Fennelly Commission: the main findings and where to now?

Should key players in the commission’s interim report be concerned for what comes next?

Taoiseach Enda Kenny  outside the Department  of an Taoiseach on Wednesday  morning. Photograph: Dave Meehan

Taoiseach Enda Kenny outside the Department of an Taoiseach on Wednesday morning. Photograph: Dave Meehan

 

What are the principal implications of the interim report of the Fennelly Commission for the key players?

TAOISEACH ENDA KENNY

The interim report of the commission found Mr Kenny “did not intend to put pressure on the Garda Commissioner to retire” and said there was no question “of any proposal being made that the Government consider the removal of the Commissioner from office”.

These are the two most important findings in regard to the Taoiseach, and have provided him with political cover. The report also said Martin Callinan’s decision to resign was his own. “The decision was his to make and he made it,” the report says.

However, Mr Justice Nial Fennelly also arrived at another conclusion, which said then-commissioner Martin Callinan could have made a reasonable conclusion that he was being invited to consider his position from the fact that Mr Kenny sent then Department of Justice secretary general Brian Purcell to his home.

One conclusion said: “The Garda commissioner interpreted the message delivered to him by Mr Purcell on behalf of the Taoiseach, with all its attendant circumstances, as an indication that he should consider his position; in the view of the commission, that was a reasonable conclusion for the commissioner to reach.”

Mr Kenny said he sent Mr Purcell to Mr Callinan’s home to convey to him the gravity of the situation regarding the taping of phone calls at Garda stations.

However, the commission found “Mr Purcell received no clear instructions on the detail of the message that he was to convey to the Garda commissioner”.

“The commission finds that the Taoiseach did not instruct Mr Purcell to obtain the views of the commissioner on any particular questions; nor did the Taoiseach invite the commissioner to contact him.

“Mr Purcell was, at least implicitly, instructed to tell the commissioner that the matter of the Garda telephone recording systems would be discussed at Cabinet on the following day, that the Taoiseach would be proposing the appointment of a commission of investigation, and that there was a possibility that he, the Taoiseach, would be in a position where he might not be able to express continued confidence in the commissioner.”

The report also contains the following passage: “The fact that the commissioner made his own decision to retire, does not mean that the commissioner was wrong to arrive at the conclusion that he was expected to consider his position.

“The commission has already found that the message delivered by Mr Purcell, in all the attendant circumstances, in explicit contemplation of the risk that at the next day’s Cabinet meeting the Taoiseach might possibly not be able to express confidence in him, carried with it the obvious implication that the commissioner’s own position was in question.

“Accepting the Taoiseach’s assurances, given in good faith, that he did not intend to put pressure on the commissioner to retire; nonetheless, viewed objectively, Mr Purcell’s mission was likely to be interpreted as doing just that.”

Where does all this leave Enda Kenny?

The Taoiseach has welcomed the report’s “clear and unambiguous finding” that “removing” Mr Callinan was not even discussed. He also said Mr Callinan decided to retire of his own volition “and could have decided otherwise”. “It finds I had no intention of putting pressure on the former commissioner to retire,” Mr Kenny said of the report.

While correct in his statement, the report presents evidence which could lead to the conclusion that Mr Callinan was placed under huge pressure to retire. However, Mr Justice Fennelly’s conclusions give Mr Kenny significant political cover and have been accepted by Tánaiste Joan Burton.

The Taoiseach will face a motion of no-confidence when the Dáil returns, but he is safe in his position.

The report could, however, damage his reputation and underline an impression of a ruthless political operator willing to sacrifice people, although this may be seen as a benefit in some quarters. Fianna Fáil leader Micheál Martin has accused him of “shifty” tactics.

 

ATTORNEY GENERAL MÁIRE WHELAN

Máire Whelan, a Labour Party appointee to the position of Attorney General, arguably comes in for the strongest criticism in the interim Fennelly Commission report.

At one stage, she is accused of “puzzling” and “perplexing” behaviour.

This is in reference to her failure to contact then minister for justice Alan Shatter around the time she briefed Taoiseach Enda Kenny on the Garda taping issue on Sunday, March 23rd, 2014.

It also says she had been made aware of the issue in November 2013 but did not inform the Taoiseach until the following March.

“The Attorney’s failure to contact Mr Shatter is all the more puzzling, in circumstances where she had been informed that the minister for justice was ‘fully briefed’ on the matter.

“Given that her instructions from the Taoiseach on Sunday night had been to ‘check and double check the facts’, it is somewhat perplexing that she did not contact the one person who, as she believed, was in a position to enlighten her.

“In addition, Mr Shatter, as minister for justice, was uniquely placed to contact the Garda commissioner for explanations and clarifications. The commission accepts that the Attorney was not under any duty to contact the Minister in these circumstances, but considers that it would have been both reasonable and prudent for her to have done so.”

Fennelly Montage_Main Players

She also believed Mr Shatter was “part of the narrative” because of recent Garda controversies.

Mr Justice Nial Fennelly also highlights the presentation of the Garda taping issue by Ms Whelan to Mr Kenny, and the fact that Ms Whelan apparently backtracked on evidence she gave to the commission.

“When she first gave evidence to the commission, the Attorney said she told the Taoiseach that the Garda Síochána had been engaged in an extensive practice for decades ‘of recording telephone calls in and out of Garda Stations in complete violation of the law, with total disregard for the requirements of ministerial authorisation and of the rights of citizens under the Constitution ...’

“So far as she was concerned, ‘this was criminal activity being engaged in by An Garda Síochána’. She said she told him that she ‘had real concerns about the rights of individual accused persons, detainees and telephone calls with solicitors ...’ ”

However, this account was “substantially modified” by a written submission from Ms Whelan to the commission on May 22nd last.

“She regretted that her earlier use of what she described as ‘trenchant language’ had left the commission under an erroneous impression. She insisted that she had not expressed an unequivocal view that ‘any particular person or body might be guilty of an offence’ under the relevant legislation, but that she had referred only to ‘potential’ illegality.

“The commission accepts the Attorney’s qualification of her earlier evidence but cannot entirely ignore the very strong terms in which she described the account she gave to the Taoiseach in her sworn evidence.

“The commission has come to the conclusion that the Attorney, even if she spoke of ‘potential’ illegality, made a very dramatic presentation of what she saw as a serious state of affairs. She presented a picture of widespread and longstanding unlawful behaviour in An Garda Síochána.”

The report also noted that, according to evidence given by Martin Fraser, the secretary-general of the Department of the Taoiseach, Mr Kenny was “extremely concerned following the Attorney’s report”.

“Mr Fraser could see that he was taken aback. The matter would give rise to great public controversy, would give rise to a perception of lack of integrity and credibility in the force and would cause public outrage.”

Where does all this leave the Attorney General?

Ms Whelan, who holds a traditionally non-political role, has now found herself at the centre of the political fallout from the interim report of the Fennelly Commission. Sinn Féin is to table a motion of no-confidence in her and various ministers, from the Taoiseach down, have expressed their support for her.

It is unlikely that her position will come under significant threat. Privately, however, many in Fine Gael claimed she had been left with the most questions to answer following the publication of the report in a possible effort to steer attention away from the Taoiseach.

As a Labour Party appointee, the junior Coalition party will protect Ms Whelan from attacks from Sinn Féin. Fianna Fáil has been reluctant to join with Sinn Féin in its no confidence motion, since the role of Attorney General is usually non-political.

 

ALAN SHATTER, former minister for justice

Mr Shatter largely features in the report as part of two key issues: his state of knowledge about the taping of phone calls at Garda stations, and his involvement, or lack of involvement, in the events leading up to the retirement of Garda commissioner Martin Callinan.

On phone taping, the commission accepts Mr Shatter was not sent a letter dated March 10th 2014 from Mr Callinan and was unaware of its existence until March 25th, the day on which Mr Callinan retired.

He had “no effective knowledge” of the issues raised in the letter until March 24th. However, the commission found Mr Shatter had been told of the issue by an official three days earlier by way of phone call. Mr Shatter has said it is possible such a phone call took place, but he could not recall it.

The commission said the official did not convey an “urgent manner”, and thus it may have not registered with Mr Shatter “due to tiredness at the end of a day following an overnight flight”.

In the events leading up to Mr Callinan’s resignation, it says that events may have turned out differently had the Attorney General contacted Mr Shatter.

Where does this all leave Mr Shatter?

The former minister, who resigned his position in May 2014 following the publication of the Guerin Report into allegations of Garda malpractice, largely emerges from the interim Fennelly report with his reputation intact.

However, dealing with direct conflict of accounts given by Mr Shatter and an official is described as one of the most difficult tasks faced by the commission.

The Dublin South TD has reason to feel hard done by, since the resignation of Mr Callinan was one of a number of justice controversies which arguably led to his own departure from office.

 

MARTIN CALLINAN, former Garda commissioner

Martin Callinan’s retirement is the focal point of the interim report, and Mr Justice Fennelly found the former Garda chief had reasonably concluded he was being invited to consider his position when Brian Purcell was sent to his home by Taoiseach Enda Kenny.

However, it also found that it was Mr Callinan’s decision alone to retire, and he chose to do so. “The decision was his to make and he made it,” the report says.

It also largely found that he acted appropriately when dealing with the issue of the taping of phone calls at Garda stations - that he had informed the Attorney General’s office of the discovery of the taping system in November 2013.

Mr Callinan also said he told Brian Purcell, then secretary general of the Department of Justice, about the issue in “one or more” conversations.

Mr Purcell disputes this and says the first time he was informed was on March 10th, 2014, the day Mr Callinan sent a letter to the Department of Justice.

Where does this all leave Mr Callinan?

According to the report, Mr Callinan has reason to believe he was pressured to leave his position as Garda commissioner over a chain of events where it seems he did nothing wrong.

It can be argued that even if the Government wanted to begin a chain of events to formally sack him, it may have struggled to find the grounds to actually do so. In reality, the former commissioner had become a political liability by the time the taping issue hit the political system.

 

MARTIN FRASER, Secretary General of the Department of the Taoiseach

Mr Fraser, as the most senior civil servant in the country and one of Mr Kenny’s closest advisers, was immediately in the inner circle when the Taoiseach was made aware of the Garda taping issue by Attorney General Máire Whelan.

Mr Fraser was one of a number of witnesses who told the commission the string of justice controversies was an essential backdrop to the events leading up to Martin Callinan’s retirement.

The most striking contributions from Mr Fraser are his description of the Taoiseach as “taken aback” when initially told by the Attorney General of the gravity of the taping of phone calls.

He also said he believed a possible outcome of the meeting where it was decided Brian Purcell would go to Martin Callinan’s home was that Mr Callinan might resign, although he did not expect it to happen so quickly.

He said that some statement was made about the continued ability of the Taoiseach to express confidence in Mr Callinan.

Mr Fraser was also questioned about the lack of note-taking at the meeting.

Where does this all leave Mr Fraser?

Mr Fraser’s acknowledgment that he believed it possible that Mr Callinan might retire or resign as a result of Mr Purcell calling to his home seemingly places his views closer to the former Garda commissioner.

At the very least, he could see it was a possibility, whereas Mr Kenny insists it was never his intention that Mr Callinan feel pressured into retiring.

 

BRIAN PURCELL, former sec gen at Dept of Justice

Brian Purcell features in the report with respect to his attendance at the meeting in the Taoiseach’s office on the night of Monday, March 24th, and his subsequent dispatch to the home of the Garda commissioner. Purcell is also criticised for not notifying Alan Shatter of a March 10th letter from Callinan detailing the extent of taping at Garda stations, although it was pointed out his mother had just died. Callinan claimed he told Purcell about the issue even before this, but this is denied by Purcell.

On the night he was sent to Callinan’s home, the report noted that Purcell was “shocked and puzzled” as to why the taping, which had been going on for so long and which the commissioner had dealt with, would be a problem.

He pointed out the taping had been going on for about 30 years and Callinan had been the commissioner for a relatively short period of time. The report said it was “unfortunate” Purcell did not tell the meeting about the letter of March 10th, an omission the Taoiseach would describe as “inexplicable”.

As to the meeting, Purcell said he was asked to convey to Callinan “the gravity with which the Taoiseach viewed the matter” of the tapes.

Where does this leave Purcell?

Purcell decided to step aside from his position last year in the aftermath of the Toland report, which criticised the running of his department. He now works with the HSE.

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