Minister for Justice Alan Shatter and his senior department officials "accepted without question" the Garda commissioner's response to serious allegations made by a whistleblower about malpractice and shortcomings in the force, the Guerin report has found.
In the chapter on the response of the department to the allegations by Garda whistleblower Maurice McCabe, senior counsel Seán Guerin questioned the adequacy of the response of the minister and his officials to the allegations.
Under section 8 of the 2007 regulations pertaining to the office of the confidential recipient, when a complaint is communicated to the minister, he is required to have the complaint investigated or take such action as is required, unless the complaints are frivolous or vexatious.
The report states there is no documentary evidence to show a determination of a frivolous complaint. On the statutory obligation to have the complaint investigated or take an alternative course of action, it finds the response of the minister and the department to have been inadequate in accepting without question the commissioner’s argument without subjecting it to any scrutiny.
“In effect the process of determining McCabe’s complaints went no further than the minister receiving and acting upon the advice of a person who was the subject of a complaint [the commissioner],” the report says.
It is understood Shatter’s decision to resign on Wednesday was partly in response to this particular finding.
Guerin concludes there is a basis for a commission of investigation inquiry into each of the 10 serious allegations about Garda shortcomings and malpractice identified by McCabe.
The allegations
He said that had the allegations "been probed and tested in a reasonable way [by the minister and the department] further important questions would have come to light".
The report recommended that each of the serious allegations contained in the dossier compiled by Sgt McCabe should form the basis of a commission of investigation inquiry.
It concludes that the documentary evidence suggests the minister was willing to base his decision on a one-paragraph summary of the Garda investigations into 10 allegations rather than seeking a copy of the full file of all the investigations. Mr Guerin said that the only response of the department was to seek the commissioner’s response to the information supplied by the confidential recipient relating to Sgt McCabe’s allegations.
The report said there was no separate memorandum prepared by the department, nor any minute nor memorandum of the decision taken by the minister. It also found there was no evidence within the department’s documentation of any analysis or assessment conducted into the allegations made by Sgt McCabe, or any analysis carried out on the response of the commissioner to the allegations.
According to the report, the minister for justice had an important and investigative function in relation to An Garda Síochána. Sgt McCabe – through his solicitors and the confidential recipient – had invited the minister to carry out an investigation.
The report found the only action was to seek a response from the commissioner and accept his view that “no evidence was found of wrongdoing [corruption or malpractice]” on the part of the senior gardaí who were the subject of the complaints.
Sample case: Kingscourt incident
A statement taken by gardaí from a victim of a public order incident in Kingscourt, Co Cavan, was “at no time” considered during an investigation, the report concludes.
The incident involved a woman, Ms Green, who contacted Bailieboro Garda station on February 25th, 2007, to complain about the behaviour of four youths on a mini-bus she was driving.
In her statement said she left the bus to contact gardaí as she was “terrified” as to what might happen to her as the youths had refused to get off.
She had picked up 10 to 12 people in Carrickmacross and “the biggest lads” started to abuse others. She said the “biggest lad” grabbed the “arse” of one woman as she got off the bus. He later groped a second woman as she got off the bus. Ms Green said she heard a girl who remained on the bus “screaming” while she was on the phone to gardaí and then saw “the big lad. . . holding her by the clothes” before she broke free.
A probationary garda, named in the report as “Garda Alpha”, arrived and spoke to the youths. Ms Green identified the main culprit to Garda Alpha, who filed a report into the Pulse system.
The Pulse record was updated on May 30th, 2007, to say the complaint had been “withdrawn” and the parties had “resolved (the) issue amongst themselves”.
This came after Garda Alpha contacted one of the youths with a view to taking a “cautioned statement”. Garda Alpha agreed to ask the woman if she wanted compensation for loss of fares.
He said Ms Green, who later made a complaint to GSOC about the incident, said she would accept a written apology and €150. “She said that on receipt of the foregoing she would let the matter go,” Garda Alpha said in a report prepared after his training sergeant sought an investigation into the incident.
During the investigation, Garda Alpha accepted he had not completed a full file in relation to the incident. He said he was inexperienced and naive and denied any suggestion of corruption.
The investigation recommended disciplinary action be taken against Garda Alpha.
Sgt Maurice McCabe complained in January 2009 that supervising gardaí had failed to properly handle a complaint of what he viewed as “hijacking, false imprisonment and sexual assault”.
The Byrne-McGinn report into his claims said, while the investigation was “shabby”, Sgt McCabe’s suggestion the incident involved false imprisonment and sexual assault was “a gross exaggeration”. Mr Guerin notes that Sgt McCabe’s allegation does not cite sexual assault and that his allegation was that the Pulse record was falsified and Garda Alpha’s actions were “disgraceful”.
Mr Guerin said the first and most obvious concern was that “at no time does it appear that the statement from the victim was considered”.
He says it is difficult to understand how Sgt McCabe’s allegations were regarded as “grossly exaggerated” .
The matter, he says, warrants further investigation.
Sample case: Release on bail of man who went on to murder
Issues around policing and procedures which resulted in Jerry McGrath being released on bail before murdering Sylvia Roche-Kelly “can be expected to arise again”, the report has found.
On April 30th in Co Cavan, taxi driver Mary Lynch was “kicked in the stomach, punched in the face and head and had lumps of hair pulled from her scalp”.
McGrath was originally charged with an offence of assault, as opposed to assault causing harm, and the incident was recorded in the Garda Pulse computer system as a minor assault. He was release on station bail on his own bond of €300 to appear before Virginia District Court in May 2007, after which point he was remanded on bail.
In the interim, an investigation file was prepared, taking five months. In October, it was recommended by gardaí that the more serious charge of assault causing harm be brought. This was also subsequently directed by the DPP.
However, in the interim, McGrath was disturbed while attempting to abduct a child from her house in Tipperary by the girl’s mother in the early hours of October 9th, 2007. He was later released on bail and an independent surety.
Mr Guerin’s report says the Tipperary incident became known to gardaí in Cavan within days . But despite the serious charges which stood against McGrath in both Cavan and Tipperary, Mr Guerin found no indication that gardaí in Cavan considered remanding McGrath in custody or imposing bail conditions at a sitting of Virginia District court on December 3rd, 2007. On December 8th, 2007, McGrath murdered Sylvia Roche-Kelly in a Limerick hotel.
Following a complaint by Ms Roche-Kelly’s husband, a GSOC investigation concluded “no enquiry was launched by Bailieboro gardaí to establish the details of the incident in Tipperary” although this should have been done.
GSOC expressed the view that the responsibility for this lay with the investigating garda, given the pseudonym of “Garda Golf”, a probationary garda with less than a year’s service.
A subsequent report found Garda Golf “did not apprise the prosecuting inspector or the court (at the December 3rd sitting in Cavan) of the serious charge preferred against Mr McGrath” as regards the incident in Tipperary.
However, the report also questioned why inquiries were not made into why a serious assault was being investigated by a probationary garda.
The report found that questions surrounding Garda Golf’s checking of the Pulse system was “inextricably linked to the absence of supervision and his inexperience” and no breach of discipline was found to have occurred.
The dossier subsequently sent by Sgt Maurice McCabe alleges Garda Golf’s superior, Supt Foxtrot, had full details of both incidents but failed to notify the DPP of the Tipperary charges. Although Mr Guerin notes that it is not clear that Supt Foxtrot knew the full details, he concluded the matter should be included in the terms of reference of a Commission of Investigation.
