Whistleblower David McDonald says there have been reprisals for his claims, among others, that prison officers had been put under illegal surveillance and that prisoners’ conversations with their solicitors were monitored, writes Michael Clifford.
ASSISTANT chief officer David McDonald is a disgruntled employee within the prison service.
His disgruntlement prompted him to become a whistleblower. His whistleblowing has provided a window into the culture of prisons and the practices that had long been hidden behind high walls of ‘omerta.’ For revealing various malpractices, he is now paying a huge price in his workplace, he claims.
The malpractice he reported has been examined in an official report and, to a large extent, he has been vindicated, although he takes issue with some of the conclusions.
If the second part of his claims — what effectively amounts to whistleblower reprisal — stands up, it raises concerns about how prisons are run and what protections are in place for those who raise issues.
On July 25, Justice Minister Charlie Flanagan published the report into some of Mr McDonald’s claims. These included:
The illegal surveillance was contracted out to a private investigation firm, McDonald claimed, and senior management in the prison service was aware.
The report was ordered by Charlie Flanagan, after details of the claims, made in an affadavit, were published in the Irish Examiner last November. It was authored by the inspector of prisons, Patricia Gilheaney, who upheld most of McDonald’s claims.
Since last November, McDonald claims, with some evidence, to have been harassed and targeted in his workplace. The IPS system for employees to report wrongdoing is called ‘Speak Up.’ McDonald finds the term laughable.
“It should be renamed ‘keep the head down’, on the basis of what I’ve been subjected to,” he says.
“It’s all words and PR, but the reality is that speaking up will get you into no end of trouble.”
Last year, in an unconnected case, the Workplace Relations Commission awarded €30,000 to a prison officer who claimed he had been unfairly treated after he made a protected disclosure.
The most serious instance of alleged “whistleblower reprisal” being claimed by David McDonald is the issuing of disciplinary proceedings against him earlier this month.
This was about his decision to allow an officer under his watch to leave work early to respond to an emergency concerning her elderly mother, who has a serious condition.
On that occasion, McDonald allowed this officer to go home half-an-hour before her shift ended. Over the following week, she was late for work, beyond a standard grace period, on two occasions, by five and two minutes, respectively.
For such timekeeping, both McDonald and the prison officer have been issued with five codes of discipline, which could result in suspension or docking of pay, or even the remote possibility of dismissal.
McDonald is convinced the disciplinary action is related to a protected disclosure — separate from the matters reported on by the inspector — that he made earlier that month about alleged fraudulent recording of hours worked by some personnel. That disclosure has been deemed worthy of investigation by an external legal firm.
“It’s one thing them going after me, but now they’re dragging this other person into it,” he says.
“It’s not as if every employee of the prison service is on time every single day. Things happen. There might be a match on and somebody is late reporting back. It’s normal, under those kind of circumstances, for a bit of leeway to be given.
“And now, I’m being disciplined over showing a small bit of compassion to a staff member. Why drag her into it?”
In response to questions about this case, the prison service said it does not comment on individual cases. The statement said: “The Irish Prison Service does not comment on individual cases. The Protected Disclosures Act came into effect on July 15, 2014. The purpose of the act is to provide a framework within which workers can raise concerns regarding potential wrongdoing that has come to their attention in the workplace, in the knowledge that protections are available to them from any form of penalisation from doing so.
“The Irish Prison Service updated its protected disclosures policy in July 2018. This was done to foster a culture and work environment within which workers are encouraged and supported in making reports, in the knowledge that their concerns will be taken seriously, will be investigated, where appropriate, and that their confidentiality will be respected.
“The Irish Prison Service protected disclosures policy is designed to ensure employees can raise concerns about relevant wrongdoings, which come to their attention in connection with their employment, without fear of penalisation.
“It is also designed to provide a transparent and confidential process for dealing with the concerns raised. The Irish Prison Service has a system in place to protect those who speak up.
“Staff who consider that they may have experienced any act of penalisation should notify the protected disclosures manager, who will arrange for an independent investigation of the complaint of penalisation.
“The protected disclosures policy is currently being reviewed to provide staff with an additional avenue to raise concerns about wrongdoings to an external, independent recipient appointed by the Irish Prison Service. Staff can also continue to raise concerns about wrongdoings to the protected disclosures manager.
“The protected disclosures policy is currently being reviewed to provide staff with an additional avenue to raise concerns about wrongdoings to an external independent recipient appointed by the Irish Prison Service.”
McDonald claims he did contact the manager and was told the matter was now referred to another member of IPS management. He has received no notice of any independent investigation.
He claims a number of officers who have shown support for his position, or who have failed to distance themselves from him, are now regarded in a harsh light by IPS management.
His capacity to do his job has been impacted in other ways. He no longer has access to a CCTV system, which is required of, and available to, officers in his unit. He has been denied access to the IT system, which is again integral to the work of the Operational Support Group.
“I’m not crying,” he said.
THE attempt to transfer him out of the OSG, in August 2018, is the source of his disgruntlement. Prior to that, he would never have considered himself whistleblower material. He was happy in a job he had done for over 30 years. He had a reputation for being good at it.
The Operational Support Group was established in 2008, following a controversy over a phonecall to RTÉ’s Liveline programme from a prisoner in Portlaoise. The fact that a prisoner had access to a mobile phone caused public and political outrage.
David McDonald joined the unit soon after it was set up. He had served as a prison officer since 1989. The new role provided plenty of challenges and job satisfaction.
“We were involved in installing a proper system of monitoring everything that went into the prisons,” he says.
“In some ways, it was bringing the system into modern times. It also meant that we put a lot of noses out of joint. Gangs in prisons, that were used to getting access to drugs and phones and the power that brought them, were suddenly finding that things had changed.”
Some fellow prison officers were also wary of the OSG. A certain amount of contraband made its way into prisons through a small minority of prison officers. The OSG’s brief was to cut that out and do so with enough evidence to ensure, at a minimum, that such officers could be immediately fired.
Apart from his primary duty of stopping the flow of contraband, he also took an interest in how deaths in custody had been dealt with.
Repeatedly, families of deceased prisoners had raised questions about the duty of care of the prison service towards vulnerable prisoners and how the aftermath of a death was not properly handled. A succession of inspectors of prisons have echoed these concerns.
As a result of his interest in the area, McDonald took a course, some years ago, in the Garda training college, on crime scene preservation. Within the service, he suggested changes in preserving scenes of a death.
He also liaised with the former, now deceased, inspector of prisons, Judge Michael Reilly. The shortcomings in this area were among the allegations of malpractice that McDonald made in his affadavit last year. The report published in July upheld these allegations.
All of that was a reflection of his interest in the job. He didn’t make waves about it at the time, preferring to work within the system.
“I wasn’t shouting it from the rooftops,” he says. “I could see where things were not being done properly and I just wanted to help make improvements. And some of what I brought to it was taken on board.”
THEN, on August 24, 2018, everything changed. It was a Friday afternoon, when he and two colleagues were told that they were to be transferred out of the Operational Support Group with immediate effect.
No reason was given for the transfers. “It came out of the blue,” he said. “And it’s extremely rare for anybody to be transferred against their wishes. So when it happens like that, with no notice, the impression goes out that you have done something wrong, maybe even criminal. I did nothing wrong and neither did the other men. That has been confirmed in court proceedings.”
One theory he has is a personal agenda against his chief officer, Ben Buckley, who was one of the others to be transferred.
The two men had a close working relationship and Buckley was a highly regarded chief officer. Neither can think of any other reason why they were, as far as they were concerned, being targeted.
McDonald contacted his solicitor, Gerry Burns, and, following a judicial review, his transfer was blocked. (Ben Buckley retired in February, having reached his 30-year service mark).
There was a second attempt to transfer him, but that was also legally blocked. The only reason that prison management provided for transferring him was a minor complaint made against him by another officer. The High Court effectively dismissed that as any sustainable reason to merit a transfer.
A full hearing into the attempted transfers of the three men took place in June and the High Court ruling is expected in October.
“I was just completely disillusioned by the whole thing,” he says. “I’d given my working life to the service. There were the usual ups and downs, as in any workplace, but you won’t find anybody who would ever say I was a slacker.
“And then, they try to do this, for some reason. I felt it was time that the world outside should know exactly how some things are done in the prisons.”
Reporting malpractice on this basis might, to some, raise questions about the purity of his motive.
“I accept that,” he says. “If they hadn’t tried to do that to me, I would most likely have continued on to the end of my career without any fuss.
“But before it ever happened, I was one of the people trying to change things from within, with the deaths in custody procedures.
“So I’m not somebody who’s coming forward with crazy or false allegations. This is the way things are done.”
The report from the inspector of prisons uncovered evidence to confirm his allegation about the illegal surveillance was correct. It also confirmed his allegations about deaths in custody.
It said that there was no evidence to support his allegation that solicitors’ phonecalls with prisoners were targeted for surveillance.
HIS main problem with the inspector’s report (which is dealt with elsewhere on these pages) is that Ms Gilheaney appeared to conclude that the illegal surveillance was carried out without the knowledge of management in the Irish Prison Service.
The conclusion is not definitive, but has been spun as such, since the publication.
If correct, it suggests that McDonald and a few others within the OSG were acting off their own bat and that invoices submitted to pay the private investigation firm were processed without senior management knowing what exact services were being performed for the money.
“None of that makes sense,” he says. “It would mean that I reported this wrongdoing, knowing that nobody but myself and a few colleagues were responsible for it and that management hadn’t a clue what was going on.
“The payments to the private investigation company, which were confirmed in the report, were made in around 2012, when you couldn’t buy a pencil in the prison service, or even many parts of the public sector, without proper authorisation.
“It was all cutbacks; there wasn’t money for anything at that time.
“Yet, we are being asked to believe that €30,000 paid to a private security firm just slipped through the system, without anybody really knowing what exactly it was for?
“Then, when the report was published, the minister for justice announced that he was putting further oversight on the prison service. If all this was down to a few of us in the OSG, why is there a need for further oversight?
“Patricia Gilheaney struck me as a very competent person and I’m not questioning her integrity, but she was asked to do a rushed report.
“I put my head above the parapet, in going public with these things, but I’d seriously question whether there was ever any appetite to have the full truth put out there.”
Following the publication of the report, the director general of the Irish Prison Service, Caron McCaffrey, sent an email to all staff in the service, and a second one to OSG personnel. It referenced the suggestion that the illegal activity was down to a few people in the OSG and that it was onwards and upwards from here on in.
DAVID McDonald says that this isolated him further within the service. He wasn’t named in the emails, but he claims anybody in the prison service knew who was being referenced.
His solicitor, Gerry Burns, wrote to Ms McCaffrey, asking for an apology, for what he alleged was defamation of character.
Since then, McDonald has been subjected to the disciplinary process for allowing the officer home to deal with an urgent family issue. He doesn’t know what’s going to happen with it, but he says he won’t be hounded from the job.
“I have no regrets about what I reported,” he says. “If anything, the way I’ve been treated since they tried to transfer me has convinced me I was right.
“Whether it gets the proper attention is for others to decide, but this is the way things are run in the service.”
The report into the extent of covert surveillance in our prisons leaves a lot of questions unanswered, writes Michael Clifford.
The director of the Irish Prison Service, Caron McCaffrey was interviewed on RTÉ’s Nine O’Clock News on July 25 last, the evening the report into covert surveillance in prisons was published.
In a short contribution, Ms McCaffrey stated the following: “The inspector found that a very small number of staff in the Operational Support Group operated in a unilateral manner without authorisation or knowledge of senior management in the prison service in engaging private security companies to undertake covert surveillance in an Irish prison.”
The finding, as outlined by Ms McCaffrey, is direct and unequivocal. Except that’s not what the inspector, Patricia Gilheaney, concluded. Her report stated the following: “The evidence suggests that in an effort to curtail the flow of contraband into IPS facilities, a small number of personnel within the OSG acted in a unilateral manner which was beyond the original remit of the OSG, that does not appear to have followed any standard procedure or operational guidelines and which fell outside of acceptable proactive.
What Ms McCaffrey characterised as a definitive finding of fact was actually a conclusion that was full of equivocation.
The inspector, Ms Gilheaney, stated that “the evidence suggests” and that there was “a conflict of evidence” over positions and that there was “no substantive evidence to corroborate” one allegation.
The vast majority of people with any interest in the issue would receive the word from the news rather than actually read the report.
As such the IPS could be accused of spinning the result. Nothing to see here folks, except a few stray prison officers who went off reservation without anybody’s knowledge.
The equivocation in Ms Gilheaney’s report is understandable but ensures that a definitive finding on this issue will not now be made.
If the inspector had more time she might have had a chance to be definitive. But the minister for justice gave her a tight schedule of three months to complete what he termed an “urgent” inquiry.
Yet when he received Ms Gilheaney’s report, he sat on it for a further three months, finally publishing it at the height of the holiday season when the Dáil was off and minds were elsewhere.
Despite what appears to be efforts to divert from the report, a number of issues which have not been addressed do arise.
Primary among these is whether management was aware that illegal surveillance was being undertaken.
The man in the Longford HQ of the IPS who signed off on receipts for the private investigation firm providing the surveillance was Walter Burke, a higher executive officer.
Surprisingly, he was not interviewed by Ms Gilheaney. She or her team conducted 18 interviews with people of interest to the investigation.
Yet they appear not to have sought an interview with a person who was central to the issue of whether senior management in the IPS was aware of potentially criminal acts being conducted by staff.
Mr Burke did supply a statement on request where he stated: “The raising of the invoices was a matter for the relevant area ensuring the goods were required, delivered, checked and verified before raising the invoice.”
He processed 13 invoices in this manner amounting to just south of €30,000.
His assertion that he didn’t know what the invoices were specifically referring to was taken at face value. Ms Gilheaney stated in her report, there was “no substantive evidence to corroborate” that management was aware of what was going on.
Further on in the report, Ms Gilheaney stated that another assistant chief officer — Trevor Darling — told her that he was involved in recording conversations between prisoners and visitors without their knowledge in Wheatfield prison.
This inferred that the practice of illegal surveillance was far more widespread than alleged by David McDonald. There was no more in the report about surveillance in Wheatfield prison or any other prison.
Ms Gilheaney had stumbled across the fact that the surveillance was taking place on a much bigger scale than McDonald’s affidavit had alleged, but it was outside her remit to explore that further and get to the whole truth.
Then there was the appearance of a forgotten piece of evidence that popped up in the middle of Ms Gilheaney’s investigation.
One of the governors — who was not associated with the surveillance claims — unearthed some interesting material.
According to the inspector’s report: “He was cleaning out a wallsafe in his office and had found an envelope which contained a memory stick which contained two reports of surveillance… he also found an undated OSG headed paper that was entitled ‘Garda View’.
There was also a dictaphone and he described some of its content. This was definitive proof of the surveillance, including suggestions that gardaí were aware of it, but had apparently been stowed away in a safe for six or seven years without anybody aware of its existence.
On publication of the report last July, the justice minister announced that the gardaí were now investigating the illegal surveillance with a view to determining whether a crime was committed.
In the report, Ms Gilheaney notes that at one point in her investigation David McDonald handed her a dossier from what he said was the surveillance activity in 2012 which “appears to indicate a level of engagement between the author and members of An Garda Síochána in sharing information”.
So Mr McDonald presented a contemporaneous report that suggested the gardaí were aware of the illegal surveillance. This matter was not pursued further.
Were the gardaí aware of what was going on? If so, how high up in An Garda Síochána would such knowledge have been transmitted?
If elements of the force were aware of it that surely presents problems in An Garda Síochána investigating An Garda Síochána.
On the day Ms Gilheaney’s report was published, the Irish Examiner’s Juno McEnroe put this to Charlie Flanagan.
“I don’t believe that there is any aspect of the report where the gardaí will be in essence examining themselves,” he replied.
Despite sitting on the report for three months it would appear that the minister is not fully aware of its contents.
He was also asked on that occasion whether it was credible that HQ didn’t know the illegal activity was going on.
“A number of instances have been shown to be outside the law,” he said. “I want to ensure that our prisons operate to the highest standard.”
The answer, unfortunately, didn’t address the question.
Ms Gilheaney is a highly regarded public servant who was appointed to the inspector’s office last year.
Her background is in mental health, a vital area in respect of prisons. Yet there is a case to be made that, despite the independent status of her office, she was rushed into producing a report.
It is difficult to imagine that her predecessor, the late Judge Michael Reilly, would have tolerated being dictated by a minister to observe a tight deadline in attempting to find out what exactly was going on in our prisons.