TRIBUNAL OF INQUIRY
COMPLAINTS CONCERNING SOME
GARDAI IN THE DONEGAL DIVISION
Appointed by Instrument made by the Minister for Justice, Equality and Law Reform upon the 24th day of April, 2002 entitled Tribunals of Inquiry (Evidence) Act, 1921 (Establishment of Tribunal), 2002
The issue which now comes before the Tribunal for determination arises in the following circumstances. The Tribunal is, pursuant to paragraph (h) of its Terms of Reference, directed to “enquire urgently” into
The events to which paragraph (h) relates concern the receipt by the then Dáil Deputy, Jim Higgins, of a telephone call made to his home on Sunday, 25th June, 2000 from an individual who informed him that he would be receiving a facsimile message which had been drawn up by a former Garda and which contained very serious allegations. Senator Higgins has confirmed that he knows the identity of the person who phoned him and the retired member of An Garda Síochána to whom reference is made. A short time after the receipt of this call a facsimile message was received at the same telephone number which made a number of allegations. The full text of this facsimile is set out at Appendix “A” to this Ruling.
Mr. Brendan Howlin, T.D., on the same date, received a telephone call from a Parliamentary colleague who supplied him with the telephone number of another person who had been a source of information to him concerning facts relevant to issues concerning the McBrearty family of Donegal. Deputy Howlin telephoned this number, spoke to a person who gave him certain information and made notes of the conversation. Deputy Howlin’s notes indicate that he was informed that there was “evidence coming from a Garda based in Donegal who has provided my informant with most reliable information in the past”. These notes raise similar allegations to those contained in the facsimile which had been received by Senator Higgins.
Senator Higgins and Deputy Howlin attended a meeting with the then Minister for Justice, Equality and Law Reform, Mr. John O’Donoghue, on the 27th June, 2000. Senator Higgins produced to the Minister at that meeting a copy of the facsimile which he had received and Deputy Howlin outlined the information which he had received and read the contents of his handwritten notes to the meeting. As a result, Assistant Commissioner Fachtna Murphy was asked to investigate the matter and in the course of that investigation both Senator Higgins and Deputy Howlin made statements but declined to reveal the identity of their informant(s). Senator Higgins outlined the steps which he had taken in order to prevent the identification of his informant. He furnished a copy of the original facsimile to Detective Superintendent Pat Brehony after removing the identity number and facsimile number from it. He destroyed the original of the fax after making a copy. He arranged for his Secretary to transcribe the original and it was a copy of this transcription which he brought to the meeting with the Minister.
Deputy Howlin also knew the identity of his informant but told the investigators that he could not identify his source because it would “seriously compromise the question of whistle blowing to public representatives”. On the 1st July, 2000 he again contacted his informant who indicated that he was not willing that his name should be given to the Gardaí and he also noted that the informant “says that Garda in Donegal will give evidence in court”.
On the 9th January, 2003, Senator Higgins, at a meeting which took place between him and investigators retained by the Tribunal, produced two pages of a further document which had, apparently, been faxed to him on the 15th July, 2000. At that time, he was only able to produce pages one and three of the document as he did not have page two in his possession. By letter, dated the 21st January, 2003, the middle page of this facsimile document was sent to Mr. Brian Garvie, one of the investigators retained by the Tribunal. The letter indicates that these three pages were received from a source with instructions that Senator Higgins was not to disclose the identity of the source. This facsimile makes certain allegations in respect of the suspension and reinstatement of Detective Sergeant White by the Garda authorities and reiterates what is said to be the widespread concern among serving Gardaí that the Carty investigation has been frustrated. It also complains about alleged perjury said to have been committed by a number of named Gardaí instructed by a Garda Superintendent. It, again, calls for a “full sworn public inquiry”. Though no signature appears on the document, it is signed off “Yours faithfully, - a serving member of An Garda Síochána”.
The Allegations Made
For the purposes of this application, it is necessary to outline the allegations made to Senator Higgins and Deputy Howlin, by or through their informants. The first facsimile received by Senator Higgins states that “confidential information has come to hand from a serving Detective Inspector of An Garda Síochána attached to a station in the D.M.A. concerning the Garda investigation in the Donegal Division”. The investigation referred to is that which was and continues to be conducted by Assistant Commissioner Kevin Carty and a team of Detectives into allegations of wrongdoing by members of An Garda Síochána in the Donegal Division including a Detective Sergeant John White. A suggestion is made that the investigation was not being conducted in accordance with the instructions of the Garda Commissioner. Allegations are made that Assistant Commissioners Kevin Carty and Tony Hickey worked with Detective Sergeant John White during the latter’s service in Dublin. It is suggested that Detective Sergeant White provided evidence by unlawful means whilst working with the Assistant Commissioners “whenever evidence had to be got to prove a case beyond doubt”. It is also alleged that both the Assistant Commissioners were aware that “a large number of convictions were achieved by “planting” evidence” and that Detective Sergeant White was “the source of “trumped up” evidence”.
The facsimile also suggests that there was a fear “amongst members of the investigation team” that, if fully investigated, Detective Sergeant White would somehow use these matters to defend himself in some way and that “in doing so a number of persons convicted, which involved lengthy prison sentences, will prove to have been unsafe”… It also contains the allegation that Detective Sergeant White had a store of stolen property which he had planted on suspects and that this was known to the Garda authorities and ordinary members of An Garda Síochána. It also states that “taking all this reliable information” into account it was felt, presumably by either the author of the facsimile or the unnamed Garda Inspector, that the Carty investigation would be unsuccessful in establishing the true facts and declares that “the only other alternative is a full and open public inquiry”. The final paragraph of the document claims that Detective Sergeant White is in regular contact with Assistant Commissioner Hickey and “has an eighteen page document” which “… is his passport to escaping the rigours of the law and his way of frustrating the ongoing investigation”.
Mr. Brendan Howlin, T.D. as already noted, on the same date, received information from his source. He made notes of the conversation which he had and was given to understand that there was “evidence coming from Garda based in Donegal who has provided my informant with most reliable information in the past”. The notes which Deputy Howlin made raise similar allegations against the two Assistant Commissioners and Detective Sergeant White and he was further informed that “every case Sergeant White was involved in needs rechecking”. Deputy Howlin’s notes also indicate that the Donegal based Garda who was furnishing information to the informant with whom Deputy Howlin spoke “was approached by a senior Detective from Dublin who told him that Sergeant White “was being looked after”. The informant’s real concern was said to be “that the Carty investigation is compromised”.
I have already outlined the allegations contained in the further facsimile received by Senator Higgins on the 15th of July, 2000 (Appendix B to this Ruling).
I make the following observation about the allegations raised with Senator Higgins and Deputy Howlin by their informant(s):
- Senator Higgins’ information is said to have been composed by a retired Garda and is based on information received from a serving Detective Inspector in the Dublin Metropolitan Area.
- Deputy Howlin’s informant conveys that there was evidence coming from a Garda based in Donegal in relation to the allegations.
- The allegations made, if correct, mean that a number of persons have been wrongfully imprisoned because of convictions which were unlawfully obtained by means of “planted” evidence and perhaps perjury.
- The allegations purport to implicate the two Assistant Commissioners and a Detective Sergeant in the commission of a series of serious criminal offences, including multiple conspiracies to pervert the course of justice.
- If the allegations are substantiated a number of persons wrongfully convicted may be afforded the opportunity to have miscarriages of justice acknowledged and, if still imprisoned, will be afforded an opportunity of release.
I propose to return to these observations later in this Ruling.
The Tribunal is at present in its investigative stage of the allegations set out at paragraph (h). In the course of the investigation, notice was given by letter dated the 17th of December, 2002, to Senator Higgins and Deputy Howlin that, subject to submissions or representations to the contrary as might be made, the Tribunal intended to make an Order for Discovery and Production of Documents against them and also against Éircom Limited in relation to their telephone and facsimile records. The reasons why these Orders were contemplated were set out in detail in these letters. Senator Higgins and Deputy Howlin both indicated through their solicitors that they objected to the making of the Orders proposed. Notices of Motion, together with grounding Affidavits, were served on each of them and replying Affidavits were delivered. Legal submissions were also exchanged. The 10th February, 2003 was set as the date for hearing in respect of the matter. On the 7th February, 2003, counsel on behalf of the Committees of Procedure and Privileges of both Dáil Éireann and Seanad Éireann applied for and was given representation for the purpose of making legal submissions at the hearing of these Motions. No Affidavit was filed on behalf of the Committees and no evidence was adduced on their behalf. On the application for legal representation, it was submitted by Mr. Brian Murray, S.C. that it was a matter for the Tribunal to determine the nature, extent or scope of any privilege which might arise before it in connection with the applications for Discovery. Counsel sought representation in order to assist the Tribunal in resolving legal issues concerning any question of Parliamentary privilege. It was recognised that each of these Committees had a genuine and real concern in the matter in issue inasmuch as it affected every member of each House of the Oireachtas.
Whilst the issue of privilege is one which more usually arises after the filing of an Affidavit of Discovery, the nature of the claim made by Senator Higgins and Deputy Howlin in respect of the documents, the subject matter of the proposed Orders, was such that I considered the present procedure of determining the issue of privilege before the making of any Order for Discovery to be appropriate and more expeditious. Accordingly, I directed that the procedures in the present form be adopted.
In addition to the facts set out above I am satisfied of the following facts:
1. The information that came into the possession of each of the respondents was passed to them on the basis of confidentiality and in their respective capacities as members of Dáil Éireann.
2. The information or evidence which is alleged to be in the possession of the informant(s) or the person(s) who supplied them with the information or evidence if true, is of critical importance to the work of the Tribunal and if untrue, it should, if possible, be shown to be untrue as part of the work of the Tribunal.
3. Insofar as it has been possible to enquire into any of the facts contained in the allegations imparted to Senator Higgins or Deputy Howlin, these enquiries have not established any factual basis for the allegations. However, these enquiries are not sufficiently exhaustive to satisfy the Tribunal that it is in possession of all relevant information or evidence concerning these allegations. It is necessary, in order to complete the investigative stage of the Tribunal’s work in this regard, to discover such information or evidence (if any) as is in the possession of the informants or those who conveyed information to the informants that could or would substantiate or tend to substantiate the allegations made or not as the case may be.
4. Despite comprehensive efforts including a number of false trails, it has proved impossible for the Tribunal to trace the identity of either respondents’ informant or informants or the identity of the person who sent the fax or made the telephone call to either of the respondents.
5. The work of the Tribunal has been gravely hampered by reason of the inability of the Tribunal to establish the identity of the informants and those supplying the informants with the relevant information or evidence.
6. At no stage did either of the respondents disclose the information contained in the facsimile or given to Deputy Howlin over the telephone to any third party (other than the Minister, the Minister’s Secretary and Senator Higgins’ Secretary) nor did they use this information or rely upon it for the purposes of any utterances in either of the Houses of the Oireachtas nor is there any evidence of any intention on their part ever to do so.
7. I am satisfied that Discovery is necessary in order to carry out the work of the Tribunal.
8. I am satisfied that this information is available to the Tribunal from Éircom Limited and that this Body consents to the making of the Orders proposed.
It was submitted to the Tribunal by counsel on behalf of the respondents that Article 15.13 of Bunreacht na hÉireann prevented the Tribunal from making an Order of Discovery and/or Production of Documents relating to the source of the information supplied by members of Dáil Éireann to the Minister on the grounds that the Tribunal’s jurisdiction was ousted by reason of these provisions. The relevant element of Article 15.13 provides:
“The members of each House of the Oireachtas … shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself.”
It is clear that no member of Dáil Éireann could be made amenable for any utterance made by him in Dáil Éireann before this Tribunal. It is well settled that a member of Dáil Éireann cannot be required to furnish to a Tribunal of Inquiry the identity of the source of information who made it possible for the member to make an utterance in the House if this were an attempt to make the member amenable in respect of his or her utterances in the House. In Attorney General –v- Hamilton (No. 2)  3 I.R.227, three Dáil Deputies made allegations which resulted in the establishment of a Tribunal of Inquiry into the Beef Industry. The Chairman of that Tribunal determined that the Deputies could not be compelled to furnish to the Tribunal the identity of the source of allegations which had been made by them within the Dáil Chamber. These allegations were “utterances” within the meaning of Article 15.13 of Bunreacht na hÉireann. The Chairman considered that the repetition by the Deputies of these allegations in statements of evidence made to the Tribunal did not constitute a waiver of the privilege conferred on the Deputies in respect of their utterances within the House. In the course of judicial review proceedings instituted by the Attorney General, the Supreme Court held that the immunity attaching to the statements made within the Dáil was not lost by the repetition of the same allegations outside the House to the Tribunal. In the course of his judgement, Finlay C.J. stated that the Deputies concerned
Counsel for the Committees submits that the enabling power to protect the private papers of its members conferred on Dáil Éireann and Seanad Éireann, which has been delegated to their respective committees, may be exercised by them by an assertion of that power. He submits that by instructing him to attend before the Tribunal and to make submissions to the Tribunal, the Committees have validly exercised that power and that each Committee, and accordingly the Oireachtas, has exercised the constitutional power given to it to extend privilege to the material sought to be discovered in this application.
I am satisfied that the material in question, namely, the documentation which would be generated by the machinery of Éircom Limited, would disclose the number of the caller/recipient who were in contact with the Respondents on the 25th June, 2000 and subsequently, constitute “private papers” for the purposes of Article 15 of the Constitution on the grounds that they directly relate to communications made by members of the public to members of Dáil Éireann in connection with their work as members of Dáil Éireann. Assuming that this material could by the proper exercise of a power conferred on the Oireachtas by Article 15(10) of the Constitution be designated privileged and rendered immune from an Order for Discovery, the issue remains, in my opinion, whether the power has in fact been exercised.
I am satisfied that there was a lawful delegation of this power by Dáil Éireann and Seanad Éireann to their respective Committees on Procedure and Privileges by the Resolution of the 6th July, 2001. However, in my view the exercise of such a power by the Committee on Procedure and Privileges requires the passage of a motion by the Committee to that express intent. No such motion was ever passed. The only relevant motion was that to which reference has already been made. This does not contain a purported exercise of the power and merely authorises counsel to seek representation and to “make submission” to the Tribunal concerning the powers and privileges.
Accordingly, I am satisfied that while the power may be vested in the respective Committees to extend privilege to the “private papers” of members this power has not been exercised.
Accordingly, I am of the view that no case has been made out that privilege has been extended to the documents, which are the subject matter of this application.