A look into the Cooke Report: mild and heavily qualified criticisms of Garda Ombudsman
HINDSIGHT is 20/20. They are words of warning teachers and historians often espouse to their students.
And while retired judge John Cooke has made some pointed criticisms of the Garda Ombudsman, he does so largely “in retrospect” and in context.
This has been lost on some commentators and politicians as they gang up on the watchdog.
In a dense and technical 65-page report, Mr Cooke examined the basis upon which the Garda Ombudsman suspected they may have been bugged by the gardaí.
He evaluated whether or not they were subject to surveillance and assessed if GSOC was justified in setting up a public interest inquiry to investigate the gardaí.
The Cooke Report details the background leading up the decision to call in a British security company to conduct security sweeps. Mr Cooke said GSOC investigators explained to him the “pressure” they had been under and the “atmosphere of anxiety and tension” within the commission in the latter half of 2012 and first half of 2013 as a result of a “serious deterioration” in relation with the gardaí.
This related to problems experienced by GSOC in getting information and documentation in relation to two sensitive investigations.
GSOC officers said they were encountering “delay, obstruction and refusals” in relation to requested information, with one garda telling them: “We’ll tell you what you can get and when you can get it.”
The commission was also “extremely concerned” at the contents of articles in the newspapers which suggested the leaking of confidential information.
The report mentions suspicions by two GSOC officers of their mobile phones being bugged.
They said when they were in contact with Garda Crime and Security Branch, their fully-charged mobile phones rapidly ran out of power — a sign, they suspected, of possible bugging.
The suspicions came to a head in July 2013. Senior GSOC staff had a discussion as to whether or not to use a particular phrase — believed to be running an informant off the books — at a planned meeting with the garda commissioner. They decided not to use the phrase but, at the meeting, a senior garda used the phrase which fuelled suspicions.
It was at this stage that a decision was made to hire Verrimus to conduct a security check.
In September 2013, Verrimus staff identified a number of threats. One was a wi-fi device (with a built-in microphone) in the GSOC boardroom which it said was wholly insecure and was emitting a signal. Verrimus said “any conversation ever held [in the room] has not been secure”.
Another threat was a conference call facility in the GSOC chairperson’s office. A technical test was done on the line at 1.45am, immediately after which a phone call came into the line.
Verrimus said this meant “a person must have made a call to the device”. It said the “likelihood of a wrong number at that time to that exact unknown number at the time of an alerting test is so small it is gauged at virtually zero”.
In its report in October, Verrimus said: “It is assumed from the brief that any attack in the areas of concern would be up to intelligence service attack level.”
The report said that after receiving the Verrimus findings on October 7, the two GSOC investigators “considered that the report had identified two potentially significant and serious intrusion threats”.
The chairperson Simon O’Brien was briefed and the acting director of investigations formally made a decision to launch a public interest investigation the day after, October 8.
This was to determine if the surveillance may have originated with the Garda Síochána and if a member had committed an offence.
In a second visit, Verrimus analysed the link between the wi-fi device and a Bitbuzz network in the Spar coffee shop underneath GSOC offices. During this visit, they discovered another threat: a mobile phone network code for a UK 3G mobile phone network. Verrimus described this as a “fake base station” which was “symptomatic” of a 3G IMSI interceptor targeting UK mobile phones.
In a closing report to GSOC, it said: “This is good evidence of a localised intelligence-gathering or interception device.”
In his introduction, Mr Cooke stated that as his inquiry was non-statutory, he had “no authority to make binding findings of fact” and that his conclusions were “based upon my personal evaluation and opinion”.
Having said that, his opening conclusion doesn’t beat around the bush: “It is clear that the evidence does not support the proposition that actual surveillance of the kind asserted in The Sunday Times article took place and much less that it was carried out by members of the Garda Síochána.”
In relation to the wi-fi device, Mr Cooke was also firm: “It seems highly improbable that the haphazard performance of such a remote control device constituted the planned means of cover eavesdropping on GSOC”. He pointed out the microphone on the device was not enabled.
On the 3G mobile phone network, he said it was “clearly more probable” that it was not caused by the IMSI catcher as claimed by Verrimus, but by tests being conducted at that time by a mobile phone operator.
Mr Cooke said this did not “rule out the possibility” that an IMSI catcher was not being deployed at the same time.
On the third threat — the ‘ring back’ to the conference call facility — the judge said it “remains unexplained as a technical or scientific anomaly”. He said there was “no evidence” the ring back was “necessarily attributable” to the gardaí.
Mr Cooke said it was “ultimately extremely difficult to determine with complete certainty whether unexplained anomalies of the kinds identified in this instance were or were not attributable to unlawful intrusion”.
He said the range of technologies available made it “difficult categorically to exclude the possibility that some form of illicit eavesdropping may have taken place”.
Contrary to some comments, the judge is mixed and nuanced in his findings in this regard. And it is here that the warning about hindsight is most relevant.
Mr Cooke said that in view of “additional information” which came to light in his inquiry, it was “possible in retrospect” to see that the public interest investigation was “not at that date immediately necessary” and was “possibly a premature recourse”.
While there is criticism here, it is mild and heavily qualified. He does, however, add that the information available to GSOC at the time “did not indicate that an offence” had occurred nor did it indicate that the technical anomalies were attributable to surveillance by a third party.
But, again, the judge qualifies these comments by providing some context.
He said the “red flag warnings” in the first Verrimus report and the interpretations of these were “heavily influenced by the atmosphere of frustration and tension” in GSOC vis-à-vis the gardaí.
Mr Cooke added: “It is also clear that the investigating officers and the members of the commission acted in good faith in taking the steps in question once presented with the [Verrimus] report. Indeed it is understandable that, presented with the existence of two apparently serious threats to their security, their primary concern was to move quickly to take the steps necessary to investigate and, if necessary, counter those threats.
“They were possibly unduly alarmed by the language used and perfunctory expose of the findings presented in that report.
“It is unfortunate that further elucidation and advice from Verrimus or a second opinion was not sought before the P.I. [public interest] investigation was commenced.”
He said Verrimus remained adamant some form of covert surveillance had taken place.
The retired judge was critical of GSOC for not reporting the matter to the minister for justice once it had closed its investigation. He said there was “an obligation” to furnish information to both the minister and the Garda commissioner. He said this was “mandatory” under Section 103 (1) of the Garda Síochána Act.
But Mr Cooke did not add that subsection 2 states the commission did not have to do so in three situations, including where it was not “in the public interest”.
There are elements to the Cooke report that read like scenes from Tinker Tailor Soldier Spy. White vans with blacked-out windows, men staring into buildings, suspicious characters with baseball bats and bulky sports bags, shady individuals taking photographs, sinister phone calls, and talk of implanting moles into a judicial inquiry.
They are all there in Cooke. And depending on the particular example and how conspiratorial you are, they could incite laughter, bafflement, and suspicion in equal measure.
Cooke said that as relationships frayed between the Garda Ombudsman and the force, investigators within the watchdog became concerned they were victims of “ambient listening”. This is where an eavesdropper can intercept calls and use the receiver as a listening device to record conversations both on the phone or near the phone — without the owner of the phone knowing. This runs down mobile-phone batteries very quickly.
GSOC officers said the phones they used in their contacts with Garda Crime and Security Branch ran down very quickly, within two hours, even though they were fully charged and good for 24 hours.
When the decision was made to bring in Verrimus, Officer A in GSOC — described in the report as someone with considerable expertise in intelligence techniques in GSOC and abroad — contacted the company using a pay as you go phone bought in a supermarket, so as to remain untraceable to him.
Oddly, given the nature of their work for GSOC, Verrimus officers also went to Garda headquarters during their first visit in September 2013, where they showed counter-surveillance devices to the Security Division.
During their second visit in October, as they tested the wifi device in GSOC, a Verrimus operative went to the Spar shop underneath, where the Bitbuzz network was located, to see if anyone was using a handheld device. He said there was one person wearing a baseball cap using a tablet computer.
This operative noted an unknown male carrying a nylon sports bag which appeared to contain “a large box-shaped item that looked very heavy as the individual was carrying the item on his back and the object inside was distorting the shape of the bag it was so heavy”. This operative saw this as an indic-ation of localised technical intelligence gathering.
His Verrimus colleague in the GSOC boardroom said there were one or two individuals who appeared to “be making inordinate attempts to watch what we were doing from the street”.
Officer A went outside and noticed a white van, with blacked-out windows, parked in the street with a direct line of sight of the GSOC boardroom. He said the person with the baseball cap had left the shop. Officer A walked around the van and saw two men walking together on three separate occasions. On the third occasion, when the men saw him, they walked away. Officer A considered this a possible indicator of a surveillance operation.
A Verrimus operative told the judge of dodgy going-ons at Dublin Airport as they were flying back to Britain. He said he and his colleague were sitting down when an unknown man stood in front of them and took out a camera. They turned away, but when they turned back he photographed them. He said this was “trade craft procedure” known as being “burned”, a strategy used by the “opposition” to let them know they are aware of their presence or, in other words, “their cover has been blown”.
In his report, Cooke said: “On the face of it, there would hardly be surprising if the security branch, knowing that UK counter-surveillance experts were in Dublin with very sophisticated equipment, had an interest in the identities of their other potential clients. In his evidence, with the benefit of hindsight, Officer B expressed the view that it was probably the Verrimus personnel that were under surveillance and not the GSOC offices.”
Cooke said an examination of the suspected physical surveillance would have to be carried out by a statutory investigation, capable of compelling information and accessing documents.
In an appendix to the report, the Verrimus expert said he had received calls from a man he knew who appeared to be concerned about the evidence he would give to the inquiry. The individual is a businessman engaged in Ireland supplying and acting as manufacturers’ agent for surveillance equipment.
Lawyers for GSOC felt it proper the content of the conversations be made known to Cooke as they were concerned it was an attempt to influence the inquiry.
The conversations took place on February 19 and 25. Cooke said the conversations are “lengthy and quite oblique for the most part” and appear to “convey concerns that had been expressed to him [businessman] by contacts in both the Garda Síochána and the Irish Army Security Services”.
In one call, the businessman asked the Verrimus man to impress on the judge that “you would like the gardaí actually get a copy of everything” and that “gardaí need to know exactly what it is that you actually discovered”.
In another call, the man said the judge wasn’t “a technical man” and that “work was going on behind the scenes to put a man in there”. He said “the boys in green are trying to get a man [in there]”.
He told the Verrimus man this individual was retired and added: “I know that, well, talking to my man in green, his is kind of saying, you know, that they would be proposing this particular individual”.
Cooke said that shortly after the inquiry started, “the Department of the Taoiseach passed to me a letter containing an unsolicited offer of assistance as an investigator from an individual whose CV indicated 20 years’ experience in intelligence services as an officer in the Defence Forces. The offer was not taken up.”
The report said the phone calls did not affect the evidence given to the inquiry by Verrimus.
A spokesman for the Defence Forces yesterday said: “We can confirm that no serving member of the Defence Forces was involved in these exchanges or approaches.
“We do not intend commenting further on the report as it does not involve the Defence Forces or any serving members.”
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