Questions for inquiry into sexual misconduct

It is unclear how seriously a protected disclosure relating to the prison service is being taken and how rigorous the investigation into the matter is, writes Michael Clifford

The former prison officer once accused of sexual misconduct has since been re-employed by the State in a capacity in which he works with minors.

A number of protected disclosures have emanated from inside Ireland’s prisons in the last year or so, but none as serious as that revealed in today’s Irish Examiner.

The disclosure of its nature involves allegations that have yet to be tested, not to mind proven.

However, the text and tenor of the disclosure does suggest that the allegations are being made on specific information. The Department of Justice — or whomever has been appointed to investigate — will have to determine whether the allegations have substance.

What is unclear is how seriously the matter is being taken and how rigorous is the investigation which the Department of Justice claims to be under way.

The disclosure makes a number of allegations, including:

  • A manager in the prison service engaged in sexual acts in front of a female employee;
  • The incidents had a detrimental effect on the health of the female employee;
  • The woman brought the matter to the attention of the Irish Prison Service but no formal investigation took place;
  • She then initiated a legal action which was settled with a substantial award of compensation;
  • The male manager subsequently left the service but has since been re-employed by the State in a capacity in which he works with minors;
  • Management at the facility where the male manager is now employed is unaware of the previous incidents.

According to the disclosure, the original actions by the senior manager “constituted a criminal offence”.

It points out that the prison service acted with “gross negligence and insensitivity towards a victim of offensive sexual behaviour”.

The disclosure goes on to suggest that the failure to deal with the matter properly “endangered the Health and Safety of an employee by not managing the response to the allegations and did not provide supports to the female after the making of the allegation”.

It also alleges “information relating to this issue has been concealed from the Minister for Justice of the time”.

In total, the discloser alleges that there were 12 issues that constituted wrongdoing in connection with the incidents and how they were handled.

The disclosure concludes: “I have reasonable belief as to the wrongdoings as outlined above and that these wrongdoings have come to my attention in connection with my employment.”

Two salient features attach to the disclosure and the allegations contained within. In the first instance, it is alleged that the male manager and the female employee had been in a relationship some time prior to the incidents of offensive sexual behaviour.

According to the disclosure, this factor was cited as a reason for the failure to conduct a formal investigation into the complaint.

Despite that history, the woman was quite obviously disturbed by the incidents as she requested an investigation and subsequently sought recourse in the courts.

The other feature attaching to the disclosure is that it is anonymous. The discloser sets this out in a preamble: “I wish to remain anonymous as the disclosures reveal serious wrongdoings which would result in penalisation, as defined by Section 3 of the Act, in particular unfair treatment, coercion, intimidation, harassment, discrimination, injury, and threat of reprisal.”

An anonymous disclosure obviously does not, on the face of it, carry the same force as one in which the discloser identifies themselves. Anybody can put pen to paper and fire off an allegation.

However, in this instance, it would take very little to establish some of the basic facts.

The State Claims Agency could very quickly confirm the legal action and may well have some detailed information. If, for instance, affadavits were provided at the initiation of the action, these would give the bare details as sworn by the individuals involved.

Beyond that, it’s a simple matter of discovering whether or not there exists evidence of any kind of investigation into the incident.

Similarly, the circumstances in which the male manager was employed in his current station where minors are involved would be easy to determine. This element of the case is particularly sensitive and possibly urgent.

What did the agency know? In the event that the individual had to be garda vetted, did the gardaí possess the soft intelligence about the incidents?

Would the individual’s history be regarded as enough to disqualify him from his current role?

All of these matters could be established with relative ease. The disclosure is dated September 20. According to the Department of Justice, “action is being taken in this correspondence in line with the proper procedure”.

A number of questions were asked of the department. These included:

  • Has an investigation into the protected disclosure been initiated?
  • If so, what employee status is the person who is investigating and or is such a person external to the department?
  • Are parallel investigations being conducted in the other departments?
  • Have any inquiries been made of the institution where the former employee now works, including the extent of knowledge about the allegations from his previous job in the IPS?
  • Has there been any intervention with the former male employee with regard to his current employment status?

In reply, the department said: “Action is being taken in relation to this correspondence in line with the proper procedures. The department is not in a position to comment further.”

The department also refused to say whom exactly is investigating the matter. If the focus of the investigation is the Irish Prison Service, then standard procedure would require the investigator be of a grade senior to the person or persons being investigated.

This would infer that the investigator should, be a departmental secretary general. It is highly unlikely that the secretary general would conduct such an investigation.

The alternative is to bring in an external person to investigate. This has been done in the past, most notably the appointment of retired Judge Iarliath O’Neill last year to investigate disclosures over garda malpractice.

The department also appointed retired judge Willam Early to review a disclosure from the prison service last year.

Arguably, this particular disclosure merits the appointment of a figure of that stature to investigate it. At issue is whether or not the prison service conducted an investigation into a very serious incident.

The service’s record in this regard was touched on by the former Inspector of Prisons, Michael Reilly in a 2015 report. He stated that his investigations showed a culture which had “led, in certain cases, to a failure to observe Standard Operating Procedures, to the falsifying of official records, to incomplete, inaccurate and at times misleading reports of incidents”. 

This closed culture, which effects a corporate “circling of the wagons”, is not unique to the prison service. In fact, one could argue that it is a culture that has been tolerated in the Department of Justice in particular for a long time.

The question thus arises in this instance as to whether the department itself would apply the rigour and urgency required to investigate a matter as serious as that contained in the protected disclosure it has now had possession of for over eight weeks.


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