Fennelly Fallout: Unprecedented events mark a dark chapter for Government

Having read the full 350-page Fennelly report, in which the Taoiseach and the Attorney General take a pasting, Cormac O’Keeffe concludes that it is clear politics took over from due process

THE justice system was in crisis by Sunday, March 23, 2014. The Government and the gardaí were tripping over controversies and bombshells: The GSOC bugging claims; the confidential recipient Oliver Connolly’s claims and dismissal; ongoing whistleblower revelations; and, of course, Garda commissioner Martin Callinan’s “disgusting” remarks.

Fresh outrage was sparked at those comments by Health Minister Leo Varadkar on Thursday, March 20, who called on the Garda boss to retract them. Mr Varadkar was backed by Joan Burton, Tánaiste Eamon Gilmore, Pat Rabbitte, and Ruairi Quinn.

The Cabinet was due to gather on Tuesday and a stormy meeting was anticipated. The same day, the Ian Bailey civil case against the State was back up in the High Court.

The Garda Inspectorate report on penalty points was due to be debated in the Dail that Thursday. Justice Minister Alan Shatter, at the centre of many justice maelstroms, was expected to respond to Mr Varadkar’s comments during the debate.

Taoiseach Enda Kenny was under growing pressure. He had already twice expressed confidence in the commissioner, most recently on Friday, March 21.

In that “essential context”, as Fennelly described it in his report, came an ominous request from Attorney General Máire Whelan for an urgent meeting, in person, that Sunday.

Mr Kenny began his meeting with Ms Whelan in the Taoiseach’s office at 6pm, joined by his secretary general Martin Fraser. She presented him with an appalling vista: A scandal to beat all the other justice scandals. Some 30 hours later the garda chief — who, up until then, seemed to have no intention of resigning — had stepped down.

APPALLING VISTA

In that period, the Taoiseach went from having full confidence, publicly at any rate, in the commissioner, to dispatching a midnight envoy to him with a grave message.

Mr Kenny operated on alarming revelations from Ms Whelan — which Fennelly said lacked sufficient basis in fact. The revelations concerned the taping of phone conversations between people and gardaí, not just at Bandon Garda Station (Bailey case), but at stations across the country.

The Taoiseach decided to exclude Mr Shatter from discussions that Sunday, through Monday, before calling him over to a second meeting Monday evening.

The Taoiseach also operated on the basis of not being informed about the March 10 letter couriered by Mr Callinan to Department of Justice secretary general Brian Purcell about this very issue.

Fennelly Fallout: Unprecedented events mark a dark chapter for Government

Martin Callinan

Fennelly said Ms Whelan’s written submission to the commission seemed to mean “very clearly that the attorney did not believe that her office was in possession of sufficient facts about the systems of telephone recording” at the time she read her official’s (Ruth Fitzgerald) report on March 22.

This was one day before the Sunday meeting.

“In that situation, it seems necessarily to follow that the attorney would need to seek further information before taking any stand on the matter,” said Fennelly.

Ms Whelan herself said the people in possession of the necessary information were in An Garda Síochána. Fennelly said, in these circumstances, it was surprising the attorney “took no steps” to have contact made with the commissioner — particularly given the gardaí were already seeking advice from the AG office on the matter.

During what turned out to be a long meeting on Sunday, Ms Whelan’s revelations to Mr Kenny and Mr Fraser “contributed decisively” to events.

In her oral evidence to the commission, she said she told the Taoiseach the recording was “in complete violation of the law” and that An Garda Síochána was engaging in “criminal activity” for decades and that she had “real concerns” about the rights of accused people, detainees, and telephone calls with solicitors”. She told him if that were seen to have occurred it would be “a most grievous matter”.

Fennelly said that in a subsequent written statement to the commission, Ms Whelan “substantially modified” her comments and now prefaced any illegality as “potential illegality” and stressed she did not convey “an unequivocal view to the Taoiseach”.

Even so, Fennelly said such a message from the AG to the Taoiseach regarding the national police force was “inevitably going to raise alarm and concern” and described her language as “extreme”.

He said the AG did not tell the Taoiseach or Mr Fraser about the commissioner’s letter to the Data Protection Commissioner, which outlined a possible justification for the taping, nor the report of her own legal officer, Ms Fitzgerald, who said the DPC had indicated that gardaí may not have committed a criminal offence.

Mr Fraser told the commission that, following her comments, there appeared to be “very serious Garda misconduct” which could expose the State to “considerable damages”. He said the Taoiseach was shocked at the thought of innocent people’s phone calls to Garda stations being illegally recorded.

He said the Taoiseach was also concerned that with the Bailey case due to be heard that Tuesday, it would become public, with ensuing controversy.

CHAIN REACTION

“This intervention by her,” wrote Fennelly, “started the chain of events which culminated in the retirement of the Garda commissioner”.

Fennelly Fallout: Unprecedented events mark a dark chapter for Government

Mr Justice Nial Fennelly, who compiled the report.

Fennelly pointed out that the AG was the Taoiseach’s “only source of information on the facts and the law”: “The participants at the meeting of Sunday, March 23, had very little informa-tion about the matter or Garda telephone recording. Yet, no attempt was made to obtain further information in the most obvious way, namely by asking the Garda commissioner, if necessary, via the minister.”

The Taoiseach and Mr Fraser told the commission they asked the AG to get legal advice and to check her facts and meet them again on Monday evening.

The AG told the commission she did not believe she was being asked to check her facts — and thought that should be the job of Mr Shatter.

The following morning, Ms Whelan sent an email to her advisers with questions, which resulted in an offer from Garda HQ for the commissioner to brief her. This offer did not get to Ms Whelan.

In his conclusion, Fennelly repeated that Ms Whelan believed she had insufficient information about the matter to offer definitive advice on the legal issues. Fennelly said the commission was of the view that there were “significant gaps” in the information then in the possession of her office — information that was likely to be in the possession of the gardaí.

The AG, he said, did not contact Mr Shatter. He said that while she was not under any duty to do so, “it would have been both reasonable and prudent for her to had done so”.

Fennelly also made reference to a memo sent to Ms Whelan on November 14, 2013, regarding the Bandon tapes and said she attended a meeting on November 20 at which the recording of telephone conversations to and from Garda stations was raised.

Fennelly said that when the meeting on Monday, March 24, began at 6pm, “there were no more facts” about the recording issue than there had been at the Sunday meeting — and that the “same picture was presented regarding apparent violation of the law, nationally, by An Garda Síochána”.

Nor, he said, was there any definitive legal opinion — although it did appear that a commission of investigation had been discussed.

At 6.20pm, the Taoiseach rang Mr Shatter and asked him to come to the meeting.

On the exclusion of the justice minister to that point, Fennelly said: “The commission finds it difficult to avoid the conclusion that a decision was made not to include the minister in discussions of the telephone recording matter on Sunday and for most of Monday. The Taoiseach, as he emphasised in evidence, was entitled not to include him. It does not follow that it was the appropriate decision.”

Fennelly said if Mr Shatter had been consulted beforehand, it was “very likely” there would be a “significant difference” to the events as they unfolded.

He said it was “notable” that no one at the Sunday meeting contacted the commissioner. Both the Taoiseach and AG said it was not appropriate for them to so so personally. “That being so, the obvious step would have been to ask the responsible minister, the Minister for Justice, to do so,” the report said. “This was not done.”

Fennelly said it was “particularly unfortunate” that nobody at the Monday meeting, except for Mr Purcell, knew about the commissioner’s letter. Mr Purcell had failed to mention it to the rest of them, as he had failed to mention it to Shatter over the previous two weeks.

Fennelly said if someone had picked up the phone and rang the commissioner — or if the Taoiseach had asked Mr Shatter to do so — the first thing Mr Callinan would have said was he had sent the letter of March 10. Fennelly said this would “undoubtedly have made a significant difference to the events as they unfolded”.

GRAVE MESSAGE

Mr Purcell had been summoned to attend the Monday meeting some three hours in.

The Taoiseach had decided Mr Purcell should give a message to the commissioner expressing his “grave concerns” regarding the taping. Fennelly said it was “beyond doubt” that nobody at the meeting “laid any blame at the door of the commissioner”.

There is extensive coverage in the Fennelly report of the possibility of the Taoiseach not being in a position to express confidence in the commissioner at the Cabinet meeting the following morning or in the Dáil.

Fennelly said Mr Purcell and Mr Shatter, and, to some extent, Mr Fraser, said the Taoiseach had expressed this concern at the meeting.

Mr Fraser told the commission the Taoiseach was very concerned that if he failed to express confidence “that the commissioner would presumably feel compelled to resign”.

Fennelly said any statement by Mr Kenny that he did not have confidence in the commissioner would have “obvious implications” for the Garda boss.

Fennelly Fallout: Unprecedented events mark a dark chapter for Government

Enda Kenny

By saying this at the meeting, the commission said the Taoiseach knew that “any equivocation in his expression of confidence was problematic for the commissioner”.

Fennelly said it was clear Mr Purcell and Mr Shatter, and possibly Mr Fraser, believed the position of the commissioner was “in peril”.

Ms Whelan told the commission there was no discussion on the matter of confidence in the commissioner. She said no fault was being assigned to the commissioner and, therefore, the issue of confidence could not arise. She said if the issue of confidence had been raised, she would have had to inform the Taoiseach of the law regarding any consideration of removing a Garda commissioner.

Fennelly said there was “sharp controversy” of the substance of the message to impart to the commissioner.

Crucially, Mr Purcell said it was very clear to him that he was not being asked to seek any views from the commissioner. Mr Shatter supported this view.

Not only that, Mr Purcell said he saw no need to visit the commissioner at his home, late at night, and said he could simply ring him.

Fennelly said Mr Shatter was of the opinion that the Taoiseach was clearly of the view, though he did not say so, that the commissioner should resign or retire. He quoted Mr Shatter: “The intent of a message going to the commissioner that indicated very clearly to him that his position was in great difficulty or that he should consider his position”.

Mr Shatter said a Taoiseach saying he might be in difficulty in expressing confidence “completely undermines your position”.

At the same time, Fennelly said he was quite satisfied that there was no mention of the commissioner’s “removal or dismissal”. He said such a proposal would have had “direct and serious legal implications” and that the “statutory procedure would have to be followed”.

Fennelly added: “The Taoiseach did not dispute that, if he were ever to state publicly that he did not have such confidence, the commission would presumably feel compelled to resign.”

UNPRECEDENTED

Fennelly said the reasons why telephoning Mr Callinan was not accepted were “not clear”. “The commission received no satisfactory explanation as to why the option of telephoning the commissioner was rejected.” Both Mr Purcell and the commission said the visit to the home of the Garda commissioner was “unprecedented”.

The commission found Mr Purcell was to inform the commissioner that the matter was to be discussed at the Cabinet the following day and that the Taoiseach, if asked, might not be able to express confidence in the commissioner.

Fennelly Fallout: Unprecedented events mark a dark chapter for Government

Brian Purcell

“The message so summarised was at best vague and, at worst stark. A statement to the commissioner that the head of the Government regards a matter as grave, seeks unspecified views, and may not be able to express confidence in the commissioner carries with it a necessary implication that the position of the commissioner is at risk.”

Mr Purcell said he told the meeting he thought it was wrong to do this. He suggested meeting the commissioner early in the morning. That, Fennelly said, was also rejected. The Taoiseach said it would not “be fair” to the commissioner as it would not give him adequate time to consider it before the Cabinet meeting.

Fennelly said he accepted the Taoiseach’s contention that he did not “intend” to put pressure on the police boss. But Fennelly said that, “seen objectively”, it was “likely to be interpreted as that”.

Mr Callinan told the commission: “I knew that I had to consider my position, that that was the import of what was going on.” He added: “I want to be very clear, there was absolutely no options put on the table to me... I was left in no doubt what I had to do then that evening. I was left in absolutely no doubt.”

The commissioner said that “there was a political problem for the Government”, adding that once he was happy that “nobody is blaming me”, then he was prepared “to walk off the pitch”. Summing up what the commissioner told him, Fennelly said: “He insisted that he had no option. If there was the possibility that the Taoiseach was going to express a lack of confidence in him, he clearly could not continue in office.”

The commissioner agreed to retire but looked for three months, later shortening it to two months. Mr Kenny said it had to be “with immediate effect”.

So, the Taoiseach didn’t intend to put pressure on the commissioner. Then, on hearing the news, insisted he go straight away. Mr Purcell again told him this was wrong.

The Taoiseach told Fennelly he was “absolutely crystal clear” that the commissioner’s decision to retire “came as a surprise”.

The report said the Taoiseach told Mr Purcell that the delayed departure would put both the commissioner and the Government in an impossible position. In his summary and conclusions, Fennelly said Mr Purcell’s visit had the “obvious implication that the commissioner’s own position was in question”.

Fennelly again said he accepted the Taoiseach’s assertion he did not “intend” to put pressure on. It is not clear on what basis the judge comes to accept this assertion, rather than just report that it was the Taoiseach’s assertion. Either way, the judge qualifies his acceptance — to the “intention” of the Taoiseach, not the effect of his actions.

The judge said the “immediate and direct” cause of the decision to retire was, firstly, the visit from Purcell and, secondly, “the message conveyed from the Taoiseach”.

Fennelly said the commissioner could have decided not to retire — but added that Mr Callinan did not wish to become “embroiled in legal or other conflict with the Government”.

Fennelly concluded: “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.”

In short, Callinan was not sacked — but he was removed. He was really given no choice.

FAILURES

Both the AG and the Taoiseach take a battering in Fennelly’s report.

Ms Whelan presented the Taoiseach with the most alarming situation. Fennelly said she did not have the full facts: She did not have sufficient information and had no more facts for the crucial second meeting than she had at the first.

Fennelly Fallout: Unprecedented events mark a dark chapter for Government

Maire Whelan

There were “significant gaps” in what she knew and she failed to mention the commissioner’s letter to the Data chief and some internal advice.

Fennelly questioned her judgment in not contacting Mr Shatter. There are serious questions for her on the critical issue of discussions over possible loss of confidence in the commissioner.

Ms Whelan said there was no such discussion, conscious of legal requirements if there was. But at least two witnesses, possible three, said there was — and the commission accepts there was. Fennelly did accept there was no discussion on “removal or dismissal”, which would have triggered the legal process.

So, the Taoiseach was given flawed advice. He also was gravely hampered by not being told about Mr Callinan’s letter to Mr Purcell.

As Fennelly pointed out, the most notable thing about those two days was what “did not happen”.

The Taoiseach was the boss, the one making the decisions. He failed to do his homework and acted without having the full picture. He failed to contact the commissioner on Sunday or during Monday and ask him what was going on — or get Mr Fraser or Ms Whelan to do so. Regardless of how poor his relationship with Mr Shatter, he should have rung him and asked what he knew about the matter — or get one of the others to do it.

If he did either of these things, Fennelly said events would “undoubtedly” have been different. Given the outcome, that’s a major black mark on his judgment.

The Taoiseach made the decision to send Mr Purcell to the commissioner’s home — an “unprecedented” action — at the dead of night with the gravest of messages.

He rejected suggestions from Mr Purcell of a phone call or an early morning meeting with the Commissioner — decisions Fennelly can’t understand.

The Taoiseach said he was surprised when the commissioner retired — then insisted he do so “immediately”.

Fennelly noted the total lack of notes or records of the discussions at either meetings or the decision taken. He said this was “extraordinary”, and that he was astonished at a system of administration that “apparently quite deliberately” adopted a practice of not keeping records.

DARK CHAPTER

There have been many dark chapters for the gardaí and indeed for Mr Shatter. But this is a dark chapter for the Government, particularly the AG and the Taoiseach.

Fennelly Fallout: Unprecedented events mark a dark chapter for Government

Alan Shatter

It may, if the matter rumbles on into the election campaign, result in a head being demanded within the Government. Given who wields the axe, it’s a safe bet whose head will be close to the block.

The extent of the complete breakdown in key relationships in the justice hierarchy was shocking: Between the Taoiseach and his justice minister; between the Taoiseach and the commissioner; between the minister and his secretary general.

Mr Callinan’s days may have been numbered, largely due to the “disgusting” saga. He breached his legal duties in not ensuring he kept Mr Shatter “fully informed” about the tapes controversy.

But he was clearly done a wrong that night.

The issue is wider and deeper than that: The balance of power between the Garda commissioner and the Government and the laws that govern that relationship.

There is legislation that demands a clear — and fair — procedure for any removal of the police boss. The power rest solely with the Government. The procedure involves notifying the commissioner the Government intends to consider it; providing him or her with a statement of reasons; an opportunity to make representations; possibility of an inquiry and further representations; and then a decision is made.

It is arguable that the procedure was bypassed, circumvented, avoided — whatever way one wants to put it. Politics took over from due process.

It is ironic that on the day the commissioner left, the Taoiseach announced a Garda Authority (since named the Policing Authority). It was to take the politics out of policing and ensure proper oversight. The commissioner would now be accountable to it.

But when the proposed legislation was actually published, that was changed. The commissioner will merely “report” to the authority. He or she will still be accountable to the Government, and the Government will still have the power to fire. It will not be lost on the current commissioner or future ones that it may never get to that stage.

The last time a commissioner left in anything like similar circumstances to Mr Callinan was 32 years ago. At the time of GUBU.

Fennelly’s report does not mention anything akin to grotesque. But unbelievable, bizarre, and unprecedented?

Yes. UBU, perhaps.

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