Fennelly Report: Inquiries are no longer about truth and change

After many inquiries but it is now clear they are for political expediency, not the greater good, says Michael Clifford.

FOR once, it really is a case of “nothing to see here, folks, now move along”.

Unlike most recent reports into the gardaí, the report of the Fennelly Commissioner of Investigation, contained no incendiary information. The controversies that have beset the gardaí in recent years have had a common feature of initial attempts at a cover-up of one form or another. There was none of that here.

Recent controversies have also been laden with the great question about policing these days — conspiracy or mess-up. The answer in Fennelly is perfectly clear — this was a series of blunders, with not a whiff of conspiracy. The widespread taping of calls in garda stations had no nefarious or illegal intention. The cops weren’t out to get at anybody, in fact most of them hadn’t a clue that phone calls were being systemically taped.

Coming in the wake of the recent staggering information about inflated roadside breath tests figures and wrongful convictions, the report does highlight that the force is in dire need of a corporate overhaul.

There is one caveat to any benign conclusions. Once more the conduct surrounding the investigation of the murder of Sophie Tuscon Du Plantier has thrown up serious issues. Fennelly found a number of recorded calls gave rise to concern as to how gardaí were conducting the investigation, although nothing illegal was found.

In general terms, Fennelly reported that the recordings in stations had been “beset from its beginnings by misunderstandings, poor communication, imperfect information and a sequence of errors rather than any conspiracy”.

The recordings had been made in the Dublin metropolitan area since the 1980s, and in divisional HQs around the state from 1995. “[These recordings] were not authorised by law.

“An Garda Síochána had no statutory power to operate them. They also infringed personal privacy rights guaranteed by the constitution and international instruments.”

So the gardaí acted illegally but did so out of complete ignorance. While it is reassuring that the law wasn’t broken knowingly, the worry is that this is just one more example of a powerful organisation wielding unaccountable power.

Despite that, there was no question of listening into calls between solicitors and clients being detained, or other private conversations. It appears that the recordings were made, and just left there.

Worryingly, this was done with “almost total ignorance at the highest level of the force of the existence of any systems which recorded non-999 lines as strikingly demonstrated by former Commissioner Callinan’s instant decision to stop them when he learned of them in 2013”.

Why, then, did Callinan retire? Or, as is more commonly believed, why was he sacked?

Quite simply, it was all down to political expediency. Callianan had much to answer for how he handled garda whistleblowers, and particularly Sergeant Maurice McCabe, in the years and months before his departure.

But he was totally innocent of any wrongdoing in relation to the tape recording matter. Once he discovered that it was going on, in November 2013, he set about correcting the matter.

His misfortune was timing. On the weekend that Taoiseach Enda Kenny became aware of the tape recordings — March 22-23, 2014 — the Government was under pressure from the fall-out of Callinan’s dealings with Sergeant McCabe.

There was speculation that the Labour Party would demand Callinan’s head if he didn’t apologise to the whistleblowers. Then in walks another apparent scandal, and suddenly Mr Kenny has a solution. Locate a political head on a plate, and park everything in jig time in a commission of investigation.

Without examining the detail of the tape recording matter, Kenny sent word to Callinan that he was concerned about the tape recording issue. Fennelly found that this call was “likely to be interpreted” by Callinan as the application of pressure to get him to resign.

The retired judge was satisfied with Kenny’s assurance that he didn’t intend to convey to the commissioner that he should resign.

The same day the Taoiseach announced the setting up of the inquiry into the tape recording, the chair of which Fennelly took on. The heat was taken out of the garda scandal of the day, but a lot more was to come, including the resignation of a minister for justice, more controversies and finally, three years on, the setting up of the Charleton Tribunal.

So Callinan “retired”, resigned, was pushed, depending on how you view it, for nothing more than political expediency. Fennelly’s report shows he did nothing wrong on this matter.

What the Fennelly report does highlight once more is that the sort of conduct in relation to Ian Bailey is still festering. A government that had any interest at all in the gardaí would long ago have set up a commission on investigation into that matter.

It’s probably too late now to do so, but there is another way of approaching the matter. There are now a whole range of internal garda reports, a report from the DPP’s office, transcripts from a Circuit Court libel and a High Court case that provide some picture of what went on. It wouldn’t take much to get a retired judge to trawl through them and report conclusively on what exactly happened, to ensure it can never happen again.

There’s no chance of any government bothering about that. Increasingly, statutory inquiries are being used primarily for political expediency, usually to take the heat out of some prevailing culture. The notion that one should be set up to uncover facts in pursuit of the common good is quaint, but no more, in today’s political environment.