Statement by Shatter on whistleblowers

Better efforts should have been made to engage with whistleblowers, says Shatter

Beter efforts could and should have been made to secure productive engagement of whistleblowers, says Minister for Justice Alan Shatter.  Photograph: Bryan O’Brien /The Irish Times

Beter efforts could and should have been made to secure productive engagement of whistleblowers, says Minister for Justice Alan Shatter. Photograph: Bryan O’Brien /The Irish Times


Full text of statement by Minister for Justice Alan Shatter on whistleblower controversy, given in the Dáil on Thursday, 26th March .

I want to begin by addressing a matter of substantial importance. On October 1st 2013 in a topical issue debate on the penalty points issue I made a statement that the whistleblowers did not cooperate with the garda investigations that took place in respect of their allegations.

I appreciate that this statement has been the source of some upset and distress to the whistleblowers. I have looked again at the information provided to me and considered the matter in detail.

I previously stated on the Dáil record that I expected that Sgt McCabe would be interviewed during the course of the O’Mahoney investigation and I note that he fully engaged with the Garda Inspectorate in the work undertaken by them to prepare the report which is the subject matter of today’s debate.

I want to say very clearly that, having re-examined the facts and further considered the matter, I believe more should have been done during the course of the O’Mahoney investigation to obtain information from and ascertain the views and experiences of the whistleblowers. Further and better efforts could and should have been made to secure productive engagement with them in the investigation of their claims.

I therefore wish to correct the record of this House that the whistleblowers “did not cooperate with the garda investigations that took place”. I acknowledge that this statement was incorrect. It was never my intention to mislead the House and I believe it is appropriate that I apologise to both and withdraw the statements made. It was never my intention to cause any upset and if any upset was caused I hope that my correcting the record of the Dail today will put this matter to rest. In doing so, I again acknowledge, as I have done many times previously that the reports published and the findings and recommendations that have been made with regard to the fixed notice charge system and penalty points are in response to the allegations made by Sgt McCabe and supported by former Garda Wilson.

I am aware that the whistleblowers and others have issues with some remarks I made outside this House. It was not my intention to misrepresent any matter connected with this issue. I apologise for any offence that may have been caused by any other remarks made by me. There are issues of importance that I have to properly address as Minister for Justice and there are important matters outstanding which I hope will be finally resolved upon GSOC completing its investigation and publishing its report.

I welcome the fact that the House today has made time to discuss the Garda Inspectorate Report on the Fixed Charge Processing System.

I commissioned that report on 14th May 2013 and I did so as part of a series of measures to make sure not only that the whistleblower allegations were properly addressed but that any other problems with the Fixed Charge Processing System would also be tackled. Prior to that, in September 2012, detailed allegations were received by my Department from both the Department of the Taoiseach and the Department of Transport relating to the Fixed Charge Processing System. In October 2012, having considered these allegations I initially furnished them to the Garda Commissioner for his response. I believed this was the appropriate initial step and it resulted in an investigation led by Assistant Commissioner John O’Mahoney and the administration of the Fixed Charge Processing System being examined by the Garda Professional Standards Unit (PSU). In the context of the O’Mahoney led investigation, the particular notices subject to allegations by Sergeant McCabe examined and also a random further 1% of Fixed Charge Notice terminations were also examined. I published both the report of Assistant Commissioner O’Mahoney and the PSU report on 15 May 2013 and referred both reports to the Joint Oireachtas Justice Committee for the Committees consideration. As already mentioned, the day before their publication I referred them also to the Garda Inspectorate, who perform an independent statutory role, and subsequently agreed with the Inspectorate broad terms of reference to facilitate the Inspectorate conducting a comprehensive examination of the Fixed Charge Processing System to enable it to make all necessary recommendations to ensure its proper administration.

It was my view at all times, and it remains my view today, that any use of Garda discretion to effect the termination of Fixed Charge Notices must be applied in a fair, impartial and transparent manner and, on the 15th May 2013, I published 7 crucial applicable principles to ensure this. They are as follows:

1. There must be no question mark hanging over the integrity of the Fixed Charge Notice system and in the application of penalty points.

2. No individual should receive preferential treatment because of their perceived status, relationship or celebrity.

3. The law and any discretionary application of it to individuals must be administered fairly, with compassion and common sense.

4. No member of the Garda Force should feel compelled by a person’s position, relationship or celebrity status to treat that person any more or less favourably than any other person.

5. There must be proper oversight and transparency to the discretionary decision making process and the applicable rules and procedures must be fully complied with.

6. All statutory provisions, regulations, rules, protocols and procedures applicable to the termination of Fixed Charge Notices must be readily accessible to all members of the Garda Force and the circumstances, factors and procedures applicable to the termination of Fixed Charge Notices should be detailed clearly on the Garda website for the information of members of the public.

7. Where application is made to terminate a fixed ticket charge, where possible and appropriate, material to support any application made should be sought while understanding in some circumstances no such material may exist or be obtainable.

These principles were applied by the Garda Inspectorate and they are detailed in the Appendix to their Report.

I note that, at the time of publication of both the O’Mahoney Report and the PSU report, Deputy Niall Collins informed this House that he had no issue with the two reports. Deputy Collins stated “In the first instance, I will refer to the two reports that were published last week regarding penalty points and the allegations of erasing penalty points. We have no issue with those reports. We welcome the finding that there was no corruption’.

I believe that, on the facts as I have outlined them, any objective observer would conclude that I took all the allegations made seriously and that speedy and appropriate action was taken to address them.

I think it is obvious that if I had ignored the allegations made there would have been no O’Mahoney Report, no PSU Report and we would not today be discussing the Garda Inspectorate Report.

If I had ignored the allegations made the changes effected to improve the management and administration of the system and to provide for more regular auditing would not have been put in place after the 15th May last and prior to the publication of the Garda Inspectorates report.

If I had ignored the allegations made, I would not have asked for the comprehensive examination undertaken by the Garda Inspectorate, whose terms of reference addressed issues that were additional to those addressed in the O’Mahoney Report, and I would not have recommended to Government that the 37 recommendations contained in the Garda Inspectorate report be accepted and steps taken to implement them nor would I have published an Action Plan to bring about their implementation.

If I had not taken the allegations seriously, the Criminal Justice Working Group which the Inspectorate recommended be established to oversee implementation of the changes required, would not have met the day immediately following publication of the Inspectorates report. It should be noted that, in a slight variation of the Inspectorates recommendation, rather than the group being solely chaired by an official from my Department, I proposed and it was agreed, that the Group would, in fact, be co-chaired by my Department and the Department of Transport, Tourism and Sport and I believe that is in the public interest as each Department has a separate and complimentary role on dealing with road traffic issues. I am pleased to also note that the DPP has now agreed to be represented on the group.

The Action Plan which I published together with the Inspectorate’s Report prescribes a time scale for the implementation of the recommendations made and also noted where action had already been taken or commenced by An Garda Siochana to implement some of the recommendations. In this regard, a number of the recommendations reflected changes which had already been made as a result of the report by Assistant Commissioner O’Mahoney and the parallel report by the PSU.

The Report which we are discussing today, of course, deals with all aspects of the Fixed Charge Processing System and not just the issues raised by Garda whistleblowers in relation to the use of Garda discretion and some of the failings identified relate to matters other than the use by the Gardai of their discretionary powers to terminate Fixed Charge Notices and Penalty Points. It is important that we keep in context the extent of the difficulty in the area of the use by the Gardai of this discretion. The Inspectorates Report notes that, in 2011, there were 514,959 fixed charge notices issued. 4.4% of these, that is 22,781, were cancelled. In 2012, 449,403 notices were issued and 4.8% of these, that is 21,960, were cancelled. In 2013, 393,588 fixed charge notices were issued and 4.4%, that is 17,393, were cancelled.

It is my understanding that, when Notices which clearly could not have been pursued because of technical or other issues were excluded, the use of discretionary powers at issue relates to about 2.5% of notices issued. There are, of course, many other issues identified in the report about the enforcement of notices including with regard to the service of summonses on those who do not pay the Fixed Notice penalty. Whilst there are clearly problems to be addressed and dealt with, with regard to the discretionary cancellation of Fixed Charge Notices, this particular issue is only part of the problem.

I am sure that it must be a source of some frustration to the Comptroller and Auditor General that the various deficiencies which he identified in past years were not addressed by previous governments. There have been other reports on the matter, including one furnished to my predecessor in the Department of Justice, then Minister Dermot Ahern, from the Garda Síochána Ombudsman Commission on the Fixed Charge Processing System, which he received in early 2009. I do not know why that report was not published or why its recommendations were not implemented in full. That GSOC report clearly addressed and anticipated some of the managerial and administrative difficulties of which we are now all aware.

As I believe there should be full transparency in matters of this nature, I have asked my Department to arrange, even at this late stage, for a copy of that report to be put on my Department’s website. I believe the report will be of some interest as, among the many issues it addresses, is the importance of An Garda Siochana having appropriate flexibility in exercising discretionary judgements with regard to whether to issue or terminate Fixed Notice Charges. It makes the point that it is important the Gardai exercise such discretion in order to maintain good public relations as receiving a Fixed Charge Notice might be the only time an individual member of the public is required to engage with An Garda Siochana.

In dealing with what has become known as the penalty points controversy, I want to stress to the House that my only interest, at all times, has been the public interest. That required that allegations made by whistleblowers be properly addressed and that any problems with the penalty points system be tackled so that public confidence in it could be maintained. That is exactly what has happened and is happening.

I am firmly of the view that it is unacceptable for any member of An Garda Síochána to use their discretion in relation to the cancellation of Fixed Charge Notices / penalty points other than in a fair and impartial manner in accordance with the criteria which apply. It is clearly a serious matter where departures have taken place in applying that standard and all required steps must be taken to ensure it does not happen in future.

These are all important issues which required a proper response. I have already acknowledged today, and on previous occasions, the important role of the whistleblowers in highlighting problems and helping to bring about real change. I hope that they can take some satisfaction from the considerable changes which have been and are being brought about. Following receipt of the allegations made, what was important is that I made sure that their claims were properly addressed and this I have done. Further new claims made by them, subsequent to the publication of the O’Mahoney report, with regard to the Fixed Charge Processing System, resulted in my referring all of these matters to GSOC for its consideration and I want to be careful to say nothing today which could in any way prejudice the investigation being undertaken by GSOC.

The most serious allegations specifically made relating to the Fixed Charge Processing System and penalty points related to what were described as

- shocking criminality by several Garda Officers

- serious fraud and corruption within An Garda Siochana

- perversion of the course of justice by members of An Garda Siochana

- Garda Inspectors and Superintendents perverting the course of justice on a massive scale

- at least 7 road fatalities resulting from the termination of fixed charge notices

- hundreds of official Garda pulse records altered and destroyed

- the Gardai had no discretionary power whatsoever to cancel notices

I would be failing in my duty as Minister for Justice, and in danger of misleading this House, if I did not point out that there has, as yet, been no finding to show that these allegations are correct. And I think it is now generally accepted that the Gardai may, in clear and transparent circumstances, exercise a discretion to terminate Fixed Charge Notices and the approach that should be taken is clearly detailed in the Garda Inspectorates report. All of these issues will again be revisited by GSOC. It would be entirely unfair for the individual members of An Garda Siochana involved, and against whom allegations have been made, to be presumed guilty of such serious charges. In this context, having regard to the conclusions of the O’Mahoney report, and these matters again pending before GSOC, it is. I believe, not appropriate that Members of this House and commentators outside it act on the assumption that all of the allegations made are accurate. The presumption of innocence remains a central tenet of our justice and constitutional system.

While I accept it was no part of the remit of the Garda Inspectorate to examine individual allegations of criminality or corruption with regard to the Fixed Charge Processing System, it would be also unfair if I did not note that what the Inspectorate identified was summed up by the Chief Inspector of the Garda Inspectorate, Bob Olsen, when he said what they saw was “managerial and administrative dysfunction”. Of course, GSOC may take a different view to that of the O’Mahoney Report and to that expressed by the Inspectorate Chief.

There are, of course, issues of real substance to be addressed in ensuring we have a Fixed Charge Processing System that operates fairly, efficiently and transparently. I believe that is what we all want to see and that it is what is in the public interest.

I do not seek to minimise in any way the failings that have been identified in relation to An Garda Síochána but I think most people would recognise that penalty points are only a small, albeit important, aspect of the work they do. Indeed, Chief Inspector Olsen, in an interview following the publication of the Inspectorate’s Report on the Fixed Charge Processing System, stated that this is a “very minor piece of what the Gardai do”

A substantial proportion of Garda time is and must be spent in preventing and investigating crime and in providing the necessary evidence to facilitate the prosecution of individuals before the courts. On a daily basis, Gardai engage in the fight against subversion by the self styled new IRA and other criminal terrorists and investigate serious crime including homicides; rape; sexual assaults; robbery; burglary; fraud; money laundering; kidnapping; and a range of other offences - all with the objective of keeping our communities safe.

In the context of the controversy that has surrounded the subject matter of today’s debate, I think that sight should not be lost of the enormous success of An Garda Siochana in effecting a substantial reduction in crime across the State. The recorded number of Crime Offences has decreased across a number of headings and the overall number of recorded Criminal Offences fell by almost 24,000 in 2012 as compared to 2006.

In the most recent twelve month period covered by the Central Statistics Office there was reduction of 7.1% in overall crime and in the area of burglaries the reduction was 10.4%. With regard to burglaries, Operation Fiacla, one of the Garda targeted operations, has been successful in that the most recent figures available up to 28th February 2014 detail that there have been 8,344 arrests and 4,755 charges brought pursuant to the Operation.

The Garda National Drugs Unit, working with other national units, continues to target persons involved in the illicit supply and sale of drugs with overall Garda drug seizures for the period 2011-2013 inclusive valued at over €237 million. Targeted operations by An Garda Siochana in cooperation with Revenue in the period 2011-2013 inclusive resulted in approximately 2.7 million litres of fuel being seized, 29 fuel laundries detected and shut down and 119 filling stations closed down by the Revenue Commissioners throughout the State for breaching licensing conditions. In addition, in the same period 245.5 million cigarettes with a retail value of €108 million and approximately 20,800 kgs of tobacco with a retail value of €7.75 million was seized.

The Gardai, in addition, continue to target and confront the various criminal gangs that exist in this State with considerable success. For example, concerted garda action in recent years against criminal gangs in Limerick has resulted in over 20 gang leaders serving sentences for offences including murder; attempted murder; and drugs and firearms offences; with life sentences imposed for at least 12 gang related murders. It is estimated that over 100 prisoners in our prison system are presently associated with Limerick gangs and a number of important trials are pending.

Why is any of this relevant to today’s debate? It is because it is not only crucial that the reforms required by the Garda Inspectorate are implemented but it is also crucial that we keep this issue in perspective and in proportion. We should not forget that An Garda Siochana play a vital role in the fight against crime and that members of An Garda Siochana perform these duties often at great risk to themselves.

Moreover, in considering the administrative and managerial dysfunction of the Fixed Charge Processing System as detailed in the Inspectorates report, and as also detailed in earlier reports, it is of relevance that we have regard to the primary objective of the System which is to reduce road fatalities and accidents, to ensure compliance with our road traffic laws and to increase road safety.

The record of An Garda Siochana in relation to keeping the roads safe is particularly instructive. In 2005, there were 396 road deaths. In 2012, there were 162. While every death on our roads is a death too many, by any objective assessment the engagement by An Garda Siochana in bringing about greater compliance with road safety rules and in reducing road fatalities, has been a substantial success. This is further evidenced by the substantial reduction in the numbers of individuals found to be over the specified alcohol limit in the context of roadside checks undertaken in 2013 as compared with 2007. The rate of detection at MATs (Mandatory Alcohol Testing) checkpoints has gone from 1 in 94 in 2007 to 1 in 476 in the first ten months of 2013.

Unfortunately, there was an increase in road deaths in 2013 to 190, whilst to date this year there is again a decrease in road fatalities. Garda enforcement continued at a high level in both 2012 and 2013 and it seems, from the information available, that the increase in road deaths in 2013 substantially related to individuals riding motor bikes; pedestrians; and the extensive use by drivers of mobile phones. Driver distraction has become an international focal point with regard to road fatalities and I welcome the examination of this issue conducted at last Thursday’s seminar entitled “International Conference on Driver Distraction” held under the auspices of our Road Safety Authority. I hope the insights gained at that conference will assist in identifying new appropriate action that can be taken by either or both the Road Safety Authority and An Garda Siochana to effect further reductions in road fatalities and serious injuries resulting from road accidents.

Whilst there was a worrying increase in the number of road deaths last year, they still fell substantially below fatalities that occurred in 2005 (396 as compared to 190). Garda enforcement of road traffic laws is central to achieving the substantial reduction in road fatalities that has occurred since 2005 and of course the contribution also of the Road Safety Authority is of crucial importance. I think it is only fair to acknowledge the role of all members of An Garda Siochana, both management and rank and file, in the progress made to date. I hope that implementation of the recommendations made by the Garda Inspectorate will result in further progress being achieved.

Finally, I have believed since my appointment as Minister that it would be in the interests of An Garda Siochana and the public they serve that there be an independent review of An Garda Siochana.

It was agreed that such a review would take place under the Haddington Road Agreement and the Terms of Reference of the Review are as follow:

“To review and make recommendations on the use by the Garda Siochana of the resources available to it, with the objective of achieving and maintaining the highest levels of efficiency and effectiveness in its operation and administration.

The review shall encompass all aspects of the operation and administration of An Garda Siochana, including

- the structure, organisation and staffing of An Garda Siochana;

- the deployment of members and civilian staff to relevant and appropriate roles;

- the remuneration and conditions of service of members of An Garda Siochana, including an evaluation of annualised hours/shift pay arrangements:

- the appropriate structures and mechanism for the future resolution of matters relating to pay, industrial relations and attendance matters.”

There was a delay in the commencement of the review because of issues that had to be addressed with the Garda Associations subsequent to the agreement of Haddington Road. The issues that arose were addressed in a number of meetings held under the auspices of the LRC, and work on the industrial relations aspects of the review formally started on 28 February last. This is being undertaken by Raymond McGee, a former deputy chair of the Labour Court. The other part of the review - dealing with efficiency, effectiveness, structure, organisation, staffing and deployment, will be carried out by the Garda Inspectorate. Arrangements are now being finalised, again under the auspices of the LRC, to facilitate the formal commencement of work by the Inspectorate.

I believe that the Garda Inspectorate performed very valuable work in their review of the Fixed Charge Processing System and they are well placed to carry out a much wider review in relation to An Garda Siochana.

It is expected that the review will be complete before the Dail reconvenes in September next and it will provide important insights into any further reform required of a statutory or non-statutory nature, as will the report of the Joint Oireachtas Committee relating to GSOC and the other enquiries being conducted into matters relating to An Garda Siochana. It is, of course, important not to pre-judge the outcome of the work now being undertaken by the various bodies and individuals in respect of matters relating to the management and running of An Garda Siochana. I note I previously referenced this morning the work to be undertaken with regard to the establishment of a Garda Authority.

I hope the House can agree that it would be in the public interest to do what we can to move on from the present controversy in relation to penalty points and get on with the work which is under way which will achieve a fair, transparent and effective system.