Fennelly Report: A series of flashing red lights

Former Garda Commissioner Martin Callinan, with the former secretary general of the Department of Justice Brian Purcell and former Fine Gael Minister for Justice and Defence Alan Shatter at an event in 2012

Enda Kenny does not emerge from the proceedings in a very flattering light, writes Cormac O’Keeffe

Martin Callinan was given little option but to retire.

That’s the first flashing red light in Fennelly’s report.

If the then commissioner’s letter regarding the Garda phone-taping controversy was known to the decision-makers, things “would not have unfolded the way they did”.

A second flashing red light.

Had former justice minister Alan Shatter been fully briefed beforehand by his senior officials, things would have unfolded differently. Third flashing light.

Fennelly Report: A series of flashing red lights

Alan Shatter

If Mr Shatter had not been excluded from the decision making — the action of the Taoiseach — things would have been “significantly different”. Fourth flashing red light.

No one bothered to consult either of the two most relevant parties — Mr Callinan or Mr Shatter — about the tapes. If they had, guess what, things would have unfolded differently. Fifth flashing red light.

This is all crystal clear in the summary and conclusions of Mr Justice Nial Fennelly’s report.

From mid-morning yesterday, however, we were led to believe otherwise.

The vibe from Taoiseach Enda Kenny was all about vindication and having nothing to fear.

Fennelly Report: A series of flashing red lights

Enda Kenny

This was later followed by a detailed statement from him — well before the actual report was made available — which made selective references to the report.

But the more you read the report, the more it contained unflattering reading for the Taoiseach, as well as the Attorney General, Máire Whelan, and the then Department of Justice secretary general, Brian Purcell.

Fennelly Report: A series of flashing red lights

Marie Whelan, Attorney General

Let’s concentrate on the number one issue: Mr Callinan’s shock departure.

The visit of Mr Purcell to the home of Mr Callinan — on the orders of the Taoiseach — was “an event without precedent”.

The visit was at 11pm and Mr Callinan did not know what it was about.

Fennelly says: “In the view of the Commission, when all the circumstances are viewed objectively, the mission on which Mr Purcell was being sent was liable to be interpreted as suggesting to the Commissioner that he should consider his position.”

He says that Mr Shatter “was firmly of the view that the Commissioner was expected by the Taoiseach to consider his position”.

The report says it was made clear by Mr Purcell to Mr Callinan that:

  • The Taoiseach had sent him;
  • The Taoiseach had “grave concerns” over the tape controversy;
  • That the matter was going to be in the public domain;
  • The Taoiseach was bringing the matter to the Cabinet the following morning;
  • He intended to appoint a Commission of Investigation into the matter;
  • The Taoiseach was unsure how the matter would be received in Cabinet;
  • The Taoiseach’s “grave concern” was that following Cabinet he might not be able to express confidence in the Commissioner.

The report said that Mr Callinan’s views or response were not sought.

It also said Mr Purcell described it as one of the worst days of his life.

“The Commissioner took it from all the circumstances of the visit of the secretary general’s visit to his home late at night and the message conveyed to him from the Taoiseach, that he was expected to consider his position, although it is agreed that Mr Purcell did not use that expression. He also said repeatedly that he believed that he had, in all the circumstances, no option but to retire.”

Fennelly Report: A series of flashing red lights

Brian Purcell

In Mr Callinan’s own words: “I was very clear in my own mind that I didn’t have options.”

The report says that the fact the commissioner made his own decision to retire “does not mean that the Commissioner was wrong to arrive at the conclusion that he was expected to consider his position”.

It adds: “The Commission has already found that the message delivered by Mr Purcell, in all the attendant circumstances, in explicit contemplation of the risk that at the next day’s Cabinet meeting the Taoiseach might not be able to express confidence in him, carried the obvious implication that the Commissioner’s own position was in question.

“Accepting the Taoiseach’s assurances, given in good faith, that he did not intend to put pressure on the Commissioner to retire, nonetheless, viewed objectively, Mr Purcell’s mission was likely to be interpreted as doing just that.

“The immediate and direct cause of his decision to retire was the visit from Mr Purcell, and the message conveyed from the Taoiseach during that visit.”

Incidentally, Fennelly notes that Mr Callinan had sought three months to retire, then shortened it to two months — but that the Taoiseach later said it had to take place “with immediate effect”.

Fennelly Report: A series of flashing red lights

Martin Callinan

Fennelly adds, without comment, that this opinion by the Taoiseach did not alter the fact, as he was “careful to maintain”, that the decision was that of the Commissioner.

The judge says that he accepts that the Taoiseach “did not intend” to put pressure on the commissioner to retire.

However, he said, he sent the secretary general to the man’s home, late at night, to tell him the Taoiseach considered the recording issue “to be a matter of utmost gravity”.

Fennelly says that the Commission found that Mr Purcell received no clear instructions on the detail of the message he was to convey.

Moreover, Fennelly says the Taoiseach did not instruct Mr Purcell to obtain the views of the commissioner — nor did the Taoiseach invite the commissioner to contact him.

To hammer the point home, Fennelly concludes: “The Garda Commissioner interpreted the message delivered to him by Mr Purcell on behalf of the Taoiseach, with all its attendant circumstances, as an indication that he should consider his position; in the view of the Commission, that was a reasonable conclusion for the Commissioner to reach.”

So, in other words, while the Taoiseach “did not intend” to put pressure on the commissioner to retire, the visit “carried the obvious implication” that he needed to.

It is 31 years since a commissioner retired or resigned in anything like a remotely similar situation.

There are fundamental matters here, in Fennelly’s forensic report, that will continue flashing in the days and weeks ahead.

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