Fennelly Report fallout shifts landscape of policing and politics
AS a few brave souls continue to tackle the 740 pages in Fennelly 2, further cracks have opened up under the shifting tectonic plates of policing and politics in Ireland.
How the landscape will look once the upheavals settle (presuming they do) is impossible to foresee.
NÓIRÍN O’SULLIVAN
The Garda chief, then deputy commissioner of operations, does not come out unscathed in Fennelly 2.
There is fairly strong criticism of her in fact — including that she, and others in Garda HQ, failed to respond properly to reports about the recording of non-999 calls in Garda stations, before the issue exploded at the end of 2013.
Fennelly said the Holness trial in July 2011 at Waterford Circuit Court should have brought the issue to the attention of senior gardaí.
During that case, the judge ruled that the recording of all incoming and outgoing calls at the station was in breach of legislation and that they had been obtained in “an unlawful manner”.
Fennelly said the import of the ruling was “conveyed to Garda HQ” in reports from the district superintendent, the divisional chief superintendent, and the regional assistant commissioner.
He said then-commissioner Martin Callinan was informed of the ruling via an email from Internal Affairs but “he was not told that the recordings in question were of non-999 calls”.
Fennelly said the commissioner wrote a note to deputy commissioner O’Sullivan to inquire as to the legal implications of the ruling.
Fennelly said: “Although Commissioner Callinan’s note clearly required a response, the evidence before the commission suggests that no written response was provided to the commissioner at any point.”
Ms O’Sullivan told the commission in evidence that normal practice was to wait until responses from relevant sections came back.
Fennelly said that other reports were received by the then deputy commissioner in July and August 2011. They, and the commissioner’s note, were forwarded to the assistant commissioner for crime and security and to the Crime Policy Unit for a response.
“Although these reports contained information that indicated that non-999 recording was taking place in Waterford Station, this information was either not seen or not understood by Deputy Commissioner O’Sullivan and the other officers at Garda HQ whose task it was to provide a response to the commissioner,” the report said.
Fennelly said GSOC published and submitted a report on the Holness case in June 2013 to commissioner Callinan, highlighting the lawfulness of the system and suggested that he might wish to “re-evaluate” the practice.
Fennelly said that by that stage, both the telecommunications section and senior management had come to believe that potential issues had been resolved by placing labels and signs on the relevant telephones, making gardaí aware they were being recorded.
Fennelly concluded: “Although a number of senior Garda officers, up to and including the deputy commissioner, operations, received reports conveying this fact, the senior levels of the force did not properly or adequately consider the information. In the result, it was a further two years before the matter came to light generally, in October 2013.”
Fennelly did point out that when the Bailey tapes were discovered and reported to Ms O’Sullivan in October 2013, she instituted “more general inquiries”.
The report said it was “this initiative” by Ms O’Sullivan which “led to the revelation of the existence” of the general recording system.
THE AG & TAOISEACH
The crisis covered in Fennelly 2 stems from extraordinary events back in March 2014, when, in the midst of a dizzying array of scandals, Taoiseach Enda Kenny lobbed a fresh grenade into the mix.
This was a crisis to beat all crises: The mass illegal recording of phone calls in and out of Garda stations, capturing the conversations of citizens, even solicitors.
There were dire predictions of trials and convictions in jeopardy. The Taoiseach announced a commission (Fennelly) to examine the scandal.
This doomsday scenario came from the appalling vista presented to the Taoiseach by Attorney General Máire Whelan over Sunday and Monday, March 23 and 24.
In the summary of his second report, Mr Justice Nial Fennelly refers to this time.
The briefing from Ms Whelan caused the Taoiseach to convey the “gravity” of the matter to Mr Callinan, who “concluded that he was expected to consider his position”.
The commissioner retired the following day. He said this was despite the same commissioner, several months previously, causing the recording to stop immediately after learning about it.
The commissioner subsequently reported the matter to the Department of Justice on March 10.
Fennelly said that “through mishap” this fact was unknown to the Taoiseach and the Attorney General (and then justice minister Alan Shatter).
“If it had been, the events which precipitated the Garda Commissioner’s retirement would not have taken place,” said Fennelly.
Fennelly 2 does not directly criticise the AG or Taoiseach.
But the general findings of Fennelly 2 — that the illegal mass recording of non-999 calls was the result of ignorance among management, rather than a deliberate abuse of power, and that no criminal prosecutions were affected — will again beg the question, why the almighty rush to press the nuclear button at the time?
All of this was covered in detail in Fennelly 1, which is worth re-examining. It heavily criticised both the AG and the Taoiseach.
Fennelly said the AG used “extreme” language in presenting such a grave picture to the Taoiseach.
He said she did not have the full facts and that there were “significant gaps” in what she knew.
She also failed to mention a letter previously sent by the commissioner to the Data Protection Commissioner about this issue.
But, at the end of the day, it was the Taoiseach who made the decisions.
The report found he did not contact the commissioner over those nights to get an explanation or ask anyone else to do so.
Nor did he include Mr Shatter in the meetings until late on Monday.
If either of these things had happened, Fennelly said events would “undoubtedly” have been different.
The Taoiseach sent Brian Purcell, secretary general at the department of justice and the commissioner’s boss, to the garda’s home in the dead of night, with the gravest of messages.
Fennelly said this was “unprecedented” and said the Taoiseach had rejected suggestions of a phone call or an early morning meeting — decisions Fennelly could not understand.
Fennelly concluded that the Taoiseach did not “intend” to put pressure on Callinan to consider his position, but said that was “a reasonable conclusion for the commissioner to reach”.
In the event, the system laid down in law to remove a commissioner — via a cabinet decision and for stated reasons — was avoided, bypassed, and circumvented. Despite the controversy surrounding that use of executive power, we now have a not-dissimilar process — this time in the Oireachtas — to remove the embattled, but still defiant, Nóirín O’Sullivan.
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