IT (the Government's decision delisting Judge Lynch) was received in the office of the Private Secretary to the Minister, Official G, from the Cabinet Secretariat on 2 August. Official G was on annual leave but the decision was photocopied and, in accordance with normal procedures, was circulated as follows:
Secretary (Official A): marked "for information"
Programme Manager (Official M): marked "for information"
Assistant Secretary (Official B)
Principal (Official C)
Assistant Principal (Official F).
The arrival of a Government decision in a Department is a signal to that Department that any consequent action should be put in hands immediately. The critical question for our Inquiry, therefore, was to establish what had happened to the three copies of the decision which were furnished to the Courts Division, viz. those given to Official B, Official C and Official F. It has to be said straight away that the result of our enquiries here was very unsatisfactory.
We first asked Official B about the copy which he received. Official B explained that he was Acting Assistant Secretary of the Courts Division and had held this post from January 1996. His tenure as Assistant Secretary is due to expire on 31 December 1996, when he will resume as a Principal Officer (Higher). Besides the Courts Division, he also had responsibility for three other divisions of the Department, viz., Immigration and Citizenship, Finance and Secretariat. These generated an enormous volume of work, instances of which he gave to us. He had not become involved at any point in the case of Judge Lynch; in the normal course of events he would have seen the draft Government Memorandum but did not as he was on annual leave at the time.
On receipt of the copy of the Government decision, on his return from annual leave on 15 August, he noted its contents and the fact that copies already had been sent to Official C and Official F of the Courts Division. He expected that the division would follow the decision through with the appropriate action. He therefore retained for reference the copy of the decision which had been sent to him.
We enquired from Official C what he had done with the copy of the decision which he had received. It will be recalled that he was only a few weeks in the Courts Division. He was therefore, as he explained to us, unaware of what procedure, if any, the Courts Division needed to follow in relation to the decision. As the Assistant Principal, Official E, who was responsible for this particular area of work, was on leave, Official C passed it to one of the more junior officials of the section. He could not recollect who that person was but he felt it would have been one of the staff with experience and in whom he had the utmost confidence. He named three officers of the section as the possible recipients. We interviewed these three persons in turn and each of them maintained with great earnestness that they had absolutely no recollection of having been given the decision.
We next asked the third recipient of the decision what had happened to her copy. This was Official F. She had been drafted in to help with the preparation of the Memorandum and had emphasised to us that she was not asked to take over Official E's section in his absence. She was heavily engaged in the work of her own section. She told us that she gave her copy of the decision to the section concerned straight away. She could not remember to whom she gave it but she mentioned one name, saying that to the best of her knowledge she gave it to this person but she could not categorically state this. We enquired of this person, who was one of the three mentioned by Official C as possible recipients, but were told quite categorically that neither copy of the decision had been received by that person.
In asking our questions, we pointed out to all concerned that in fact a copy of the decision was on the file and therefore must have been handed to someone in the section. No one, however, as we have said, could recollect receiving it, nor could either of the two senior officers, i.e. Official C and Official WE, remember precisely to whom they had given their copy. In this unsatisfactory way, the trail in relation to the Government decision ran into the sand. No action was taken on it.
The two senior officers who had received copies had passed them to the section in good faith, assuming that any necessary action would be taken, but for different reasons any instructions they gave were not followed up. One of these officers was new in the Division and the other had only been drafted in temporarily to do a specific job. The junior officer who received the decision - whoever that was - may not, in the absence of instructions from a more senior person, have realised the significance of the document.
Attorney General's
Letter of 2 October
WE next investigated the circumstances surrounding the receipt of the letter written by the Attorney General, Mr Dermot Gleeson, SC, to the Minister for Justice on 2 October. This letter was received by the Private secretary to the Minister, Official G, on 3 October. Official G explained to us that an enormous volume of letters was received in the private office of the Minister every day. When a letter such as the one from the Attorney General came in, requesting the Minister to ascertain certain information from the Department, he felt that the appropriate way to deal with it was to obtain the information from the section concerned before showing the letter to the Minister. Otherwise she could legitimately ask him what the position was and he would not be aware of it.
He consequently sent the Attorney General's letter to the Principal in the Personnel Division, Official D, because that Division usually dealt with judicial appointments. Official D told us she received it on 7 or 8 October. On reading it she realised it was a matter for the Courts Division and passed it to Official C of that Division, who received it on or around 9 October. He gave it to his subordinate officer, Official E, who received it on or around 10 October.
Official E told us that he was engrossed in, inter alia, preparing replies to 12 Dail Questions which had to be answered orally by the Minister on 15 October. He decided to wait until the Dail Questions were dealt with before taking action on the Attorney General's letter. On 14 October Official J, the Acting Higher Executive Officer in the section, returned from leave and on the following day Official E gave her the Attorney General's letter.
He explained to us that he instructed her that if the Courts Division had not already done so they should inform Judge Lynch and the Circuit Court by letter immediately of Judge Lynch's removal from the Special Criminal Court. He also requested Official J to prepare a Memorandum for the Government for the removal of Judge Buchanan from the Special Criminal Court, because he had reached the age of retirement in the Circuit Court of which he had been a member.
On 15 October, Official J gave Official E, the draft letter to Judge Lynch and the President of the Circuit Court which he had requested, together with the draft Memorandum for the Government. Official E told us that between that date and 22 October the drafts passed between him and Official J as he revised them. Specifically he made amendments and passed them back to Official J on 16 October; Official J resubmitted the letters and Memorandum to him on 22 October; and he further amended them and passed them back to Official J on 22 October. The final draft was given to Official E on 6 November and the letters issued on 7 November.
We asked Official C and Official E why they had not been struck by the urgency of the letter from the Attorney General. Official C explained that in view of the terms of the letter he did not consider it called for any urgent action.
Official E explained that when he read the Attorney General's letter he formed the view that the Attorney General was requesting the Minister to ensure that Judge Lynch was formally informed of his removal so that he could indicate to Judge Kenny that he was available for other work. It did not strike him at the time that the Registrar to the Special Criminal Court had not been informed of the decision to remove Judge Lynch from the Court or that there was no procedure in place for informing the Registrar that a judge had been removed from the Special Criminal Court or that Judge Lynch had somehow not been informed informally of the Government decision.
Because of the emphasis placed on the wording of the Attorney General's letter we have obtained his approval and that of the Minister for Justice to include it in this report. It reads as follows:
"2nd. October, 1996
Mrs. Nora Owen, T.D.,
Minister for Justice,
Office of the Minister for Justice,
72-76St. Stephen's Green,
Dublin 2
Re:Judge Dominic Lynch
Dear Nora,
I recollect that Judge Lynch was removed from the Special Criminal Court and replaced by Judge Haugh, by a Government decision I think, at the end of July.
In a recent conversation with Judge Harvey Kenny, who was reviewing the availability of different Judges for different work, he indicated to me that the impression is still abroad amongst the judiciary that Judge Lynch is still on the Special Criminal Court. Can I ask you to ascertain whether in fact the decision to remove Judge Lynch has been notified
(a) to Judge Lynch
(b) to the President of the Circuit Court
If in fact this has happened, I will be free to write to Judge Kenny confirming that Judge Lynch is no longer a member of the Special Criminal Court.
I regret having to trouble you on this matter.
Yours sincerely, Dermot Gleeson S.C."
Our reading of the wording of this letter, which after all came from the Attorney General and referred to a Government decision, would lead us to infer that urgent action was required upon it
Letter of 10 October from Judge Lynch
AN undated letter marked "Personal" was sent to the Minister for Justice by Judge Lynch saying that he had not received a reply to his letter of 2
July 1996 and asking her to let him know about his position in the Special Criminal Court. From his records he was later able to say that the date on which he sent the letter was 10 October. No action was taken on this letter, which was discovered on the file in the Courts Division and its existence made known to the Minister on 7 November.
There is a mystery about this letter which we have been unable to resolve. We have been informed that because it was marked "Personal" for the Minister it was delivered to the Minister's constituency office, where it was opened by Official N, Personal Assistant to the Minister. She told us that on opening it, she took it out of the envelope to read, because it was not on Court headed paper,] which is why she recalled it. She stated that the normal practice was to hand it over to the Minister's Private Office.
She had no idea how it got on to the file in Courts Division, as she would not have delivered it personally to that Division. She does not recall to whom she might have given it in the Minister's Private Office. The Private Secretary has indicated that he has no recollection of having received the letter in question and that his staff have no recollection either. At this point it disappears from view and no one whom we have questioned has any recollection of having seen it.
The procedures for registering, channelling and tracking mail addressed to the Minister seem to us clearly inadequate and to require reorganisation.
Attorney General's Letter of 1 November
ON 1 November the Attorney General wrote to the Minister for Justice again asking whether Judge Lynch was still on the Special Criminal Court. The 1 November was a Friday and the letter reached the Minister's Office, on the following Tuesday, 5 November. The Minister saw the letter that afternoon as shed was on her way to a meeting in Dublin Castle. She phoned Official C of Courts Division, who understood she was enquiring about the appointment of another (named) Judge to the Special Criminal Court. He pursued enquiries about this and on 6 November gave word to the Minister's Office that nobody was aware of a decision to this effect in the case of the Judge named.
That morning he was told that the decision related to Judge Haugh, the Judge who was to replace Judge Lynch on the Special Criminal Court. He contacted Official E of his Division about this and learned that letters were about to issue.
Later that afternoon, following contact" between the Office of the Director of Public Prosecutions and Official C, Judge Lynch was handed a faxed copy of the notice in Iris Oifigiuil of 9 August which showed that he had been delisted from the Special Criminal Court with effect from 1 August. This was his first notification, formal or informal, of his removal from the Special Criminal Court.