No appetite to uncover whole truth of GSOC bugging

An independent public inquiry is the only means by which the full facts in the GSOC bugging affair can be revealed, writes Mick Wallace

THE 64-page Cooke report, was published by Government last week at 8.45pm. Fifteen minutes later, the headlines of RTÉ’s Nine O’Clock news could only repeat the selective quotes leaked by government sources earlier that day to certain crime journalists.

Half an hour later, the well-versed Justice Minister Frances Fitzgerald appeared on Prime Time with a list of reassuring phrases that presenter Miriam O’Callaghan — without any prior opportunity to analyse the report — could not seriously challenge — identical tactics to those employed on the publication of the Garda Inspectorate report into penalty points.

Despite some notable exceptions — the Irish Examiner, Philip Boucher Hayes on Radio 1 and Matt Cooper on Today FM — the Government line has been accepted by the established media without question or analysis.

Paragraph one of the terms of reference set by government set a narrow focus for this investigation: “Whether the Garda Ombudsman acted proportionately and reasonably in initiating a Section 102 investigation into Garda misconduct in the public interest”.

This focus ignores the central issue — whether attempts were made to bug GSOC and if so, by whom.

The retired judge then appears to re-interpret these terms even more narrowly by setting the allegations in The Sunday Times article as his yardstick. The Government Press Office then took up the baton, selectively leaking favourable quotes and reiterating reassuring phrases.

The opening lines of the Government press statement proclaim “the evidence does not support the proposition that actual surveillance… took place and much less that it was carried out by members of Garda Siochána”.

This omits important qualifying words — “that actual surveillance of the kind asserted in The Sunday Times article took place”. The final nail in the coffin was the collusion of mainstream media in repeating and further distilling this incomplete quote.

This was seen, for example, in several articles in The Irish Times on June 11, with one sub-headline reading ‘No evidence of GSOC bugging, Cooke Report Finds’. In fact, the report states that it cannot “exclude the possibility that some form of illicit eavesdropping may have taken place.” A very different story.

The report concludes that there was no evidence of Garda involvement. However, Mr Cooke did not seek any such evidence:

- He did not question a single garda;

- He did not request a report from the Garda commissioner regarding, for example, the storage and log books of IMSI catchers, the possibility of the involvement of rogue gardaí;

- He did not seek to question those senior gardaí that were the subject of two highly sensitive GSOC investigations which Mr Cooke admits led to the heightened tension and paranoia between GSOC and the Garda Síochána at the time.

He admits that the most significant “anomaly” identified by Verrimus “remains unexplained”. This was the ring-back to a phone which by-passed the main switch at 1.30am, that occurred immediately after a TALAN test. The absence of any explanation is inconsistent with the conclusions.

The possibility of lawful surveillance was never investigated at all. Although the terms of reference require an examination only of unlawful surveillance, the elimination of the possibility of lawful surveillance would appear to be a basic requirement, if the priority was to establish the truth. Former justice minister Alan Shatter refused to answer this question both at an Oireachtas committee and in my parliamentary question last February.

A senior Garda can bypass judicial supervision completely and internally authorise another Garda to conduct covert surveillance. This is lawful if it is done in accordance with the exceptional circumstances set out in Section 7 of the Criminal Justice (Surveillance) Act 2009. If lawful surveillance by gardaí, the Army or the Revenue was at issue, Mr Cooke could then have examined whether it was in fact lawful, that is, whether these exceptional circumstances did in fact exist.

The report asserts a breach of statutory obligation by GSOC in their failure to report the results and progress, but fails to mention that Section 103 allows for exemptions if, in GSOC’s opinion, this were necessary in the public interest.

This has been repeated ad nauseum by Government speakers. This selective and incomplete reading of the relevant legislation is a strange omission for a retired judge of Mr Cooke’s experience and stature.

Critically, the report does not assess any evidence of an attempted security breach at GSOC, as requested by paragraph three of the terms of reference, preferring to focus on whether “actual surveillance” took place or not.

Mr Cooke appears to accept that ordinary surveillance took place of the Verrimus personnel, but does not view this as corroborating nor does he consider it alongside the three technical “anomalies”.

The absence of a clear relationship between the facts and the report’s conclusions, along with some factual misquotations and a largely unexplained preference for one expert report over another, would usually result in a High Court judicial review challenge to test the soundness and fairness of the report. However, the flimsy and non-statutory basis chosen by the Government to ground this report means judicial review is most likely unavailable, and indeed, there does not appear to be any legal recourse available at all.

In fairness, Mr Cooke states that the report’s conclusions are “based upon my personal evaluation and opinion” — they are not judicial, they are not the result of a statutory inquiry by a sitting judge with powers of compellability.

Had the impossible happened and incontrovertible proof been provided and established the Garda bugging of GSOC, this would have resulted in huge upheaval within some of the more sacred institutions of the State, and yet another possibly fatal blow for the party of law and order in the run-up to the next general election.

If there was a real appetite for the truth, we would get an independent public inquiry, nothing less.

Mick Wallace is an independent TD.

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