Before commencing the debate I appeal to Members to bear in mind when making their contributions that there are a number of both criminal and civil cases which may go before the courts relating to the subject matter of the motion, some of which may be heard by a jury. In these circumstances I hope Members will exercise restraint generally when speaking.
Private Members' Business. - Establishment of Tribunal of Inquiry: Motion.
I move:
That Dáil Éireann:
–having regard to allegations of misconduct claimed to have been committed by members of the Garda Síochána in County Donegal, the subject of parliamentary questions and a reply thereto by the Minister for Justice, Equality and Law Reform on 13 November 2001;
–acknowledging widespread public concern about the matter and being strongly of the view that it is essential for the reputation of the force that any allegations of wrongdoing by its members are investigated thoroughly and that, if such allegations are found to be well-founded, appropriate disciplinary or criminal proceedings are initiated;
–wanting to see the truth of this matter determined and public confidence in the Garda Síochána, in so far as it has been adversely affected, restored;
–being of opinion that, in this case, the public interest in a full, public and impartial ventilation and determination of the facts, and a consideration of the issues of public policy arising therefrom, outweighs in importance the customary need to ensure pending or anticipated criminal proceedings are not put at unnecessary risk of frustration;
hereby resolves as follows:
(1) that it is expedient that a tribunal be established under the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998 ("the Acts"), to inquire urgently into and report to the Clerk of Dáil Éireann and make such findings and recommendations as it sees fit, in relation to the following definite matters of urgent public importance:
a)the Garda investigation into the death of Mr. Richie Barron at Raphoe, County Donegal, in October 1996, including the arrest of several members of the McBrearty family and the alleged securing of a confession to murder from Mr. Frank McBrearty junior;
b)the allegations of serious and concerted harassment and other improprieties made against members of the Garda Síochána by members of the McBrearty family, including the numerous prosecutions of family members, friends and employees;
c)the Garda request made to the Minister for Justice, Equality and Law Reform on 10 October 1997 for an order to exhume the body of the late Richard Barron; the circumstances surrounding the subsequent request made on 16 October 1997 by a member of An Garda Síochána for an exhumation order to be put on hold until further notice and why the Minister did not then make such an order until 3 July 2001, and any inquiries made by or on behalf of the Minister for Justice, Equality and Law Reform into the reasons for what occurred in October 1997 and the Minister's failure to inform the Dáil of what occurred in October 1997 until 13 November 2001;
d)allegations that certain gardaí in County Donegal were involved in "hoax" finds of bombmaking equipment;
e)the subsequent investigations into the original Garda investigation arising from the death of Mr. Barron and into related matters including, in particular, the investigation carried out by Mr. Kevin Carty, Assistant Commissioner of the Garda Síochána, and the consequent reports furnished to the Commissioner of the Garda Síochána, the Minister for Justice, Equality and Law Reform and the Director of Public Prosecutions;
f)the reasons why and the circumstances in which members of the Diver family were arrested and detained under section 29 of the Offences Against the State Act, 1939, and the connection between those events and the arson of the telecommunications installation adjacent to their home;
g)the role of the State, the organs thereof and relevant public bodies and officials in relation to the matters referred to above, and
h)such other matters as the tribunal reasonably considers it necessary to inquire into and report upon in order fully to understand the circumstances, considerations and motives relating to the matters aforesaid;
(2) that the tribunal should be requested in particular, in the light of its findings and conclusions, to make whatever broad recommendations it considers appropriate for securing and maintaining the independence and integrity of the Garda Síochána in the disinterested performance of its functions, while at the same time ensuring the accountability of its members within an administrative system of oversight that is impartial and effective and secures the public trust;
(3) that the tribunal should be requested, to the extent that it may do so consistent with the provisions of the Acts, to conduct its inquiries in the following manner:
a)to carry out such preliminary investigations as it thinks fit using all the powers conferred on it under the Acts (including, where appropriate, the power to conduct its proceedings in private), in order to determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceeding to a full public inquiry in relation to those matters;
b)to inquire fully into all matters referred to above in relation to which such evidence may be found to exist, and to report to the Clerk of the Dáil thereupon;
c)to direct the production into its custody of all relevant or potentially relevant evidence, including documentary evidence in the possession of public bodies, in order to ensure its preservation for the purposes of its inquiries;
d)in relation to any matters where the tribunal finds that there is insufficient evidence to warrant proceeding to a full public inquiry, to report that fact to the Clerk of the Dáil and to report in such a manner as the tribunal thinks appropriate on the steps taken by the tribunal to determine what evidence, if any, existed, and
e)to report on an interim basis, not later than three months from the date of establishment of the tribunal or the tenth day of any oral hearing, whichever shall first occur, to the Clerk of the Dáil on the following matters:
the numbers of parties then represented before the tribunal;
the progress which has been made in the hearing and the work of the tribunal;
the likely duration (so far as that may be capable of being estimated at that time) of the tribunal proceedings; and
any other matters which the tribunal believes should be drawn to the attention of the Clerk of the Dáil at that stage (including any matter relating to the terms of reference);
(4) that the person or persons selected to conduct the inquiry should be informed that it is the desire of the House that:
a)the inquiry should be completed in as economical a manner as possible and at the earliest date consistent with a fair examination of the matters referred to it;
b)any costs incurred by reason of the failure of persons to co-operate fully and expeditiously with the inquiry, including by reason of
the giving of false or misleading information to the tribunal,
the raising of an issue before the tribunal, whether by way of allegation, counter-allegation or defence to such an allegation, which is unfounded or irrelevant or is abandoned or not pursued by the party which raised the issue, or
any conduct in relation to the proceedings of the tribunal or in the course of appearance or representation before it that is unreasonably obstructive, prolix, dilatory or evasive or which otherwise results in the proceedings being needlessly prolonged or in unnecessary costs being incurred,
should, so far as is consistent with the interests of justice, be borne by those persons;
c)the tribunal should authorise the representation before it by solicitor or counsel of persons claiming an interest in the matters the subject of its inquiry only where and to the extent necessary to protect the legal or constitutional rights of those persons and should both authorise and confine the participation of legal representatives in its public proceedings accordingly;
d)the tribunal should negotiate arrangements with a television broadcaster in the State, on terms satisfactory to the tribunal, for the live broadcasting of the entirety of its public proceedings;
(5) that the Clerk of the Dáil should on receipt of any report from the tribunal arrange to have it laid before both Houses of the Oireachtas immediately thereafter.
This motion is circulated on the third supplementary Order Paper in substitution for the one circulated on the earlier Order Paper today.
I request to share my time with Deputy Howlin.
Is that agreed? Agreed.
Following upon the foundation of the State the Garda Síochána was established by a Fine Gael Government. The Garda has, throughout the history of the State, played a proud and vital role in the protection of our constitutional democracy and the preservation of law and order. Too many members of the Garda Síochána have lost their lives or suffered serious injury in the defence of civil society and protecting the State and all who reside in it from terrorists, subversives, criminal gangs and individuals who have no respect for the law or the institutions of the State. If any of us feels under threat, it is the Garda to which we turn for protection. If any of us is the victim of a criminal act, it is the Garda we expect to bring the alleged offender or offenders before our courts.
During the past 30 years we have been confronted by a variety of different violent, illegal and subversive organisations and the Garda Síochána, at all levels, has played an heroic role in confronting and bringing to justice those intent on spreading murder and mayhem throughout the country. It has played a role the true value of which has still not been accorded the recognition it deserves.
The Garda Síochána has also, under the auspices of the United Nations, policed a variety of international trouble spots across the world, where its presence and expertise have acted as a deterrent to inter-communal and inter-ethnic violence. The contribution made by members of the Garda Síochána on international duties has not, to date, been afforded the recognition which it richly deserves.
Legislation to provide for the maintenance and regulation of the Garda Síochána was enacted by the Houses of the Oireachtas in the years immediately following the foundation of the State. While the general direction and control of the Garda, subject to regulations made by the Minister for Justice, Equality and Law Reform, vests in the Garda Commissioner, it is the Minister for Justice, Equality and Law Reform under the Ministers and Secretaries Act, 1924, who is accountable to the House for the administration and business generally of public services in connection with law, justice, public order and policing. The Minister for Justice, Equality and Law Reform is ultimately accountable to the House for the manner in which the Garda Síochána undertakes its duties and has both a constitutional and legislative obligation to ensure at all times it properly fulfils its functions in a manner which shows respect for the constitutional rights of all citizens of the State.
It is in the public interest that the Garda Síochána is held in high esteem by all of us who reside here and widely regarded as a fundamentally honest body of individuals of the highest integrity. From my contacts with many members of the Garda, at all levels, in over 20 years as a Member of Dáil Éireann and also as justice spokesperson for the Fine Gael Party I am keenly aware of the dedicated commitment of the overwhelming majority of members of an Garda Síochána to the policing of this State and their abiding by highest principles of honesty and integrity. I am also acutely aware of how let down many gardaí feel when any individual member of the force is found to have engaged in wrongdoing or behaviour in conflict with the high principles of duty and service which reflect the actions of the overwhelming majority of the members of the force. When serious allegations of misbehaviour or misconduct are made against members of the Garda Síochána it is of vital importance that such allegations are fully and properly investigated and their credibility determined within a reasonable period of time. Individual gardaí, in properly carrying out their duties, are on occasion subject to false and malicious allegations and it is of crucial importance that no individual member of the force be the subject of any unfounded allegations for any lengthy period. There are also unfortunately occasions when serious allegations of Garda misconduct are honestly made without malicious intent. It is equally in the interests of the individual members of the force against whom such allegations are levied and also in the interests of the force itself that they be fully and properly investigated and determined within a reasonable period of time.
The Garda investigation into the death of the late Richard Barron in Raphoe on 14 October 1996 has resulted in a substantial number of allegations of Garda misconduct being made against members of the Garda force in Donegal. Many questions have been asked and allegations made and it is not possible to detail all of them in the House this evening – indeed it may not be appropriate for me to do so. Some, however, must be referred to.
It now seems clear that following the death of Richard Barron, the original autopsy undertaken was seriously inadequate; the scene at which his body was found was not properly preserved; a murder investigation was undertaken on the assumption that his death resulted from a criminal assault when, in fact, it was the consequence of a hit and run accident; Frank McBrearty Jnr and Mark McConnell were arrested under suspicion of murder and both complain about the interrogation to which they were subjected when in Garda custody; Mark McConnell's wife, Roisín, also alleges that, following her arrest, she was ill-treated and, as a consequence to this day, suffers mental trauma; an admission or confession produced by members of the Garda force alleged to be that of Frank McBrearty Jnr is now widely acknowledged within the Garda force itself to be a false statement or forgery and Frank McBrearty Jnr denies ever having signed it.
On 10 October 1997, following a Garda application, the coroner for the Donegal area requested the Minister for Justice, Equality and Law Reform to order the exhumation of the body of the late Richard Barron. No exhumation order was at that time made as the Garda Síochána subsequently on 16 October 1997 inexplicably informed the Minister's Department to put on hold the application for such order. Despite persistent and regular Dáil questions tabled on the issue and four years of public controversy, the Minister for Justice, Equality and Law Reform never asked the Garda authorities the reason for the change of mind in 1997 and did not inform the Dáil of the October 1997 application for an exhumation order until Tuesday of last week, 13 November 2001, by which time he had become aware of the Fine Gael Party's knowledge of the matter.
Following the Garda murder investigation into the death of Richard Barron, papers were forwarded by the gardaí in Donegal to the Director of Public Prosecutions who declined to prosecute anyone under investigation. Following the Minister for Justice, Equality and Law Reform finally ordering the exhumation of the body of Richard Barron on 10 July 2001 and a full pathologist's assessment being undertaken on the remains of the deceased, it has been concluded that his injuries are consistent with that of a victim of a hit and run driver.
Three internal Garda investigations have failed to result in any public answer being given to the allegations made against members of the Garda force and to date no official report has been published about the Donegal events. One Garda investigation however resulted in an announcement from the Garda Commissioner in July 2000 that five members of the force were being moved out of the Donegal area "in the interests of the public and in the interests of the force". No explanation has to date been publicly given as to why any such move was either in the interests of the force or in the interests of the general public.
To date, no one has been prosecuted for any act said to have caused the death of Richard Barron. All the matters referred to by me have generated considerable public concern and have been a cause of substantial disquiet and unease within the Garda Síochána. Many members of the force want these matters cleared up and public answers given to the allegations made of Garda misconduct directly relating to the investigation into the death of Richard Barron. Further concern and disquiet have been caused by the bring ing before the local District Court of approximately 165 summonses against Frank McBrearty Snr. relating to the running of his licensed premises in Raphoe.
It is alleged by the McBrearty family that following the death of Richard Barron and their making complaints about the manner in which individual members of their family were treated by members of the local Garda they became the subject of Garda harassment and false charges were brought against them. It is also alleged by them that a letter signed by Chief Superintendent D.N. Fitzpatrick was circulated to members of the Garda Síochána assigned to the Donegal district which it is alleged encouraged local gardaí to harass and target members of the McBrearty family. This letter date marked 27 February 1998 is entitled "Garda Síochána: Chief Superintendent's Office – Letterkenny Division of Donegal" and marked "Confidential" is stated to relate to a "Campaign to discredit Gardaí in Donegal Division". It reads:
I refer to the attempts to discredit gardaí from this division and other members involved in the Barron Investigation.
There is information to hand which suggests that Frank McBrearty (Senior) from Raphoe, is financing a campaign to discredit Members of the Force. The campaign is being operated mostly by Mr. Billy Flynn, and sometimes trading as Zimmerman & Co. from Enfield, County Meath.
Members of your District Force and gardaí who assisted in the Investigation into the Richard Barron death should be notified of this matter and directed to report any incidents or unusual contact that may occur either with Mr. McBrearty and his extended family or Mr. Flynn and his employees.
This document is for Garda use only and is confidential.
This extraordinary letter appears to be an invitation by the Chief Superintendent to members of the force in Donegal to watch and beset the McBrearty family and also Mr. Flynn.
It is alleged by the McBrearty family that five members of the Garda Síochána who gave evidence before Raphoe District Court denied the existence of this letter. It is, of course, now publicly known that all charges brought against the McBrearty family in Raphoe District Court are withdrawn and that over 20 civil actions have been commenced by the McBreartys against the gardaí and against the State for the harassment allegedly suffered by them. Proceedings have also in recent days come before the High Court seeking orders that the Commissioner require that five members of the Garda force be investigated for allegedly committing perjury in court.
Separate from the death of Richard Barron and issues relating directly to the McBrearty family, there are other disturbing allegations concerning Garda misbehaviour in the Donegal area. The Divers family allege that they have been wrongly treated by members of the Garda, that they have been wrongly arrested in circumstances which give rise to questions being asked and that they have suffered substantially at the hand of local gardaí. It is separately alleged that members of the Garda who were involved in uncovering the whereabouts of IRA arms and explosives identified locations where they would be discovered both on this side of the Border and in Northern Ireland and that particular discoveries were, in fact, made as a consequence of the gardaí themselves organising the planting of arms and explosives and arranging their discovery to advance their Garda careers.
I am making no judgment on the truthfulness or falsity of any of the allegations made. I am saying, however, that these allegations cast a shadow over the integrity of the Garda force and it is in the vital interests of the State and the Garda Síochána that all of the allegations made be investigated by an independent tribunal and the true position made known. The continuation of the current position is untenable. It undermines the credibility of the Garda force, it casts an unfavourable cloud over members of the force who undertake their duties with great dedication and leaves unanswered serious questions which must be addressed.
In no parliamentary democracy should it be acceptable that allegations of the nature made relating to the McBrearty affair and the other allegations to which I have referred made against serving police officers remain unanswered for over four years. It is clear that internal Garda investigations have proved inadequate to come to terms with these events. The allegations made are a festering sore on the integrity of the gardaí and must be addressed and inquired into in an open and transparent forum.
On 5 April of this year, I wrote to the Minister for Justice, Equality and Law Reform expressing my concern about the length of time that had elapsed since allegations of Garda misconduct were made concerning various members of the Garda stationed in the Donegal area and his failure to make any detailed statement to the Dáil to clarify the position and the outcome of the internal investigations conducted. I wrote to the Minister as follows:
There are serious issues outstanding relating to Garda accountability, your political responsibility to Dáil Éireann to clarify what actually occurred in Donegal and the outcome of the investigations which must be addressed. I also believe it is unfair to the gardaí who properly undertake their duties in the Donegal area that a cloud continues to hang over the force.
I am writing to you to ask you to clarify when you believe it is likely you will be in a position to make a full statement to the House on these matters.
On 25 May 2001, the Minister replied referring – as he had previously done in reply to countless parliamentary questions – to the various internal investigations and legal processes under way and the various civil actions brought against the State and the Garda Síochána arising out of the events in Donegal. He also referred to complaints lodged with the Garda Síochána Complaints Board and to the possibility of disciplinary action being brought against members of the force. He stated that he wanted "to see the truth of the matter established as soon as possible." The Minister however, proposed taking no new action but asserted that he had "at all times endeavoured to provide as much information as possible to the Dáil in relation to the matter in question".
On the 23 May last, I asked the Minister during Dáil Question Time whether he was "aware that there is a widespread perception that no serious attempt is being made to come to terms with the serious allegations which have been made but that he, his Department and those involved in this matter are engaged in covering up what occurred?"
The Minster angrily rejected as "ill-tempered, outrageous and unfounded", such allegation "in the strongest terms possible" and asserted that "there is no question of anyone trying to cover up anything." It has to be said that the perception of cover-up has been given further credibility by the fact that it was not until Tuesday of last week that the Minister revealed to the Dáil that application had been made to his Department in October 1997 for an exhumation order and that such application had then "been put on hold" and that these events to this very day were neither questioned nor investigated by him. As the person constitutionally and statutorily accountable to Dáil Éireann for the workings of the Garda, the Minister had an obligation at an early stage to inform the Dáil of what occurred in October 1997 and just as importantly, had an obligation as Minister to seek from the Garda Síochána detailed reasons for members of the force first seeking an exhumation order in the autumn of 1997 and then changing their mind. Moreover, the fact that he was requested by a member of the Garda to put the request for an exhumation order "on hold", did not in any way require that he do so. The application for an exhumation order was made pursuant to section 47 of the Coroners Act, 1962, Section 47(1) states:
Where a Coroner is informed by a member of the Garda Síochána not below the rank of Inspector that, in his opinion, the death of any person whose body has been buried in the Coroner's district, may have occurred in a violent or unnatural manner, the Coroner may request the Minister to order the exhumation of the body by the Garda Síochána.
The Coroner was so informed and made the request to the Minister as prescribed under the Act. Following such request being made to the Minister, section 47(2) states:
On being requested under this section to authorise by order the exhumation of any body, the Minister may, as he thinks proper, either make or refuse to make the order.
Consequently, once the request is made to the Minister, it is for the Minister and the Minister alone to determine whether to order or to refuse to order an exhumation. At that point, the function of the Garda has ceased and no provision is contained in the Act for such application having been made by a District Coroner to the Minister to be put "on hold" at the request of the Garda. Not only did the Minister until last week fail to inform the House of the request received by him in October 1997 for an exhumation order, he also did not inform the House that he had failed since October 1997 to properly exercise the statutory function conferred on him by the 1962 Act. He had, in effect, failed to exercise the discretion conferred on him by the Act to either order an exhumation or to refuse to make such order. It remains for the Minister to offer a proper explanation to this House for his failure.
In September 2000, Magill magazine reported that Superintendent Kevin Lennon prepared an internal Garda report detailing 53 mistakes made by the Garda Síochána in the initial investigation into the death of Richard Barron. The question must also be asked whether the Minister has seen this report and what consideration, if any, he or the Attorney General has given to its contents during the past four years. If the Minister received this report, the question further arises as to whether its contents indicated that he should proceed at an early stage to make the exhumation order requested in 1997 by the coroner.
The Minister for Justice, Equality and Law Reform, in the Dáil last week, announced he was appointing an eminent lawyer "to examine all the relevant papers and the progress on these investigations generally with a view to his receiving expert independent advice as to whether there are any measures that might now be taken to bring matters to finality, sooner, rather than later." The Minister announced yesterday evening that he is appointing Shane Murphy in this regard. This proposal is essentially one which envisages a senior counsel examining documentation already available to the Minister and his Department. It is not clear whether Mr. Murphy will have available to him all the documentation available to the Garda in respect of the three different internal investigations which have been conducted nor is it clear whether he will have available to him the files submitted by the Garda to the Director of Public Prosecutions and communications from the DPP to the Garda with regard to any such file. It is not clear whether he will have available to him the report of Superintendent Kevin Lennon which details errors committed by the Garda Síochána when investigating the death of Richard Barron, nor is it clear what co-operation, if any, will be afforded to the eminent lawyer by the Garda Commissioner or individual members of the force whose conduct is being questioned. It is absolutely clear that in law, no individual member of the force will be under a legal obligation of any nature to co-operate in the deliberations of the eminent lawyer appointed by the Minister. It is also not clear, what regard, if any, he is to have to any of the complaints made by members of the McBrearty family or the McConnell family or others who allege Garda misconduct in this affair. It seems essentially that the eminent legal person is being appointed for no reason other than to prolong the uncertainty and to give the Minister extra breathing space before making the political decision of whether to support the establishment of a tribunal of inquiry.
The Minister, in the Dáil last Tuesday, stated that "it is a matter of great concern that individual members of the Garda Síochána might be implicated in wrongdoing". He also stated that he is "strongly of the view that it is essential for the reputation of the force that any alleged wrongdoing by members is investigated thoroughly and, if well founded, appropriate disciplinary or criminal proceedings should be initiated." The Minister asserted that he wants "to see the truth of this matter determined" and he wants to see public confidence in the Garda, in so far as it has been adversely affected by the matter, restored."
We, on the Opposition side of the House share these aspirations. The McBrearty family publicly announced yesterday that should a tribunal of inquiry be appointed, they are agreeable to deferring the processing of all the civil actions instituted by them arising out of this affair against either the Garda or the State. It is clear the Garda Complaints Board is incapable of addressing within any reasonable period the very substantial allegations made against a small number of members of the Garda force who have been assigned to the Donegal area. It is no longer tenable that the present situation continue. No other European Union democracy would allow allegations of police misconduct such as those levelled against a small number of gardaí in Donegal to fester and remain undetermined and unresolved for more than four years.
This is not a banana republic. It is a parliamentary democracy which is dependent for the polic ing of this State on the Garda Síochána from whom we expect the highest standards of integrity and adherence to the law. Failure to ensure all of the issues arising out of this affair are addressed within a reasonable time is undermining public confidence in our Garda force and is damaging to the morale of the overwhelming majority of the force who are proud to wear its uniform. It should not be necessary that this House divide on this issue. I ask the Minister for Justice, Equality and Law Reform, the Government parties and the Independent Members of this House to express support for the motion before the House tonight to enable a tribunal of inquiry to be established. A vote against this motion by the Government would be an abdication of ministerial and political responsibility and a failure to recognise the responsibility vested in the Government to ensure we have a Garda force whose actions are beyond reproach.
On behalf of the Labour Party I support the motion in the name of the Opposition parties. This is one of the most important and significant motions to come before this House in the lifetime of the current Government. That this motion has been signed by all members of the three main Opposition parties and that it enjoys the support, in Opposition, of the Independent Deputies is a reflection of the deep concern felt across these benches and mirrored on the other side of the House. I have no doubt that, if the Taoiseach and Tánaiste were to allow a free vote at 8.30 p.m. tomorrow, this motion would be passed overwhelmingly. I know because I have had discussions with members of the Minister's party on this matter. One former senior Minister expressed to me his desire, will and wish to support this motion.
The events which are the subject of this motion have created concerns in County Donegal but their implications extend well beyond the boundaries of that county. What has emerged to date has shaken public confidence in the Garda Síochána to an extent that I have not experienced before. The manner in which Members respond to these serious matters will determine whether irreparable damage is done to the reputation and fine standing of the Garda Síochána and to the maintenance of public confidence in the police force.
It goes without saying that public confidence in effective, efficient and accountable policing is a critical requirement of any democratic society where the rule of law prevails. The police force is the bulwark against crime and disorder. No one likes coming to the attention of the police. We want to be able to rely on it being there. We want it to be secure and know that every citizen can turn to our police when in time of trouble.
We have been exceptionally fortunate with the police force we have had since the foundation of the State. The Garda Síochána has served us well and has shown great courage in facing up to often ruthless paramilitary and criminal gangs, especially when it is remembered that the force is largely an unarmed force. The Garda Síochána has paid a high price in terms of the lives of its members and we owe a debt of gratitude to people like Detective Garda Jerry McCabe and Sergeant Andrew Callanan, the two most recent officers to die violently and valiantly in the line of duty. I remember especially Detective Garda Séamus Quaid who was murdered in my constituency of Wexford.
It is inevitable in any large force of 11,000 members that there would be a minority which is dishonest or corrupt. Again it should be acknowledged that allegations of corruption or improper activities have been few and far between, especially in comparison with our near neighbours in Britain. It is this generally exemplary record that makes the shocking allegations which have emerged in Donegal all the more surprising and of even greater concern. This surprise and concern has been greatly compounded by the failure of the Garda authorities, the Department of Justice, Equality and Law Reform and the Minister, who is ultimately accountable to the House, to deal with these allegations in anything which approximates to a prompt, effective or efficient manner.
A double injustice has been done in Donegal. An entirely innocent man, Richard Barron, died in violent circumstances on the night of 14 October 1996, almost certainly, we now believe, the victim of a hit and run driver. An injustice has been done to Mr. Barron's family by the failure to bring anyone to justice for his death. A serious injustice has also been done to the extended McBrearty family by what appears to have been a deliberate attempt to frame one of its members for a murder which did not take place and by what has all the appearances, if we are to accept the allegations on record, of a deliberate campaign of harassment conducted against members of the McBrearty family, its friends and its employees.
We do not know the full story of what happened. That is why this motion is before the House and why we call for a tribunal of inquiry – so that the full truth can be established. I can safely say that, if only a fraction of what has been alleged took place, it would still represent probably the most serious case of corruption and improper activity in the history of the Garda Síochána.
Let us consider some of the allegations which have emerged in the media or in the limited number of court hearings which have taken place. We have an allegation of a forged statement being attributed to Mr. Frank McBrearty Jnr. confessing to a murder which apparently did not take place. We have had allegations of a garda practis ing the forced signature of Mr. McBrearty and of financial and other inducements being offered to persons, some of a criminal background, to give false evidence against Mr. McBrearty and others. We have had allegations of threatening and intimidating phone calls and that explosives seized by the Garda were relocated by some of its members and "rediscovered" to boost their record. We have had allegations that the phones of lawyers involved in work with their clients were tapped.
I do not know where the truth lies in these matters but I know beyond doubt that they are of such importance that they must be ventilated fully so that we arrive at the truth. We know more than 150 summonses were issued against Mr. Frank McBrearty Snr, his family and members of his staff over a six month period in early 1997 under the Licensing, Road Traffic and Public Order Acts. That is unprecedented. We know this mountain of summonses was withdrawn two years later by the Director of Public Prosecutions without explanation or apology to the McBrearty family or the others involved. How can this just rest unanswered? We know an appeal taken by another nightclub owner in County Donegal who was convicted of allowing his premises to be used for the sale and distribution of drugs was not contested by the DPP, apparently because of the allegations which have been made against gardaí in Donegal. We know it is likely the State will face a substantial compensation claim in this case.
We know Mr. McBrearty has secured leave from the High Court to take an action to compel the Garda Commissioner to investigate allegations of perjury by five Garda officers arising from denials by them of the existence of a document which directed members in Donegal to pay special attention to the McBrearty family. That document was read into the record by Deputy Shatter. I also have a copy of the document whose existence was denied in court by gardaí. I quote from the report of the court case in The Irish Times of 6 November:
Mr. Giblin [senior counsel] said the existence of a Garda divisional circular was denied on six occasions when the McBreartys had applied for it. He said Supt. Lennon had denied its existence but turned out to be one of the authors. It was subsequently proved to exist and was obtained by order of the court. In the course of proceedings five gardaí had on oath denied the existence of the document.
We know there have been at least three Garda investigations into these allegations and that not one of them has yet been published or come into the public domain. We know that the principal investigation undertaken by Assistant Commissioner Carty was completed in July 2000, but that the findings have never been published and that little or no action has been taken on foot of them to date. We know that five years after his death the body of Mr. Barron was exhumed and that the examination by the State pathologist found that his injuries were consistent with a hit and run.
The net result of all investigations has been the charging of one garda with firearms offences while four men have been charged with minor offences relating to charges of making false statements and wasting Garda time. While there have been a number of transfers out of the Donegal Garda division, we have been informed by the Commissioner, who authorised the moves, that they were not disciplinary measures and there have been reports, but no specific details to suggest that a number of gardaí will face internal disciplinary proceedings.
Any one of the incidents and allegations I have listed would provide grounds for considering establishing an inquiry. Taken in their totality, these incidents and allegations provide an absolutely compelling case for a full tribunal. The appointment of a lawyer, as the Minister promised in the House last week, to examine the papers relating to these cases is simply a move to provide some answer to the priority questions tabled by Deputy Shatter and I last week and give him some semblance of a fig leaf with which to cover his inaction and dereliction of duty. I have absolutely no doubt about the integrity or commitment of the lawyer appointed, Mr. Shane Murphy, but his role and powers will be limited. Only a full tribunal of inquiry with all the powers available to it under the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998, will be able to get to the bottom of this murky affair.
Both the public and the Opposition parties have shown great patience. Earlier this year the Garda Commissioner asked people to be patient. We waited to see if the various Garda investigations would produce results. We waited to see if commitments from both the Minister and the Commissioner that they were determined to see if the whole truth would emerge would come to fruition. However, we are still waiting.
The Minister has repeatedly acknowledged that the Opposition parties have been most responsible and restrained in the face of these serious claims and allegations. For example, when Deputy Jim Higgins and I came into possession of startling allegations relating to one of the Garda investigations we did not go rushing to the media or come barging into the House, where the allegations could have been repeated under the protection of absolute privilege. That was not the route we chose to take. On the contrary, we went directly to the Minister for Justice, Equality and Law Reform and informed him of our concerns. A senior garda, an assistant commissioner, was appointed to investigate the allegations. It is almost a year and a half since Deputy Higgins and I spoke to the Minister in respect of these matters. We gave full statements at the time, but have heard absolutely nothing from the investigation or the Minister in the interim. Is the Minister in a position to justify what has happened in this instance? A simple net issue was presented to him at the time, but we have not received any results from the third of the inquiries put in place to discover the truth about these matters.
We have had the Carty inquiry, which reported to the Minister for Justice, Equality and Law reform in the summer of 2000. We have had the inquiry, to which I have just referred, undertaken by Assistant Commissioner Fachtna Murphy, into allegations about that first investigation. According to the Minister's reply to a number of parliamentary questions on 13 November a third inquiry is being undertaken by a chief superintendent to investigate "a related matter raised by a member of the Garda Síochána in Donegal concerning the original investigation." I have no idea to what this latest inquiry relates. We have had no shortage of inquiries, but a great shortage of tangible results.
All Deputies on the Opposition side of the House are united in their support for the motion. There are two Independent Deputies who represent the county of Donegal and its people. Not just in County Donegal, but all over the country people will be watching to see what will be their attitude to this motion. Up to 82 Members will vote in favour of the motion. Its fate, therefore, will rest in the hands of Deputies Blaney and Gildea during tomorrow night's vote. They have a choice to make. They can make a stand which will help to ensure the truth that their constituents want to see enters the public domain, or they can troop meekly into the lobbies with Fianna Fáil and the Progressive Democrats. By that action, they can meekly draw a further veil of silence over this whole affair. That will be their choice, that will be their decision.
I move amendment No. 1:
To delete all words after "Dáil Éireann" and substitute the following:
–having regard to the allegations that members of the Garda Síochána in the Donegal division engaged in unethical and criminal behaviour;
–mindful of the ongoing investigation into the death of Mr. Richard Barron, and not wishing to prejudice it in any way;
–conscious of the fact that several civil and criminal proceedings dealing with aspects of this matter are before the courts and are, therefore, sub judice;
–accepting the view of the Minister for Justice, Equality and Law Reform that it is essential for the reputation of the Garda Síochána that any alleged wrongdoing by members are investigated thoroughly and that appropriate disciplinary or criminal proceedings should be initiated, where necessary;
–noting the action taken by the Garda Commissioner to have the truth of this matter determined and the steps already taken by him to have public confidence in the Garda, in so far as it has been adversely affected by the matter, restored;
–welcoming the measures already decided by the Government to create an independent inspectorate for the Garda Síochána and to improve arrangements for the making of complaints against the Garda Síochána;
–commends the decision of the Minister for Justice, Equality and Law Reform to appoint an eminent legal person to conduct an independent review of all the relevant papers and the progress on these investigations generally with a view to the Minister receiving expert independent advice as to whether there are measures that might now be taken to bring matters to finality sooner rather than later.
I have repeatedly expressed my concerns about the situation in County Donegal and have a great deal of sympathy with the sentiments expressed by Deputies opposite in this matter. I also want to see the facts of this matter established, I want to see justice done and I want to see those who have engaged in criminal activities made accountable for their actions. However, I am, as is every other citizen of this Republic, every Member of the House and every Minister in the Government, obliged to act in accordance with the law.
I regret to say that this evening's motion calls for action which is in conflict with the law. The motion refers, somewhat glibly, to the "customary need to ensure pending or anticipated criminal proceedings are not put at unnecessary risk of frustration." It also states that in this instance the "customary need" is outweighed in importance by certain factors. What the Opposition refers to as a mere "customary need" has been described by the Supreme Court as, not just a constitutional right, but a superior constitutional right.
Miss Justice Denham of the Supreme Court, in the case of D v The Director of Public Prosecutions, which is reported at 1994, Volume 2 Irish Reports, page 465, stated on page 474 as follows:
The applicant's right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a hierarchy of constitutional rights it is a superior right. A court must give some consideration to the com munity's right to have this alleged crime prosecuted in the usual way. However, on the hierarchy of constitutional rights there is no doubt but that the applicant's right to fair procedures is superior to the community's right to prosecute. If there were a real risk that the accused would not receive a fair trial there would be no question of the applicant's right to a fair trial being detrimentally balanced against the community's right to have alleged crimes prosecuted.
I am under an obligation to ensure that the rights of persons who may face possible criminal prosecutions are respected. I am under an obligation to ensure that the law, as set down by the Supreme Court, is upheld.
I do not know whether the Opposition received gravely defective legal advice or if they received correct legal advice and decided not to follow the advice. I am, however, gravely suspicious of its motivation. Any analysis, however cursory, of tribunals of inquiry reveals that the two most successful public inquiries which have reported in recent years were preceded by an investigation by an eminent and qualified person. The work of the McCracken tribunal, which was both speedy and effective, was preceded by an investigation by His Honour Mr. Justice Gerard Buchanan. The work of the Finlay tribunal, which again was speedy and effective, was preceded by an investigation by Ms Miriam Hederman O'Brien.
There have been three investigations.
In contrast, tribunals which have not been preceded by investigations have tended to be longer.
If the Opposition wishes to get the truth of the matter in an efficient manner it is clear that the last path which should be followed is the path to an immediate public inquiry. The steps which I propose are steps which, in the past, have been proven to be correct. It is of significance that when members of the Opposition were in government they recognised the validity of the course which I propose. It was members of the Opposition who appointed Mr. Justice Buchanan and Ms Hederman O'Brien to conduct their investigations. Expediency rather than reason now rules the Opposition roost.
I am determined to uphold the law and equally determined to establish the truth of what occurred in Donegal. My amendment makes clear that I too want to improve the standards of accountability in the Garda Síochána and I have published the measures which I intend to take. I have done all I can to progress this matter. I have had an open door when it came to this issue. I have met Opposition spokespersons on justice, I have met Deputies Blaney and Gildea from Donegal and I have answered questions as fully and completely as possible.
I have said that it is a matter of great concern to me that individual members of the Garda Síochána have been implicated in wrong-doing. In this regard, I am strongly of the view that it is essential for the reputation of the force that any alleged wrong-doing is investigated thoroughly and that appropriate disciplinary or criminal proceedings is taken. A desire to establish the facts and to ensure that corrective measures are taken is not the exclusive preserve of one or the other side of the House. It would be unfortunate if this issue was to become a political football. I hope that will not happen.
I want to see restoration of public confidence in the Garda in so far as it has been adversely affected by the matter. We have an excellent police service and it serves no purpose to have this cloud hanging over the vast majority of the men and women of the Garda Síochána who daily carry out their job, which is often difficult and demanding, in the most exemplary manner. This is a complex matter – that much cannot be argued. Nobody on either side of the House could say that this is a simple affair that can be remedied or dealt with easily and quickly. The law, a law which protects rights and provides for due process, is not so convenient. The law cannot be shaped or moulded to fit the mood of the time. Rights must be respected. Due process must be protected. These are the fundamental principles which are the foundation of our legal system.
I am aware that this case has been an issue of concern since matters were raised with the then Minister for Justice, Equality and Law Reform, Deputy Owen, in 1997. Concerns about the handling of the investigation into the death of Mr. Barron were first raised in correspondence with my predecessor dated 27 February 1997 from a Member of Seanad Éireann five months after the death of the late Mr. Barron.
At about 12.45 a.m. on 14 October 1996, the body of Richard "Richie" Barron was found by a passing motorist on an unlit roadway at Townparks, Raphoe. When the body was found, there was evidence of cuts and associated bleeding on the forehead of the deceased. He was found within half a mile of his home, close to a gateway that gives access to an area of rough ground which is connected to the car park of the licensed premises known as Frankies Nite Club, owned by Frank McBrearty senior. Following the discovery of the body the Garda and the ambulance service were alerted. An ambulance crew attended the scene and removed Richie Barron to Letterkenny General Hospital where he was pronounced dead on arrival. Gardaí who arrived at the scene at 1.34 a.m. initially treated the death as resulting from a hit and run traffic accident.
However, I understand that information was given subsequently to the Garda which suggested that Mr. Barron had been murdered and was not the victim of a hit and run accident. A file was prepared and submitted to the Director of Public Prosecutions early in 1998. I understand that in April 1999, the DPP advised that no prosecutions should be taken on the basis of the file. Even before that communication from the Director of Public Prosecutions, there were concerns within the Garda Síochána about the matter. A number of disturbing events happened, including the issuing by gardaí of a significant number of summonses against a particular publican – subsequently the summonses were not proceeded with on the instructions of the DPP – allegations of harassment and of control of alleged arms dumps by members of the Garda, allegations of impropriety by members of the Garda in the conduct of prosecutions and other allegations.
In February 1999, the Garda Commissioner appointed Assistant Commissioner Carty to examine the matter. Assistant Commissioner Carty's investigation was extensive, comprehensive and complex. Over 1,000 people were interviewed. While the initial focus was on the investigation into Mr Barron's death, it was broadened to include a number of other issues, including allegations of harassment and allegations that certain gardaí were involved in hoax bomb-making equipment finds. In the course of the investigations a number of people were arrested, including members of the Garda. Notwithstanding the size and complexity of the investigation, Assistant Commissioner Carty was in a position to submit a file to the Director of Public Prosecutions in July 2000.
I, as Minister for Justice, Equality and Law Reform, have no function in the prosecution of criminal charges. I am, therefore, neither in a position nor would it be appropriate for me to make inquiries with the Director of Public Prosecutions as to individual cases. I can say, as it is a matter of public record, that six individuals have been charged with criminal offences arising from Assistant Commissioner Carty's investigation. The first was charged on 16 March 2001 and five others were charged in June of this year. Most of the charges relate to the making of false statements but one relates to the possession of a firearm. Five of those charged were civilians and one is a Garda detective sergeant. This member is currently suspended from duty. All these matters have yet to be determined by the courts. I understand that there may be further prosecutions.
One of the most important issues that has to be addressed – it is a fact that is often overlooked – is that Mr. Barron died and we still have not established who was responsible for his death. There has been a lot of speculation but that is what it is, speculation. There is no conclusive evidence available as yet on the cause of his death and whether it was criminal or accidental in nature. There is an ongoing Garda investigation into this issue and once again I urge anybody with information to come forward. Two other Garda investigations, other than disciplinary investigations, were initiated relating to Donegal, one conducted by Assistant Commissioner Murphy in response to allegations brought to my notice by two Members of this House, the other by a chief superintendent to investigate a related matter raised by a member of the Garda Síochána in Donegal concerning the original investigation. Extensive inquiries have been conducted in the Donegal division and elsewhere in the course of the investigation conducted by Assistant Commissioner Murphy. To date, in excess of 100 persons have been interviewed.
I am advised that during the course of the investigation an issue arose on which it was considered necessary to seek legal advice. This advice has been sought by the Garda authorities and is currently awaited. I am assured by the Garda authorities that when this advice becomes available, every effort will be made to finalise the investigation expeditiously. On 21 July 2000 the commissioner appointed a chief superintendent to conduct a fact-finding investigation into matters raised by a member of the Garda Síochána. Subsequently, the member commenced legal proceedings against the State. I am advised by the Garda authorities that the member did not co-operate with the investigation. The proceedings instituted by the member are now being dealt with by the Office of the Chief State Solicitor.
As regards the issue of Garda discipline, I have been informed by the Garda authorities that in June 2000, a superintendent was appointed in accordance with the Garda Síochána (Discipline) Regulations, 1989, to investigate the alleged neglect of duty and improper practices on the part of two members in the Donegal division, which arose during the course of the investigation into the death of Richard Barron. I am advised by the Garda authorities that on the advice of their solicitor, the two members in question have declined to co-operate with the investigating officer and arising therefrom, further disciplinary proceedings have commenced.
Arising out of Assistant Commissioner Carty's investigation, a chief superintendent was appointed in March 2001 in accordance with the Garda Síochána (Discipline) Regulations, 1989, to investigate alleged breaches of discipline against four members of the Garda Síochána. The investigations, which are ongoing, concern alleged breaches of discipline between 1993 and 1996. The question of preferring disciplinary proceedings against the members concerned cannot be considered until the chief superintendents' investigations have concluded.
As regards the transfer of members of the Garda Síochána in the Donegal division, the House will be aware that, when the Commissioner received the report of the Assistant Commissioner on the allegations in question, he decided, in the best interests of the public and the Garda Síochána, to transfer a number of personnel. I support him in taking these necessary measures. A total of nine civil actions have also been instituted.
I note the Opposition motion refers to the exhumation order. I had hoped that I had dealt with this last week and disabused the House any conspiracy theories. However, given that it has been mentioned again, I take this opportunity to once again set out the facts. Section 47 of the Coroners Act, 1962, provides that where a coroner is informed by a member of the Garda Síochána not below the rank of inspector that, in his opinion, the death of any person whose body has been buried in the coroner's district may have occurred in a violent or unnatural manner, the coroner may request the Minister to order the exhumation of the body by the Garda.
A request, in accordance with section 47(2) of the Coroners Act was received from the coroner for Donegal south-east on 27 June 2001, in respect of the late Mr. Barron and an exhumation order issued on 3 July 2001. Prior to this request, on 10 October 1997 the superintendent in charge of the investigation into the death of the late Mr. Barron, forwarded a request from the coroner for an exhumation order, based on a request made by the superintendent to the coroner. The necessary papers – an exhumation order and other related papers – were prepared by the staff of the Department to authorise the exhumation. However, on 16 October 1997 the same garda telephoned the Department and asked that his request for an exhumation order be put on hold until further notice.
In the circumstances, it would have been inappropriate for the Department of Justice, Equality and Law Reform to take any further action regarding the exhumation order request based as it was on the request of the same superintendent.
That was the Minister's function. It was not the function of the Garda to intervene at that point.
I know that some people are frustrated with what they see as the delay in having the truth of this matter determined. However, let us be clear about one thing, we intervene with the criminal process at our peril. There are no short cuts in the pursuit of justice and no quick fixes in bringing the guilty to book. We cannot disregard legal principle for political expediency or jeopardise criminal investigations for the benefit of public curiosity.
I am not surprised that the Green Party has allied itself to this defective motion. It is often the case that those who shout loudest about their own constitutional rights are the first to seek to suppress the rights of others. It would be commendable if the Green Party had learned the lesson of its past mistakes, but if it did, it would not be the Green Party. It appears to have forgotten the words spoken by Mr. Justice Kevin Haugh in halting a criminal trial, partly because of the distribution of leaflets advertising a rally which was to be addressed by a Deputy from the Green Party.
Let me remind the Green Party of the words of Mr. Justice Haugh. At page 14 of the judgment delivered on 26 June 2000 he states, "For similar reasons I also believe that the leaflet captioned "Jail the Corrupt Politicians" has similar potential for real and substantial prejudice not only because of its contents but also the position and status of those announced as due to speak at the rally concerned."
Those of us who are fortunate to have been elected to this House must take care that we do not lend our position or status to enterprises which adversely affect the constitutional rights of others. I accept that Deputies have concerns that the position in Donegal is still unresolved. I share their concerns and I want to see the truth determined. However, I want to see it determined in accordance with law.
As Deputies will be aware, I sought the advice of the Attorney General as to what options are open to me to carry out an independent inquiry, be it a sworn inquiry or otherwise. The Attorney General's advice in particular pointed out the very serious difficulties that would arise while civil and criminal proceedings are still pending, and advised that these proceedings should be allowed to run their course. I point out for the sake of completeness that the Attorney General gave this advice without the benefit of seeing the file submitted by the Garda to the DPP.
The integrity of criminal proceedings instituted by the Director of Public Prosecutions must be vindicated, not undermined, by Parliament. We cannot dispense with criminal proceedings because they get in the way of political objectives. Those charged with criminal offences have a right to hear the case against them and a right to defend themselves. The State has a right to pursue these prosecutions. We also cannot disregard the rights of persons to take civil proceedings and have them adjudicated by the courts.
What of the investigation into the death of Richard Barron? Is this too to be put, and I quote the Opposition's words, "at risk of frustration"? A man has died and the circumstances in which he died have yet to be ascertained. Nobody has been brought to account for this death. This must not be overlooked, nor must the suffering of his family. The circumstances surrounding the death of the person concerned are the subject of an on-going Garda investigation.
I would now like to turn to the motion put forward by the Opposition. At first glance it may seem to adequately address the issue but, with all due respect, when one looks at the detail it begins to unravel. I say this not to be unkind, nor to find fault for the sake of doing so, but because it is important that we proceed in a careful and correct manner.
I will address the core proposition, namely, that the public interest in a full and impartial airing and determination of the facts in this case, and consideration of its public policy implications, outweighs in importance what is described as, "the customary need to ensure that pending or anticipated criminal proceedings are not put at unnecessary risk or frustration".
Apart from the legal issues which I dealt with earlier, this is a proposition with very far reaching implications. While a proposition should not be condemned on the grounds of its novelty alone, it has to be recognised that acceptance of the proposition would represent a major departure by the State from the way in which wrongdoing by its citizens has always been dealt with – whether the wrongdoers happen to be public servants, or whether the wrongdoing is civil or criminal in nature.
It has been the consistent view of my predecessors and of successive Governments, that the right course, where there is wrongdoing, is to allow the criminal process to take its course and, on the civil side, to allow the normal civil law process, including, if necessary, court proceedings to strike the balance between the respective rights of individuals and other bodies and between individuals and the State. This is a system which has served the public well, by and large. As legislators, we would surely need reasons of a most persuasive kind before we could decide simply to sweep it all aside. We would need to ensure there was no adverse impact in terms of the assertion and vindication of the fundamental rights of individuals. It would involve breach of what the Supreme Court recognises as a superior constitutional right.
If the core proposition of the motion was accepted, by what principle would we then decide that one form of wrongdoing was a matter to be dealt with through what the motion describes as the "customary" mechanism and another through the newly-proposed mechanism, namely, a public inquiry side by side with live, but incomplete, civil and criminal proceedings? If it is argued that the ultimate arbiter in each instance should be the level of public interest or concern generated, or at least the level of public interest or concern as assessed by this House, then how do we decide, exactly and equitably, to treat other high profile cases that cause very grave public concern, where wrongs of the most serious kind may be the subject of prolonged investigation? How do we ensure as between one citizen and the next, or between one victim and the next, that there is consistency or fairness in the system as a whole, if in one instance a separate mechanism is brought into play at the behest of this House, but, in another, custom and practice is allowed to prevail?
If it were being asserted that there was no prospect at all that wrongdoing in the Donegal cases, whether civil or criminal, would be addressed through the existing mechanism, then we might be obliged to look at alternatives. However, that is not the case. Persons have already been charged and other cases are being considered by the DPP. Also, civil proceedings have been instituted and those proceedings will need to be dealt with.
There is the further fact that if, at the end of the normal civil and criminal processes, a level of public concern remains about this case, there can be a public inquiry. I have made it abundantly clear that I have no objection to that course.
There are other aspects of the Opposition's motion which need to be commented upon. I am not offering comment on all of the issues that arise, but on the more obvious ones, and I do so not for the sake of being negative or implying any lack of sincerity on the part of the proposers of the motion, but simply to point out that, apart from the weaknesses of its core proposition, there are other matters that should give us all cause for thought.
The motion refers to the need for a "full, public and impartial ventilation" of the facts. Paragraph (1) proposes that, "It is expedient that a tribunal be established under the Tribunals of Inquiry (Evidence) Acts, 1921 to 1998 ("the Acts"), to inquire urgently into and report to the Clerk of Dáil Éireann and make such findings and recommendations as it sees fit, in relation to the following definite matters of urgent public importance."
However, section 3(g) states, "The Tribunal can carry out a preliminary investigation and, where appropriate, can conduct its proceedings in private, in order to determine whether sufficient evidence exists to warrant proceeding to a full public inquiry."
Unless I am missing something, therefore, it appears that the Opposition is not calling for a public inquiry at this point. It is calling, in the first instance, for a preliminary investigation which can take place behind closed doors. How does this square with the very first proposal in the motion and how will it advance the objective of open and transparent investigation at this point? There is the proposal at paragraph (3)(j) of the motion that–
in relation to any matters where the tribunal finds that there is insufficient evidence to warrant proceeding to a fully public inquiry, to report that fact to the Clerk of the Dáil and to report in such a manner as the tribunal thinks appropriate on the steps taken by the tribunal to determine what evidence, if any, exists;
But what happens if the tribunal determines that the evidence is insufficient or does not exist to warrant proceeding to a full public inquiry on the basis of information given to it in private? Will this information, given to it in private, be disclosed and, if so, to whom? What about the evidence that might be given publicly to the tribunal? Evidence given to tribunals is non-admissable in criminal proceedings. Section 5 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, makes that clear. That can hardly be helpful in terms of securing what should be a core objective of the whole exercise, i.e., ensuring that no impediments are put in the way of securing criminal convictions where such are warranted.
Furthermore, section 2 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997, provides that a person who produces or sends a document to a tribunal shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court. Are we sure that we want to provide the opportunity to anybody and everybody who might wish to send documentation to the proposed tribunal at this stage, to secure immunities of the kind referred to in respect of that evidence?
In short, none of the evidence, or anything derived from that evidence, can be used in future proceedings. In other words, the building up of a criminal prosecution would have to start from scratch. I am advised that the same would apply to civil proceedings.
There must be at least some doubt as to whether the proposers of the motion actually believe themselves that what they are advocating represents the right way forward. Apart from the confusion as to whether a public inquiry is being called for at all – as distinct from a private investigation behind closed doors, which might or might not lead to a public inquiry – there is the confusion which has undoubtedly been created by comments attributed to Deputy Howlin in one of today's newspapers. A report in today's Irish Examiner stated:
Labour Justice spokesman, Brendan Howlin, said the Minister's failure to hold an inquiry amounted to dereliction of duty. But the Labour Party deputy leader would not commit to definitely holding an inquiry if his party were in Government after the next election.
If that is a correct summary of the Deputy's views we need to know it because on any ordinary interpretation what it seems to be saying is that I am in dereliction of my duties for not doing something which he, as a proposer of the motion, is not prepared to commit himself to doing either. If it is a false report, then we need to know that also.
If the Minister could yield for one second I will clarify that.
Par for the course.
I have very little time.
If we want to get the full truth, the Minister should allow me to correct the record directly and briefly.
Mr. O'Donoghue:
Okay.
Carlow-Kilkenny): Briefly.
I was asked if I would commit the Labour Party to an inquiry and I said it was not within my power to do that. I said that, as a democratic party, it would be a matter for the parliamentary party and the general council of my party, but I would be strongly advocating it. I am sure the Minister will correct the record now.
Part of the reason we are discussing the use of a tribunal to determine what happened in Donegal is that there is no other machinery available to us at this moment to investigate such matters and to do so independently. That is why I have acted where others have not, and published new arrangements which will govern future complaints against the Garda Síochána. The overall purpose is to introduce new independent and transparent procedures which reflect modern conditions in order to maintain and enhance public support for the Garda Síochána.
We need to have a mechanism to deal with systems failures, to investigate patterns of possible abuse, to deal with how the force operates as a whole, in addition to being able to investigate possible wrongdoing on the part of individual members.
The measures to put the new Garda inspectorate in place have been approved by the Government which has also indicated that work should commence on the preparation of the new legislation that will be required to implement them. I am anxious that this project should be completed as quickly as possible and I have no doubt that when the new measures are in operation they will contribute in a positive and significant way towards strengthening public confidence in the Garda Síochána and how it carries out its many tasks.
A new Garda inspectorate will be established which will have the capacity to examine every aspect of Garda operations policy from the point of view of best policing practice. For the purpose of carrying out all of its functions the inspectorate will operate completely independently and its staff will be appointed by and be responsible to the inspectorate. The powers of the inspectorate will be extensive and will enable it to obtain access to relevant material and to have discussions with appropriate parties in conducting its reviews. Moreover, the inspectorate will be in a position to conduct research into relevant matters and to engage specialist expertise. This could be done, for example, through the use of outside resources which could, as necessary, be sought from outside the jurisdiction.
If any of my predecessors had acted as I am now doing and set up such an inspectorate, we would not be discussing this matter now. The inspectorate would be examining the matter. However, where others have talked, I have acted. Given the undoubted complexities of the Donegal situation with its attendant criminal and civil proceedings, what can be done to progress this matter? I have already set out the Attorney General's advice to me. Taking into account the difficulties identified by the Attorney General on the one hand and the need to address current public concerns on the other, I have decided to appoint an eminent legal person to conduct an independent review of all the relevant papers and the progress on these investigations generally with a view to receiving expert independent advice as to whether there are measures that might now be taken to bring matters to finality sooner rather than later.
I have appointed Mr. Shane Murphy, Senior Counsel, on the nomination of the Chairman of the Bar Council, with the following terms of reference: to conduct an independent review and undertake a thorough examination of the action taken, and of relevant papers held, by the Garda Síochána and the Department of Justice, Equality and Law Reform relevant to allegations that members of the Garda Síochána in the Donegal division engaged in criminal, unethical or unprofessional behaviour, particularly in the context of the investigation into the death of Mr. Richard Barron, and with regard to the finds of bomb-making equipment; to advise, taking into account relevant criminal, civil and disciplinary aspects and mindful of the public interest, whether all appropriate steps have been taken with due diligence and expedition; to advise what further measures, if any, might now be taken to bring those who have engaged in criminal, unethical or unprofessional behaviour to account at the earliest opportunity and to address public concerns; and in this regard, to submit a report to the Minister for Justice, Equality and Law Reform as a matter of urgency.
This is an unprecedented step and Mr. Murphy will begin his task straightaway. The action I am proposing will achieve the objective without running the risk of jeopardising the civil and criminal proceedings already in being – a result which would not serve the public interest in this case.
Irrespective of any advice I may receive as to action that might now be taken to bring the var ious matters to finality, I want to make it clear again that I am not opposed to the idea of a public inquiry in this case. I have made that clear from the outset. Time and time again, I have said that I want the truth of this matter to be determined. The only question – and it should not be one that divides us in bitter and partisan debate – is what is the appropriate way of achieving this objective?
For the reasons set out, I do not believe that this is the appropriate time to establish a tribunal of inquiry. I see nothing to be gained by jeopardising criminal and civil proceedings – and, indeed, possible Garda disciplinary proceedings – at this juncture in time. The action I am now taking, which is without precedent, will assure the House and the general public that everything possible is being done to bring closure to the matter. I commend the amendment I have proposed to the House.
I wish to share time with Deputy McGinley.
Acting Chairman:
Is that agreed? Agreed.
The Labour Party agrees with the Minister for Justice, Equality and Law on one matter, that is, where he stated:
I am strongly of the view that it is essential for the reputation of the force that any alleged wrongdoing is investigated thoroughly and appropriate disciplinary or criminal proceedings taken.
I am quite sure that other colleagues in the House, including Members of the Fine Gael Party, also support that view. I see this motion as an attempt to limit damage to the Garda Síochána in respect of the most serious case of corruption and improper activity in the history of the force, as my colleague Deputy Howlin has described it.
The Minister ought to recognise the two critical paragraphs in the motion that talk about acknowledging widespread public concern about the matter; being strongly of the view that it is essential for the reputation of the force that any allegations of wrongdoing by its members are investigated thoroughly; that if such allegations are well founded, appropriate disciplinary or criminal proceedings should be initiated; and wanting to see the truth of this matter determined and public confidence in the Garda Síochána, in so far as it has been adversely affected, restored. The Minister ought to support that kernel of the motion because he was the author of those two paragraphs which were contained in his reply to the House on 13 November.
Having listened to the Minister's contributions, however, one could not be more disappointed. Even at this late stage, five years after these events originated, the Minister is still procrastin ating, still explaining, still looking for justice and still seeking the truth, but not yet.
I do not come to this debate with any personal knowledge of the facts. I have briefly met the McBrearty family to exchange courtesies and to sympathise with the plight in which they find themselves. I have read the statement of Mr. Frank McBrearty and documentation on the matter by Mr. William Flynn, to which Deputy Shatter referred. I do not have personal knowledge of the facts, but I share the widespread public concern which is referred to in the motion and borrowed from the Minister's words. The question of wanting to restore confidence in the Garda, which has undoubtedly been damaged, is critical. The motion is about the fundamental nature of our democracy, equality before the law and the answerability of the Garda.
I do not know how one would rank the issues in this debate. They are set out in the motion before the House. The systematic oppression of the McBrearty family, including the attempted destruction of their livelihoods and the attempt to frame one of their members for the crime of murder, must be one of the most serious issues to come before the House. The failure to properly investigate in an expeditious and efficient manner what appears to be the unlawful killing of a citizen must also rank highly. The failure of the Garda authorities to deal with the allegations promptly and efficiently must also feature prominently.
I do not intend to go into the type of forensic detail outlined by Deputies Howlin and Shatter. However, I am dismayed at the apparent inability of the Minister to understand the gravity of the matters at issue. In the normal adversarial course of politics I have exchanged views with the Minister in the House on a number of occasions and he has given his views with interest. Although he is a decent man, he is a feeble Minister for Justice, Equality and Law Reform. He has not shown a capacity for decisiveness in that Department. He has been captured by the Department and that is evident in the speech he regurgitated tonight. He is a captive of his Department. He finds himself incapable of acknowledging that there might be wrong-doing by any members of the Garda Síochána. He finds that difficult to stomach.
I have some sympathy with that view because the profile of this House is older than the profile of the population. We were all reared in a different era when respect for the Garda Síochána was one of the core values of the people. The Minister, like the rest of us, is a product of that. He cannot acknowledge that, notwithstanding what we have seen in recent times, not every member of the Garda Síochána performs to the customary high standard.
The Minister is indecisive and overly cautious. I cannot believe the bombast and the tendency to trivialise which we saw again tonight, albeit in a ponderous way. I refer by way of illustration to his criticism of the Green Party. It takes a hard neck for the Minister to come in here and seek to indict the Green Party because he says it promoted a leaflet captioned "Jail the Corrupt Politicians" which represented a real and substantial prospect of prejudicing the trial of the man who first promoted the Minister, Deputy O'Donoghue. He could just as easily have referred to the Tánaiste whose similar remarks assisted the former Taoiseach, Mr. Haughey, to escape his day of accountability.
To a far greater degree.
To a far greater degree, as the learned judge said. One would have thought that since the Minister signs everything his officials put in front of him, they would have taken out the red biro and put it through that offensive paragraph. Whatever else the Green Party may be guilty of, to imply that it transgressed, rather than his former party leader in these circumstances, is almost beyond belief.
It is a matter of concern that if we do not engage in this inquiry the reputation of the Garda Síochána will be damaged. However, there will ultimately be an inquiry. When that inquiry takes place, it will not merely be the damage done to the reputation of the Garda Síochána that will be at issue, but the damage to the reputation of the Minister for Justice, Equality and Law Reform. It appears from his shilly-shallying tonight that the inquiry will come, but not until he is gone. I do not take pleasure in saying that when it comes it will leave his credibility in tatters. The more he delays, procrastinates and agonises, the more damage will be done.
These are serious issues. I do not know the truth of them one way or the other, but I know that a majority of law-abiding citizens are scandalised by what appears to have been done to the McBrearty family. Yet the Minister makes statements about the fact that the assistant commissioner's investigation was "extensive, comprehensive and complex". It was also secret, as all three investigations have been. Nobody has been assured about what is at the heart of this matter. The Minister said that an applicant's right to fair procedures is superior to the community's right to prosecute. What about the rights of the McBrearty family? What about the rights of Richie Barron's family? How does the Minister rank them?
What is the Minister's case against a tribunal of inquiry? I was in the Four Courts to hear advocates on behalf of the Garda Síochána say that they did not believe that the Garda Síochána should be made amenable, answerable or accountable to this House. That is a fantastic proposition. They said they wanted a tribunal of inquiry and that they would accept such a tribunal in the case of Abbeylara. If they are prepared to accept a tribunal of inquiry in the case of Abbeylara, why not accept a tribunal of inquiry in these circumstances?
The Minister has not answered that question and he has left the impression in his response to the motion, moved by Deputies Shatter and Howlin, that he might yet yield to an inquiry, but it is impossible to understand how his mind is working. To criticise the motion for lack of focus is nonsense. Sadly we have too much experience of tribunals of inquiry. We have learned a great deal since the days of the whitewash that was the beef tribunal. The manner in which we construct the terms of reference, the manner in which the money trail is followed and the manner in which bank accounts are accessed show that a tribunal of inquiry, notwithstanding the fact that many of their procedures are out of date and based on law that precede the founding of the State, is still an instrument that is capable of getting to the truth on fundamental matters of public interest. This is a fundamental matter of public interest and it is imperative that the Minister stops his dilly-dallying, comes in here and announces that such an inquiry will be established with the full support of this House.
I am glad to have an opportunity to contribute to this motion. Like Deputy Rabbitte, I cannot go into the same forensic details as my colleague Deputy Shatter, or indeed Deputy Howlin, has done. However, I will give the views I find in Donegal as honestly and as accurately as I can.
What has become known as the McBrearty affair has been festering in Donegal since the tragic death of the late Richard Barron in Raphoe five years ago. Since then there have been rumours, counter-rumours, accusations and denials, but we should not lose sight of the core issues involved. A highly respected well-known, hard-working industrious man was mysteriously killed. The bereaved family lost a loving husband and father. It is amazing that after so many years the exact cause of death has not yet been established. Initially it was believed that the late Mr. Barron was the victim of a hit and run accident. After some time and without explanation the hit and run theory was dropped and a murder investigation was initiated. The conduct of this investigation and the activities associated with it have caused widespread confusion, uncertainty and questioning throughout Donegal. Rumour and suspicion have taken over.
While the Barron family has suffered and continue to suffer from the death of Mr. Barron, other Raphoe families have also gone through what can only be described as a terrible ordeal. I refer to the McBrearty and McConnell families, both highly respected families living in Raphoe in Donegal. For some unknown reason they became the focus of the murder investigation. The pursuance of that investigation almost ruined their successful family business as well as inflicting tremendous stress and severe mental anguish on every member of those two families. It would not be an exaggeration to say that the family also disintegrated due to the pursuance of the investigation. Their customers were allegedly intimidated. They were subject to unprecedented surveillance, resulting in the issuing of 160 summonses for alleged breaches of drinking and opening regulations. Their court appearances became regular features of sittings in Donegal and on every occasion the State requested yet another postponement. At the end of all that the charges were mysteriously dropped or withdrawn. Certainly they were put through the wringer, but they have survived.
Needless to say, this long saga has generated unprecedented confusion and uncertainty throughout the county. The latest chapter in this disturbing tale was the exhumation of the late Mr. Barron's remains. If leads and reports are to be believed, the late Mr. Barron was the victim of a hit and run accident, in other words, the original opinion.
Can anyone here imagine the ordeal for the Barron family, and the parish priest, who had to be present to witness the exhumation of their father. Playing a central and pivotal role in all this was the Garda Síochána. I have always had the greatest respect for the Garda Síochána and the important work they do. They are often the bulwark between ourselves and anarchy. During the past 30 years the Garda Síochána have had to operate under incredibly difficult circumstances in Donegal, being a Border county. They have often found themselves in life-threatening situations but they have handled such occasions with the skill and experience we have come to expect of them. During my 20 years as a Member I can truthfully say I have found them to be dedicated, professional and fair. However, the conduct of this investigation generates concern, confusion and uncertainty. Many other aspects of the Garda working operations in Donegal are under the microscope as never before. This is the subject of widespread comment, questioning and probing editorials, including today's edition of The Donegal Democrat which states: “The morale of the gardaí in Donegal has taken a terrible bashing.” I know from speaking with individual gardaí that they are deeply concerned as to how this has developed. That concern seemingly goes to the higher echelons of the force.
Debate adjourned.
- An Bille um an gCúigiú Leasú is Fiche ar an mBunreacht (Beatha Dhaonna le linn Toirchis a Chosaint), 2001: Ordú do Chéim an Choiste. Twenty-fifth Amendment of the Constitution (Protection of Human Life in Pregnancy) Bill, 2001: Order for Committee Stage.
- Ar ais chuig clár ábhair
- Message from Select Committee.