THE OUTCOME of an official sworn inquiry into the death of 14-year-old Brian Rossiter in Garda custody in Clonmel, Co Tipperary in September, 2002, will fail to satisfy his family and raises troubling questions with the public. It has emphasised, once again, the importance of holding an immediate, independent investigation into all fatalities where members of the Garda Síochána are involved. Thankfully, the Garda Ombudsman Commission now fulfils that function.
The investigation found no conclusive evidence that Brian Rossiter had been assaulted during his arrest or while held in Garda custody.
While Hugh Hartnett SC felt it was "statistically more likely" that the injuries which caused Brian's death had occurred during that period, he said the medical evidence had to be viewed in the context of a vicious assault that had occurred two days earlier. Evidence by four people that they had witnessed an assault by gardaí was rejected on the grounds of being "invented", "contradictory" or "thoroughly unreliable".
Mr Hartnett was given the job of investigating this death, along with the professional behaviour of local Garda members, three years after the event.
Because of cost and time constraints, the Government was not prepared to establish another tribunal of inquiry. But growing public disquiet and intense media attention persuaded former minister for justice Michael McDowell to set up an inquiry under the Dublin Police Act of 1924. At the time, the Morris tribunal was reporting on Garda corruption in Donegal on the basis of "the balance of probabilities". The level of proof required in the new investigation was that of a criminal trial - "beyond a reasonable doubt".
The legal status of the inquiry and the laws of libel required that only a highly-edited version of Mr Hartnett's report has been released. There is no suggestion any essential material has been suppressed. But failure to publish the complete report, no matter how valid the reasons, will be viewed by some as evidence of a whitewash.
The inquiry was conducted according to strict terms of reference and rigorous standards of proof. An internal Garda investigation into the death was found to be "lethargic" and partial. Some disquiet remains, however.Gardaí suggested Brian Rossiter was a drug addict and HIV-positive. The man who originally assaulted him was charged with manslaughter, a case that was later dropped. It was redolent of the "bad old days". Important Garda reforms have since been put in place. What happened in Clonmel five years ago fully justifies them.