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Column Shatter's focus is on whistleblowers themselves, rather than their allegations

The investigation into the penalty point controversy is minimising the independence of the Garda Ombudsman: the body won’t have autonomous access to the PULSE system or any remit to examine the Commissioner’s role, writes Mick Wallace TD.

THE DECISION OF the Justice Minister to finally initiate an independent statutory investigation regarding the controversy surrounding the administration of the penalty points system is welcome. Along with other independent TDs, I have been calling for such an inquiry since October 2012.

However a closer inspection of how the Minister proposes this matter be investigated reveals his true focus to be the whistleblowers themselves, rather than the issues raised by their allegations of widespread Fixed Charge Notice (FCN) cancellations by senior Gardaí.

The Minister’s statement proposes the first-ever investigation under Section 102 (5) of the Garda Síochána Act 2005 “in the light of circumstances where allegations are being continuously made… circumstances have now arisen where it is in the public interest to refer the allegations being made… including issues relating to the preservation of the integrity of Garda records to the Garda Ombudsman (GSOC).” His aim is clear.

No commitment to a cultural reform process

The Minister’s statement claims that there is now in place an audited Garda oversight system, and indeed the Commissioner himself proudly announced during his Public Accounts Committee (PAC) appearance last week that the first of those audits in November/December found a 100 per cent compliance rate. However, the system of auditing initiated by the Commissioner betrays the familiar hallmarks of internal examination, alongside the absence of any real accountability and transparency.

This was demonstrated by the involvement of the Assistant Commissioner and the failure to publish any supporting report setting out either auditing methods or figures. A biased internal investigation in March 2013 by the Assistant Commissioner, (which the Minister’s statement says “dealt with” the allegations) found few issues, and then concluded in the publishing of a report without any appendices or evidence to support its tidy conclusions, resulting in the inevitable lingering of public mistrust.

The Minister’s statement then confirms the adoption of the familiar “rule tightening” approach to dealing with the isolated issues that have arisen, rather than committing to any sort of organisational and cultural reform process.

Minimising the independence of GSOC

Section 102 (5) provides that, if it is in the public interest, the Minister may request GSOC to “investigate any matter that appears to the Minister to indicate that a member of the Garda Síochána may have done anything referred to in subsection (4)” ie, either a breach of discipline or a criminal offence. Thus it will be a matter for the Minister (and not GSOC) to decide which Gardai are to be investigated by GSOC in accordance with the Minister’s subjective belief as to whether the conduct of those Gardaí reaches the threshold required.

This approach clearly minimises the independence of GSOC who await formal referral but have announced this morning their intention to commence “what will be a very wide-ranging investigation.” Although there is no reason to doubt their intentions, the Minister has not yet provided any confirmation or details as to the terms of reference of this investigation, aside from the above.

The Minister has pointedly not stated that the investigation will include an examination of the conduct of the three Garda officers who were the subject of disciplinary inquiry according to Assistant Commissioner O’Mahony’s March 2013 internal review. Nor has the Minister confirmed that his Section 102 (5) referral will include an examination of the conduct of the 39 senior Gardaí who have received letters due to their cancellations of Fixed Charge Notices being “outside of Garda policy guidelines.”

In addition to this lack of clarity, the practicalities of investigating FCN cancellations in the absence of any independent access to the PULSE system or any remit to examine the role of the Commissioner, alongside a long-held tradition of Garda Síochána resistance to external investigation, will place formidable obstacles in GSOC’s path. Furthermore, it is doubtful whether Section 102 (5) permits an investigation into the retired Garda John Wilson at all, although the serving whistleblower Garda would clearly come within its remit.

A Section 106 investigation would allow for wider examination

If the Minister’s intention was to properly and cleanly investigate the whistleblowers’ allegations and the issues currently being examine by the PAC once and for all, a Section 106 investigation would be the obvious choice. Section 106 of the Garda Síochána Act 2005 allows for a wider examination of the practises, policies and procedures of An Garda Síochána, along with a set of recommendations and a time limit to be imposed by the Minister for speedy completion.

Unfortunately, GSOC’s hands are tied unless the Minister orders a Section 106 investigation – a legislative deficiency in our policing oversight mechanism that was severely criticised by United Nations Rapporteur Margaret Sekaggya in her report to the Government last March.

The Minister recently refused my request in the Dail to re-consider GSOC’s request for permission to investigate under Section 106 the issues surrounding the policing of Corrib Gas Pipeline, in light of recent allegations that Shell E & P Ireland arranged for the delivery of a large consignment of alcohol to Belmullet Garda Station in December 2007.

Rather than provide for any of the many legislative changes repeatedly requested by GSOC themselves, by the UN Special Rapporteur, or any that I proposed in my Garda Síochána (Amendment) 2013 Bill, the Minister’s statement concludes by appearing to suggest the introduction of legislation to allow GSOC a quasi-disciplinary role within An Garda Síochána, a power which may not be appropriate for a statutory body established to deal with the complaints of citizens against Gardaí.

It is almost two years since the issue was raised

Although admittedly the PAC may not be the ideal forum for the full and proper investigation of these matters, the whistleblowers have exhausted every other avenue and the defensive resistance at every turn of both the Minister and the Commissioner to any sort of independent, fair and transparent investigation has led directly to this situation. The Minister’s latest move to involve GSOC only under the restrictive terms of Section 102(5) may be as a result of the Commissioner’s “dialogue with the Minister… over the last number of days”. The reality is that the only real change of late is that we have seen the Commissioner come before the PAC and give a poor performance. This has to be worrying for the Minister.

At this stage, the most important issue is not who had penalty points terminated, but rather how the whole matter has been dealt with. It is almost two years since the issue was first brought to the attention of the Minister for Justice and his Commissioner, and all that time has been used to minimise, disprove, dismiss, and misrepresent the issues to the public – no appetite has been shown for reaching the truth.

Given that the Commissioner was so eager to head off the prospect of the whistleblowers appearing before the PAC, along with his promptness in welcoming the Minister’s latest initiative, one could be forgiven for remaining more than a little sceptical.

Mick Wallace is a TD for Co Wexford.

Read: Shatter: ‘I’m not trying to silence whisteblowers’

Read: We’ll find out later today if a serving garda sergeant will appear before the PAC

Read: Shatter slams ‘disturbing’ PAC comments, asks Ombudsman to probe penalty points issue

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