That Dáil Éireann:
— on 5th February, 2019, the Minister for Justice and Equality announced the appointment of District Court Judge, Gerard Haughton, to conduct a scoping exercise into certain matters surrounding the circumstances leading to the death of Shane O’Farrell;
— the purpose of the initial scoping exercise was to determine what further steps could be taken, and the Minister for Justice and Equality stated that Judge Gerard Haughton was ‘free to recommend any course of action’ which he considered appropriate;
— Judge Gerard Haughton was provided with terms of reference but the Minister for Justice and Equality stated in the Dáil and in correspondence to the O’Farrell family that they would have an opportunity to consult with the Judge on those terms;
— on 24th April, 2019, Judge Gerard Haughton submitted final terms of reference to the Minister for Justice and Equality; and
— on 29th July, 2019, the Department of Justice and Equality rejected the terms of reference submitted by Judge Gerard Haughton and provided terms of reference significantly narrower than both the Judge’s terms of reference and those provided by the Minister for Justice and Equality on 5th February, 2019;
— on 14th June, 2018, a majority of Dáil Éireann members voted in favour of a motion calling on the Government to immediately establish a public inquiry into the death of Shane O’Farrell; and
— on 13th February, 2019, a motion was passed by the members of Seanad Éireann calling for the immediate establishment of a public inquiry into the death of Shane O’Farrell; and
calls on the Government to:
— acknowledge that the Department of Justice and Equality’s terms of reference do not address the needs of either the O’Farrell family or the Resolution of the Dáil of 14th June, 2018; and
— adopt the following terms of reference immediately for the scoping exercise as drafted by Judge Gerard Haughton who consulted with the O’Farrell family, and which terms reflect the spirit of the Resolution of the House:
‘In light of the public controversy surrounding the circumstances of the death of Mr. Shane O’Farrell on 2 August 2011, and having regard to the motion passed by Dáil Éireann on 14 June 2018 and Seanad Éireann on 13 February 2019, calling for the establishment of a public inquiry in the matter and having regard to the State’s obligations pursuant to Article 40.3 of the Constitution and the European Convention of Human Rights and in particular Articles 1, 2, 5, 6, 8 and 13 thereof as set out in the schedule below:
1. To review the investigations that have already taken place into the circumstances of the death of Mr. O’Farrell, namely:
(a) The criminal prosecution of Mr. Zigimantas Gridziuska in respect of the fatality on the 2 August 2011 and the subsequent trial in the Circuit Criminal Court in February 2013;
(b) The previous prosecutions of Mr. Zigimantas Gridzuska and the interactions of members of An Garda Síochána with Mr. Zigimantas Gridziuska in so far as same are relevant to the fact that the said Mr. Gridziuska was on bail at the time of the death of Mr. Shane O’Farrell on 2 August 2011;
(c) The review by the Independent Review Mechanism (IRM);
(d) The criminal investigation by the Garda Síochána Ombudsman Commission (GSOC);
(e) The subsequent disciplinary investigation by GSOC; and
(f) To have regard to the documentation gathered for the Statutory Inquest into the death of Mr. Shane O’Farrell.
2. To review changes that have been made to the law and practice in relation to the administration of bail and bench warrants and the extent to which they have or have not addressed gaps in those systems since the death of Mr. O’Farrell;
3. Based on the reviews at 1. and 2. above to advise the Minister for Justice and Equality:
(a) If there are any remaining unanswered questions in relation to the circumstances of Mr. O’Farrell’s death that should be the subject of further inquiry or investigation; and
(b) If there are, the most appropriate manner in which they should be investigated, having regard to the statutory independence of bodies such as the courts, the Director of Public Prosecutions and the Garda Síochána Ombudsman Commission.
4. If an investigation or inquiry is recommended to draft terms of reference for said investigation/inquiry, and the suggested composition of the said investigation/inquiry;
5. To make enquiries with persons or bodies that he/she considers appropriate in relation to the review; and
6. To report to the Minister for Justice and Equality within 8 weeks of commencement with an interim report indicating, inter alia, the expected timeframe for completion of the scoping exercise.’.
I am sharing time with Deputy Niall Collins.
It is now over eight years since Shane O’Farrell was killed when he was cycling his bicycle in the vicinity of his house in Carrickmacross on 2 August 2011. His death was a tragedy. He was a young man who had his whole life ahead of him. He had just completed his master’s degree which he had handed in that day for assessment. It was a terrible trauma for his family, his loving parents, Lucia and James, and his four sisters.
As I have said before, the fact that Shane’s death is a tragedy and has caused great trauma for his family does not mean that there should always be a State inquiry or investigation into how his death and killing occurred. There are reasons, however, that I, as well as this House, believe give rise to the State establishing an inquiry and investigation into the circumstances surrounding the death of Shane O’Farrell.
Shane was killed in a hit-and-run accident on 2 August 2011. The individual, a Lithuanian man, who was driving the car involved, was subsequently convicted for leaving the scene of the accident. The reason Shane O’Farrell’s death merits investigation is that there were significant failings by the State of which we do not yet know the full details.
I will outline to the House the circumstances which, on the face of it, give rise to a reason for there to be an investigation. In January 2011, the Lithuanian man in question was convicted in Monaghan Circuit Court of theft. The judge who sentenced him said he would adjourn sentencing for a year but that, if the Lithuanian man was convicted of any other fraud or theft offences, his sentence of one year’s imprisonment would immediately be triggered. Later that year, in May, this Lithuanian man was convicted of another theft offence in Ardee District Court. That earlier conviction should have been brought to the attention of the Circuit Court judge immediately to ensure the Lithuanian man’s sentence could be activated because of the breach of the terms set in January 2011.
It was not just that offence in May 2011 that gave rise for concern. Later in May, in Dundalk District Court, the same man was convicted of speeding. Subsequently, in June, in Carrickmacross, he was convicted for the possession of heroin. In July 2011, in Newry, a different jurisdiction, he was again convicted of theft. There were many further convictions. What this indicates is that this man should not have been out on our streets at the time Shane O’Farrell was cycling his bicycle in the vicinity of Carrickmacross. That is an issue which merits investigation.
I, like the Minister, have met the O’Farrell family. Nothing that this House can do, or nothing that a judge appointed to inquire into the circumstances of Shane’s death will do, will result in the O’Farrell family being able to deal adequately with the trauma imposed on them. Unfortunately, I do not believe the O’Farrell family will be able to get justice in the way families are entitled to justice when their loved ones are killed. The House, however, has a responsibility to assist them in getting answers to questions that are still hanging out there. Notwithstanding the fact there has been a lengthy Garda Síochána Ombudsman Commission, GSOC, inquiry into this matter, which is not yet fully completed, there are still questions that remain unanswered.
As a result of these unanswered questions, Fianna Fáil put forward a motion in June 2018 seeking the establishment of an investigation into the circumstances surrounding the death of Shane O’Farrell. The House voted on 14 June 2018 for the establishment of such an inquiry. Subsequently, the Upper House voted in February 2019 in favour of such an inquiry. In fairness to the Government, it recognised that if Dáil Éireann and Seanad Éireann are in favour of such an inquiry, there is an obligation on the Executive to give effect to the resolution of both Houses. As a result of that, the Minister for Justice and Equality, Deputy Flanagan, appointed District Court Judge, Gerard Haughton, to conduct a scoping inquiry into the terms of an investigation, whether an investigation should be needed and the extent of such an investigation.
At the time the Minister came forward with this proposal, many people were critical of it. We could have been critical but we said the process should be allowed to play out to see whether there was a benefit in the scoping exercise and to allow Judge Haughton to conduct his preliminary review. There is a benefit when it comes to investigations for a judge to conduct a scoping inquiry to ensure that the circumstances and parameters of such an inquiry can be properly defined for whoever is going to continue to conduct it. We know that when the Minister appointed Judge Haughton, he was provided with terms of reference in February 2019. The Minister indicated at the time, both in oral parliamentary questions and in replies to written parliamentary questions, that the family could engage with the judge about the terms of reference and that the judge could propose changes to the terms of reference to the Minister. We welcomed this and thought it was helpful that there could be some preliminary engagement between Judge Haughton and the O’Farrell family in advance of the conclusion of the terms of reference for the scoping inquiry.
We know then that as a result of what the Minister said, Judge Haughton came back with the terms of reference in April 2019 which he submitted to the family and the Department. In fairness to the O’Farrell family, they believed those terms of reference would be accepted, in light of what had previously been indicated by the Department. In July 2019, however, the Department provided Judge Haughton with amended terms of reference which were significantly narrower than those submitted by him to the Department in April 2019.
We need to recognise that there has been considerable delay in getting this process up and running. When one looks at what we are trying to investigate, it is an issue of limited duration. It is an issue which relates to what happened with this Lithuanian man prior to the accident with Shane on 2 August 2011. It is an investigation into the inquiries, investigations and prosecutions that took place thereafter. This should not be a matter that has dragged on for as long as it has. I note the Taoiseach said today that this has gone on for too long. Everyone in the House agrees it has gone on for too long. It is unfair on the O’Farrell family that they have been dragged through this for such a lengthy period.
The motion’s purpose is to get the Government to accept the terms of reference that were provided by Judge Haughton in April 2019. From what the Taoiseach said today - and probably what the Minister will say in due course this evening - Judge Haughton may be coming near the conclusion of his scoping inquiry. I still appeal to the Minister to permit Judge Haughton to conduct his scoping inquiry in terms of the amended terms of reference provided in April 2019. A scoping inquiry is a limited exercise. In a reply to a parliamentary question, the Minister said his concern and the reason for changing the terms of reference were the decision in the case of Shatter against Guerin by the Supreme Court.
We need to recognise that the scoping inquiry being conducted by Judge Haughton is a different type of exercise. It is limited in what it seeks to do and it will set out the extent of an inquiry that should take place. The differences between the terms of reference as provided by Judge Haughton in April and as suggested by the Department of Justice and Equality in July are significant. Our concern is that the terms of reference to which Judge Haughton is now operating water down the extent to which he can provide a detailed suggestion to Government that issues should be investigated. For instance, we know that the February 2019 terms of reference permitted the judge to review the investigation that had already taken place. This term was also contained in the terms submitted by the judge to the Department in April 2019. However, in the terms of reference provided by the Department to the judge in July 2019, we are told that the judge is limited to taking into account the outcome or reports of investigations or inquiries that have already taken place. This is a limitation in terms of what the judge can examine.
Another area where there has been limitation is that the terms of reference submitted by Judge Haughton stated that in its deliberations the scoping inquiry should have regard to the provisions of the Constitution and the European Convention on Human Rights. This was not included in the terms of reference provided by the Department in July 2019. I do not know why that has been removed or omitted. Also, the terms of reference drafted by Judge Haughton specifically provides that the scoping exercise should have regard to the documentation gathered for the statutory inquest into Shane's death. This is not included in the terms provided by the Department in July 2019.
As I said earlier, I note that the Minister has concerns about the case of Shatter v. Guerin but the problem that arose in that case was that a report, whether it was a scoping report or not, was produced by the investigator and it contained findings in respect of the former Minister, Alan Shatter, when he had had no opportunity to put forward his side of the story to the investigator. The investigator, as we know, had an opportunity to speak to another affected party who gave an account that would have differed from that of former Minister, Alan Shatter. There is no similar type of issue operating in the circumstances of this case. Judge Haughton will not produce a scoping report that will contain findings against any individual in the same way as the Guerin report contained findings against the former Minister, Alan Shatter.
I recognise, however, that when we are establishing terms of reference for inquiries it is important that we contain precision within them. I know that Judge Haughton, if preparing terms of reference for a future inquiry, will, if he thinks it appropriate, be very precise in setting out what those terms of reference should be. I agree, as I am sure the Minister does as well, with the judgment of Mr. Justice O'Donnell in the Supreme Court, where he spoke about how the lack of clarity about the legal nature of an ad hoc inquiry as a preliminary exercise can give rise to undesirable uncertainty both as to the steps required and the legal principles to be applied to such an exercise. However, in the instance of this scoping exercise we do not see any such issues arising.
In the circumstances, I would ask that the Minister and the Government re-engage with Judge Haughton, who presumably has done a huge amount of work in respect of a scoping inquiry, and tell him that they are prepared to allow him to consider a scoping inquiry under the broader terms of reference suggested by him in April 2019. Judge Haughton is a former member of the Judiciary. He put forward these terms of reference in the knowledge of what was contained in the case of Shatter v. Guerin. They were reasonable terms of reference. They were not terms of reference that were drafted by some ad hoc committee of this House. They were precise and reasonable and they will be of benefit to whoever is the subsequent investigator, if one is appointed, in determining the extent of the issues that should be examined in respect of the death of Shane O'Farrell.
As Fianna Fáil spokesperson on justice people come to me seeking inquiries into matters of public concern. We have many inquiries operating in this State. I suspect we have too many. On many occasions when people come to me seeking inquiries I tell them that I do not think their issue of concern merits an inquiry or a public inquiry. This meets with opposition and concern, particularly because it is an opposition party that will not support an investigation into a matter. However, when I review the circumstances of the death of Shane O'Farrell and I examine them objectively and carefully, I believe an inquiry is merited. I do not say that because of the trauma that the O'Farrell family have endured or because of the tragedy that is at the heart of this issue - the loss of life of young Shane O'Farrell - I say it because I think there are issues that the O'Farrell family deserve answers to and there are issues that if answered would benefit this State. It is for this reason I think the scoping exercise being conducted by Judge Haughton should be enlarged.