On February 4 last, the family of Shane O’Farrell was invited to meet Justice Minister Charlie Flanagan the following day.
Shane O’Farrell had died after being knocked from his bicycle in a hit-and-run incident near his home in Co Monaghan on August 2, 2011. He was 23 years of age, a final-year law student.
The perpetrator was Zigimantas Gridziuska, a Lithuanian man who had a long record before the criminal courts over the previous three years. Arguably, he should not have been at liberty when he killed Shane.
The deceased man’s family had for eight years campaigned to have a full inquiry into the case, which they say, illustrates an appalling litany of errors, omissions and possible cover-ups.
In 2014, an independent review mechanism, examining complaints about garda conduct, ruled that no further inquiry into the O’Farrell case was necessary. Over the following years, a Gsoc investigation recommended disciplinary action for two gardaí in the case but little else. The O’Farrells claim that both inquiries were limited. In June 2018, the Dáil passed a motion calling for a full public inquiry. This was subsequently passed in the Seanad.
Then last February, Mr Flanagan issued his invitation to the family. The following day, he told them he was setting up a scoping inquiry to determine whether a full commission of investigation was required. This would be conducted by Gerard Haughton, a retired judge. He presented them with draft terms of reference and asked that they engage with the judge to examine whether further concerns of theirs could be included in the inquiry.
On February 20, Mr Flanagan told the Dáil that the scoping exercise was “into the circumstances of the death of Shane O’Farrell, including the criminal prosecution arising from the road traffic accident, the independent review mechanism and the investigations by Gsoc.”
On March 12, he told the Dáil:
I have not placed any restrictions on Judge Haughton, who is independent and will remain independent in the course of his inquiries, investigations, observations, deliberations and submissions.
The O’Farrell family engaged with Judge Haughton on a number of occasions.
They expressed their opinion that the terms set out in draft form by Mr Flanagan were too limited.
The family was anxious that the manner in which Gridziuska’s previous crimes were dealt with be included. In the two years before Shane O’Farrell’s death, Gridziuska had broken bail conditions a number of times and had been sentenced to a prison term which the records show he did not serve. The O’Farrells believe that the case shows failures that need to be examined in the public interest.
Another concern was information supplied to the inquest into Shane O’Farrell’s death. Documents have surfaced that raise questions about whether or not the coroner and jury were furnished with the full body of evidence. The family also handed Judge Haughton a copy of a Supreme Court ruling into another scoping inquiry conducted by senior counsel Sean Guerin.
On April 24, Judge Haughton submitted to the department his proposed terms of reference. Among these new terms were “the previous prosecutions of Mr Zigimantas Gridziuska in so far as same are relevant to the fact that the said Mr Gridziuska was on bail at the time of death of Mr Shane O’Farrell”. Another term was: “to have regard to the documentation gathered for the statutory inquest into the death of Mr Shane O’Farrell.”
The department referred these terms to the attorney general. Despite the urgency on the matter the final terms were only conveyed back to Judge Haughton on July 29, three months later. The judge informed the O’Farrell family of these terms.
Gone was any reference to the previous crimes of Gridziuska. Gone also was any inquiry into the inquest. Also missing was a reference the judge had included that any inquiry must have regard for the State’s obligation under the European Convention of Human Rights.
The new terms also stated that Judge Haughton must take into account the outcome of reports, investigations and inquiries that have already taken place.
The O’Farrells have major issues with how some of these reports were compiled.
In the round, the new terms greatly narrow both the department’s own draft reference and, to a far greater extent, those formulated by the independent judge. The AG is understood to have taken the Supreme Court ruling in Guerin into account, but it is unclear how this necessitated the narrowing of the terms.
This development has to be seen in the political context of the O’Farrell case.
Repeatedly, the Government has insisted that a full commission of investigation with statutory powers was not required. Only after sustained political, media and public pressure did the minister for justice opt for a scoping inquiry.
The O’Farrell family were not consulted about the department’s draft terms.
They were given 24 hours notice that a scoping inquiry would take place, presenting them with a fait accompli.
Mr Flanagan batted away subsequent concerns in the Dáil by claiming that the terms of reference would be a matter for the judge. And then, after consulting with the AG, the department greatly narrowed the judge’s terms. This result was conveyed to Judge Haughton on July 29 when politicians have gone on holidays.
There is a case to be made that the department is merely playing a political game, setting up an inquiry to take the heat yet ensuring that the inquiry is so restrictive that it is not equipped to access hidden truths. Certainly, the O’Farrell family is of that view. And in light of the journey they have had to take over the last eight years, who could blame them?
If, as the department claims, the narrowest of terms of reference are required to comply with the AG’s advice, why bother with a scoping inquiry at all? Why not go straight to a commission of investigation as mandated by the Oireachtas? Unless, of course, the object of the whole exercise is not to find the truth but to provide a construct to take the political heat out of the case.