Institutions unable or unwilling to investigate their own

In late January 2008 a meeting took place between Maurice McCabe, a Garda sergeant then based at Bailieboro, Co Cavan, and his superintendent.

Over the previous months, McCabe had grown concerned about how a number of incidents were being handled. He suspected investigations were not being carried out effectively and that proper Garda procedures were not being followed. At the January 28th meeting, he handed over to the superintendent a document outlining his concerns.

That encounter set in train a chain of events that would spread far beyond Bailieboro and would eventually enmesh some of the most senior figures in Irish public life. Six years later, the fallout would contribute to the resignations of the minister for justice, the Garda commissioner and the Garda confidential recipient. It would lead to a statutory inquiry and hasten moves to introduce independent oversight of the force.

Against that background, and given the gravity of the allegations made by McCabe – including as they did concerns about investigations into sexual offences and assault, and malpractice and corruption in the use of the Pulse computer system – the report by senior counsel Seán Guerin was going to be a significant document whatever his conclusions. But with its forensic analysis of the paper trail and his sharp and pointed criticism, notably of the Department of Justice and Garda management, the report amounts to a damning commentary on these powerful institutions.

It portrays the Garda Síochána as a reflexively defensive institution unable or unwilling to investigate its own, and one seen by the department almost as an extension of itself.

Reviewing internal Garda investigations arising out of McCabe’s claims, Guerin detects “if not an instinctive, at least a routine preference for the evidence of the senior officers in respect of whom complaints had been made”.

That approach was replicated at the highest level in the force. “The commissioner, when accounting for the [internal] investigation to the minister, described the allegations as having been ‘answered’, in such a way as to suggest that the mere fact that an answer had been given was in some way a substitute for a careful assessment of the reliability of that answer having regard to all the available evidence.”

Filtration

Damningly,

Guerin writes that the overall impression given by the internal Garda investigative process was that complaints or matters of concern were “put through a process of filtration or distillation so that, by the end of the process, any matter of concern had been removed as a form of impurity, and only what was good was found to remain”. If these deficiencies were widely replicated it “would be a challenge to public confidence in the criminal justice system itself”.

The report doesn't provide a full picture. Guerin's terms of reference excluded investigation of the substance of McCabe's allegations, and his analysis is largely confined – with the exception of a long interview with McCabe – to a review of the documents provided to him by the department, the Garda Síochána and the Director of Public Prosecutions. Entirely absent are the accounts of many of the protagonists, including former minister for justice Alan Shatter, former Garda commissioner Martin Callinan and their senior officials. Also missing is the perspective of the Garda Síochána Ombudsman Commission (GSOC), which Guerin reports indicated a willingness to furnish relevant documentation but did so too late for it to be of any use.

Some of the sharpest criticism is reserved for the department, which, the report makes clear, was aware of the whistleblower's allegations for the past four years. It was first alerted to them in March 2009, when McCabe emailed then minister for justice Dermot Ahern referring to a complaint he had made about "malpractice and corruption" in Bailieboro station.

The claim was under internal Garda investigation at the time, but McCabe was distressed at a report in the Anglo Celt newspaper that attributed to a chief superintendent the remark that "issues" in Bailieboro were "absolute rubbish".

The minister’s private secretary responded that it was a matter for the commissioner. This became a pattern. When, in April 2011, McCabe’s wife wrote to Ahern’s successor, Shatter, reporting that she had recently received a death threat from a member of the force and asking for the minister’s help, her letter was sent to the commissioner and she was given contact details for GSOC.

Between June 2011 and January 2013 there was a long trail of correspondence between McCabe’s solicitor with the department. The solicitor told the department in June 2011 that McCabe had “lost all faith in An Garda Síochána to properly investigate matters about which he complains and which are obviously of huge public concern”. He wrote again in August that year, “with even greater concern”, to which the minister’s private secretary responded that the matter was under investigation by the Garda and GSOC and “it would be inappropriate for the Minister to intervene”.

Guerin writes that he is not aware of any such GSOC investigation, and given that the law did not permit GSOC to look into complaints by individual gardaí, "it seems unlikely that there was any such investigation". Meanwhile, McCabe tried another route. In January 2012, the Garda confidential recipient, Oliver Connolly, wrote to Shatter enclosing a complaint he had received against commissioner Martin Callinan.

The report stated that the complainant was fearful of revenge and harassment against himself and his family. It provided a list of numerous incidents pertaining to a senior garda – anonymised in the report as Supt Foxtrot – and alleged misconduct by the commissioner for listing the superintendent for promotion despite the allegations against him.

Clear procedures

The law sets down clear procedures for a m

inister for justice in situations such as these. When the minister receives a report from the confidential recipient, he/she is required to have the complaint investigated or take such action as is required, unless the complaint is frivolous or vexatious.

What Brian Purcell, the department's secretary general, did was forward the report to the commissioner, asking him to make comments.

Callinan duly replied to Purcell, informing him that 11 of the 12 individual complaints made by McCabe had been “thoroughly examined” in an investigation by an assistant commissioner and a chief superintendent, [Assistant Commissioner Derek Byrne and Chief Supt Terry McGinn] and he was “satisfied that no adverse findings, or no evidence of corruption or malpractice were discovered on the part of Superintendent Foxtrot”. Moreover, Callinan wrote, he had asked his deputy commissioner to review the Byrne-McGinn investigation and he had concluded that it was carried out “professionally, impartially and with propriety”.

This was good enough for Shatter and his department. In a letter to the confidential recipient, Shatter repeated the commissioner’s assurances and concluded there was no evidence to support any further action by him. On this, Guerin doesn’t hold back. From the papers he has seen, he writes, he sees no evidence to show that the department identified and understood the significant independent statutory role the minister had to perform.

“The practice adopted when matters were brought to the department’s attention was invariably to refer the issues that had been raised to An Garda Síochána,” he writes. It’s reasonable to give the subject of a complaint the opportunity to respond, he says. “It is a different matter altogether to be entirely satisfied by that response.”

Yet when the department received the report from the confidential recipient, its only action was to seek a response from the commissioner. And that response was accepted without question. “In effect, the process of determining McCabe’s complaints went no further than the minister receiving and acting upon the advice of the person who was the subject of the complaint.”

Very few people emerge with credit from Guerin’s report. One who does, however, is McCabe himself, whom the report points out was described by his superiors as committed, energetic, hard-working and trustworthy.

One retired superintendent referred to his “absolute loyalty and commitment to An Garda Síochána”.

The message is clear: there is something fundamentally wrong in an organisation that can’t find a way to hear the voice of a man it holds in such regard.