Son of Whiddy victim criticises Gardaí for not pursuing misconduct investigation

Michael Kingston throwing flowers in the sea in memory of his father Tim and French family, Thibaud Spitzbarth and his wife Sothea and Gabrelle putting flowrers in the sea for his father Jean during the 40th anniversary of the Betelgeuse disaster at the Whiddy Island pier in Bantry, Co Cork. Picture: Dan Linehan

A maritime lawyer whose father died in the Whiddy Island disaster has criticised Gardaí for not pursuing an investigation into, what he said, was serious misconduct in public office.

Michael Kingston, whose father Tim was among those killed in the 1979 disaster near Bantry, had met with senior gardaí to discuss the possibility of a criminal prosecution arising out of issues that he and the EU have highlighted regarding the Marine Casualty Investigation Board (MCIB).

Ireland was referred to the European Court of Justice over concerns around the independence of the MCIB in 2018, and last year a ruling by the European court found Ireland was in breach. 

It found the MCIB's independence was “not guaranteed”, primarily due to the five-person MCIB board including the Department of Transport secretary-general, or his or her deputy, and the Marine Survey Office (MSO) chief surveyor.

Mr Kingston had claimed that in addition to a potential conflict of interest, the board also fell short of the required legal standard due to competency.

It led gardaí to examine allegations of misconduct in public office in relation to investigations into seafaring tragedies and the implementation of maritime safety regulations.

Current Garda Commissioner Drew Harris directed the Garda National Bureau of Criminal Investigation (GNBCI) to investigate the Department of Transport, Tourism and Sport (DTTAS) and Marine Casualty Investigation Board officials for allegations of misconduct in public office.

However, it has now emerged that no criminal prosecution will take place, prompting Mr Kingston to argue that this decision is flawed.

Aerial view of the Whiddy Island oil tanker Betelgeuse disaster at Bantry, Co. Cork.

In an open letter, co-signed by barrister Ciaran McCarthy and Captain Neil Forde of Marine Hazard Ltd, who had been commissioned to undertake a review of marine safety standards and infrastructure, Mr Kingston said: "I regret to say that those who I am a medium for (multiple whistleblowers from within the Transport Department, former department officials, and current and former MCIB investigators), other deeply concerned civil servants, marine surveyors, and accident investigators who have openly spoken, as well as families of victims, and I, do not accept this decision because it does not make sense in fact and in law."

He said he was informed in a meeting with the senior members of An Garda Síochána last June, later confirmed by letter, that "as no issues of criminality arise, the matter is now closed with An Garda Síochána".

Mr Kingston also said gardaí had informed him that a charge of misconduct in public office had never been brought in Ireland, and that he is "deeply disappointed" that it appears to be ruled out now regarding the specific alleged breaches he had raised.

"We request of you Garda Commissioner, that An Garda Síochána show the bravery and leadership befitting of your organisation, in my opinion, as stated in my admiration explained in my letter of January 8, 2020, to reverse this decision, and pursue the first case of misconduct in public office in Ireland, in addition to the others offences committed, and make a stand for accountability to our citizens," the letter states.

The call comes just days after the airing of a new radio documentary on RTÉ Radio One on the Whiddy Island disaster. 

During the documentary, the families of those who died said there needs to be a State apology and an urgent review of Ireland’s failure to implement international maritime regulation.

To listen to the RTÉ Radio documentary on the Whiddy Island disaster, Fire in the Sky, click here.

*Clarification:  On 2 and 4 October 2021 we published articles entitled 'Families of Whiddy Island Disaster victims renew calls for justice in documentary'  and 'Son of Whiddy victim criticises Gardaí for not pursing misconduct investigation'.

In the 2 October article we stated that on July 9, 2020 the Court of Justice of the European Union (“CJEU”) found that Ireland’s Department of Transport was in breach of regulations regarding maritime tragedies and that the presence of two Transport Department civil servants on the Marine Casualty Investigation Board (“MCIB”) was a conflict of interest. In fact, the CJEU findings only identified a “potential” conflict of interest due to the presence of the two civil servants. There were no other findings.

The article on 4 October also referenced a complaint made to the Gardaí in January 2020 of potential misconduct in public office within the Department of Transport. While the Irish Examiner never sought to link the CJEU decision and the Garda complaint, we are happy to clarify that there is no connection between the CJEU case and the complaint to the Garda. Ultimately, and as stated in our article, a decision was made by An Garda Siochána that no issue of criminality arose and that the matter was now closed with the Garda. We are also happy to clarify that the MCIB has at no time had any involvement in the Oireachtas inquiry that followed the Whiddy Island tragedy.