Analysis: Shatter’s resignation complaints come with a dose of irony

The first complaints to authorities by Garda whistleblower Sgt Maurice McCabe were made as far back as May 2008, when he was stationed in Cavan-Monaghan. He alleged some very serious errors and malpractice by colleagues; the two most serious instances relating to cases from 2007.

Sylvia Roche-Kelly was brutally murdered in Limerick in 2007. The perpetrator had been granted bail by a District Court judge in Co Tipperary who was not informed he was already on bail for another very serious offence in Cavan-Monaghan. McCabe alleged that if the Cavan-Monaghan division had informed colleagues in Co Tipperary of the case, the man would not have been freed to murder Ms Roche-Kelly.

In a second case, taxi driver Mary Lynch was very seriously assaulted in her car in Co Monaghan. Following this, McCabe alleged that the Garda failed to inform her of the hearing of the case.
It was also contended that gardaí did not supply adequate information to a separate hearing about this assault when the perpetrator sought bail on another serious offence. In recent months, a new complaint about this matter has been submitted to the Garda Síochána Ombudsman Commission. McCabe made a series of other complaints of malpractice, poor practice, omissions and alleged corruption to Garda authorities.

When he was transferred to the traffic corps in Co Westmeath, McCabe became one of two Garda whistleblowers (the other was retired garda John Wilson, also from Cavan-Monaghan) who accessed the Pulse computer and collated information on thousands of instances in which they alleged senior gardaí had exercised discretion without proper basis. The narrative has been made complex by the convoluted and labyrinthine way in which McCabe was forced to raise those allegations.

These allegations of malpractice had been previously investigated internally by the Garda, by the GSOC and by a former confidential recipient Brian McCarthy. Some of the allegations were made by McCabe to McCarthy's successor as confidential recipient, Oliver Connolly. Files on some allegations were also sent to the DPP, but a decision was taken not to initiate any prosecution against any member of the force.

Penalty points
When Connolly told McCabe in 2012 that he had exhausted all avenues in respect of his complaints, McCabe then began a writing campaign, sending correspondence and emails directly to the Department of Justice and to the office of Taoiseach Enda Kenny. Separately, when Independent TDs Mick Wallace and Clare Daly spoke in the Dáil about the alleged widespread cancellation of penalty points, it led to an internal Garda investigation headed by Assistant Commissioner John O'Mahoney.

McCabe was not interviewed by the investigation. In the Dáil last October, minister for justice Alan Shatter alleged that he had not co-operated with the inquiry. McCabe strongly disputed that, saying he had never been contacted by O'Mahoney. Shatter had relied on a circular and instruction communicated by then Garda commissioner Martin Callinan to McCabe in December 2012. However, it contained no specific instruction to McCabe to co-operate with the inquiry. When Shatter was accused of misleading the Dáil by saying McCabe refused to co-operate, the minister denied the charge.

Where did Shatter’s ministerial responsibilities begin and end? It seems that he became aware of at least some of the allegations from 2012 onwards. Because McCabe had made allegations about the then commissioner Callinan, confidential recipient Connolly was obliged, under the 2005 Garda Síochána Act, to inform the Minister.

Shatter’s second point of contact would have been when McCabe began to correspond directly and voluminously with senior officials in the Department of Justice and in the Taoiseach’s department.

The Guerin review was initiated by Taoiseach Enda Kenny in February in response to the dossier handed by McCabe to Fianna Fáil leader Micheál Martin. That dossier contained a "sample" of 10 very serious allegations, including the Roche-Kelly and Lynch cases. Guerin was asked to review the actions taken by members of the Garda Síochána on the allegations. His review lasted eight weeks and he produced a report running to some 300 pages, which the Taoiseach received on Tuesday night.

While the report accepted it was “beyond the scope” of his review to make any determination on the substance of the complaints made by McCabe (in other words, if they stood up or not), he was critical of both the Garda authorities and of the minister’s response to the allegations.

Kenny accepted as much in the Dáil this week when he said the report was “critical of the inadequacy of the actions taken by a number of agencies”. That included the Garda, the Department of Justice and – critically – the minister.

Given the myriad of scrapes and controversies in which he has been involved over the past six months, this latest finding pushed Shatter’s tenure as minister for justice past the tipping point.

He did raise a number of relevant issues in his resignation letter. The GSOC had not been in a position to provide documentation to Guerin before the completion of his report. Shatter argued that the GSOC’s response to McCabe’s allegations had played a part in his reasoning when deciding how to deal with issues raised by the garda. He suggested the omission of the GSOC documentation stopped Guerin seeing the full picture.

Not interviewed
He also complained that Guerin had not interviewed him at all in relation to the matters, even though there were provisions in the terms of reference to interview "any such person as may be considered necessary and capable of providing relevant and material assistance".

“At no time did he ask to interview me,” Shatter wrote, “and I would have expected, if it was his intention to reach a conclusion or form an opinion with regard to my approach, or the extent of my concern with regard to the issues raised by Sgt McCabe, that he would have done so.”

Shatter was relying on a precept of natural justice. The difficulty – and irony – for him is that he had dismissed out of hand McCabe’s complaint that he had not been interviewed by O’Mahoney during the internal Garda inquiry, and had asserted – on a very shaky premise indeed – that McCabe had refused to co-operate.

It brings to mind the old saying: “What is sauce for the goose is sauce for the gander.”