It is unlikely that the review by former High Court judge John Cooke of the alleged bugging of the Garda Síochána Ombudsman Commission (GSOC) will be conclusive in regard to technical questions.
Modern electronic surveillance systems generally do not leave traces. We will probably be left with one set of assertions against another.
In a way, it hardly matters now. The significant questions to be answered in this saga have more to do with distrust, dysfunctionality and a culture of concealment within important State institutions.
How did matters reach the sorry pass that led the GSOC to suspect that it was under electronic surveillance? Why did relations between the GSOC and the management of the Garda deteriorate to the extent that trust had apparently evaporated?
The terms of reference set for the former judge by the Government require him to establish why the GSOC set up its public interest investigation in the first place.
There are far more important questions than whether a data system in the GSOC’s offices hooked up with the wifi in a nearby coffee bar. Why did two State bodies, their interdependent relationships defined in law, come to a condition of deep mutual distrust and dysfunctionality?
In this context, the proposed review of the Garda Síochána Act 2005 by the Oireachtas Committee on Justice, Defence and Equality can potentially be at least as significant as the Cooke review – and possibly more so.
The confrontation between the GSOC and the Garda Síochána that we are witnessing was inevitable once the ink was dry on the Garda Síochána Act 2005. The GSOC was to have oversight of the Garda but not of the commissioner. It might be likened to giving the Financial Regulator the authority to supervise the branch network of AIB or Bank of Ireland but putting Richie Boucher’s office and David Duffy’s office “off limits”.
The GSOC began to investigate the role of senior gardaí in the case of convicted drugs importer, Kieran Boylan. This went to the heart of the Garda's power structure.
The GSOC found that already slow processes began to slow further. Virtually every GSOC request for information was challenged. Agreed protocols for information exchange were not being honoured. The GSOC protested in its annual reports.
There was little reaction from the political establishment although Minister for Justice Alan Shatter, to his credit, insisted that revised protocols be put in place.
Two value systems confronted each other. The GSOC had to get to the core of allegations that some gardaí had protected Boylan improperly. Gardaí believed they had to protect the integrity of the CHIS (Covert Human Information System) informants system.
The Act is weak and ambiguous, allowing gardaí to invoke considerations of “security” to prevent the GSOC having access to information. Gardaí however have a habit – for example in Donegal – of invoking “security” as a cover for irregular activities.
The GSOC suspected that Boylan was being run as an informant “off the books”, contrary to the rules set down after the Morris inquiry into misconduct in Co Donegal. Garda Commissioner Martin Callinan has insisted that no such practices exist now.
Yet Mr Justice Barry White, handing down sentence in the John Carroll murder case three years ago, made it clear that in his view, detectives were operating an informant in violation of the post-Donegal rules.
It is essential that gardaí have the resources and the appropriate operational framework with which to do their job. However, if the community wants an effective oversight body to ensure that they stay within the rules, then the politicians have a substantial task ahead in reforming the 2005 Act.
The GSOC’s authority will have to extend over the policing actions of the commissioner and the activities of his office. The GSOC has never sought to inquire into matters of State security, but an effective formula must be found to prevent gardaí from using “security” as a barrier to legitimate inquiries.
There is deep resistance to any such changes within the Garda, the Department of Justice and the political establishment. Justice ministers of all parties down the years have argued that because the Garda Commissioner is also the State’s chief security functionary, there must be no intermediate authority between him and the Government. On the same basis, he is entitled to withhold from the GSOC any information he chooses from within his office.
Opposition parties are vocally at least up for change but it would be unwise to hope for too much.
Politicians’ convictions change dramatically when they transfer from the Opposition to the Government benches. Before it got into government, the Labour Party was in favour of the creation of an independent Garda authority.
When the 2005 Act was in the making, it wanted an over- sight body with the same powers as Nuala O’Loan’s Police Ombudsman for Northern Ireland. In office, it fell silent on such matters.
Perhaps this time it may be different. The public mood has shifted. There is respect and support for gardaí in the challenging job that they do, generally very well, but there is widespread dismay at the treatment of the “whistleblowers” and the culture of concealment that has been revealed.
We may never get to the technical truth of the surveillance claim and counter-claim, but if the politicians can be bold enough to act on what has now become visible, there may yet be a positive outcome.
Conor Brady was a commissioner of the GSOC from 2005 to 2011. He is a former editor of The Irish Times .