The decision by the director general of the Irish Prison Service (IPS) to suspend investigations into malpractice raises a number of serious questions.
Caron McCaffrey directed legal firms to cease all investigations on the basis that they were not essential at this time.
Protected Disclosures are the favoured instruments of whistleblowers. The disclosure provides protection from retribution from management and many public and private bodies have agreed procedures for the investigation of disclosures.
The disclosures from the prison service are being investigated externally by legal firms. Investigators are not employed by the IPS, but contracted to carry out the investigations into the service itself. As such, the intervention by Ms McCaffrey is highly unusual.
Ordinarily, she should not have any role in the investigations once contracted out. Any such interference would present a potential conflict of interest.
The work of the investigators does not impact directly on the prison service so any reasoning that resources in the service are stretched at this time does not stand up.
The anti-corruption body Transparency International Ireland last week issued guidelines about investigations into malpractice during the crisis. It accepted that the crisis might make it more difficult to conduct investigations, particularly in lock-down conditions.
“However, it should be possible for assessors and investigators to interview complainants, witnesses and respondents by phone and or webcam/video messaging apps during the crisis. Indeed, many investigations are normally conducted this way.”
The guidelines are based on common sense. It is difficult to see why legal firms, which, like everybody else, is conducting their work remotely, should be told to cease doing so by the body the firms are investigating.
Currently firms are investigating allegations of fraud, malpractice and falsifying records from a number of different people in the service, including one at governor level. Some of the investigations have already been underway for considerable period, including at least one made over a year ago.
Disclosers whom the Irish Examiner have spoken to are fearful that the move is an attempt to frustrate investigations under the cover of the current crisis. Queries to the prison service about the development were made last Friday and further attempts to make contact unsuccessful. No reply had been received at time of going to press.
There may well be a rational explanation as to why investigations into the prison service were suspended. However, the record of the service in dealing with internal complaints leaves an awful lot to be desired.
The current system of contracting external legal firms to investigate complaints dates back to one high-profile complaint and serious fall-out from it. In 2015, prison officer Noel McGree made a complaint about what he believed were irregularities in appointments within the service.
He subsequently claimed that he had not been informed of a security threat against him and that he had witnessed an assault on a fellow officer but was not interviewed about it. These last two incidents, he claimed, amounted to penalisation.
His complaints were rejected but a retired judge, William Early, was appointed to conduct an appeal. In 2017, he found that McGree had been penalised, and he was particularly scathing of the failure to interview McGree about the assault by a prisoner on his fellow officer.
“The incident of March 2015 suggests a serious criminal offence was committed… it is quite extraordinary that a primary witness to a serious assault was not interviewed,” Judge Early ruled. Following the judge’s report, McGree received an apology from then DG of the service, Michael Donnellan.
McGree was subsequently awarded €30,000 by the Work Relations Commission over his treatment in a groundbreaking ruling under the Protected Disclosures Act.
Following that experience, the Department of Justice decided that future protected disclosures would be contracted out for investigation.
In September 2017, the Department of Justice received an anonymous but detailed disclosure about malpractice at senior level in the service over a case involving the sexual harassment of a female officer.
The case had involved a legal action and a settlement of a sum just south of €100,000.
Despite the seriousness of the disclosure it wasn’t investigated. The Irish Examiner reported on the disclosure two months later and the following week an investigation by a legal firm was commenced.
That investigation took over a year to complete. A report was eventually furnished to the department in February 2019. No details of the report were ever released. No sanctions were taken against any individual. The Irish Examiner understands that the allegations were, to the greatest extent, substantiated.
In November 2018, Assistant Chief Officer David McDonald made serious allegations in an affadavit as part of a legal action he and two other officers were taking against the service.
The allegations included illegal surveillance of officers and malpractice around investigations into deaths in custody. He stated that he had been urged to make his allegations in a protected disclosure but he declined on the basis that he had no confidence in the system.
The allegations were largely upheld in a subsequent probe by the Inspector of Prisons.
Despite public pronouncements by senior personnel in the service and the department that there is a commitment to self examination, major questions persist. That is the background against which all current investigations are now suspended.