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Speech by the Minister for Justice and Equality regarding: Motion re the circumstances of the death of Shane O’Farrell

 

Seanad Éireann, 13 February 2019

 

 

A Chathaoirleach,

 

I want to thank the House for giving me the opportunity to speak here today on this motion.

 

Let me start by saying that the Government is not opposing the motion.  However, I will have a number of things to say about the terms of the motion itself.  Those terms raise issues which have potential constitutional and statutory consequences.  I will come back to that shortly.

 

I want to recall that I spoke in this House last summer about the tragic death of a young man just at the point where his life looked so promising.  Shane O’Farrell was obviously a much loved son and brother and his death has clearly been devastating for his family to whom I once again extend my sincere condolences.

 

My statement in this House at that time followed the completion by GSOC of its criminal investigation into complaints made by the family of Shane O’Farrell.  GSOC had also included in its investigation a number of matters referred to it by a previous Minister for Justice and Equality.  Members will appreciate that the criminal investigation took some time and I recognise that this was a cause of great frustration.  However, it is important to acknowledge the very serious nature of a criminal investigation and the requirement that it be carried out with great care.

 

GSOC completed its first report last year and  found there were no grounds for criminal proceedings against any member of the Gardaí.  However, the report identified  conduct that might lead to disciplinary proceedings and GSOC therefore commenced a disciplinary investigation into that conduct.  I will return to the outcome of that investigation momentarily.

 

During my statement in this House last June I also stated that there were a number of failings in the period leading up to the road traffic incident in which Shane O’Farrell lost his young life.  These were clearly set out in the GSOC report following the conclusion of its criminal investigation.  A man who had numerous previous convictions and who was on bail at the time of the incident, had also been arrested for other offences while on bail.  Tragically, the actions of the Gardaí fell short of what should have happened where a person on bail or remand and is subsequently arrested for other offences.  And that is what GSOC has been investigating in the period since then.

 

At the end of January, I was informed by GSOC that its disciplinary  investigation is now complete and a report has been sent to the Garda Commissioner recommending certain actions.  I have not been furnished with a copy of the report but I have been informed that GSOC has recommended disciplinary action against three members of the Garda Síochána.

 

I understand that the Garda Commissioner is examining that report and I would note that under the Garda Síochána Act 2005 it is a matter entirely for the Garda Commissioner alone to decide on this matter.

 

As Minister for Justice and Equality, I am particularly cognisant of the independence of GSOC and my responsibility not to undermine its work.  Accordingly, when the Dáil passed its motion last June I began examining how I could give effect to the intention of that House without undermining GSOC’s work and my officials began to explore options with the Attorney General.  I was notified at the end of January that GSOC had completed both its investigations into this case and this allowed me to proceed with steps to resolve the outstanding issues in this case. 

 

At the earliest opportunity, I appointed a respected and very experienced former Judge of the District Court, Judge Gerard Haughton, to carry out a scoping exercise into a number of matters surrounding the circumstances leading to the death of Shane O’Farrell.  As the House will be well aware, scoping exercises have been carried out in the past prior to the establishment of major inquiries or  Tribunals.  It is good governance to allow a scoping exercise by a legal expert determine the net issues that require examination. 

 

In this case Judge Haughton has been asked by me to  review the investigations that have already taken place into the circumstances of the death of Shane O’Farrell, including the criminal prosecution arising from the road traffic incident, the Independent Review Mechanism (IRM) examination of the case and the investigations by the Garda Síochána Ombudsman Commission.  His scoping exercise will also review changes that have been made to the law and practice in relation to the administration of bail and bench warrants and the extent to which they have or have not addressed gaps in those systems since the death of Shane O'Farrell.

 

Following his review Judge Haughton will advise me on any remaining unanswered questions which should be the subject of further inquiry or investigation and, if so, the most appropriate manner in which they should be investigated. 

 

Senators will appreciate that I must  have regard to the Constitutional independence of the courts and the statutory independence of the Director of Public Prosecutions, An Garda Síochána and the Garda Síochána Ombudsman Commission.

 

I met with the Mr. and Mrs. O’Farrell and three of their daughters last week to outline my proposals to them.  While they objected to the process of a scoping exercise, they did agree to consider the proposed terms of reference and to engage with Judge Haughton on them.  I thank them for that.  I have written to Judge Haughton and asked him to contact the family early to commence that very important engagement.

 

I am very aware of the extensive research carried out by the O’Farrell family into issues surrounding the case and I have asked them to make that research available to Judge Haughton.

 

I hope the House will appreciate why I don’t wish to say anything further about that process so as to allow Judge Haughton and the family as much latitude as possible on the issues.

 

Turning now to the terms of the motion itself.

 

I note that the motion is identical to the one passed by the Dáil last June.

 

I have already said that the Government is not opposing the motion.  However, it is important that I point out a number of difficulties that may arise in trying to give effect to it.

 

The motion calls for the public inquiry to examine the actions of An Garda Síochána, the Director of Public Prosecutions, GSOC and the Courts Service.  I am sure that members of this House are well aware of the Constitutional and statutory provisions governing the functioning of these very important organs of the State.

 

The investigation of suspected criminal offences is, with some exceptions, a matter for the Garda Síochána.  Where there are alleged failings in this regard one course of action available under the Garda Síochána Act 2005 is for GSOC to investigate.  In this particular case GSOC have, as I’ve already said, carried out two investigations, a criminal investigation and a disciplinary investigation.  In respect of the former, no criminality was deemed to arise.  In relation to the latter investigation, GSOC have recommended disciplinary action against three Gardaí.  What the motion proposes is that the actions of the Gardaí, which have already been examined by GSOC, should be examined in another forum.  And this is without acknowledgement of GSOC’s most recent and final report into this case - which I am sure Senators will agree is an unusual course of action. 

 

Legal difficulties arise with the motion’s proposals in respect of both the Courts – which are independent under the Constitution and the office of the DPP and GSOC which are both independent under the law.

 

This House must have regard to the Constitutional separation of powers where the Courts are concerned.

 

Where the DPP is concerned, the law is specifically designed to prevent inappropriate interference with the office where prosecutorial decisions are concerned.  On its face this motion is in conflict with the law governing the office of the DPP.

 

Likewise, GSOC is statutorily independent.  There is a provision in the Garda Síochána Act 2005, under section 109, for a senior judge to be appointed to inquire into the actions of a GSOC designated Officer.  However, there is no suggestion, to my knowledge, that any Designated Officer involved in the investigation of complaints made by the family of Shane O’Farrell has behaved in a manner which would justify invoking that section.

 

However, I am anxious to have any unanswered questions arising from this case examined and reported on.  To that end I have commenced a scoping exercise to assist me in that regard.  When I receive the report of Judge Haughton I will be in a position to take the matter forward and I am asking Senators to be supportive of Judge Haughton as he goes about his sensitive and important work.

 

Again, a Cheann Comhairle, I want to reiterate that the Government is not opposing the motion as we too wish to see questions answered to the satisfaction of the O’Farrell family.  I thank Senators for giving me the opportunity to set out how I propose to proceed in relation to this tragic case.

 

ENDS

 

 

 

 

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