but to how prisoner A had been managed and treated while in State custody. I use the phrase "State custody" because the prisoner had been in prison, was then sent to the Central Mental Hospital, and was then returned to prison. His entire period in State custody will have to be examined to ascertain if he was adequately and appropriately dealt with. Both prisoners were on protection and, without doubt, a detailed and comprehensive investigation is required into how prisoners requiring protection are managed. The most important aspect is that not only do we establish what happened but that we learn from the experience and take corrective action to ensure a similar fatality never recurs.

It is my intention, subject to the approval of the resolution by this House and the other House, to appoint Ms Gráinne McMorrow, an experienced senior counsel with a background in mental health and criminal law and experience of both the United Kingdom and Irish systems, to be the sole member of the commission of investigation. I have discussed the proposed terms of reference with her and she is happy to accept the position on that basis.

It may be appropriate at this juncture to refer to the procedural aspects of establishing a commission of investigation. The Government has agreed to the establishment of a commission but before the necessary order can be made a draft of the proposed order and a statement of reasons for establishing it must be laid before the Houses of the Oireachtas and a resolution approving the draft must be passed. The draft order has been so laid and provides that the Minister for Justice, Equality and Law Reform is authorised to set the terms of reference, appoint the members of the commission and receive the commission's report in due course. I have already set out the proposed terms of reference and indicated that it is proposed to appoint Ms Gráinne McMorrow as the sole member of the commission. Once the appropriate resolution has been passed by both Houses and the order made by the Government, I will immediately set about establishing the commission.

I have already explained the reason I cannot go into detail about the circumstances surrounding the death of Gary Douch. In any event, it would be wrong and unhelpful to start anticipating or pre-empting the findings of the commission of investigation but having read Mr. Mellett's report, one striking aspect is his account of the physical conditions in Mountjoy Prison, particularly the holding cell involved. One of the first official engagements I undertook on my appointment as Minister in 2002 was to visit Mountjoy and I can tell Members it was an eye opener. There has been trenchant criticism of the conditions in Mountjoy by the European Committee for the Prevention of Torture and by Mr. Justice Dermot Kinlen for many years. That is why this Government has made considerable progress in replacing and modernising our prison estate. I have got resources for the prisons capital programme.

The resolve to once and for all bring our prisons up to modern standards is evidenced by the money we have spent on prison buildings since my appointment as Minister in 2002. Already, we have spent €280 million on investment in capital in the prisons. For example, the Irish Prison Service is currently engaged in a major capital building programme involving the replacement of the four prisons on the Mountjoy campus — the Mountjoy male prison, the Dóchas Centre, the training unit and St. Patrick's Institution — with the Thornton campus. Portlaoise Prison, Cork Prison and the older parts of Limerick Prison are to be replaced and between them these comprise nearly 40% of the entire prison estate.

In tandem with improving the estate we have been making changes in other areas of prison management. Regarding the prison officers' overtime, the statement I have circulated sets out the background to that. The initiative on drugs in prisons, which was published in May 2006, is being implemented. At long last we will have the abolition of the old style padded cells in our prisons, which are being replaced by newly designed and improved observation cells that can best protect the prisoner when the occasion demands. The Prisons Act 2007, most of which Act I commenced today, is an important measure in modernising and ensuring cost-effectiveness in our prison system. New prison rules will be signed by me in the current week now that I have commenced the Prisons Act and will underpin important changes to the governance of our prisons by replacing outdated 1947 rules. Senators will be glad to know that it is my intention to re-appoint Mr. Justice Kinlen as the Inspector of Prisons — I have spoken to him about this matter — and to commence the relevant provisions of the Prisons Act almost immediately. He will continue his important work with legislative backing and I want to thank him for the work he has already done.

Returning to the setting up of the commission of investigation, it was wrong that Gary Douch should have died while in State custody and I reiterate my heartfelt apology to his family. We need this commission of investigation to establish all of the facts surrounding the death. We need to learn the measures that must be taken to prevent a similar tragedy happening again. Above all, we need to have a decent system for those who are suffering from psychiatric illness in our prison system to ensure they are properly dealt with and not transferred from one institution to another as nuisances but are dealt with in a way which is appropriate to their dignity and to the safety of other prisoners. I want to thank Ms Gráinne McMorrow for agreeing to act as commissioner in this case.

There are many comments I would like to make about this matter because the circumstances call for comment, but because of the impending criminal prosecution I am extremely constrained in making comments about it but I want to say this. First, the use of that cell, which was condemned by Mr. Justice Kinlen, was not justifiable at that time. Second, this would never have happened in any decent system of prisons if it had been appropriately administered and managed. I can say with certainty that this should never have happened. I ask all Senators to support the Government's proposal for the establishment of a commission of investigation in this case by supporting the motion before the House this evening.

I fully support the establishment of the commission of investigation into the tragic and unfortunate death of Gary Douch in Mountjoy Prison. I assure the Minister I will refrain from making any comments on the case for the reasons mentioned by him. The Commission of Investigation Act 2004 is the ideal vehicle to allow Gráinne McMorrow to carry out her business quickly and efficiently, building on Mr. Mellett's work. I join with the Minister in complimenting Mr. Mellett on his work. His report was an example of how we can work more effectively in difficult circumstances. He got to the heart of the matter quickly and presented his report to the Tánaiste, who decided that the issues involved were so important that they required an investigation by an experienced senior counsel to make recommendations on the matter within six months. This is the right decision and is the type of effective decision making that should be extended to other areas of investigation, rather than allowing matters to drag on for months and years.

I also join with the Minister in complimenting Mr. Justice Kinlen on his work, which I have mentioned on several occasions. I am glad he has been reappointed to his position.

I concur with the comments made by Senator Cummins and support the establishment of this commission of investigation. It would be appropriate for us, as Members of this House of the Oireachtas, to join with the Minister in extending our sympathy to the family of Gary Douch. A person in the custody of the State should not find himself or herself in a position where he or she is murdered, and there is a duty of care attached to us.

It has been said that the commission of investigation is the appropriate arm and, in that regard, we should again commend the Minister on the introduction of that legislation in 2004. As the tribunals, which were undoubtedly necessary and have done some good work, trundle on, I am firmly of the view that nine years after some of them were established, it is time to call a halt. I know that in the run-up to an election, it is difficult for decisions in that regard to be taken because they could be misconstrued and other motivations attached to them. I hope there will be a total reappraisal of all the tribunals following the election and that where there are serious matters still outstanding, they can be dealt with much more rapidly, effectively and cost-effectively by a commission of investigation. There is no reason we would not put those modules into a commission of investigation so that, ultimately, there would be an outcome and determination of them.

I have great misgivings about the publicity pertaining to holding all these tribunals in public. People are often pilloried and held up to severe public ridicule before they get a chance to make their own case. This is not a satisfactory situation, particularly where the entire purpose of such bodies is to establish the truth. Commissions of investigations can do their work in such a way that the truth will be established and will be published after the commissions have heard all sides of the argument.

That is an aside from the purpose of this motion. It is not just about the vicious assault that gave rise to the murder of this man. There have been other assaults and incidents of rape in prison. I hope all these matters will be addressed. I am pleased with the terms of reference the Tánaiste has put in place.

I concur with Senator Cummins on the reappointment of Mr. Justice Kinlen as Inspector of Prisons and Places of Detention. That is a good move which also shows the Tánaiste is not afraid of an outspoken man who has been critical of the system at times. That is what one needs in these situations.

I suggest to the Tánaiste that he might add to the list of recommendations. In addition to promoting the health and safety of prisoners, providing a secure and safe environment and safeguarding the public interest, we should add a fourth, namely, providing an environment in prisons where effective rehabilitative measures are in place to avoid recidivism. That should be a fundamental, core objective of prisons and it will only come about through having structured and well-researched courses as well as having other aspects of prison management operating to try to ensure people do not come out of prison better educated as criminals, which is often the case. Prisons should also be places of last resort. It is unfortunate we have to set up a commission on such a serious matter where a person lost his life in the care of the State.

I thank both Senator Cummins and Senator Jim Walsh for their comments. I will examine the terms of reference. The commission must focus on what happened and on ensuring it never happens again. It must also focus on the way people who are psychiatrically ill or who feel themselves to be under threat are dealt with in the Prison Service. The commission must also examine the use of multiple occupancy cell accommodation in circumstances such as the one under investigation, the reasons offered for it, and whether they were correct.

It will be necessary to track the individuals in question and how they were dealt with by the Prison Service and, in one case, by the Central Mental Hospital, from the beginning, through the middle and to the end of the set of circumstances which led to this desperately sad killing.

I urge Members of the House to back the motion and the use the commission of investigation legislation. I concur with Senator Jim Walsh's point that this legislation is an innovation which hugely improves our capacity to deal with these kinds of issues. I look forward to a speedy resolution of this matter and that the facts will emerge in public.

Question put and agreed to.

Acting Chairman

When is it proposed to sit again?

At 2.30 p.m. next Tuesday.

The Seanad adjourned at 5.25 p.m. until2.30 p.m. on Tuesday, 1 May 2007.
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