Thursday, 28 March 2002
Seanad Eireann Debate
–noting the decision of the Minister for Justice, Equality and Law Reform in November 2001 to request Mr. Shane Murphy, SC, to conduct an independent review of all the relevant papers and the progress on the investigations into these allegations 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;
–noting that having completed his review, it is the opinion of Mr. Shane Murphy, SC, that a tribunal of inquiry represents the only comprehensive method of inquiry to resolve  outstanding issues of fundamental public importance;
–mindful that a number of criminal proceedings have been instituted arising from some of these allegations, and mindful of the ongoing investigation into the death of Mr. Richard Barron, and not wishing to prejudice these or related criminal proceedings;
resolves that it is expedient that a tribunal be established under the Tribunals of Inquiry (Evidence) Acts, 1921 to 2002, to inquire urgently into the following definite matters of urgent public importance:
(b) Investigations in relation to the death of Mr. Richie Barron of Raphoe, County Donegal, on 14 October 1996 with particular reference to the arrest and treatment of persons in custody in connection with that investigation, the progress, management and effectiveness of the Garda investigation with particular reference to the management of informants;
(c) Allegations of harassment of the McBrearty family of Raphoe, County Donegal, and of relatives, associates and agents of that family by members of the Garda Síochána subsequent to the death of Mr. Barron including the issue and prosecution of summonses relating to offences alleged to have occurred between 28 October 1996 and 28 September 1998;
(e) Complaints that some gardaí in County Donegal may have been involved in hoax explosives and bomb-making equipment finds (in particular discoveries on 11 September 1993, 19 November 1993, 11 January 1994, 14 March 1994, 4 June 1994, 13 June 1994 and 18 July 1994) and a review of the management and investigation of these issues;
(f) The circumstances surrounding the arrest and detention of Frank McBrearty Junior on 4 February 1997 and his subsequent prosecution in the Circuit Criminal Court in relation to an alleged assault in December 1996 on Edward Moss with particular reference to the Garda investigation and the management of both the investigation and the role of the gardaí in the subsequent prosecution;
(h) Allegations contained in documents received by Deputy Jim Higgins on 25 June 2000 and in information received by Deputy Brendan Howlin on 25 June 2000 that two senior members of An Garda Síochána may have acted with impropriety;
(I) the tribunal shall report to the Minister for Justice, Equality and Law Reform on an interim basis not later than four months from the date of establishment of the tribunal and also as soon as may be after the tenth day of any oral hearings of the tribunal on the following matters:
(d) any other matters that the tribunal considers should be drawn to the attention of the Houses of the Oireachtas at the time of the report (including any matters relating to its terms of reference),
(III) all costs incurred by reason of the failure of individuals to co-operate fully and expeditiously with the tribunal should, as far as it is consistent with the interests of justice, be borne by those individuals;
(IV) the Minister for Justice, Equality and Law Reform shall within 14 days of receipt of any report from the tribunal either apply to the High Court for directions regarding  publication of the report or arrange to have it laid before both Houses of the Oireachtas.
Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): This matter was discussed earlier today in the other House. The purpose of this motion is to enable the establishment of a tribunal of inquiry to examine the matters set in the proposed terms of reference. I thank Members of the House for agreeing to deal with this matter before the Easter recess.
The Garda Síochána has served this country exceptionally well from the foundation of the State and the majority of members, including those based in Donegal, have done so in a professional way and with the greatest of integrity. This State owes a great deal to the Garda Síochána, which has stood as a bulwark of democracy, often in the most difficult of circumstances. Members of the Garda Síochána have been called upon to make the ultimate sacrifice in the service of the public. Despite the gravity of the matters we are discussing today we should not lose sight of that fact.
In our discussions today, I am constrained in what I can say regarding aspects of the terms of reference because, as the House is aware a number of court proceedings remain to be dealt with and I do not wish to say anything which might affect those proceedings.
In the early hours of 14 October 1996, the body of Mr. Richard Barron was found on a roadside in Raphoe, County Donegal. Once again I express my deepest sympathy to the family of the late Mr. Barron and my particular regret that this case has not yet been brought to finality, despite the passage of time and intensive Garda investigations. The Garda investigation is ongoing. The finding of the remains of the late Mr. Barron set in train a chain of events which have led to today's draft resolution being laid before the House.
I do not intend nor would it be appropriate for me to outline the details of the Garda investigations, criminal proceedings, civil proceedings, disciplinary proceedings or complaints made to the Garda Complaints Board. It is enough that I say that all the papers held by various bodies were examined, at my request, by Mr. Shane Murphy, SC, who was nominated to me for appointment by the Chairman of the Bar Council. Following his examination, he reported that “a Tribunal of Inquiry represents the only comprehensive method of inquiry to resolve outstanding issues of fundamental public importance”. The Government is grateful to Mr. Murphy for his work which will be of assistance to the tribunal in its work. I also again thank Judge Frederick Morris who has agreed to chair this tribunal.
I have not been against the principle of a public inquiry but establishing a tribunal of inquiry is not something to be undertaken lightly. On 7 February 2001, in response to a parliamentary question, I made it clear that I had an open mind  as regards setting up a tribunal. I stressed that I wanted to see the truth of this matter determined. I said that I wanted to see public confidence in the Garda restored. However, the question I posed then went to the heart of the problem, how do we do this in an open and transparent way without interfering with potential civil and criminal proceedings?
I also said on that date that the current arrangements for dealing with complaints are not satisfactory and need to be revised. I said I was looking at the possible establishment of new processes which would not only deal with complaints against individual members but would address wider issues of the type raised by the occurrences in Donegal. I made it clear that I had not ruled out the option of a public inquiry but I was not convinced at that time that it would necessarily be the best way of dealing with the matter.
On 23 May 2001, I again referred to the problem of possible prejudice to criminal proceedings and advised Deputies that I was seeking the advice of the Attorney General. His advice confirmed that holding such an inquiry at that time could prejudice the civil and criminal proceedings which had been instituted as a result of the alleged misconduct and that, on the basis of the information then to hand, the best course was to let the criminal and civil proceedings run their course. If matters were not fully ventilated during those proceedings, a tribunal of inquiry could be set up. However, neither the criminal nor civil proceedings advanced very quickly and there was real concern, which I shared, over the length of time it was taking to bring the various inquiries and proceedings to finality.
When we debated this matter last November, I made the point that this is a complex matter. I stated that the law, which provides for due process, 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.
The Tribunal of Inquiry Acts, as amended by the Bill I introduced, provide the necessary mechanism to address these concerns. It is now a matter for both Houses of the Oireachtas to decide on the tribunal's remit, safe in the knowledge that the tribunal will be able to do the job it is called upon to do. I am absolutely convinced that to have tried to set up a tribunal without fully teasing out the very complex issues posed by the interplay of criminal trials, civil proceedings and the capacity of a tribunal to effectively operate would have resulted in a legal quagmire.
I have explained why I do not want to go into too much detail on the actual terms of reference. I urge other speakers to be careful when making their contributions on the issue. There are, however, one or two points I wish to make. The terms of reference are specific but they are carefully drafted to ensure that the tribunal of inquiry is not restricted in the scope of its inquiries. Fur thermore, while the primary purpose of establishing the tribunal is to get at the truth, we must also look to the future. We must establish not only whether something went wrong, but why it went wrong and what can be done in the future to prevent it happening again. For that reason, I emphasise the power of the tribunal to make recommendations as it sees fit. The recommendations of the tribunal may be of particular value in maintaining public confidence in the Garda Síochána.
The tribunal is asked to report to the Minister for Justice, Equality and Law Reform, who is the appropriate Minister to determine, in the first instance, whether the report contains material that might pose a threat of prejudice to criminal proceedings. This means it is prudent to refer the report to the courts for a direction regarding publication.
The allegations that give rise to this resolution are matters of great public concern. We need to establish once and for all what happened in Donegal and to determine the truth of the allegations that have been made. The tribunal, as provided for in this resolution, will discharge effectively this obligation without prejudicing various criminal proceedings which have already been instituted in relation to the alleged misconduct. I commend the motion to the House.
“(k) Allegations of Garda misconduct relating to the criminal prosecution of Frank Shortt with particular reference to the Garda investigation and the management of both the investigation and the role of the Gardaí in the subsequent prosecution and any investigation conducted by the Garda authorities into these matters.”
At long last this matter is before the House, though it should have been before us three or four years ago at least. In the dying days of this Government, the Minister has come before the House with the terms of reference for the establishment of a tribunal of inquiry, but it is appalling that it has taken so long for him to present the matter. This issue was raised in the Dáil on many occasions and questions were asked repeatedly by many Members. The Minister and the parties in Government, Fianna Fáil and the Progressive Democrats, voted down all requests to establish this tribunal. Indeed, a Private Members' motion was hotly debated some time ago, only to be defeated by the narrow margin of one vote. It is only upon facing a general election that the Minister and the Government have realised the huge public demand for an inquiry  and decided to establish a tribunal. However, its terms of reference fall short of what is needed and I ask the Minister to include in them the amendments being tabled here this evening.
Let us not have a repeat of the circumstances we have had in relation to other tribunals where the chairmen have had to ask the Legislature to expand terms of reference to allow them to conduct effectively their inquiries. It is in the interests of transparency and accountability to accept these amendments. Justice must be seen to be done. We live in a democracy, where all the citizens of the nation should be treated equally. That means the rule of law should apply equally to all citizens, regardless of their position and regardless of their standing. We have not seen that in the cases of the McBrearty family and of Richie Barron, with whose family we sympathise. The family's loss came in extraordinary and questionable circumstances. The McBrearty family has suffered seriously over the last number of years and has sought justice in the courts, pursuing its case against all the odds before, finally and in the dying days of this Government, the tribunal's terms of reference were presented to the Houses of the Oireachtas.
In the Dáil this matter was discussed extensively and pursued strongly by Deputy Jim Higgins and Deputy Shatter on behalf of Fine Gael and by Deputy Howlin on behalf of the Labour Party. The Opposition pursued this matter vehemently, but unfortunately the Government chose not to respond. Making the proposed amendments is essential if the inquiry is to proceed fairly and is essential to ensure that justice is seen to be done. There is a question mark over the activities of a number of gardaí and it is important for the credibility of the force that the question mark be removed. The Garda does a tremendous job in maintaining law and order and has done since the foundation of the State. Many members of the force have lost their lives in upholding the rule of law, while others have put their lives at risk, and they deserve the highest commendation for the way they pursue their duties. The Minister must be criticised for delaying this inquiry and leaving question marks hanging over the heads of many gardaí. As long as he delayed, the entire force was under suspicion and public scrutiny because of the misconduct of perhaps two or three of its members.
The negative impact on the Garda resulted from the Minister's inaction and he failed the force by refusing to pursue this matter in a speedy and clear manner. When he eventually allowed a Garda investigation, it was with reluctance. When it was evident that the inquiry was not at all satisfactory, leaving many questions unanswered, there was an onus on the Minister and his Department to ensure a more detailed inquiry. He did not do that and the result has been to bring bad publicity to the force, which is something it does not deserve given that it acquits itself extraordinarily well. Some members of the Garda do work  of a social nature across the communities they serve, which is something many people are unaware of. The Minister has a duty to ensure the reputations of all members of the force are upheld and that those members who bring the force into disrepute are suitably reprimanded by the Commissioner.
The amendment is important because the terms of reference of this tribunal do not include provisions to investigate the case of Frank Shortt. He served three years in prison before being released on an appeal which the State did not contest. It let the case go. If the State had a case to make, it would have defended it strongly. Why did they State not contest the appeal? This inquiry could also examine this man's wrongful imprisonment, but its terms of reference preclude it from doing so. I ask the Minister to ensure that it investigates the matter by accepting my amendment. I do not know of any reason why the Minister would not accept it.
It is in the interests of transparency in the administration of justice that the Minister accepts these simple proposals. If he does so, less questions will be left unanswered. We need all questions to be answered and the Minister has the opportunity this evening to make that happen. I do not look forward to seeing the chairman of the proposed tribunal returning to seek additional powers to continue the inquiry because the Minister failed to accept these amendments.
Mrs. A. Doyle: I second the amendment. We should first remember the family of the late Mr. Richie Barron and put on record, some years later, our deepest sympathy to his relatives and friends. I also wish to express my concern for the McBrearty family and what they have been through over the years subsequent to the death of Mr. Barron.
I am interested to hear from the Minister how we reached this point and to learn from him what the options were for investigating the sad saga that started with the death of Mr. Barron. An independent review was conducted by Mr. Shane Murphy SC of all relevant papers and of the progress of investigations into the allegations surrounding this case. In Mr. Murphy's opinion, a tribunal of inquiry represented the only comprehensive method of inquiry to resolve outstanding issues of fundamental public importance surrounding the case.
Initially, therefore, there was an independent review to see if there was sufficient concern to establish the tribunal of inquiry, if I correctly understand the sequence. Will the Minister outline the difference between an independent review, a public inquiry, a statutory inquiry and a tribunal of inquiry? What is the legal difference in their structures? It is important to know that. There is a particular difficulty at present in the diocese of Ferns in County Wexford. I will not go into the details of it; enough has been said publicly. However, the full facts need to be put on record and I want to learn from the Minister what  would be the correct procedure, from the menu of investigations I have mentioned, to facilitate the emergence of the full facts in that case.
Mrs. A. Doyle: I am trying to learn what facts were pertinent in arriving at a tribunal of inquiry in this case whereas other cases, such as the Kilkenny review, did not go this far. They were all matters of major public concern at different stages. As a public representative I am asking the Minister for the benefit of his wisdom as to why a tribunal of inquiry is warranted in this case – I am not arguing that it is not warranted – following the initial independent review. What is the difference between this tribunal of inquiry, a public inquiry, a statutory inquiry or a Dáil investigation? What factors are taken into account before a decision is made as to which option should be selected to get the full facts and to do justice to the victims in all cases? All involved are entitled to natural justice in the treatment of serious allegations.
I listened closely to the Minister's speech and I congratulate him on his speed reading powers. I had a copy of his speech so I was happy for him to travel swiftly through it. Interestingly, however, he omitted a paragraph and I wish to put it on the record. I have read it several times and I cannot understand why it was omitted. Did the Minister have a reason for omitting it? The paragraph reads:
When dealing with parliamentary questions or motions in the Dáil on alleged misconduct by gardaí in Donegal, I have consistently stated that it is a matter of great concern that individual members of the Garda Síochána might be implicated in wrongdoing. It is essential for the reputation of the force that any alleged wrongdoing by members are investigated thoroughly and, if well founded, appropriate disciplinary or criminal proceedings should be initiated. I have also consistently pointed out that individuals have a constitutional right to the protection of their good name and a fair trial. An integral part of our justice system is the presumption of innocence and the right to due process and I would not be party to any attempt to breach those rights by arbitrarily condemning individuals or trying to prejudge the outcome of proceedings.
Why did the Minister choose not to put that paragraph on the record? What is meant by “I would not be party to any attempt to breach those rights by arbitrarily condemning individuals or trying to prejudge the outcome of proceedings“? Is there a suggestion that the tribunal of inquiry could prejudice the outcome of future criminal proceedings? What is the problem with the paragraph?
Much has been said about this matter. It is a pity it had to be politicised. I would have pre ferred an all-party approach and all-party agreement on how it should be handled. There have been years of agonising and much suffering. There are allegations in relation to certain individual gardaí and others. Everybody is entitled to natural justice and due process. Justice delayed can be justice denied and this issue has been ongoing for many years. I hope that the Minister's prevarication and the delay in establishing this tribunal of inquiry have not denied justice to the parties involved.
Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): I thank the contributors to the debate. With regard to the situation of Mr. Frank Shortt, I have taken advice from Mr. Shane Murphy SC who examined the relevant papers. He has advised me that my Department should monitor proceedings in the Court of Criminal Appeal. The case is due before that court in May. I accept the advice of Mr. Murphy that, at this stage, this case should not be referred to a tribunal.
Mr. O'Donoghue: I have listened carefully to the points made about the terms of reference. It has been said that my role as Minister for Justice, Equality and Law Reform should be included in them. I have nothing to hide with regard to my handling of this issue. On the contrary, I can stand over everything I have done and it is due to my efforts that we are now in a position to proceed with a tribunal of inquiry. When complex legal issues were raised the Opposition was silent as to how the problem could be resolved. We must be clear and honest about that.
Mr. O'Donoghue: The terms of reference suggested by Mr. Shane Murphy SC, who reviewed all relevant documentation, did not include any proposals on the lines now put forward by the Opposition. In any event, the proposed resolution suggested by me and, in particular, the instruction to make such findings and recommendations as it sees fit in relation to these matters gives the tribunal the scope to address any issue which contributed to or failed to address Garda misconduct found to have taken place in respect of Donegal.
The terms of reference are specific but they are carefully drafted to ensure the tribunal of inquiry is not restricted in the scope of its inquiries. Furthermore, while the primary purpose of establishing the tribunal was to get at the truth, we must also look to the future. We must not only establish if something went wrong but also why it went wrong and what can be done in the future to prevent it from happening again. For that reason, I particularly emphasise the power of the tribunal to make recommendations as it sees fit. The tribunal is asked to report to the Minister for Justice, Equality and Law Reform. It is appropriate that the Minister should be the person to determine in the first instance whether the report contains material that might pose a threat of prejudice to criminal proceedings, making it prudent to refer the report to the courts for direction regarding publication.
The allegations that have given rise to this resolution are matters of grave public concern. We need to establish what happened in Donegal and determine the truth of the allegations. The tribunal, as provided for in this resolution, will be able to effectively discharge this obligation without prejudicing various criminal proceedings which have already been instituted in relation to the alleged misconduct.
On Senator Avril Doyle's questions, the review by Mr. Shane Murphy SC was an independent examination of all the papers relating to Donegal. Mr. Murphy SC was given access to all the papers which were available and it proved a most valuable exercise. The review's conclusion is that there should be an inquiry under the Tribunal of Inquiries Acts which will have all the powers to examine witnesses, determine facts and discover the truth of what happened in Donegal. The public inquiry will of course have full statutory powers which were not available to Mr. Murphy SC.
On the question as to why it would be felt that a public inquiry is necessary in this case but not in another, public inquiries, under the legislation dating back as far as the 1921 Act, as amended, which we had to amend recently, provide that the issue to be inquired into should be one of urgent public importance. This issue is one of urgent public importance. It was not possible for Mr. Murphy SC, who I appointed to look at the papers before Christmas, to examine witnesses and to seek discovery of documents, in other words, he did not have any judicial powers. Obviously the tribunal will have such powers.
The question of having a public inquiry, an independent review, a private inquiry or a statutory inquiry is obviously one which can be confusing. It had a great relevance to everything that happened in this matter. First, I want to put on the record again that at no stage did I say that I was opposed to a public inquiry into the events  in Donegal. Quite the contrary, I made it clear at all stages that I was open to the idea of a public inquiry. That is on the record of the other House. Nobody has been able to bring forward a quotation to say that the position was otherwise. I am not saying that an attempt was made to convey the impression that the situation was otherwise. I am not saying that for one moment—
I had advice of a very serious nature from the Attorney General to the effect that I could not hold a public inquiry because I would prejudice criminal proceedings and-or civil proceedings. In particular, the Attorney General was concerned that if there were a public inquiry in relation to these issues, certain facts might come out which would grossly interfere with the possibility of a person getting a fair trial afterwards. In that event, and if a court were to hold in that direction, I am not so sure that the case could be proceeded with. Therefore, one of my principal problems all along was how to have an inquiry which would not prejudice subsequent criminal proceedings.
After a great deal of thought and having consulted widely, I eventually came to the conclusion that there was a way forward but that the way forward was difficult and fraught with possibility of failure. The way forward which was finally determined in any event was that we could hold an inquiry provided that those parts of the inquiry which might subsequently prejudice a criminal trial be held in private. If the chairman of the tribunal determines that there is certain evidence which could subsequently interfere with a person's right to fair trial, he will be allowed to hold that part of the inquiry in private. Subsequent publication would be a matter to be determined and that is why, in the terms of references, it is stated that there will be power for the Minister to go to the High Court on the question of publication in order that judicial personages will decide when certain parts of the report should be published, if, indeed, there is a need to hold back any part of the report to ensure that a person's right to a fair trial is not interfered with.
I accept it is very cumbersome and very difficult and it is a most unusual situation, but there were several Garda investigations, there were complaints to the Garda Complaints Board about this matter, there were several civil proceedings in this matter and the Director of Public Prosecutions was considering papers in this matter. I  suppose it was reasonable for me, as Minister, to have hoped that one or other of these independent adjudicating bodies would come up with a resolution to the problem which presented itself. As it turned out, the matter kept going on and on and ultimately I decided that the best approach was to ask a senior counsel to look at all the papers. I asked Mr. Shane Murphy SC to do that and to come back to me with his recommendations. Ultimately he did that but of course he emphasised the necessity to preserve the integrity of proceedings.
The solution, which has been put forward by  the Houses of the Oireachtas through proposals which I made to the Government, which were accepted there, is cumbersome but I honestly believe that it will succeed in getting at the truth of what happened in Donegal. In the final analysis that is something, outside of all political considerations, which I feel everybody is anxious to see. I am confident that this procedure will succeed. I thank the Senators for their co-operation in hearing this motion at this late hour on Holy Thursday.
Cregan, Denis (Dino).
Ó Fearghail, Seán.
Ó Murchú, Labhrás.
“(1) The response of the Garda Síochána, the Department of Justice, Equality and Law Reform, the Minister for Justice, Equality and Law Reform and any other relevant State agencies to the allegations arising from the foregoing paragraphs and in particular the extent to which they exercised the powers and functions available to them fully, properly and in a timely manner.”
Cregan, Denis (Dino).
Ó Fearghail, Seán.
Ó Murchú, Labhrás.
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