Michael Clifford: Keeping a close eye on Flanagan’s next move

The ‘Irish Examiner’ last year published claims about covert surveillance in prisons. A report was made — but will it be published and followed up on, asks Michael Clifford.

Charlie Flanagan has a fistful of nettles on his desk. The justice minister ordered a report into claims that covert surveillance had been conducted in Irish prisons. 

The report was duly compiled by Inspector of Prisons Patricia Gilheaney.

And, by all accounts, it contains some unpalatable findings. The report is now being finalised for publication. What to do, Charlie?

Flanagan is obliged to publish the report under section 31 of the Prisons Act, 2007. 

He can, however, deem that some or all of the report must be redacted in the interests of the security of the State or the protection of individuals’ constitutional rights.

What remains to be seen is what exactly the minister will do about what has landed on his desk, even if he refuses to share the contents with the public.

Flanagan ordered the report on November 22 last year following the publication in the Irish Examiner of claims made by assistant chief officer David McDonald.

McDonald worked for the operational support group in the Prison Service. 

This unit was set up in 2007 in the wake of a controversial phonecall to RTÉ’s Liveline programme from criminal John Daly in his prison cell in Portlaoise. 

The unit’s brief was to stop the flow of contraband into prisons, principally, drugs and mobile phones.

McDonald has alleged that within the unit things got a bit out of hand. This, he says, included using illegal surveillance on prison officers. 

A small number of these officers were under suspicion for dealing in contraband.

But many others were caught in the net and there was no legal basis for any of the surveillance. He also claimed that the surveillance net caught conversations between solicitors and prisoners. 

The fruit of this activity, the allegation goes on, was often passed onto An Garda Síochána.

On November 22, 2018, the Irish Examiner published a story about McDonald’s allegations. 

Later that day, Flanagan said an “urgent” inquiry into the matter was required.

This urgency, apparently, only attached once the issue was in the public domain as the minister had been aware of the claims for some time prior to November 22. 

In announcing the inquiry, he acknowledged in the Dáil that he had received the affidavit containing the claims on an earlier date.

In any event, he appointed the Inspector of Prisons to investigate. 

Some reservations were expressed — on these pages and elsewhere — about the appointment of Patricia Gilheaney to the task. 

Her office is constrained in certain respects by law. She is not, for instance, mandated to demand the production of documents from the HQ of the Prison Service.

Yet all the indications are that she did a thorough job and has uncovered some shocking evidence of possible illegal activity within the Prison Service. 

She presented her report to the minister on March 13, a few weeks after the initial deadline.

Flanagan then referred the matter to the Attorney General whose office has now completed its examination. The report is being finalised for publication, but with large redactions.

One element of McDonald’s claims is that the alleged surveillance was conducted by an outside private investigation firm.

What we do know is that sums of money were paid by the Prison Service to private investigation firms in 2011 and 2012.

This was confirmed to the Public Accounts Committee by the secretary general of the Department of Justice, Adrian O’Driscoll, last February. 

In response to a question in the committee on January 17, he subsequently wrote to confirm that one private investigation firm was paid €18,228 in 2011 and 2012, while a second company received €10,774 in 2011.

He was asked whether this money was for fees for conducting surveillance, as McDonald had alleged.

“It is not possible, from the information available, to determine if these payments relate to the surveillance of prison staff,” wrote O’Driscoll.

“However, a copy of the invoices concerned have been forwarded to the Inspector of Prisons as part of her ongoing investigation.”

These payments are expected to feature in Gilheaney’s report. But what if they are connected to any surveillance activity?

That would involve the possible commission of a crime, which would require a Garda investigation.

If, as McDonald also claimed, transcripts of surveillance were passed to the gardaí, would elements within the force come under the microscope of any criminal investigation?

How high up within the force might it have been known that surveillance was carried out within the prison service?

Equally, if a law enforcement investigation were to take place, who exactly within the Prison Service would be investigated? 

McDonald said he was acting on orders. But if he was engaged in this activity, who sanctioned it?

If the figures for payment to private security firms are associated with any illegal surveillance did sanction come from management? 

It doesn’t follow that management was necessarily aware of what the payment was for, but if not, why not?

And all of that is before the Law Society may loosen its jaws to get stuck in if it is shown that any conversations between solicitors and prisoners were intercepted, particularly if recordings or transcripts were passed on to gardaí.

The final issue is the man who is effectively a whistleblower in this instance. David McDonald has come forward with the allegations. 

His motivation for doing so may well be questioned within the Prison Service, but that is always the lot of a whistleblower.

What matters is whether his claims stand up. If they do, what exactly is going to be done? 

If his allegations are shown to have substance, yet nothing is done about it, what message does that send to any potential whistleblower intent on highlighting malpractice?

Flanagan has a lot to pick through in the fistful of nettles.

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