INQUIRY PURSUANT TO SECTION 109 OF THE GARDA SÍOCHÁNA ACT, 2005 CHAIRED BY THE HONOURABLE MR JUSTICE FRANK CLARKE

Transcription

1 INQUIRY PURSUANT TO SECTION 109 OF THE GARDA SÍOCHÁNA ACT, 2005 CHAIRED BY THE HONOURABLE MR JUSTICE FRANK CLARKE

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3 TABLE OF CONTENTS GLOSSARY OF TERMS AND ABBREVIATIONS... 3 PART I - INTRODUCTION... 3 (1) General Observations... 4 (2) Preliminary Matters:... 7 (i) Appearances:... 7 (ii) Witnesses:... 8 (iii) The Terms of Reference:... 9 (iv) GSOC Personnel and the GSOC organisational structure:... 9 (3) Summaries: (i) Summary Timeline: (ii) Summary of Conclusions: (iii) Summary of Recommendations PART II THE PROCESS (4) The Overall Process: (5) Rulings (6) The Issues for Resolution (7) Costs (8) One Final Observation PART III THE FACTS (9) Sgt Galvin (10) The Uncontroversial facts (i) Introduction (ii) The Tragic Death of Ms Sheena Stewart (iii) The Reference to GSOC (iv) The GSOC Investigation: The Initial Steps (v) The CCTV Footage (vi) The Taking of the Garda Statements (vi) The Conflict (vii) The Interviews under Caution (viii) After the Cautioned Interviews (ix) The Tragic Death of Sgt Galvin PART IV Issues For Resolution (11) The Approach (i) The Standard or Basis of Review

4 (ii) The Scope of the Inquiry: (iii) Preliminary: (12) The Issues (i) The initial decision to designate an inquiry under s.98 of the 2005 Act which was made on the 1st January, (a) Submissions on behalf of the interested parties: (b) The Inquiry s Findings: (c) Summary of Conclusions and Recommendations: (ii) The Initial Stages of the GSOC Investigation (a) Submissions on behalf of the interested parties: (b) The Inquiry s findings: (c) Summary of Conclusions and Recommendations: (iii) The extension of the GSOC investigation and the decision to conduct cautioned interviews: (a) Submissions on behalf of the interested parties: (b) The Inquiry s Findings: (c) Summary of Conclusions and Recommendations: (iv) The releasing of information concerning the status of the GSOC investigation (a) Submissions of the parties: (b) The Inquiry s findings: (c) Summary of Conclusions and Recommendations (v) Communications Generally (a) Submissions on behalf of the parties: (b) The Inquiry s findings: (c) Summary of Conclusions and Recommendations: PART V (13) Concluding Remarks APPENDICES Appendix 1 Index to Booklet of Documents Appendix 2 Index to Booklet of Statements Appendix Provisional Ruling Appendix Provisional Ruling Appendix Final Ruling and Determination Appendix 6 Second Supplemental Statement of Darren Wright Appendix 7 Correspondence from Mason Hayes & Curran Solicitors 04/02/ Appendix 8 Operations Directive on the Use of Section Appendix 9 Delegation of Powers in relation to Section Appendix 10 29/01/16 Decision on Scope Appendix Reasons for Ruling Appendix 12 Correspondence from Mason Hayes & Curran Solicitors 26/02/ Appendix 13 Final Ruling of 18/04/ Appendix 14 General Guidelines on Payment of Legal Costs & Other Expenses

5 GLOSSARY OF TERMS AND ABBREVIATIONS AIO Article 2 Chief Supt Commissioner/s D/Gda DDI DI DPP DO ECtHR ECHR Gda Gearáin GSOC Insp IO PULSE Sgt SIO Supt The Act / The 2005 Act The Minister The Protocol Assistant Investigating Officer Article 2 of the European Convention on Human Rights Chief Superintendent Commissioner/s of the Garda Síochána Ombudsman Commission (unless otherwise stated) Detective Garda Deputy Director of Investigations Director of Investigations Director of Public Prosecutions Divisional Office European Court of Human Rights European Convention on Human Rights Garda Literal translation "Complaints". Gearáin is the liaison system between An Garda Síochána and GSOC for transmission of requests for documents or materials in the course of an investigation. Garda Síochána Ombudsman Commission Inspector Investigating Officer PULSE (Police Using Leading Systems Effectively) is a computer system used by An Garda Síochána, which contains records in relation to individual members of society and incidents. Sergeant Senior Investigating Officer Superintendent The Garda Síochána Act, 2005 (unless otherwise stated) The Minister for Justice and Equality Memorandum of Understanding, Protocols and Agreement on Operational Matters between The Garda Síochána Ombudsman Commission and An Garda Síochána. PART I - INTRODUCTION 3

6 (1) General Observations 1.1 Great tragedy does not always mean great wrong. But great tragedy creates an imperative for thorough investigation. 1.2 The circumstances into which the Inquiry was required to delve, to a large extent, started and ended with tragedy. In the early hours of New Year s morning 2015 Ms Sheena Stewart was killed in a road traffic accident. In the early hours of the 28 th May of that year the body of Sgt Michael Galvin was discovered in Ballyshannon garda station at approximately 7.00am.. In the intervening period GSOC had commenced, conducted and, to a very large extent, completed what turned out to be a criminal investigation into the conduct of members of An Garda Síochána (including Sgt Galvin) in the period immediately prior to the death of Ms Stewart. While the precise status of that investigation at the time of Sgt Galvin s death is a matter that requires to be explored in some detail, it is fair to say that, so far as the carrying out of the investigation itself was concerned, same had largely concluded on the basis of, at a minimum, a clear recommendation that there should be no prosecution either of Sgt Galvin or any other of the gardaí concerned. At least in a colloquial sense it can be said that the gardaí concerned had, in substance, been cleared by the GSOC investigation. 1.3 The death of Ms Stewart was, indeed, a tragedy. That those tragic circumstances required to be investigated can hardly be doubted although there is controversy, which will be addressed in the course of this report, as to whether the form of criminal investigation adopted by GSOC was appropriate in the circumstances. However, after a thorough investigation, a clear decision was made by the investigating officers, supported by in-house legal advice, that no prosecution should follow. There has been no suggestion, nor would the Inquiry feel that there could be any valid suggestion, that the GSOC investigating officers concerned were wrong in reaching the conclusions which they did. In that sense the great tragedy of Ms Stewart s death did lead to thorough investigation but also led to the conclusion that, at least so far as An Garda Síochána were concerned, nothing inappropriate had occurred. The Inquiry should add that it understands that the question of whether proceedings may result from the road traffic accident itself remains alive and, 4

7 for that reason, it would be most inappropriate for the Inquiry to make any comment on those questions. 1.4 The death of Sgt Michael Galvin was indeed a further tragedy. It is hoped that this report will demonstrate that the thorough investigation warranted as a result of that tragedy has been conducted. It is important to record, however, that just as was the case with Ms Sheena Stewart, the existence of a great tragedy does not, necessarily and in and of itself, mean that there was great wrong. The purpose of any investigation of this type is to find out whether that was so. It is important that inquiries such as this commence their work with an open mind and do not assume that, because the circumstances being investigated involve a great tragedy, there necessarily was commensurate wrongdoing. It is also important that all who may have an interest in the work of an inquiry such as this recognise that important principle. Adverse findings should be made if they are justified on the evidence. The investigation should be thorough so as to ensure that all possible evidence becomes available so as to form a judgment about whether adverse findings should be made. But any adverse findings should only be those which can be justified on the evidence and such findings should only be expressed in terms justified by the evidence. The Inquiry would hope that it has kept those principles in mind in the conduct and conclusion of its investigation. The Inquiry would also hope that all who may have an interest in those conclusions will recognise the need to adhere to those principles. 1.5 On perhaps a more mundane level it should be recorded that this inquiry was the first established under s.109 of the 2005 Act which provides for a judicial-type inquiry into the conduct of designated GSOC officers arising out of the conduct by those officers of a criminal investigation into members of An Garda Síochána. Some issues relating to the law in respect of an investigation under that section will need to be addressed in the course of this report. It should be recorded that, doubtless because this is the first inquiry of its kind and that, therefore, no issues concerning the precise operation of the legislation have been determined or debated before now, more legal issues arose than might have been the case in the implementation of much used legislation. The Inquiry would wish to record that it did not consider that any of the issues raised were put forward in anything close to a frivolous or vexatious manner. Indeed, as will be apparent from certain aspects of this report, the Inquiry was of the view that certain aspects of the legislation lacked clarity. This 5

8 lack of clarity undoubtedly led to legitimate questions being raised as to the precise way in which the legislation should operate and unquestionably added to the complexity and length of the Inquiry s investigation. While this inquiry has expressed its view on the legal issues raised, it is worth recording that, unless and until any of those issues come to be definitively determined by a court of competent jurisdiction, it would remain open to another judge appointed to conduct a different inquiry under this legislation to reach a different conclusion on any of those issues. The Inquiry is of the view that, now that there has been experience in implementing this legislation, a review of the wording of certain parts of the legislation would be welcome so that the issues which arose in this inquiry could be put beyond doubt and would not, therefore, be likely to arise in the event of a further inquiry under this legislation. 1.6 Finally, it would be somewhat naïve for the Inquiry to embark on a consideration of the specific facts and issues which arise under its terms of reference without at least mentioning what many might consider to be an elephant in the room. One would have had to have lived in a media-free zone for the last decade or so not to be aware that there have, from time to time, been tensions between GSOC and An Garda Síochána both at an organisational, representative and individual level. It is beyond the scope of this inquiry to address the causes of those tensions or to identify the extent to which they may have been alleviated by measures adopted over the years. It would be fair to say that the general impression created by the evidence tendered to this inquiry suggested a wide range of differing attitudes to GSOC within An Garda Síochána. It is, of course, inevitable that there will be tensions between any investigator and those being investigated. But some of those members of An Garda Síochána who gave evidence expressed the view that GSOC were simply doing their job and indicated that they understood, to a greater or lesser extent, why this had to be so. On the other hand, it would be fair to say that some degree of resentment and hostility was also apparent in the views of other witnesses. It must, of course, be recognised that the tragic circumstances which led to the establishment of this inquiry must have had an effect, and indeed an understandable effect, on the attitudes of many of the colleagues of Sgt Galvin who clearly held him in such high esteem. 1.7 This inquiry will not solve all, or even many, of the remaining difficulties which undoubtedly exist in relation to the investigation of issues relating to An Garda Síochána. 6

9 But it is clearly very much in the public interest that there be an effective investigation mechanism in place and it is also in the public interest that such mechanism work as well as possible. One of the clear impressions which came over to this inquiry was that at least part of the problem stems from a lack of proper understanding among members of An Garda Síochána as to the way GSOC is required to and does carry out its role. It is outside this inquiry s remit to apportion blame for that state of affairs and it would, indeed, be dangerous for this inquiry to attempt so to do given that its focus has been on a single GSOC investigation albeit one which had such tragic consequences. However, the Inquiry has sought to put forward some recommendations as to a process which, it might be hoped, could lead to a greater understanding all round. As suggested earlier, it would be naïve to believe that all tensions could be removed from any investigative process. But the Inquiry has come to a strong impression that significant improvement is possible. 1.8 The primary purpose, however, of this inquiry was to bring clarity to the facts surrounding the GSOC investigation arising out of the death of Sheena Stewart. The Inquiry was required to do so in the context of assessing the conduct of GSOC designated officers. It is hoped that this report will bring at least some such clarity and will allow a measure of closure for all concerned although it must be recognised that the consequences of tragic events are hard to put behind. But in addition to addressing the specifics of the investigation concerned it is hoped that the recommendations of the Inquiry may be of some assistance in helping to build confidence in what is undoubtedly a vital part of our state s structure being the mechanism by which our guards are themselves guarded. (2) Preliminary Matters: (i) Appearances: Legal representatives appearing at the Inquiry: Counsel for the Inquiry: Helen-Claire O Hanlon BL and Sorcha Cristin Whelan BL 7

10 For the designated officers of GSOC: Úna Ní Raifeartaigh SC, instructed by Edward Gleeson and Laura Rattigan Solicitors of Mason Hayes & Curran Solicitors; For An Garda Síochána: Rory Mulcahy SC and, Paul Carroll BL, instructed by Pat Spillane Solicitor of the Chief State Solicitor s Office; For Collette Galvin: Claire Moran Solicitor of Cathal Flynn Solicitors; For the extended Galvin family: Rosemary Mallon BL, instructed by Michael Hegarty Solicitor of Smyth O Brien Hegarty Solicitors., Stenography Services provided by Gwen Malone Stenography Company (ii) Witnesses: Witnesses who gave evidence before the Inquiry, in approximately chronological order, were as follows: Members / employees of An Garda Síochána: Supt Andrew Archbold, Sgt Stewart Doyle, Supt Michael Finan, Insp Denis Joyce, Chief Supt Terry McGinn, Gda John Clancy, Gda Aidan Mulvihill, Gda Gerry Mullaney, Supt Colm Nevin, Gda Brian Tuohy, Gda Sean Rogers, Gda Yvonne Carolan, Darragh Phelan, Sgt Paul Wallace, Sgt Joe Hannigan, Gda Kevin Garvin, Gda Louise Foy, Gda Paddy Battle, Gda Claire O Hara, Gda Helen Munnelly, D/Gda Chris O Neill, Supt Louise Synott. Legal Representatives: Michael Hegarty (Solicitor), Gerald O Donnell (Solicitor), Gerry McGovern (Solicitor) Family members and personal friends of Sgt Michael Galvin: Colette Galvin, Damien Hamill, Matt Feely, Geraldine Gill, John Gill, Helen Rutledge, Members of GSOC: SIO Nick Harden, SIO Maurice Breen, IO Daniel Gallagher, DI Ken Isaac, DDI Darren Wright, IO Pauline Byrne, SIO Jon Leeman, SIO Rody Butler, SIO Johan Groenewald, SIO Garret Croke, Niamh McKeague (Legal Affairs), Michael 8

11 O Neill (Formerly Head of Legal Affairs), Lorna Lee (Head of Communications), Commissioner Kieran Fitzgerald. (iii) The Terms of Reference: As set out in accordance with s. 109 of the 2005 Act, in the letter of request from the Minister of for Justice and Equality and the Chief Justice, the terms of reference are as follows:- An inquiry into the conduct of designated officers of the Garda Síochána Ombudsman Commission in performing functions under section 98 or 99 of the 2005 Act in relation to the investigation by the Ombudsman Commission in the matter referred to it by the Garda Commissioner on 1 January 2015 under section 102(1) of the 2005 Act, that matter being the contact which members of the Garda Síochána had with Ms Sheena Stewart in the early hours of 1 January in Ballyshannon, Co. Donegal, shortly prior to Ms Stewart's death in a road traffic collision." (iv) GSOC Personnel and the GSOC organisational structure: 2.1 The designated Officers of GSOC within the terms of reference of this Inquiry, namely all those officers who played a role in the investigation into Garda contact with Ms Sheena Stewart prior to her death in the fatal road traffic collision on the 1 st of January 2015, are as follows: SIO Nick Harden IO (now SIO) Maurice Breen IO Daniel Gallagher SIO Jon Leeman IO (Now SIO) Rody Butler 9

12 IO Pauline Byrne SIO Johan Groenewald SIO Garret Croke DDI Darren Wright DI Ken Isaac 2.2 The hierarchy and organisational structure within GSOC was explained by various witnesses as follows: 2.3 An Assistant Investigating Officer is the lowest rank within the investigations unit. Above that level is the rank of Investigating Officer and above that again is that of Senior Investigating Officer. There are several GSOC offices in Ireland, with Headquarters on Upper Abbey Street in Dublin 1. There is a further office in Cork, from where the team covers the Munster region and in Longford which covers the Midlands and Western region. 2.4 An Investigating Officer or Assistant Investigating Officer is connected to, and is part of, an investigation team. At the start of 2015, SIO Nick Harden and IO Maurice Breen were based in the Cork office. IO Daniel Gallagher was working remotely, based in Donegal and reporting to his line manager, SIO Leeman in the Dublin office. During the course of the investigation IO Gallagher transferred to the Longford team and thereafter reported to SIO Johan Groenewald who was based in the Longford office. 2.5 The senior ranks above that of SIO are the Deputy Director of Investigations and the Director of Investigations. Over all of those ranks are the Commissioners of GSOC, being at the relevant time, Commissioner Kieran Fitzgerald and Commissioner Carmel Foley. The current Chair of GSOC, Ms Justice Mary Ellen Ring, was not in office at the time of the events relevant to this inquiry. 10

13 (3) Summaries: (i) Summary Timeline: 3.1 The purpose of this summary is to set out a timeline of the key dates which are of relevance to the remit of the Inquiry. A more detailed account of those facts which are not in dispute is set out in Part III of the Report. Insofar as there are a limited number of facts in relation to which there was conflicting evidence the same are dealt with in the course of the Issues section of this Report (Part IV). - 01/01/2015 (early hours): There is some garda interaction with Sheena Stewart who later is killed in a road traffic accident. ( RTA ) - 01/01/2015 (later): Supt Michael Finan attends at the scene of the fatal RTA and refers the matter to GSOC in accordance with s.102 of the 2005 Act. SIO Nick Harden (the SIO on call) makes a recommendation to DI Ken Isaac of GSOC to designate an investigation under s.98 of the Act (a criminal investigation). DI Isaac agrees and a s.98 investigation is commenced. Later in the day a meeting takes place in Ballyshannon Garda Station between GSOC officers Harden and Breen and Insp Denis Joyce. Sgt Gerard Mullaney is placed in charge of the RTA investigation. - 2/1/15: A document request is given to Insp Joyce by the attending GSOC officers. The s.98 investigation is transferred to IO Daniel Gallagher and IO Gallagher later attends at Ballyshannon garda station and collects the CCTV from Insp Joyce. - 7/1/15: Gda John Clancy makes a statement. - 12/01/15: IO Gallagher views CCTV footage of the original incident and feels that there is an inconsistency with what has been reported to him. - 13/1/15: IO Gallagher makes a request under the Gearáin system for further materials and receives a reply to the effect that no formal notification has been provided to An Garda Síochána of the existence of a s.98 investigation. 11

14 - 25/1/15: Sgt Galvin makes a statement. - 26/1/15: IO Gallagher writes to Garda Internal Affairs, formally notifying the existence of the s.98 investigation and identifying the three members under investigation (being Sgt Doyle, Sgt Galvin and Gda Clancy). - 2/2/15: IO Gallagher attends Ballyshannon Garda Station and receives a number of documents per the document request of 2/01/15, including the statement from Sgt Galvin. - 12/2/15: SIO Leeman reviews the CCTV footage and he and IO Gallagher decide that the accounts of Gda Clancy and Sgt Galvin need to be clarified after caution /03/15: Several calls take place between IO Gallagher and Sgt Galvin in relation to a cautioned interview. Sgt Galvin expresses shock and seeks information as to the offence under investigation. IO Gallagher outlines that the offence is either under s. 110 of the 2005 Act or that of perverting the course of justice contrary to common law. - 27/4/15: Gerald O Donnell, solicitor acting for Sgt Galvin, meets with him and advises that he will write to IO Gallagher. Several consultations and telephone conversations between Sgt Galvin and his solicitors take place in the following weeks. - 28/4/15: A letter is sent from Smyth O Brien Hegarty, solicitors for Sgt Galvin, to IO Gallagher querying a lack of notification and seeking further information. - 01/05/2015: Sgt Mullaney sends the completed RTA investigation report to the Supt at Ballyshannon. - 05/05/15: IO Gallagher responds to the letter from Smyth O Brien Hegarty and suggests 15 th May 2015 for a cautioned interview of Sgt Galvin. This date does not suit but in further correspondence an interview is arranged for 20 th of May

15 - 6/5/15: Gda John Clancy is interviewed by IO Gallagher and IO Butler in the offices of his Solicitors, McGovern Walsh & Co, in Sligo. - 14/5/15: Sgt Galvin takes the train to Dublin for a lengthy consultation with his solicitors. He appears to be extremely concerned. It is agreed that a statement will be prepared for submission to GSOC. - 20/5/15: The day of the GSOC interview with Sgt Galvin. He and his wife drive to Dublin. He goes alone to his solicitor s office at 12.15pm and he and Gerald O Donnell walk together to the GSOC offices for the interview at 2pm. The prepared statement is read out, Sgt Galvin indicates that he does not wish to answer questions and the interview concludes very shortly thereafter. - 21/5/15: IO Gallagher is of the view that a recommendation of no prosecution should be made; having consulted SIO Groenewald and on his recommendation, he submits a report to the Legal Affairs department of GSOC seeking their advice. - 22/5/15: Sgt Galvin is referred by a peer supporter to the Garda Employee Assistance Service. - 25/5/15: Michael O Neill, at the time Head of GSOC Legal Affairs, s IO Gallagher saying they will review and revert. - 27/5/15: At 4.44pm Niamh McKeague, of GSOC Legal Affairs, s IO Gallagher concurring with his intended recommendation, to the effect that there was insufficient evidence of any offence but suggests that a file should, nonetheless, be sent to the DPP. - 27/05/2015: Gda Brian Tuohy of the Garda Employee Assistance service visits Sgt Galvin in the morning at his home in Manorhamilton. Later that day Sgt Galvin takes up duty in Ballyshannon GS. He is meant to finish at 3.00am but tells others he may finish early. At around midnight Sgt Galvin is last seen by Gda Clare O'Hara, walking in the direction of the Sergeant's Office. 13

16 - 28/5/15: At 00.50am Sgt Galvin phones Gda Paddy Battle. At 5.00am Colette Galvin (the wife of Sg. Galvin) rings the station to say Sgt Galvin has not come home. A search commences. A note is discovered addressed to Collette Galvin. Sgt Galvin s remains are found at approximately 7.00am in the locked detective s room. At 7.30am a s.102 referral in relation to the death of Sgt Galvin is made to GSOC through Command and Control. The Garda Press Office is notified. - 29/5/15: A proposed statement from GSOC is prepared by Lorna Lee, GSOC Press Office, to be approved for publication, if necessary. - 1/6/15: Journalist Greg Harkin s Lorna Lee about the investigation. Following this an approach is agreed within GSOC for notification of the Galvin family and the media. DDI Wright is unsuccessful in attempts to contact the family through An Garda Síochána. Lorna Lee speaks to Greg Harkin and provides some information. - 1/6/15: DDI Wright is informed by An Garda Síochána that the Galvin family have been contacted by Greg Harkin who has told them the investigation had been discontinued 10 days before Sgt Galvin s death. - 2/6/15: Greg Harkin s article is published in the Irish Independent: Garda who took his own life didn t know he had been cleared by GSOC. - 2/6/15: A statement is published by GSOC on the incident. - 4/6/15: A second statement is published by GSOC, stating that they are bringing their investigation into the death of Sgt Galvin to a close. (ii) Summary of Conclusions: 3.2 There were few disputes as to the events which actually occurred. A brief timeline in set out in the preceding section of this report. A more detailed account can be found in Part III. The principal questions which the Inquiry was required to consider and on which 14

17 the Inquiry was required to reach conclusions were, therefore, in the main concerned not so much with what actually happened but whether what happened was appropriate. 3.3 In that context the first set of conclusions relate to the circumstances in which it was decided by GSOC to instigate a criminal investigation into garda contact with the late Ms Sheena Stewart prior to her death. That question brought into focus issues concerning the legal basis on which it is appropriate generally for GSOC to instigate a criminal inquiry together with issues concerning whether the commencement of such an inquiry was justified in the circumstances of this case. 3.4 In that regard the Inquiry has concluded that the 2005 Act lacks clarity as to the circumstances in which a criminal investigation under s.98 can properly be commenced by GSOC. Given that lack of clarity it appears to the Inquiry that the best interpretation which can be placed on the relevant provisions is that, to use a double negative required by the legislation itself, a criminal investigation can be commenced when it does not appear that the circumstances do not appear to constitute a criminal offence. Nonetheless the Inquiry has concluded that it is not necessary that there be any evidence of potential criminal action present before such an investigation can be commenced. 3.5 In addition the Inquiry has concluded that it is necessary, where a matter arising out of the death or serious injury of a person after garda contact is referred to GSOC by An Garda Síochána in accordance with s.102 of the 2005 Act, that GSOC must first conduct a sufficiently thorough examination of the circumstances to enable a proper conclusion to be reached as to whether the threshold referred to is met. 3.6 The Inquiry has also concluded that GSOC designated officers generally appear to have allowed their perception of their obligation to conduct an inquiry consistent with Article 2 of the ECHR to colour their view as to whether it is appropriate, in particular circumstances, to conduct a criminal investigation and that this consideration also applied to the facts of this case. 3.7 In relation to the designation of the investigation in this case as a criminal investigation it is necessary to consider the possible offence of misconduct in public office as that was the only possible offence considered by the GSOC officers concerned. While accepting 15

18 that the offence in question has never been the subject of a prosecution in Ireland, the Inquiry is of the view that it was not, in and of itself, inappropriate to commence a criminal investigation into such a possible offence. The Inquiry had regard to the fact that the DPP had indicated to GSOC, at an earlier stage, that a prosecution for such an offence would be considered in appropriate circumstances on the basis of the likelihood that an offence, similar to that which is recognised in the common law of the United Kingdom, would be recognised in this jurisdiction. 3.8 However, the Inquiry also noted that the equivalent offence in the United Kingdom required wilful and significant misconduct. In the circumstances of this case, the Inquiry was not satisfied that, as of the time when the designation of an investigation into a criminal offence occurred (which was within 30 minutes after the circumstances were first intimated to GSOC), there was available sufficient information to warrant considering the possibility of the sort of wilful neglect which would be necessary to constitute the offence of misconduct in public office if such an offence forms part of the law of Ireland. In summary the Inquiry has concluded that it must have been the case that, at the relevant time, the circumstances then known did not appear to constitute a criminal offence. 3.9 On that basis the Inquiry has concluded that the decision, at that time, to instigate a criminal investigation was mistaken. However, the Inquiry also has found that the decision was taken bona fide and, in the light of the lack of clarity which is to be found in the legislation itself, the Inquiry has come to the view that it must also conclude that the decisions respectively to recommend and designate the investigation as a criminal investigation, while mistaken, would not justify any action being taken against the individuals concerned Finally, the Inquiry notes that, while it views the decision to instigate a criminal investigation at the time when that decision was taken as having been mistaken, this should not be taken to mean that the Inquiry feels that no criminal investigation at all could properly have been instigated when more information became available As soon as the GSOC investigation commenced, a decision was made at a meeting in Ballyshannon garda station to leave the taking of statements from the three gardaí who had had relevant contact with Ms Stewart (Sgt Doyle, Sgt Galvin and Gda Clancy) to the gardaí 16

19 themselves, with the collection of those statements being left under the control of Insp Joyce. There were issues as to whether that methodology was appropriate including the question of whether, given that a criminal investigation was in being and that the three gardaí concerned had been identified as being the subject of the investigation in question, it was appropriate to procure uncautioned statements. In addition there were issues as to precisely what level of information was given either to Insp Joyce or passed on to the three gardaí concerned as to the status of the GSOC investigation and the nature of the statements which the three gardaí concerned were required to make including the purpose for which those statements might be used In that regard the Inquiry has found that it is difficult to express a definitive view on a conflict of evidence between GSOC officers (SIO Harden and IO Breen) and An Garda Síochána (Insp Joyce) as to precisely what was said at a meeting in Ballyshannon garda station on the 1 st January concerning whether a criminal investigation under s.98 of the 2005 Act was in being. The Inquiry accepts that the GSOC officers concerned attempted to communicate the fact that there was such a criminal inquiry in being and genuinely believed that they properly communicated that fact to Insp Joyce. However, the Inquiry also accepts that Insp Joyce did not have that fact communicated to him in a way which he clearly understood and that he was, therefore, not actually aware, as a result of the meeting in question, that a criminal investigation was in being. That lack of clear communication was one of the factors (but not by any means the only factor) which led to the fact that the three members of An Garda Síochána who had been identified as being the subject of the criminal investigation (Sgt Doyle, Sgt Galvin and Gda Clancy) were not informed of the fact that there was a criminal investigation and that they were the subject of it The Inquiry has noted, however, the agreement of all those who were present at the meeting of the 1 st January to the effect that it was accepted that statements from the three gardaí concerned would be obtained in which those gardaí would be required to justify their conduct in the context of their contact with the late Ms Sheena Stewart prior to her death. Those statements were to be taken in conjunction with the taking of statements of the gardaí concerned in the context of the preparation of a file in relation to a possible criminal prosecution under the Road Traffic Acts. It was also clear at the meeting in 17

20 question that the relevant statements would be made available to GSOC for the purposes of its investigation The Inquiry has concluded that there was nothing wrong, in and of itself, in GSOC using that method for obtaining initial statements from the gardaí in question and that there was nothing wrong, in and of itself, in such statements being requested without the members concerned being cautioned. However, the Inquiry has concluded that it was wrong that those members were required to submit statements to GSOC without the members concerned having been informed of the existence of a criminal investigation and of the fact that they were the subject of the criminal investigation concerned The Inquiry has also concluded that, at the time when the three gardaí concerned made their respective statements, it had not been made sufficiently clear to those members that the statements which they were to make were, at least in part, for GSOC purposes. In that regard, whatever about the lack of communication which occurred at the meeting of the 1 st January referred to above, it is clear that the GSOC officers concerned at that meeting reached an agreement that statements were to be taken from the three members at least in part for purposes of the GSOC investigation. The fact that that aspect of the agreement was not clearly communicated to the members concerned must be attributed to a failing of adequate internal communication on the part of An Garda Síochána Thereafter the GSOC investigation continued in what would appear to be a relatively normal fashion save for the fact, to which it will be necessary to turn shortly, that, quite extraordinarily, the three gardaí concerned were not made aware that there was a criminal investigation in being and, in particular, that they were the subject of that investigation The next major development was the extension of the GSOC investigation into one involving possible offences concerning making false and misleading statements or perverting the course of justice. Issues arose concerning whether the decision to extend the Inquiry in that regard was justified. A closely connected question of whether, in the light of that extension, it was appropriate to conduct cautioned interviews of both Sgt Galvin and Gda Clancy also arose. 18

21 3.18 In that context the Inquiry is satisfied that the decision to extend the Inquiry, taken on the 12 th February, to one involving possible offences of making false and misleading statements or perverting the course of justice was a decision which was reasonable in the light of the information available at that time. Until a satisfactory explanation was given for the discrepancy between the statements made by Sgt Galvin and Gda Clancy, on the one hand, and CCTV footage, on the other, there was a realistic possibility that a conclusion might be reached that the statements were designed to deliberately downplay the extent to which it might be said the members concerned ought to have had a greater level of concern for Ms Stewart s safety It should be noted that satisfactory explanations were ultimately given but that does not, in the Inquiry s view, change the circumstances which prevailed at the time when the decision to extend the investigation was taken. For like reasons the Inquiry is satisfied that it was prudent, in all the circumstances, for the interviews in question to be conducted under caution It is next necessary to turn to those cautioned interviews. For reasons set out in more detail in the course of the report, an issue was originally identified concerning whether there might have been anything inappropriate about the manner in which those cautioned interviews were undertaken. However, no materials or evidence came to light to suggest that the relevant interviews were conducted in anything other than a professional and appropriate fashion. The findings of the Inquiry in that regard can be found in more detail in Part IV of the report Sgt Galvin was the second member to be interviewed under caution. Soon after that cautioned interview two developments or events occurred. First, the GSOC officer principally involved in the investigation came to the conclusion that there was no basis for recommending a criminal prosecution in respect of either Sgt Galvin or Gda Clancy. Having consulted his superior officer and on the recommendation of that superior officer the matter was referred for internal legal advice. At 4.44pm on the afternoon of the 27 th May GSOC Legal Affairs sent an concurring with the recommendation as to no prosecution but suggesting that a file should, nonetheless, be sent to the DPP. The second and tragic event which occured was that, in the early hours of the following morning, Sgt 19

22 Galvin took his own life. Given the publicity which subsequently attached to the status of the GSOC investigation at the time of Sgt Galvin s death, the precise sequence of events and the status of that investigation at various times are analysed in Part III of the report The remaining specific issues which arose for the Inquiry s consideration related to the circumstances in which information concerning the status of the investigation by GSOC was released to the media in the period immediately after Sgt Galvin s death. In that context it needs to be emphasised that the scope of an inquiry under s.109 of the 2005 Act is limited to considering the conduct of GSOC designated officers and does not, therefore, extend as such to a consideration of the conduct of the GSOC Commissioners or any other staff of GSOC who are not designated officers On that basis the Inquiry notes the limited nature of its remit under this heading. The Inquiry is only entitled to consider the conduct of designated officers. Therefore, the Inquiry is concerned to determine whether any GSOC designated officer might be said to have been at fault in the way in which information concerning the status of the investigation into Sgt Galvin arising out of the death of Ms Sheena Stewart was given to the media and, in particular, the fact that that information was given prior to the Galvin family being briefed The Inquiry is satisfied that it was reasonable, in all the circumstances, for GSOC to give information to the media but concludes that it would have been significantly preferable if greater coordination had taken place to at least maximise the likelihood that information was not imparted to the media before there had been sufficient contact with the Galvin family. The Inquiry has noted the extreme distress which this sequence of events caused for the family, friends and colleagues of Sgt Galvin. The Inquiry is also of the view that the sequence of events in question has contributed to some of the misinformation which gained currency surrounding the GSOC investigation The Inquiry has concluded that, while acknowledging that more could and should have been done to at least ensure that the Galvin family were properly briefed in advance of any media information being disseminated, it would in all the circumstances not be appropriate to level specific personal criticism at any GSOC designated officers in that regard. The Inquiry has reached that view not least because of the extremely charged 20

23 circumstances then prevailing. The Inquiry also notes that, while the specific findings under this heading relate only to relevant GSOC designated officers, it is appropriate to record, lest by not so doing an inference to the contrary might be drawn, that it does not consider that Ms Lee of the GSOC press office could be the subject of any legitimate adverse findings either In the course of considering both the sequence of events and the issues which arose, the Inquiry was struck by the frequent lack of information or misunderstanding which became apparent In that context the Inquiry notes that much of the evidence betrayed a significant lack of information and misunderstanding on the part of many gardaí as to the precise role, remit and practice of GSOC. The Inquiry notes that some of the lack of understanding which arose in the context of this case is specific to the circumstances investigated. The lack of adequate communication to An Garda Síochána at the meeting in Ballyshannon on the 1 st January is a case in point. In particular the fact that an , which was intended to lead to the formal communication to the three gardaí concerned that they were the subject of a criminal investigation, was inadvertently deleted in the divisional office of An Garda Síochána at Letterkenny was highly unfortunate. These factors combined to lead to the extraordinary situation that neither Sgt Galvin nor Gda Clancy knew that they were the subject of a criminal investigation until they were contacted (almost three months after the investigation commenced) about a requirement that they present themselves for a cautioned interview. Even more extraordinarily Sgt Doyle was unaware that he had been the subject of investigation until he was told, after the death of Sgt Galvin, that no action was to be taken in respect of him The question of lack of communication or adequate information is one of the matters which is the subject of recommendation by the Inquiry as will be seen from the next section of this report. 21

24 (iii) Summary of Recommendations 3.29 The Inquiry is mindful of the fact that its focus was on a single case and that there may, therefore, be a danger in seeking reach overbroad conclusions and thus make overbroad recommendations based on the conduct of an inquiry into a single case. Notwithstanding that, the Inquiry feels, for reasons which are set out in more detail in the course of the report, that there are a number of areas in respect of which it should make recommendations The first set of recommendations contained in the report relate to the legislation itself. As the Inquiry notes in the report a number of legal issues concerning the proper scope of an inquiry under s.109 of the 2005 Act arose in the course of the conduct of the inquiry. While the Inquiry has expressed its views on the issues raised, the Inquiry recommends that those aspects of the legislation identified as having given rise to those issues should be reviewed for the purposes of putting the issues concerned beyond doubt in the event that there may be a further inquiry of this type. While it is inevitable that such issues may arise on the first occasion when a new piece of legislation is operated, it seems to the Inquiry, from its experience of having conducted this particular inquiry, that the work of any future inquiry will be made easier if the issues of debate identified were clarified by amendments to the legislation in question. In particular the question of whether it is permissible for a s.109 inquiry to consider a decision to designate an investigation by GSOC as one to be conducted as a criminal investigation under s.98 of the Act should be placed beyond doubt. In addition further consideration might be given to clarifying with greater precision the matters which should be addressed in the report of an inquiry In addition, the Inquiry has set out, in Part IV, a detailed analysis of the legislation insofar as it governs a decision to designate an investigation by GSOC as a criminal investigation (under s.98 of the Act) or a disciplinary investigation (under s.95 of the Act). For the reasons explored in detail the Inquiry considers that aspect of the legislation to be unclear and particularly so in the context of a case which comes to GSOC on a referral by An Garda Síochána under s.102 of the Act as opposed to as result of a complaint by a member of the public. As noted in the report, the Inquiry came to the view that this lack of clarity in the legislation was at least in part responsible for some of the issues which 22

25 arose concerning the instigation of a criminal investigation on the facts of this case. The Inquiry recommends that the legislation be reviewed to bring greater clarity to that important question Moving on from the legislation itself the Inquiry also came to the view that some of the general practices concerning the conduct of GSOC investigations required reconsideration. In that context the Inquiry noted a lack of clarity amongst GSOC personnel as to the precise circumstances in which they should inform members of An Garda Síochána about the progress of a criminal investigation in accordance with the obligation to inform contained in s.103 of the 2005 Act. While recognising that a final decision on the imparting of information must necessarily be an operational decision taken by those on the ground, the Inquiry recommends that more detailed guidance be given by GSOC to its designated officers in that regard The Inquiry also recommends that much more detailed information be made available to members of An Garda Síochána, in a clear form likely to be read and understood, about the way in which GSOC investigations are carried out. It is in particular suggested that such information should be specifically imparted directly to any member of An Garda Síochána who becomes the subject of a criminal investigation In addition, it is suggested that consideration be given to changing the current practice whereby the existence of a GSOC criminal investigation is notified by An Garda Síochána to the member concerned. It is suggested that this notification should be carried out by GSOC in conjunction, if that is considered appropriate, with an appropriate line manager within An Garda Síochána Finally, the Inquiry has tentatively suggested that GSOC might give consideration to whether it is appropriate to apply its policy, of always referring a file to the DPP at the conclusion of a GSOC criminal investigation under s.98 involving a death, in all cases. The Inquiry feels that some consideration should be given to considering whether there may not be some cases where no or so little evidence or materials are turned up in the course of a GSOC investigation of that type that a referral of a file to the DPP might be considered neither necessary nor truly justified. 23

26 24

27 PART II THE PROCESS (4) The Overall Process: 4.1 On the establishment of the Inquiry, an immediate initial request was made to all parties who appeared to have an interest in the events which are the subject of the Inquiry to provide any documentation or other materials which might be considered relevant to the Inquiry s terms of reference. That request was made on an informal basis but a significant volume of material was provided by the offices of GSOC, An Garda Síochána, the Department of Justice and the Solicitors firm Smyth O Brien Hegarty (who had represented Sgt Galvin during the investigation and who represented the extended Galvin family at the Inquiry). 4.2 Formal Affidavits of Discovery were provided subsequently on behalf of those parties in respect of all documents and materials. In the course of the conduct of the Inquiry certain additional materials were requested from interested parties either because, in the light of developments at the Inquiry, those materials appeared to the Inquiry itself to be relevant or because other interested parties persuaded the Inquiry that the materials concerned should be made available for consideration. Finally, towards the end of the Inquiry, after all evidence and submissions had been heard, a further piece of documentation was submitted by Gerald O Donnell, solicitor with Smyth O Brien Hegarty. He submitted a supplemental statement, together with a page from his notebook, which he had belatedly discovered, and which contained reference to a telephone conversation with Sgt Galvin. This supplemental statement and extract was distributed to the parties on the 7 th of April and correspondence as to the content of same was considered by the Inquiry. The Inquiry wrote to the parties on the18th of April 2016 indicating that the additional materials had been circulated simply on the basis that it was felt appropriate to disclose those materials to interested parties in the event that any party felt it appropriate to make any submissions deriving therefrom but that the Inquiry did not consider that the receipt of those materials would justify reopening any issue (this being a reference to the issue of the manner of the conduct of the interviews under caution with Sgt Galvin and Gda Clancy). 25

28 4.3 The Inquiry has not at any stage had any reason to believe that the disclosure made by all relevant parties was other than satisfactory. 4.4 The documentation which was initially received was reviewed, categorised and logged in a database, detailing, amongst other things, each individual document s description, provenance and relevance. When the documentary record had been assembled and assessed, further communication was made with all aforementioned interested parties and also the extended Galvin family setting out what appeared, at that stage, to be the principal facts which were not in dispute and specifying the issues which seemed to the Inquiry to potentially require further investigation. It was made clear that the identification of facts and issues was provisional in nature and would be kept under review as the Inquiry s work progressed. It was also made clear that the Inquiry would entertain representations from any parties in respect of the issues thus provisionally identified. 4.5 Interested parties were invited to identify any witnesses whom they considered might have relevant evidence to give to the Inquiry. Some additional potential witnesses were identified by the Inquiry itself from assessment of the documentary record. The Inquiry requested formal written statements from each potential witness by analogy with the powers of the commercial lists of the High Court in that regard. All requested written statements were provided and, again, the Inquiry has no reason to believe that compliance with its directions in that regard was other than satisfactory. 4.6 Composite booklets of relevant documents were then compiled, indexed and circulated to the interested parties. The Index of documents circulated is appended hereto 1. A complete set of statements as provided to the Inquiry was also circulated to the parties. The Index of statements circulated is B (including such supplemental statements sought or received during the course of the Inquiry).also appended hereto At this stage the parties were notified that the taking of evidence would be conducted in two phases. The first phase was designed to record the evidence of those witnesses who had been identified as potentially having information material to the Inquiry s remit 1 Appendix 1 2 Appendix 2 26

29 together with the accounts of any further witnesses who might be identified in the course of hearing evidence during Phase I. It was made clear that a second phase would follow at which an opportunity would be given to all interested parties to cross-examine any witnesses or identify further evidence which they wished to tender subject only to satisfying the Inquiry that the cross-examination concerned or additional evidence proffered was relevant to the Inquiry s remit. On that basis Phase I of the taking of evidence commenced. 4.8 Witnesses were asked to confirm on oath the contents of their written statements and to answer questions by counsel to the Inquiry for the purpose of clarifying or elaborating on their statements. During this phase further information was provided which seemed to the Inquiry to be relevant to its remit. The Inquiry heard evidence from each individual who had been identified by it or by any of the interested parties as having potentially relevant evidence to give. As Phase I progressed, the Inquiry identified several further witnesses from whom it wished to, and did, obtain evidence. All interested parties were permitted to have representatives present during the hearing of all of the evidence during Phase I. 4.9 Following the completion of evidence taking in that phase, a brief procedural hearing was held where it was indicated that the Inquiry would circulate an updated version of an Issues document. This would outline the various issues which appeared to the Inquiry to remain for consideration on foot of evidence which had been heard in Phase I. The various parties were invited to make submissions as to further issues of controversy, factual matters or witnesses who it was felt should be included in Phase II. These submissions were considered and further hearings were then scheduled for Phase II Phase II then entailed the hearing of further evidence, including cross examination by legal representatives for the interested parties of those witnesses who had been recalled. The focus of that cross examination and/or re-examination was to refine and clarify those matters of interest to the Inquiry and to assist in resolving possible conflicts of evidence which had emerged from the testimony given in Phase I. It was also made clear that it would be incumbent on any party who wished to reserve the possibility of submitting that criticism should be directed to any individual to put the basis of such criticism to the witnesses concerned, so as to give that witness the opportunity to answer same. 27

30 4.11 A significant amount of work had at that stage been done by all parties in identifying factual and other matters which were not the subject of controversy so that the areas which could require to be finalised after the oral submissions could be confined to those issues of fact or opinion which were controversial. The identified issues which were addressed in Phase II and in legal submissions are as set out hereunder in Part IV Issues for Resolution During the course of Phase II, further documents were sought by the legal representatives of interested parties. A request was made on behalf of the designated officers of GSOC for copies of all documents relating to this Inquiry which had been authored by particular members of An Garda Síochána. These were extracted from the documents in the possession of the Inquiry and distributed to the parties. Confirmation was provided by An Garda Síochána that there were no further documents in their power, possession or procurement which met the criteria of documents sought Requests were made on behalf of the extended Galvin family for certain protocols which were in the possession of GSOC. That request and the decisions made in respect of same, were dealt with by way of a preliminary ruling, oral submissions, and a final ruling After the Phase II evidence had been completed and prior to legal submissions being made, the Inquiry considered an issue which had been raised by representatives of the designated officers of GSOC, relating to the remit of a s.109 Inquiry in respect of certain aspects of a s.98 investigation, (including the decision to designate it as such). The Inquiry gave a further written ruling on this question on the 11 th of February (See Rulings section below) Following on from those preliminary rulings, the interested parties, through their legal representatives, provided written legal submissions addressing the Issues which had been identified. The written submissions were considered by the Inquiry and were circulated to the other interested parties in advance of the final oral hearing. The Inquiry concluded with a day of oral legal submissions at which each party was afforded the opportunity to address issues raised in the legal submissions of other parties. The final right of rejoinder was given to the legal representatives of the designated officers of GSOC. One final issue arose at that oral hearing being the suggestion made by Counsel for GSOC that a draft 28

31 report be circulated, at least in part, in advance. That question was the subject of a separate ruling, which is dealt with in the rulings section of this report. (5) Rulings 5.1 As noted previously, the Inquiry was called on to make a number of rulings in the course of its investigation. Some of those rulings arose out of oral applications made on behalf of interested parties in the course of hearings conducted by the Inquiry. Others arose from correspondence. Not least because this is the first inquiry conducted under s.109 of the 2005 Act, it is felt appropriate to set out in some detail the applications which were made and the rulings given by the Inquiry on same. 5.2 An oral ruling was given on the 11/11/15 in relation to the material found on Sgt Galvin s phone. The context of the application which led to that ruling was that, as noted earlier in this Report, all parties, including An Garda Síochána, had made discovery of all documents (including electronic documents) within their possession, power and procurement which might be relevant to the remit of the Inquiry. However, Sgt Galvin s mobile phone was not in the possession of An Garda Síochána at the time when discovery was made. That mobile phone later came into the possession of An Garda Siochána and, quite properly, Counsel drew to the Inquiry s attention the fact that, while An Garda Síochána were not convinced that any of the material found on the phone in question was relevant to the Inquiry s remit, it was considered appropriate to supply details of certain of the materials found to the Inquiry so that the Inquiry might, itself, consider the relevance of same. Due to the sensitive nature of the relevant material it is not proposed to set out same in any detail in this Report. Suffice it to say that the Inquiry did not consider that it was necessary to hear any further evidence concerning the material concerned but did feel it appropriate to notify all interested parties of a very brief description of the content which, it was considered, might be relevant, at least in a very indirect way, to the matters which the Inquiry was required to consider. 5.3 An oral ruling was made on the 24/11/2015 following oral application made by representatives of the extended Galvin family in relation to the cross-examination of 29

32 GSOC Commissioner Kieran Fitzgerald. Counsel for the extended Galvin family put forward three matters on which it was sought to cross-examine Commissioner Fitzgerald. The background to that application was the fact, as was accepted by all parties, that s.109 of the 2005 Act confines the remit of a judge appointed to conduct an inquiry under that section to inquiring into to the conduct of designated officers of GSOC. It is clear, therefore, that an inquiry under s.109 cannot involve, at least directly, any investigation of the conduct of the Commissioners themselves, for those Commissioners are not designated officers and their conduct is not, therefore, properly the subject of the investigation. On the other hand, it is clear that, in order to fully and properly investigate the conduct of designated officers, it may be necessary to consider the actions of the Commissioners themselves, insofar as those actions may impact on the conduct of designated officers. Against that background counsel for GSOC was anxious that the proper parameters of the cross-examination of Commissioner Fitzgerald should be delineated in advance. Equally, Counsel for the extended Galvin family sought to identify specific matters on which it was proposed to cross-examine Commissioner Fitzgerald which matters were, it was argued, properly within the remit of the Inquiry. 5.4 The first matter thus put forward concerned the interaction between Commissioner Fitzgerald and the various designated officers whose conduct was within the Terms of Reference. There was not any dispute between the parties in relation to that aspect of the matter and cross-examination in that regard was permitted. 5.5 The second set of issues concerned proposed cross-examination in relation to protocols and statutory provisions and in particular Commissioner Fitzgerald's understanding of those matters. It was ruled that some cross-examination in that regard ought to be allowed and was appropriate, but it was made clear that the issue which was relevant to the Inquiry was the understanding within GSOC, at the relevant time, of what the appropriate practice should be in the light of the relevant legislation and of agreed protocols. This was found to have potential to impact on matters within the Inquiry's remit and, therefore, cross-examination was permitted, provided that it was linked in an appropriate way with the understanding of such matters within GSOC generally insofar as that understanding might impact on the actions taken by designated officers. It was 30

33 reiterated that evidence to the Inquiry was only relevant if it had some potential to impact on the assessment of the conduct of designated officers. 5.6 In relation to the third matter, Counsel for the extended Galvin family drew attention to the fact that a radio interview given by Commissioner Fitzgerald in the immediate aftermath of the death of Sergeant Galvin did suggest that some form of internal review had been carried out as a result of which the view had been taken that the interaction between GSOC and its officials, on the one hand, and Sergeant Galvin, on the other hand, had been appropriate. The Inquiry was mindful of the point made by Counsel on behalf of GSOC that the views which Commissioner Fitzgerald might now have or might be required to have in the future on such issues were not relevant and were not matters about which he should be asked, particularly because the Commission may have a role in considering the Report of the Inquiry and taking whatever action might be considered appropriate arising out of it. Therefore, it was ruled not to be appropriate to enquire into Commissioner Fitzgerald's current view in the light of the information which was now available. However, it was held that it would be appropriate to ascertain some detail about what was considered at the relevant time, on the basis of the information which was then available to the Commissioner. This was held to be without prejudice to any view which the Commissioner might subsequently have formed, or might form in the future, in the light of developments since then, the evidence heard at the Inquiry and whatever recommendations or findings the Inquiry might make. Thus cross-examination under those three headings, subject to the above limitations, was permitted. 5.7 A request was made by letter of the 9 th of December 2015 on behalf of the extended Galvin family for certain protocols, procedures and guidelines which were in the possession of GSOC. Most of those documents were provided save that an objection was made to the production of two of the protocols sought, being a Protocol in relation to s.95 disciplinary investigations and a Policy on the operation of s.88(2)(b). The Inquiry had sight of the documents in question and considered submissions by the parties in that regard. The Inquiry made a preliminary ruling on the 19 th of January 2016 in respect of the provision of a redacted copy of the s.95 Protocol and directed that the s.88(2)(b) policy document would not be required to be disclosed as it was not directly relevant. It should be noted that, in making a preliminary ruling in that regard, the Inquiry followed what became its 31

34 standard practice of furnishing preliminary or provisional rulings in respect of requests made in writing. It was made clear, when furnishing such preliminary rulings, that the Inquiry would entertain any submissions on the part of interested parties which sought to reverse or amend the ruling in question. In that context it should be noted that no such request arose in respect of the preliminary ruling made in respect of the request by letter of the 9 th December, 2015, and that ruling, thus, became final A further request was made by letter of the 8 th of January 2016 on behalf of the extended Galvin family for materials which had appeared briefly on the GSOC website and ancillary documents. The Inquiry made a preliminary ruling on the 19 th of January 2016 to the effect that those materials would not be required to be disclosed as they were not considered relevant 4.The Inquiry subsequently heard oral submissions on this issue and made a final Ruling which was disseminated on the 20 th of January 2016 to the effect that the materials were outside the remit of the terms of reference of the Inquiry 5. However, the Inquiry directed that a further statement of evidence be provided to give further clarification in respect of a Guidance document. This was subsequently dealt with in a supplemental statement from DDI Darren Wright 6. A separate issue requiring clarification was also raised by the Inquiry at this time, being the circumstances in which there could be discontinuance of an investigation by GSOC and the question of the delegation of that discontinuance function from the Commissioners. An additional direction was given that clarification be provided by GSOC which addressed this issue. 5.9 That clarification was provided by on the 4 th of February In addition, an Operations Directive on the Use of Section 93 8 and a Delegation of Powers in relation to Section 93 9 documents were furnished to the Inquiry by Solicitors for the designated officers of GSOC. 3 Appendix 3 4 Appendix 4 5 Appendix 5 6 Appendix 6 7 Appendix 7 8 Appendix 8 9 Appendix 9 32

35 5.10 An oral Ruling was made on the 19 th January, 2016, following cross-examination of Sgt Doyle by Counsel for GSOC. Counsel for An Garda Síochána objected to the level of focus on Sgt Doyle s actions towards Ms Stewart prior to her death and any similar potential future cross-examinations of the other member who had been under investigation; that being Garda Clancy. It was submitted that their actions were not the subject of the Inquiry and formed no part of the Inquiry s remit. The Inquiry indicated that reasonable latitude would be allowed but noted that there was no suggestion of any wrongdoing on the part of any members of the Gardaí and that care ought to be exercised to ensure that this was reflected in the questioning. It was further indicated that that there must be at least some potential connection between events being discussed in crossexamination and an effect on what GSOC did or decided thereafter before such matters could be relevant. Ultimately it was decided that the matter would be dealt with on a caseby-case basis with the afore-mentioned provisos After the Phase II evidence had been completed and prior to legal submissions being made, the Inquiry considered an issue which had been raised by representatives of the designated officers of GSOC, relating to the remit of a s.109 Inquiry in respect of certain aspects of a s.98 investigation, (including the decision to designate it as such). The Inquiry distributed a provisional Ruling by on the 29 th of January and received further submissions from the parties on that issue. The Inquiry made a final Ruling and set out detailed written reasons on the 11 th of February , in advance of several final legal submissions being made by representatives of the parties On the final day of hearings of the Inquiry, the 12/02/2016, a submission was made by Counsel for the designated officers of GSOC in respect of advance sight of the draft report (or relevant parts thereof) prior to finalisation. Counsel also sought leave to make a written submission in support of that application. The Inquiry ruled that a written submission would be considered. Mason Hayes & Curran, solicitors for the designated officers of GSOC, forwarded a written submission on the 26/02/16 in relation to the draft of the report and requested to have sight of same in advance of it being furnished to the 10 Appendix Appendix 11 33

36 Minister. The request on behalf of the designated officers specified that the Inquiry might furnish to each of them any portion of the draft report that dealt with his or her conduct, prior to the finalisation of the Report, so as to enable the relevant persons to make any submissions they deemed appropriate prior to such finalisation. It was noted by those legal representatives that no such procedure was explicitly provided for in s. 109 of the 2005 Act, but relevant case law was referred to and reference was also made by analogy to s.32 of the Commissions of Investigation Act, In a similar vein, an was sent by Mr Gleeson, also on 26/02/16, in respect of his client, Ms Lorna Lee, Head of Communications of GSOC, anticipating that Ms Lee might be referred to in the course of the Inquiry s Report. It was therefore requested that Mason Hayes and Curran, Solicitors, be furnished with any excerpts from the draft text of the Report which contained reference to the involvement of Ms Lee. This was with a view that submissions could be made in the event that any error of fact or law should be considered to arise within such excerpts 12. A final Ruling was made in relation to the above submissions and requests and distributed to the parties on the 18 th of April In that Ruling, the Inquiry set out detailed written reasons for the decision that a draft version of some or all of the report would not be distributed in advance of its provision to the Minister A further submission was made, in the correspondence referred to at (vii) above, requesting that the Inquiry would consider structuring the Report in such a way as to facilitate its severance into comments/recommendations/findings of a general nature and separate from any comments or findings specific to individual designated officers, thereby making it easier for the Minister to divide the material of the Report into a public and non-public part, should the Minister choose to publish to the general public such portions of the Report that have a bearing on matters of general importance and potential future courses of action to be taken in similar cases. It was further suggested that aliases could be used with the actual names of officers being furnished to the Minister in a separate document. 12 Appendix Appendix

37 5.14 No ruling was issued to the parties on that question prior to the finalisation of this report. However, the Inquiry is of the view that its obligation under s.109 of the 2005 Act is to report fully to the Minister on all issues arising within its remit. The Inquiry has no role in determining what is to happen to its report thereafter. It is a matter for the Minister and her advisers to consider whether, and if so in what form, the report or any portion thereof should be disseminated either to specific individuals or to the public generally. The Minister is, of course, required under s.109 to send the full report to GSOC. However, any further dissemination is a matter for the Minister and not for the Inquiry. It did not seem to the Inquiry that it would be appropriate to adjust what would otherwise be the structure and content of a full report in a manner which might be considered to be preemptive of the decision of the Minister as to whether to publish or, indeed, what to publish and in what form. As will be seen, the Report does not, therefore, conform with much of the suggestions made in the relevant submission of Mason Hayes & Curran. Whether, and if so in what form, all or any aspects of this report come to be disseminated in a wider fashion is entirely a matter for the Minister. (6) The Issues for Resolution 6.1 As identified earlier in this part of the report, the Inquiry itself specified certain issues which it considered, on the basis of the information then available to it, to remain open for debate ( the Issues Document ). All interested parties were invited to comment on the Issues Document and identify any further issues which, in their view, ought to be considered. In addition, as already noted, it was made clear, at the beginning of the taking of evidence in Phase II, that it would be appropriate for any party who might wish ultimately to submit that criticism be directed to a particular individual, to put that potential criticism to the witness in question so as to afford that witness a reasonable opportunity to deal with any such potential criticism. Within the overall parameters of the areas which had been identified by the Inquiry in the Issues Document a range of specific matters were put to various witnesses in that context. 6.2 In addition, it should be noted that the Inquiry had already made clear that it would not propose to criticise any individual outside the parameters of the issues identified in the 35

38 Issues Document without giving prior notice of such potential criticism thus affording a further opportunity to give evidence or make submissions on the point in question. In the events that happened the Inquiry did not identify any issues beyond those contained in the Issues Document which gave rise to a possible question of criticism. No submissions were received from interested partied that suggested that any further issues arose. On that basis the issues which remain for consideration are, in substance, those identified in the Issues Document together with the specific matters raised, in the context of those issues, in crossexamination of the various witnesses. The issues were identified as follows: I. The initial decision to designate an inquiry under s.98 of the 2005 Act which was made on the 1 st January, This issue involved the justification both for recommending that such a course of action be adopted and for the decision actually made to that effect based on the information available at that time. Moreover considerations which went into both the recommendation and decision and the timing of the making of that decision having regard to the information available at that stage were also required to be examined. II. The initial taking of accounts from relevant members of An Garda Síochána and in particular the three members who had been identified as having had contact with Ms Sheena Stewart and who were specified as being the subject of the s.98 investigation The decision which was taken not to pursue the early direct taking of accounts by GSOC officers from the members concerned and the decision to leave the taking of such accounts to the gardaí themselves was required to be considered. In that context the extent to which it may or may not have been made clear to the members concerned that the statements which they were asked to make were not simply statements for the purposes of an RTA investigation file but were also statements to be taken in the context of a GSOC s.98 investigation was also required to be considered. The fact that such statements would, for that reason, be uncautioned was further required to be examined. 36

39 III. The extension of the GSOC investigation to one involving possible offences concerning making false and misleading statements or perverting the course of justice. The justification for the extension of the investigation into one which included such possible offences having regard to the materials and information available at the relevant time was required to be assessed. IV. The decision to interview Sgt Galvin and Gda Clancy under caution. This issue was closely connected with issue III. However, there was, at least on one view, a separate question of whether interviews under caution were nonetheless appropriate and justified. V. The interviews themselves. Evidence was heard in respect of the conduct of the interviews of Gda Clancy and Sgt Galvin. In the early stages of the process it was indicated that one issue which might be included for consideration was the question of whether there was any evidence to suggest that there was anything inappropriate about the manner in which the interviews under caution of Sgt Galvin and Gda Clancy were conducted. However, it was indicated by the Inquiry at a relatively early stage in the process that no evidence or materials had been brought to light which gave rise to any concern about the manner in which the relevant interviews were conducted. In common with all other issues-related questions it was made clear that the early view taken by the Inquiry to the effect that there was no evidence or materials to suggest that there was anything inappropriate in the manner in which the interviews themselves were conducted was provisional, subject to the consideration of any submissions which might be made by interested parties and/or to the emergence of any further evidence or materials which might lead to that question being revisited. No such submissions were received. No materials or evidence came to light to suggest that the issue should be revisited. It follows that the issue concerned was provisionally closed and, in the events that happened, was not reopened. VI. The releasing of information concerning the status of the GSOC investigation. 37

40 It was necessary to consider the justification for the decisions or recommendations made other than by designated officers after the death of Sgt Galvin to release certain information concerning the status of the GSOC investigation and also the decisions made by designated officers as to the manner and timing of the release of such information and its communication to the family of the late Sgt Galvin. VII. Communications Generally From an early stage it became clear that there were a number of general issues concerning the extent to which those members of An Garda Síochána who were the subject of the GSOC investigation were kept informed of developments (including, in particular, the fact that there was a criminal investigation which involved them in being) and also the extent to which those members (and members of An Garda Síochána generally) were aware of the general practice of GSOC to a sufficient extent to avoid misunderstanding. 6.3 With the exception of the fact that, for the reasons noted earlier, the issue or potential issue concerning the conduct of the cautioned interviews themselves were closed and not reopened, it should be noted that the broad range of the issues remained the same from an early stage in the Inquiry until its conclusion. No material submissions or representations were made to the effect that further or different issues should be considered. The Inquiry did not, itself, identify any such further issues. Obviously the precise points of detail which arose in the context of each of the surviving issues came to be refined in the course of the process not least the questioning of witnesses by Counsel for the Inquiry during Phase I, the cross-examination of witnesses during Phase II and the submissions of the parties. However, the broad areas of potential controversy did not, in themselves, change to any material extent. As will be seen later in this report, therefore, the issues which it will be necessary to address are the issues which have been set out in the preceding paragraphs, albeit that some of them have been combined. 38

41 (7) Costs 7.1 The relevant provisions of the 2005 Act do not confer on a judge conducting an inquiry under s.102 any role or power in relation to the award of costs to parties represented at such an inquiry or, indeed, the expenses of witnesses required to attend. The Inquiry was mindful of the fact that two of the main parties likely to be represented, being GSOC and its designated officers together with An Garda Síochána and individual members of An Garda Síochána, were publicly funded so that neither the costs of any representation which such persons or bodies might consider necessary, nor the expenses for the attendance of relevant witnesses from those bodies was likely to cause any difficulty. 7.2 On the other hand the Inquiry was mindful of the fact that it was both likely and reasonable that member of the Galvin family would wish to play a full role in the Inquiry and that there was no obvious source of funding in that regard. Furthermore, non State witnesses were also likely to be required. On that basis the Inquiry requested the Dept. of Justice to consider putting in place an appropriate scheme to cover the reasonable legal costs which might be incurred in arranging for the representation of such parties together with the expenses which would be likely to arise for the attendance of witnesses or other persons whose presence might be considered desirable by the Inquiry. Happily the Minister for Justice, in conjunction with the Minister for Public Expenditure, agreed to put in place a scheme which was closely based on the arrangements which had previously been agreed in respect of Commissions of Inquiry. That scheme was slightly amended to reflect certain particular aspects of this inquiry. The Inquiry welcomed the provisions made and should record that it did not appear to the Inquiry that any difficulty was, thereafter, encountered either in relation to facilitating the attendance of necessary parties or witnesses or, indeed, securing legal representation. The scheme is attached hereto While the question of third party costs and expenses in the context of public interest inquiries can always generate controversy, it seemed particularly important in the context of this inquiry that there not seem to be an undue disparity between the position of publicly funded bodies, on the one hand, and other interested parties who at least had as great an 14 Appendix 14 39

42 interest with the outcome of the Inquiry, who would not have had, in the absence of an appropriate scheme, access to funded assistance. (8) One Final Observation 8.1 The Inquiry considers that it would be remiss if it did not turn, at this stage, to one final observation on the process and issues in the light of what the Inquiry considers to be very misleading publicity which appeared in the Sunday Times of the 31 st January, In an article which appeared on page 8 of that edition, it was suggested that GSOC sought to have one of its commissioners excluded from giving evidence to the Inquiry. It is correct to state that there was a debate about the precise parameters of the matters on which Commissioner Fitzgerald could be questioned. That debate and the result thereof have already been addressed in the rulings section of this report and it is also true that one of the matters which was material to that debate was the fact that the conduct of Commissioner Fitzgerald, not being a designated officer, was not the subject of the inquiry. In that limited sense there was at least some tangential accuracy in the article. 8.2 However the suggestion both in the article and, in particular, in the headline that GSOC attempted to exempt Commissioner Fitzgerald from giving evidence is not only inaccurate but is the direct opposite of the truth. 8.3 The facts are as follows. As it happens the Inquiry, towards the end of Phase I, in conjunction with its Counsel, gave some consideration as to whether it should require the attendance of Commissioner Fitzgerald to give evidence. In the light of some of the evidence tendered in the course of Phase I it appeared to the Inquiry that it might well be the case that Commissioner Fitzgerald would have relevant evidence to give. However, while that matter remained under consideration, a letter dated the 7 th of October 2015 was received from Mason Hayes & Curran on behalf of GSOC which actually offered to make Commissioner Fitzgerald available to give evidence. In the light of that offer it was no longer necessary for the Inquiry to consider whether it should require Commissioner Fitzgerald s attendance. 40

43 8.4 The suggestion, therefore, that GSOC attempted to exempt Commissioner Fitzgerald from giving evidence is the direct opposite of the truth. GSOC in fact offered evidence from Commissioner Fitzgerald. The only issue concerning his evidence which arose was the legitimate concern of counsel to ensure that the questioning of Commissioner Fitzgerald, as with all other witnesses, was confined within the bounds of the issues which were within the Inquiry s remit. 8.5 It should also be noted that the same article contains a further significant inaccuracy. The article suggests that CCTV footage shows her standing on the edge of a road when his vehicle stopped. The her is a reference to Sheena Stewart and the his is a reference to Sgt Galvin. This report contains a full description of what can be seen on the CCTV footage concerned. As noted that CCTV footage gives a very different picture to the one described in the Sunday Times article. It shows Miss Stewart lying on the roadway as the vehicle approaches. 8.6 The Inquiry has no reason to believe that the journalist who wrote the article in question did other than accurately recount information imparted by a source. But it is abundantly clear that the information thus imparted was materially and significantly inaccurate and clearly designed to do damage to GSOC both in respect of the suggestion that GSOC had sought to exempt Commissioner Fitzgerald from giving evidence but also in the significant understatement of what was shown on the CCTV footage (which was clearly designed to suggest that the GSOC investigation was much ado about nothing). It will never be possible to determine who that source was. However, it seems to clearly follow that the source was either ill-informed with little direct knowledge of what occurred at the Inquiry or was deliberately disingenuous in relation to the information supplied to the journalist concerned. 8.7 The Inquiry makes these observations partly for the purposes of putting the record straight but also to indicate the dangers of potentially ill-informed or, worse still, disingenuous leaks. That risk is also material to the question of whether it is appropriate to distribute draft reports, a topic on which the Inquiry ruled as a described elsewhere in this report. 41

44 PART III THE FACTS (9) Sgt Galvin 9.1 While it is true that the specific focus of this inquiry is into the conduct of those designated officers of GSOC who were involved in the investigation into the death of Sheena Stewart, it would be naïve and inappropriate not to recognise that the reason for this inquiry is the death of Sgt Galvin. Before going on to outline the sequence of events relevant to the Inquiry s remit it is, therefore, important to say something about Sgt Galvin himself, while recognising that the terms of reference do include the conduct of the GSOC investigation, not only insofar as it related to Sgt Galvin but also the two other members of An Garda Síochána involved, being Sgt Doyle and Garda Clancy. 9.2 From an early stage it became very apparent to the Inquiry that Sergeant Michael Galvin was a member of An Garda Síochána of exceptional integrity who was a consummate gentleman and an exemplary sergeant. 9.3 Moreover, he was an individual who was intrinsically involved in his community on a voluntary basis, from being on the Board of Management at his children s school, to helping with the Tidy Towns competition and was clearly a mainstay within his community of Manorhamilton. Undoubtedly he was utterly devoted to his wife, Colette, and their three children and has been consistently described as both an excellent husband and father. The testimony of each and every witness who knew Sgt Galvin was entirely consistent in describing him in the fashion just described. The testimonial of those witnesses went very far indeed beyond the sort of kind words that might often be spoken in tragic circumstances. There can be no doubt on the evidence but that Sgt Galvin was both an outstanding member of An Garda Síochána and also an outstanding person. 9.4 Sergeant Galvin was also an excellent sportsman, who represented Sligo in both minor and senior football and captained both teams. Later, he was manager of both hurling and football teams at club and county level. As hurling manager he won the AllIreland Nicky 42

45 Rackard Cup in 2008 and that same year he was also nominated for the Sligo Person of the Year Award. 9.5 In direct evidence by his colleagues he was described as the rock of the station in his capacity as the Sergeant-in-Charge of Ballyshannon Garda Station. One colleague told the Inquiry how they went on a call one day to an elderly lady who was suffering from the first stages of dementia. They brought the lady home and her house was cold. Sgt Galvin lit the fire and swept the floor for her. He did not want to leave the lady cold in her house. This was an illuminating example of how dutiful and honourable a man Sgt Galvin was. The evidence heard consistently demonstrated that he treated those he encountered with dignity and respect. 9.6 Perhaps one of the most tragic aspects of this case is that it is apparent on the evidence that Sgt Galvin had volunteered to go into the Garda station to help his colleagues on New Year s Eve night. One colleague had asked to be relieved from duty because of a difficult family situation. It is clear that Sgt Galvin immediately volunteered to take the place of the colleague concerned on what obviously had the potential to be a difficult roster. It is, indeed, ironic that Sgt Galvin, but for volunteering in that manner, would not have been on duty at any time which would have led him to have had any involvement with Ms Sheena Stewart. It was generally observed that this selfless action was testament to the type of diligent, conscientious, principled colleague that he was. 9.7 It is outside the scope of this Inquiry to attempt to determine the precise reasons why Sgt Galvin took his own life. The focus of the Inquiry is, necessarily, on the conduct of GSOC designated officers. There can be no doubt on all of the evidence that the fact that he became the subject of an investigation came to weigh very heavily on Sgt Galvin and that, as time went on, he became increasingly depressed by the situation in which he found himself. It will be necessary to address, in due course, the circumstances in which Sgt Galvin came to know that he was the subject of a criminal investigation. However, it is clear that, from that time onwards, he was increasingly pre-occupied by the situation in which he found himself. Many of his colleagues, family and friends gave evidence of how, in different ways, he ceased to be himself. It is also apparent that, as time wore on and the time for his interview under caution approached, he became increasingly despondent about 43

46 the situation. Many witnesses gave evidence of attempting, whether at a professional, collegiate or personal level, to give reassurance that his situation was not at all as serious as he seemed to have come to believe. However, the evidence was equally consistent in making clear that Sgt Galvin seemed to obtain very little actual reassurance from those attempts. 9.8 There can be little doubt but that Sgt Galvin regarded his reputation for integrity very highly. It would appear that he considered the investigation to have impugned that reputation and that this imputation had a very significant effect on him. 9.9 It is, indeed, tragic that such a fine member of An Garda Síochána and member of his local community came to have such a depressed view of his situation. But, as indicated in the introduction to this report, the fact that there were tragic consequences does not, of itself, mean that there was significant fault. The tragedy does, however, behold the Inquiry to consider whether there was any fault or, even in the absence of fault, whether lessons can be learned from this case to minimise the risk of something similar happening in the future. Before leaving this specific section of the report, the Inquiry, and each of those who worked for the Inquiry, would wish to express their condolences to Colette Galvin, the other members of the extended Galvin family and Sgt Galvin s many colleagues and friends. (10) The Uncontroversial facts (i) Introduction 10.1 The purpose of this section of the Inquiry s report is to set out in detail the sequence of events, relevant to the Inquiry s remit, which was established in the course of the evidence. As will become clear there were only a limited number of aspects of those events which were the subject of dispute or conflicting evidence. It will be necessary to return to an assessment of the evidence in respect of those issues of controversy in due course. However, for the purposes of this narrative, it is intended simply to identify any such disputes for the purposes of noting the necessity to return to the issues raised. 44

47 (ii) The Tragic Death of Ms Sheena Stewart 10.2 As noted earlier the events with which the Inquiry is concerned commence with the death of Ms Sheena Stewart as a result of a RTA in the early hours of the 1 st January, But it was, of course, the fact that there had been interaction between Ms Stewart and some members of An Garda Síochána prior to her death that gave rise to the GSOC investigation in the first place. In that context it is appropriate to start by identifying that contact. The first such contact occurred at approximately am when Sgt Stuart Doyle and Gda John Clancy came across Ms Stewart on the roadway leading out of Bundoran towards Ballyshannon It would appear that Gda Clancy and Sgt Doyle had earlier noticed Ms Stewart but only in a very casual sense in that they recalled that, when they later came across her, they recollected that they had seen her earlier in the evening walking towards Finner. The gardaí in question spoke to Ms Stewart whom they found to be upset, apparently as a result of having had a row with her boyfriend. It would also appear that a further cause of upset was her wish, in the circumstances, to get home to Letterkenny. With that in mind the gardaí took her to the Bus Eireann bus station on Main St. in Ballyshannon from where, it was anticipated, she would be able to get a bus home Those gardaí left immediately after dropping Ms Stewart near the bus station. However, a number of members of the public subsequently made contact with An Garda Síochána and gave reports that Ms Stewart was lying on the roadway near the bus station. First, there was a call to the 999 emergency number which was transmitted to Ballyshannon garda station. Secondly, a concerned member of the public phoned a friend who was a garda based in Donegal town. That garda also called Ballyshannon garda station to pass on the message that there was a woman behaving in an erratic and dangerous manner on the roadway By this time Gda Clancy was back in the garda station at Ballyshannon. Reports of what appeared to be a serious hit and run incident had been received and the intention was that Gda Clancy, this time in the company of Sgt Michael Galvin, would travel to 45

48 investigate the incident which had occurred on the Donegal Road. In the light of the reports received concerning a woman lying on the roadway and generally behaving erratically near the bus station it was decided that Sgt Galvin and Gda Clancy would stop by the bus station on their way from the garda station to the Donegal Road. The normal route between those two venues would pass by the bus station in any event As will appear later, one of the principal issues into which GSOC inquired was the precise circumstances in which Sgt Galvin and Gda Clancy came across Ms Stewart. It will, therefore, be necessary to return to the detail of that question in due course. However, it is clear from CCTV footage seen by the Inquiry that, as the garda van (which was being driven by Gda Clancy with Sgt Galvin in the passenger seat) approached the scene, Ms Stewart was lying on the roadway but got up and moved quickly onto the footpath. Thereafter both gardaí spoke to Ms Stewart. Gda Clancy gave evidence that Ms Stewart was distressed because she felt she might have missed her bus back to Letterkenny. The gardaí sought to reassure her that they would return after they had attended to the incident on the Donegal Road. Gda Clancy gave evidence that Sgt Galvin intended, if it should prove necessary, to make arrangements for Ms Stewart to stay in a B & B type accommodation in Ballyshannon. It would appear that Sgt Galvin had often provided that type of assistance in the past In any event Sgt Galvin and Gda Clancy left Ms Stewart standing on the pavement opposite, or almost opposite, the bus station and carried on to investigate the incident on the Donegal Road. For completeness it should be noted that it ultimately transpired that the incident concerned was not, in fact, a hit and run, although it is clear on all the evidence that gardaí believed it to be of such a serious nature at the time At about 1.47 am, however, Ms Stewart was again lying on the roadway near the bus station when she was fatally injured as a result of being hit by a minibus/taxi being driven a William McKee. Gardaí were contacted by bystanders and Sgt Doyle went to the scene. Sgt Doyle gave evidence that he realised that the victim of the road traffic incident was the woman he had spoken and given a lift to earlier in the evening Before passing from the direct events relating to the death of Ms Stewart and garda contact with her prior to that death the Inquiry should note one further line of investigation 46

49 which it undertook but only for the purposes of explaining why that line of investigation turned out to have no bearing on any of the issues which the Inquiry was required to consider. The contemporary documentation obtained by the Inquiry from An Garda Síochána did contain reference to the possibility that Ms Stewart might have been involved in an earlier incident with a vehicle in Bundoran at a time prior to her being picked up by Sgt Doyle and Gda Clancy on the roadway out of Bundoran heading towards Ballyshannon. That documentation also suggested that a view had been taken at a relatively early stage that the person involved in the incident in question was not Ms Stewart. In the course of evidence before the Inquiry some members of An Garda Síochána were asked about that incident. The reasons why it was potentially a matter of interest to the Inquiry were twofold. First, it is clear that GSOC were unaware, at the time of the GSOC investigation with which this inquiry is concerned, of any such potential incident. Second, it would have been material to the Inquiry s remit if it transpired that gardaí were, on the evening in question, aware of a further earlier incident involving Ms Stewart and a motor vehicle particularly given that GSOC were never informed of any such incident As a result of the fact that the Inquiry had demonstrated an interest in this matter it was decided by An Garda Síochána that Gda Kevin Garvin, who is an expert in analysing CCTV footage, would look at the matter again. Further evidence was then given by Gda Garvin as a result of which the view was expressed that the person who was involved in the incident in question in Bundoran was, indeed, Ms Stewart. On the basis of that evidence and its own consideration of the facts, the Inquiry is satisfied that there was an earlier incident in Bundoran involving Ms Stewart in which she was brushed against by a moving car while walking on the roadway. However, the Inquiry is also satisfied that gardaí, at the time in question, had come to the genuine conclusion that the person involved in the incident in question was not Ms Stewart However, of much greater significance, further evidence became available which made clear the circumstances in which the gardaí came to know of the incident at all. It should be emphasised that the incident was not witnessed by any member of An Garda Síochána. Furthermore, the evidence established that the driver of the car in question, after he became aware of the death of Ms Stewart through the media, came to the view that the person whom he had come close to knocking down because of the way in which she walked 47

50 on the roadway, was in fact Ms Stewart. That driver then reported the potential incident to An Garda Síochána leading to the initial investigation which concluded that the person in question was not Ms Stewart. However, what is absolutely clear is that, on the night in question, no member of An Garda Síochána was aware of the relevant incident for it was first reported to An Garda Síochána at least a day later, if not more. Thus the incident in question could have played no role in any investigation of the conduct of An Garda Síochána for they were not aware of it at any time material to their actions in respect of Ms Stewart and there is no basis on which it could reasonably be suggested that they should have been aware of it It is next necessary to turn to the initial consequences of the tragic death of Ms Stewart leading to the establishment of a GSOC investigation into the matter. (iii) The Reference to GSOC It will be necessary, in due course, to return to certain aspects of the legislative framework within which GSOC operates. However, one aspect of that framework is to be found in s.102 of the 2005 Act. That section provides that the Commissioner of An Garda Síochána should refer to GSOC any case where it appears that the conduct of a member of An Garda Síochána may have caused the death, or serious injury, of, or to, a person. As the precise circumstances in which such a reference should be made was at least the subject of some minor differences between the parties, that question is a matter to which it will be necessary to return in due course However, for present purposes, it is appropriate to record that the incident involving the death of Ms Stewart was reported to the Superintendent on call for the area on the night in question, being Supt Michael Finan. Supt Finan was based in Letterkenny, but travelled to Ballyshannon Garda Station. While the legislation speaks of the Commissioner referring a matter to GSOC, it is agreed that the function in question is delegated to the relevant Superintendent so that the decision on whether to refer the matter to GSOC was in the hands of Supt Finan. One of the issues which was the subject of some debate before the Inquiry was as to the precise state of knowledge, at a very early stage, of relevant GSOC 48

51 officials. As the initial contact with GSOC came from Supt Finan, his precise state of knowledge, at the time in question, is also relevant to that question. That is an issue to which it will be necessary to return In any event, Supt Finan took the view that it was appropriate to refer the matter to GSOC under s.102 of the 2005 Act. In accordance with accepted practice he contacted Command & Control and requested that the GSOC officer on call contact him. He was subsequently contacted by SIO Nick Harden. It was agreed that SIO Harden would travel to Ballyshannon. Prior to the arrival of SIO Harden (who was accompanied by IO Maurice Breen), Supt Finan spoke to Insp Joyce who informed Supt Finan of the facts as he then understood them to be. It would also appear that Supt Finan had obtained a report from Sgt Doyle and as a result of the information which he received in that regard, prepared a report for submission to the Assistant Commissioner of An Garda Síochána for the Northern Region However, in the meantime, SIO Harden made contact with the GSOC Director of the Investigations, DI Ken Isaac, and they had a discussion about the designation of the investigation. It was agreed that the investigation would be conducted under s.98 of the 2005 Act which, in substance, means that the investigation was a criminal investigation. In accordance with the appropriate practice a recommendation in that regard was made by SIO Harden but the final decision was that of DI Isaac. There was significant controversy between the parties represented at the Inquiry as to whether the designation of the investigation as a criminal investigation was, in all the circumstances, justified on the basis of the circumstances that existed at the time in question. That issue will be returned to in detail in due course. However, it does appear clear that the information available to GSOC at the time in question consisted of information which had been imparted by Supt Finan in his phone conversation with SIO Harden. It was not suggested that either SIO Harden or DI Ken Isaac, had any other source of information. Finally, it should be noted that Supt Finan directed that the point of contact for the GSOC officers, whose arrival in Ballyshannon was anticipated, was to be Insp Joyce. 49

52 (iv) The GSOC Investigation: The Initial Steps SIO Harden and IO Breen arrived at Ballyshannon on the evening of the 1 st January. A meeting took place between those officers and Insp Joyce There are differences in the evidence of the various persons who were there as to precisely what was or was not said. Those differences centre around the question of whether it was communicated (or, perhaps, on one view, adequately or properly communicated) to Insp Joyce that GSOC were engaged in a criminal investigation. In addition, the evidence is not entirely consistent concerning the understanding of the parties as to precisely how the investigation by GSOC was to progress, particularly in the context of the type of statements that were required from those gardaí who had had contact with Ms Stewart However, some matters are not in dispute. It appears to have been understood by all parties that Sgt Gerry Mullaney had been given the task of carrying out what one might call an ordinary garda investigation into the RTA as a result of which Ms Stewart died. It also appears to have been understood that there would be a certain overlap between the two investigations and that certain materials, such as CCTV footage, would be likely to be of importance to both In any event, the two GSOC officers concerned returned on the 2 nd January and provided a so-called document request which had been prepared by IO Breen. That request was filled out on a standard form which the Inquiry understands GSOC officers use for that purpose. Amongst the matters requested were statements from those members of An Garda Síochána who had had contact with Sheena Stewart It would also appear clear that the initial focus of the GSOC investigation was as to whether appropriate actions were taken by An Garda Síochána in respect of dealing directly with the deceased (Ms Stewart) or in response to calls from members of the public It is also clear that on the same day, the 2 nd January, an operational decision was made to allocate the investigation to IO Daniel Gallagher who was based in Donegal and 50

53 who would report to SIO John Leeman. Insp Joyce was made aware that IO Gallagher would be the point of contact from then on. (v) The CCTV Footage Gardaí collected CCTV footage from a number of sources, but of particular relevance to the issues which arise in this Inquiry is the footage from the Bus Eireann Depot.. Gda Garvin, who retrieved the CCTV footage as part of the Garda investigation, confirmed in evidence that the time displayed on the CCTV footage from Ballyshannon Bus Station is 2 minutes and 43 seconds slow. A copy of that footage was furnished to IO Gallagher who viewed same on the 12 th January and took the view, from looking carefully at the footage concerned, that the gardaí in question (being Sgt Galvin and Gda Clancy) would have observed that Ms Stewart was, as they approached her, lying on the roadway As noted earlier, the Inquiry has had the opportunity to see the CCTV footage in question. Furthermore, facilities were made available so that any witness could view the footage concerned and make any comment that they wished on it. That footage appears, at an early stage of the sequence in question, to show Ms Stewart sitting or standing in a doorway or window on the far side of the road from the bus station and some little distance up from it. Thereafter a bus pulls in and the view of the area where Ms Stewart had previously been becomes obscured. However, when the bus pulls away at 01:19:15 it is clear that Ms Stewart can be seen lying on the roadway. Some little time later a garda patrol van can be seen approaching from the bridge on the left hand side of the screen. The brake lights on the garda van are seen to be on as it comes into view at 01:21:22. and, at the same time, Ms Stewart can be seen getting up from the roadway and then moving quickly onto the footpath and running down what appears to be a lane. Thereafter, the van pulls in and the two gardaí (being Sgt Galvin and Gda Clancy) can be seen talking to Ms Stewart on the footpath Whatever about the circumstances in which the investigation was initially designated as a criminal investigation under s.98 of the 2005 Act, it was certainly reasonable for IO 51

54 Gallagher, in the light of that CCTV footage, to regard it as appropriate to investigate whether the gardaí in question had seen Ms Stewart lying on the roadway. However, at that stage GSOC had not received any statements from the gardaí in question. That leads to that next point in the sequence of events and, indeed, the next area of controversy being the circumstances in which those garda statements were taken. (vi) The Taking of the Garda Statements Sgt Doyle had, in fact, prepared a report on the 1 st January, He subsequently provided a statement to Insp Joyce which contained the same information. On the 7 th January Gda Clancy made a statement in respect of the events of the night in question. Sgt Galvin made a statement on the 25 th January. The first question of controversy concerns whether those members had been informed, prior to their making the statements in question, that the statements were intended, at least in part, for use by GSOC and that, in that context, it was required that each garda should justify his actions vis-à-vis Ms Stewart on the evening in question It should be noted that Sgt Mullaney continued to gather materials in the ordinary way in relation to the RTA investigation. Statements were taken from other members of An Garda Síochána and members of the public. The entire file was provided to GSOC once it had been completed Likewise, IO Gallagher took certain steps in relation to the GSOC investigation including making contact with the Coroner in respect of GSOC s involvement together with making contact with the family of Sheena Stewart. He also sought the PULSE log in respect of Sheena Stewart It was at this stage that it became clear that there had been no formal notification of the existence of a s.98 investigation. It will be necessary to go into that issue in more detail in due course. However, as a result, it would appear, of issues which had emerged in the past concerning the timely making available of materials to GSOC from An Garda Síochána, a common method of requesting materials (called the Gearáin system) was 52

55 established. However, when IO Gallagher sought the PULSE log through that system he was told that there had been no formal notification of the s.98 investigation. As a result, on the 25 th January, IO Gallagher sent such a notification in accordance with the Protocol. That involved an letter to the Chief Superintendent of Garda Internal Affairs to that effect which also suggested that Sgt Doyle, Sgt Galvin and Gda Clancy had been identified as persons involved in the investigation As it is of some relevance to one of the issues which arose at the Inquiry (being the question of communication and notification generally) it does need to be recorded that the relevant correspondence was forwarded by Supt Louise Synott of Garda Internal Affairs to the Divisional Office in Letterkenny. In accordance with standard practice it was intended that the three members specified should be notified, in writing, that the incident was being investigated under s.98 of the Act. Unfortunately it would appear that the in question was inadvertently deleted so that it was never passed along from the Divisional Office in Letterkenny for communication to the three members concerned. It is in those circumstances that it would appear that, despite the fact that GSOC sent a formal notification to An Garda Síochána in accordance with the agreed protocols (even thought it may have been somewhat late) the intended passing on of that information to the members concerned never occurred. It will, as noted earlier, be necessary to return to that question in the context of communication and information generally. It should also be recorded that the evidence suggests that none of the three members concerned were ever formally notified that they were the subject of a s.98 investigation In any event, on the 2 nd February, 2015, IO Gallagher attended at Ballyshannon garda station and received a number of materials which had been the subject of the request made on the 2 nd January. The materials included the statements from Sgt Doyle, Sgt Galvin and Gda Clancy As noted earlier it will be necessary to return to the question of what the understanding of the members concerned was as to the purpose of those statements. Be that as it may it became clear, once those statements had been received and considered, that there was an apparent conflict between the statements of Sgt Galvin and Gda Clancy, on the one hand, and the CCTV footage already described. 53

56 (vi) The Conflict It is first appropriate to set out the relevant passages from the statements in question. The relevant passages from the statements in question read as follows. Sgt Galvin said: As we approached the bus station I observed a lady who I now know to be Sheena Stewart on the footpath on the left hand side of the road close to Erne Carpets. She was carrying what I would describe looked like a sports bag. Gda Clancy stopped the van and I got out of the van and spoke to her. She informed me that the bus to Letterkenny was gone and was concerned how she would get home. I told her to wait there and that we would respond to a call on the Donegal Road where we thought a man had been knocked down by car. I told her that we would return and try to help her when we were finished on the Donegal Road Gda Clancy gave the following account in his statement: On our way there we received a radio message saying that there was a woman on the road at the bus station in Ballyshannon. We were close to the bus station when we got the radio call. As we got near the bus station I saw Sheena Stewart standing on the footpath. Her holdall bag was beside her. I stopped the van beside her and both Sgt Galvin and myself spoke with her. She was concern [sic] that the bus had gone and she would be left in Ballyshannon. Sgt Galvin informed her that we were on our way to an incident at the Donegal Road and we would return to her as soon as we were finished there. As we left Sheena Stewart was sitting on her holdall bag with her back against the wall of the Erne carpet shop. The time was approximately 1.27am It would also appear that IO Gallagher had, prior to receiving those formal statements, been informed as to what appeared to be the general garda account in his briefing from SIO Harden on the 2 nd of January His notes of that meeting indicate that he was briefed on that issue as follows: 01:20 Sgt observed her sitting on bag opposite bus station Sgt on route home 01:30 back to Gda station Sgt observed Sgt and Garda talking to her Reports of her on road, Garda checked on footpath Sgt 54

57 CCTV from bus station covers incident 2 Sgts and 1 Garda It is clear that the initial reference to Sgt refers to Sgt Doyle, who had seen Ms Stewart at an earlier stage and then again passed by while Ms Stewart was talking to Sgt Galvin and Gda Clancy. The reference to observed Sgt and Garda is, therefore, a reference to Sgt Doyle observing Sgt Galvin and Gda Clancy. However, the report which was conveyed to IO Gallagher suggests that, when those two members of An Garda Síochána checked, Ms Stewart was on the footpath. It is in that context that IO Gallagher initially identified a potential conflict between the account which had been communicated to him and the CCTV footage which appeared to show Ms Stewart lying on the roadway as the garda van approached Be that as it may, after the statements were obtained, a review of the GSOC investigation took place on the 12 th February. Those involved were SIO Leeman and IO Gallagher. The record of that review suggests that a view was taken that the CCTV footage did not appear to match the accounts of Sgt Galvin and Gda Clancy. The review further suggested that those accounts, therefore, needed to be clarified and that this should rightly be done after caution It should be noted that two other relevant aspects of the GSOC investigation continued in parallel at this time. On the 2 nd February IO Gallagher had received the RTA investigation file and, arising therefrom, arranged to take supplemental statements from several members of the public identified from that file who appeared to be in a position to give evidence relating to the behaviour of Sheena Stewart and in particular her positioning at the time when Sgt Galvin and Gda Clancy had come into contact with her. Those interviews took place in late February with a statement being taken from Stephen Nairn by IO Gallagher on the 21 st February and statements being taken from a Denis Gordon and a Maurice Kane by AIO Michael Kilcoyne on the 26 th February Thereafter a further case review occurred on the 9 th March involving SIO Rody Butler and IO Gallagher at which it was agreed that the interview under caution of both Sgt Galvin and Gda Clancy (which had been decided on at the previous review on the 55

58 16 th February) should take place after toxicology reports had been obtained. Attempts to arrange the interviews under caution commenced in the latter part of March. (vii) The Interviews under Caution IO Gallagher commenced attempting to arrange the interviews under caution on the 24 th March when he contacted Ballyshannon garda station but did not manage to speak with either of the two members concerned. He did, however, leave messages for both of them. Ultimately contact was made with Sgt Galvin on the 26 th March by phone. During that conversation IO Gallagher indicated to Sgt Galvin that he was seeking to interview him under caution. Sgt Galvin expressed surprise and inquired what the purpose of the interview was. IO Gallagher explained that it arose out of a discrepancy between his witness statement and the CCTV footage Later on the same day Sgt Galvin called back to IO Gallagher and asked what the basis for any criminal investigation was. IO Gallagher informed him that it arose under either or both as s.110 of the 2005 Act or in relation to an allegation of perverting the course of justice contrary to common law. There would appear to be little doubt, from all of the evidence which the Inquiry has heard, that the receipt of those phone calls and the subsequent cautioned interview had a profound effect on Sgt Galvin. It should also be recorded at this stage that it seems clear on the evidence that, at the time when he received that initial telephone contact, Sgt Galvin was unaware that he was the subject of a criminal investigation under s.98 of the 2005 Act. Why that was so is a matter which has already been touched on and will need to be considered in more detail later in the course of this report IO Gallagher was also in contact with Gda Clancy at or around the same time and provided the same information to him. Arrangements were made with Gda Clancy that he would be interviewed on the 6 th May at the office of his (Gda Clancy s) solicitor in Sligo. IO Gallagher initially sought to interview Sgt Galvin during April. However, this date was postponed to enable Sgt Galvin to consult with his solicitor. The evidence suggests that Sgt Galvin attended for two consultations and had numerous telephone conversations with 56

59 his solicitors in Dublin being Michael Hegarty and Gerald O Donnell of Smyth O Brien Hegarty. The evidence confirms that Sgt Galvin was deeply concerned and agitated about the investigation and communicated that fact to his legal advisers. In conjunction with those legal advisers it was agreed by Sgt Galvin that a written statement would be drafted and that this statement would be submitted at the interview with GSOC On the 28 th April Smyth O Brien Hegarty, acting on behalf of Sgt Galvin, sent a letter to IO Gallagher seeking clarification as to the reason for the cautioned interview and also raising the fact that Sgt Galvin had not been notified that he was under investigation. IO Gallagher replied by letter of the 5 th May setting out the offences concerned and suggested that the notification procedures contained in s.88 of the 2005Act did not apply in the case of Sgt Galvin as the investigation did not, in his case, arise from a complaint from a member of the public but rather because of a reference to GSOC under s.102 of the Act Thereafter the respective interviews under caution occurred. The first in time was that of Gda Clancy. In advance of those interviews IO Gallagher in conjunction with SIO Butler prepared a document which was intended to be an aid for the conduct of the questioning of both members. At his interview Gda Clancy submitted a pre-prepared statement but then questions were put to him by IO Gallagher largely following the format that had been set out in the pre-prepared document. The interview with Gda Clancy lasted approximately one hour and 44 minutes The interview with Sgt Galvin occurred on the 20 th May at GSOC headquarters in Dublin. Sgt Galvin was accompanied by his solicitor, Mr O Donnell. It should be recorded that GSOC had previously indicated that the interview could be conducted, if Sgt Galvin wished, at a suitable location near his base. However, the interview as ultimately arranged took place in Dublin where Sgt Galvin s solicitors are based. For this interview IO Gallagher was accompanied by IO Pauline Byrne. At the outset Sgt Galvin indicated that he did not wish or require that the interview be recorded. Having been cautioned Sgt Galvin indicated that he had a prepared statement and this statement was read into the record. It was further indicated by Sgt Galvin that he did not wish to answer any further questions and on that basis none of the matters which had been prepared by GSOC in 57

60 advance were, in fact, put to Sgt Galvin. approximately twelve minutes. The interview with Sgt Galvin lasted (viii) After the Cautioned Interviews As already noted the interview with Sgt Galvin happened on the 20 th May and followed on from the earlier interview with Gda Clancy which had occurred on the 6 th May. On the day following the interview with Sgt Galvin (being the 21 st May) IO Gallagher prepared an and summary of the investigation. That document recommended against criminal prosecution. That documentation was forwarded to SIO Johan Groenewald (who by then was IO Gallagher s line supervisor) who suggested that the documentation would be forwarded to legal affairs of GSOC for their views. On the 27 th May Niamh McKeague of legal affairs responded to IO Gallagher indicating her agreement that no criminal conduct was disclosed. However, her response suggested that, in the circumstances, it was necessary to forward relevant materials to the DPP This would appear to have been in the light of what the evidence established was a standard GSOC policy in any investigation where GSOC were of the view that Art. 2 of the European Convention on Human Rights was engaged. In such circumstances it would appear to have been standard GSOC policy that the matter must be submitted to the DPP for consideration before a final decision not to proceed with a criminal investigation was made. It will be necessary to return to that policy and its application in this case, in due course However, in the light of some of the publicity surrounding the events involving the death of the late Sgt Galvin and indeed in the light of the misapprehensions under which some of his colleagues remained when they gave evidence before the Inquiry, it is important that certain factual matters are set out very clearly There were suggestions made that there was, as it were, a letter on file or prepared to be sent to Sgt Galvin indicating that he had been cleared which, for some reason, had just not been sent. There is no evidence that this was the case and the Inquiry is fully satisfied that no such letter was ever prepared. It would be entirely inconsistent with the contemporaneous written record and the consistent evidence of all of the GSOC witnesses. 58

61 As noted earlier it will be necessary to return to standard practice in due course. But what occurred does appear to the Inquiry to have fully complied with that standard practice. The investigation officer concerned prepares a report which is passed up the line to a senior investigating officer. A legal view is also taken and the matter goes to the Commissioners. In cases involving a death after garda contact, and even where the considered view within GSOC is against a criminal prosecution, nonetheless the file is sent to the DPP It is clear that, had it not been for the intervening and tragic event of Sgt Galvin s death, it would have taken at least a number of weeks and, perhaps, over a month before those standard procedures had been completed and a final decision taken, after the DPP had been consulted, to the effect that no prosecution was to take place It is also clear that standard practice at the time would have required that Sgt Galvin would have been informed of the fact that a file had gone to the DPP but would not, until the views of the DPP became known, have been informed as to what recommendation GSOC were making. Whether there is any basis for suggesting that, either generally, or in the particular circumstances of this case, a different process should have been followed is a matter to which it will be necessary to return. However, it is clear to the Inquiry that what happened in this case followed standard practice and that, in the light of the fact that IO Gallagher, as the investigating officer on the ground, made his recommendation as of the 21 st May, there was, unfortunately, no reality to there having been any prospect of Sgt Galvin being informed of the fact that no prosecution was to progress for at least five or six weeks thereafter. Tragically, as we know, Sgt Galvin took his own life one week later It is, in the Inquiry s view, important not to get overly involved in a debate about the semantics of how one might describe the situation as of either the 21 st May when IO Gallagher issued his draft recommendation, or, indeed, the 27 th May when legal affairs indicated their agreement. However, the Inquiry does not feel that it could reasonably be said that Sgt Galvin had been cleared as of either of those dates in the strict sense of that term. IO Gallagher s recommendation was just that, a recommendation. Legal Affairs agreement was conditional on their additional recommendation that the matter should go to the DPP. Neither of those positions could be said to be absolutely final. 59

62 10.51 There is, of course, a very real sense in which it can properly be said that, as of the time in question things had moved very positively in Sgt Galvin s favour. The investigating officer on the ground had recommended no prosecution; his superior officer did not demur and legal affairs agreed. It is, perhaps, not particularly surprising that, in the fraught aftermath of Sgt Galvin s tragic death, some matters were described from time to time in a way which was less than strictly accurate. However, the Inquiry is required to look objectively at the facts and the evidence. It does not seem to the Inquiry that it can properly be said, in those circumstances, that Sgt Galvin had been the subject of a final decision not to prosecute at any time prior to his death. Rather the situation was that the relevant personnel within GSOC had, subject to a final consultation with the DPP, agreed to recommend that there should be no prosecution It should also be added that, even to the extent that a final decision to recommend that there be no prosecution is concerned, that determination, internal to GSOC, was only complete on the 27 th May when IO Gallagher s initial recommendation had been the subject of the agreement of both his superior and legal affairs. Indeed, on one view, it might be said that it was not even internally complete on that date for normal practice would have required IO Gallagher to prepare a formal report which would then have the subject of formal legal advice from legal affairs both of which documents would have been placed before the Commissioners themselves for a final decision In the light of events as they stood on the 27 th May it would have been highly improbable that the decision of the Commissioners would have been anything other than to transmit the papers to the Director of Public Prosecutions with a recommendation that there be no prosecution. However, strictly speaking, even as of the 27 th May, those further steps remained to be completed. (ix) The Tragic Death of Sgt Galvin In the early hours of the 28 th May the body of Sgt Galvin was discovered in Ballyshannon garda station at approximately 7.00 am. He had died as a result of what appeared to be a self-inflicted gunshot. He had left a note which contained a suggestion that the GSOC investigation had influenced his actions. As his death had occurred in a 60

63 garda station and as the weapon used was a garda issue firearm it was considered necessary to refer the death of Sgt Galvin to GSOC under s.102 of the 2005 Act. This Inquiry is confined to considering the conduct by GSOC designated officers during their investigation into the events surrounding the death of Sheena Stewart. The potential GSOC investigation into the death of Sgt Galvin is, therefore, outside those terms of reference. However, some brief reference to what occurred is necessary to complete the narrative. SIO Harden was the relevant senior officer on call. He immediately contacted the DDI Wright. SIO Harden was aware, of course, of the fact that Sgt Galvin had been the subject of a GSOC investigation and also became aware at an early stage that there was a reference to the GSOC investigation in the note left by Sgt Galvin. For operational reasons the matter was deemed to be a critical incident which defined the precise procedures which were to be followed at a high level within GSOC. A decision was taken that none of the GSOC officials who had been involved in the investigation into the death of Sheen Stewart should be involved in the investigation into the death of Sgt Galvin. In that context SIO Gareth Croke was nominated to be the senior investigating officer involved. SIO Croke travelled to Ballyshannon and met with senior gardaí This led to one final aspect of the investigation into the death of Sheena Stewart with which it is necessary to deal. In circumstances which will be shortly addressed GSOC issued public confirmation of the status of the inquiry into the death of Sheena Stewart and in particular the status of that inquiry insofar as it related to Sgt Galvin. It was very clear from all of the evidence heard by the Inquiry that both the family and friends of Sgt Galvin and also his colleagues in An Garda Síochána were extremely upset and distressed by the way in which the matter was handled. I think it is also fair to record that those GSOC officials who were involved at the time acknowledged that considerable distress had been caused but suggested that they had been placed in a very difficult position by events as they unfolded The Inquiry is mindful that it should not overstep the boundaries of its remit. As noted earlier in respect of the process followed, it was accepted that the extent of the Inquiry s remit stopped short of inquiring into actions of the Commissioners themselves but rather was confined to designated officers. In the same context it also requires to be 61

64 recalled that Ms Lorna Lee, who, as Head of Communications at GSOC, played a role in these matters, is also not a designated officer and not, therefore, the subject of this Inquiry So far as this aspect of the Inquiry is concerned, therefore, the only issues relate to the conduct of designated officers in the context of the issuing of statements and the like concerning the status of the investigation under s.98 of the 2005 Act into the circumstances surrounding the death of Sheena Stewart insofar as, in particular, same related to Sgt Galvin However, in order to understand the precise issues which arise, it is necessary to give, at least in brief and general terms, an account of the events as they unfolded It seems clear from the evidence that, very soon after Sgt Galvin s death, the media became aware of the fact that Sgt Galvin had been the subject of a GSOC investigation. Some witnesses suggested that, at least from the time of Sgt Galvin s funeral, there was reasonably widespread information in the local community to the effect that Sgt Galvin had been the subject of such an investigation Evidence was given by Ms Lee, GSOC Head of Communications, which the Inquiry fully accepts, to the effect that there was a growing and extensive media interest in the story over the next number of days. Furthermore, it seems clear that some entirely inaccurate and fanciful rumours were doing the rounds. For example, there was one suggestion, which was put to Ms Lee by a journalist, to the effect that Sgt Galvin had been involved in an incident with a politician which was said to have formed the basis of the GSOC investigation. Ms Lee, who is very experienced in her job, described the level and type of queries which she was receiving as being unprecedented The Inquiry has no reason to suspect that any of the queries addressed to GSOC by members of the media were anything other than based on information received by the journalists concerned. However, if that be so it follows that at least some of those who were giving information to the media were either grossly ill-informed or were engaged in pure speculation or even mischief making. There was, therefore, a significant risk of the story developing and, potentially, matters being published which were far from the truth. The evidence of all those involved on the GSOC side was that there was genuine concern 62

65 that there might a problem about the types of stories which might be published in the context of a matter which seemed to be attracting quite significant attention. It would also be naïve not to acknowledge that GSOC s own involvement was a matter which had the potential to lead to significant adverse publicity for GSOC itself. This aspect also had to be handled by GSOC and must have informed GSOC s actions In the run up to what was a bank holiday weekend a decision was taken involving principally Commissioner Fitzgerald, DDI Wright and Ms Lee which set out a strategy for dealing with any potential publicity. While it is outside the scope of this Inquiry to investigate the reasonableness or otherwise of that decision, the Inquiry feels that, in fairness, it should record that the strategy devised does not seem to have been unreasonable in all the difficult circumstances of the case The first leg of the strategy was to attempt, to the extent that it should prove possible, to prevent the story gaining prominence. Ms Lee gave evidence, which the Inquiry accepts, that it had proved possible in the past, particularly in cases involving personal or tragic circumstances, to, as it were, put a lid on a particular story. Given the level of interest on this occasion there may well have been some doubt as to how successful such a course of action might be and with that in mind a fall-back position was agreed. Essentially the fallback position involved authorising Ms Lee to issue a public statement and, if necessary and appropriate, to answer direct queries from members of the media, in the event that the story developed in a way which made it likely that there would be significant publicity. At the same time it was agreed that, should it prove necessary to implement that fall back strategy, interested parties would need to be informed including the Galvin family and, indeed, the family of Sheena Stewart In fairness to all, the Inquiry feels it necessary to set out the rationale behind that strategy. All of those involved on the GSOC side were, by that time, aware that the point which had been reached in the investigation into the death of Sheena Stewart was that all of those directly involved (including Legal Affairs who had been consulted) were of the view that no prosecution should be brought. That matter was not, of course, in the public domain. Indeed, no persons outside of GSOC would, at the time in question, have been aware that, at least at an operational level, the investigation had concluded and that, subject 63

66 to the production of formal reports, a formal decision of GSOC, and the view of the DPP being obtained, it seemed almost inevitable that there would be no prosecution However, the concern was that there would be publication of the fact that Sgt Galvin was under GSOC investigation and, perhaps, that at least some of the speculation as to the basis of that investigation might find its way into the public domain. The concern expressed in evidence by the relevant GSOC personnel was that GSOC might be the subject of legitimate criticism if it were to transpire that it stood mute in the face of publicity concerning the fact that Sgt Galvin was the subject of a GSOC investigation when GSOC knew that, to a very large extent, that investigation had completed, subject to what were likely to be formalities, in a manner wholly favourable to Sgt Galvin. It seems to the Inquiry that that was a legitimate concern. If things had turned out differently and a decision had been taken not to make any comment and if it had transpired, as it seems likely would have happened, that there was significant media comment on the fact that Sgt Galvin had been the subject of a significant GSOC investigation and, quite possibly, speculation as to the basis of that investigation, but that, at the same time, GSOC were aware that, at least at an operational level, a provisional decision not to prosecute had been taken, the very fact that GSOC made no comment might itself be the subject of this Inquiry and be the subject of significant criticism It should be pointed out that the making of a statement of the type which was ultimately made was unprecedented. It is not in accordance with GSOC s normal practice to issue statements about the status of inquiries. However, the situation, as it appeared on the bank holiday weekend in question, was itself unprecedented. There was a risk that there could be publicity adverse to Sgt Galvin s good name in circumstances where operationally GSOC had decided that he should not be prosecuted. In those circumstances, and unless the first leg of the strategy of attempting to keep the story out of the media was successful, it was at least a legitimate judgment call to take the view that making a statement was the least bad option In the events that happened it became clear on 1 st June, 2015 that the story was likely to break in that Greg Harkin, a journalist from Northern Ireland who at that stage was working for the Irish Independent, contacted Ms Lee in circumstances which led Ms Lee 64

67 to consider, reasonably in the Inquiry s view, that the story was going to break. It was decided to implement the alternative strategy. The Inquiry should reiterate that Ms Lee s conduct is outside the scope of its remit. In the course of conducting the Inquiry, contact was made with Mr Harkin who drew the Inquiry s attention to his description of events as published in the Irish Independent on the 2 nd June, There are some differences in detail between that description and the evidence given by Ms Lee as to precisely what passed between her and Mr Harkin in the course of their dealings on the occasion in question. However, precisely because Ms Lee s conduct is not under scrutiny, it is unnecessary to resolve those issues. Suffice it to say that information was given to Mr Harkin which confirmed that Sgt Galvin had been the subject of an investigation but also gave some information concerning the status of that investigation Soon thereafter a formal statement was issued in the following form on the 2 nd June, 2015:- There have been media reports about the death of Sergeant Michael Galvin in Donegal last week. We believe that it is important to clarify matters in relation to the GSOC investigation into his death and his involvement with GSOC prior to his death. Sergeant Galvin is not, nor was he ever, the subject of a complaint to GSOC. The sergeant was interviewed in the context of a fatal incident on 1 January 2015, which was referred by the Garda Síochána to GSOC for investigation, because the law provides for GSOC to investigate, where there has been garda contact with a person prior to death or serious harm occurring. This is a routine occurrence and it should not be automatically assumed that there is garda misconduct in such cases that are referred to GSOC. Sergeant Galvin was interviewed about the incident on the afternoon of 20th May. GSOC s investigation concluded the following week and found no evidence of a criminal offence or a breach of discipline by any garda member. It is unusual that GSOC would share its findings at this point in the process, but given these exceptional circumstances we believe that it is appropriate. GSOC does not make a decision as to whether either criminal charges or disciplinary sanctions are brought against a person; our role is to conduct an investigation and forward the file to the DPP, 65

68 where appropriate, and to the Garda Commissioner, for decision. This is the stage that case is at: the investigation has concluded and a file is being prepared for the DPP, which is normal where the original incident involved a fatality. It is standard procedure that all garda members affected and the Garda Authorities would be updated to this effect. They would later be updated as to the decision of the DPP. We are satisfied that our interaction with Sergeant Galvin during the investigation was proportionate and reasonable. Nevertheless, in light of what has happened and of the concerns of his family, we will be arranging a peer review of the investigation. The current investigation into his death, which was also referred to GSOC by the Garda Síochána, will also be subject to peer review, given that this agency was in contact with Sergeant Galvin prior to his death. GSOC has reciprocal arrangements in place with other police oversight bodies for such eventualities and we believe that this is the most appropriate review mechanism in these circumstances. We wish to extend our deepest sympathies to Sergeant Galvin s family, friends and colleagues at this very sad time In accordance with the original strategy, an attempt was made at the same time (being on the 1 st June, 2015) to contact the Galvin family. In this regard DDI Wright requested SIO Gareth Croke to contact the Galvin family. SIO Croke attempted to contact Supt Colm Nevin, in order for the Supt to explain matters to the Galvin family. There were several failed attempts to get in contact with Supt Nevin on the telephone and eventually it appears that Chief Supt McGinn was reached by telephone by SIO Croke later that evening It should be recorded at this stage that it had been made clear, through garda channels, to GSOC that the Galvin family would not welcome any direct contact from GSOC or its officers at the time in question. Given the fraught situation in which the Galvin family found themselves at that time the position which they adopted was, of course, more than understandable. An offer had been made that senior GSOC personnel 66

69 (including, if appropriate, a Commissioner) would meet with the Galvin family but, having taken some time to consider that offer, it was indicated that the family would not welcome such a contact at that time. It follows that the attempts made by SIO Croke (on the instructions of DDI Wright) to contact the Galvin family were necessarily directed through An Garda Síochána. It should also be recorded that there was a mass organised on the evening in question at the Garda Station for the colleagues of Sgt Galvin. The fact that Supt Nevin was involved with such matters on the day in question may well have contributed to the difficulty in making contact. There is, however, no doubt from the evidence of the relevant mobile phone records that serious attempts were made to contact An Garda Síochána for the purposes of conveying the appropriate information to the Galvin family It seems to the Inquiry to be particularly unfortunate that the information which was published by GSOC came to the Galvin family and, indeed, the friends and colleagues of Sgt Galvin, in the manner in which it did and that, in particular, a considered and accurate account of what GSOC wished to say was not clearly communicated to the Galvin family before they heard a version of the information from other sources. The distress which that caused was undoubtedly genuine and significant. It may well also be that the way in which the information came out at that time contributed to some of the misunderstandings concerning what actually happened which has already been commented on such as the view, which seems to have been held by quite a few of those involved, that there was a letter clearing Sgt Galvin sitting, unposted, on a desk However, so far as the actual issues with which the Inquiry is concerned, the only issue, to which it will be necessary to return, is whether any designated officer could be said to have been at fault in causing or contributing to that state of affairs. As already noted the Inquiry believes, in any event, that the decision to adopt a strategy which would involve, should it prove necessary, communicating information to the media, was reasonable. The inquiry has already noted that the sequencing of events whereby media statements were made before, as a fact, the Galvin family were informed, was most unfortunate and led to great distress and, indeed, may well have contributed to some material misunderstanding. The issue which will need to be considered is whether any fault can be attributed to any designated officer in respect of that sequencing question. 67

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71 PART IV ISSUES FOR RESOLUTION (11) The Approach (i) The Standard or Basis of Review 11.1 One of the issues raised by Counsel on behalf of GSOC as to the proper approach of the Inquiry in compiling its report was as to the standard or basis by reference to which the conduct of individual GSOC designated officers should be reviewed In that context it should be noted that the legislation is silent as to the precise nature of the report which a judge nominated to conduct an inquiry under s.109 should submit to the Minister. Section 109(1) specifies that the judge is required to inquire into the conduct of a designated officer in performing functions under s.98 or s.99 of the Act. Subsection (3) specifies that the relevant judge s terms of reference are to be included in the request which the Minister sends to the Chief Justice to invite a judge to inquire. Thus the parameters of the Inquiry are defined by those terms of reference and the fact that the Inquiry must be into the conduct of a designated officer in performing functions in respect of a criminal investigation. All that the legislation says about the report is that the judge shall report its results to the Minister where the its refers to the Inquiry. Obviously the report must be confined within the parameters of the terms of reference but, subject to any question or issue arising legitimately within those terms of reference, the Act does not appear to place any limitation on the manner or scope of the report In that context it is appropriate to note a significant difference between the way in which the legislation approaches an inquiry conducted by GSOC into the conduct of a member of An Garda Síochána, on the one hand, and an inquiry conducted by a judge, under s.109, into the conduct of a GSOC designated officer, on the other. GSOC s role is, at least generally, focused on whether either criminal behaviour may be disclosed (leading to the matter being referred to the DPP to consider the possibility of a criminal prosecution) or whether conduct worthy of disciplinary action may be disclosed (leading to the matter being referred to the garda authorities to instigate the appropriate disciplinary 69

72 procedures). It is true that, in the course of evidence, GSOC made clear that there might well be occasions where some general or systemic recommendations were made as a result of a GSOC investigation, whether instead of or in addition to specific findings about an individual member of An Garda Síochána, which might, potentially, lead to either criminal or disciplinary proceedings. Obviously the Oireachtas did not think it appropriate to specify, in respect of a judicial inquiry under s.109, that the judge concerned deal specifically with either disciplinary or criminal matters. Clearly if evidence were disclosed which led to a reasonable basis for contemplating a criminal prosecution then it would be appropriate for the report to raise that question and suggest that the matter be referred to the appropriate authorities for further consideration as to whether a criminal prosecution should take place. Likewise a judicial inquiry might conclude that there was a basis for suggesting that GSOC s disciplinary machinery might be instigated in relation to the conduct of a particular designated officer. However, it seems to this inquiry that the remit of a judicial inquiry under s.109, insofar as its report is concerned, is wider. What the Inquiry is required to do is simply to report the results of the Inquiry That being said it does seem to the Inquiry that there should be clarity about the standard by reference to which the conduct of designated officers of GSOC should be reviewed. Counsel for those GSOC designated officers involved suggested that the standard ought be equivalent to the standard applied in judicial review proceedings before the courts. However, it is important to identify that judicial review proceedings are concerned with whether actions are lawful. Persons may be mistaken, and indeed culpably mistaken, in their actions without necessarily breaking the law. The Inquiry is not, therefore, satisfied that a standard taken by analogy with that applied in assessing the lawfulness of the actions of public officials is appropriate On the other hand there are many situations in which reasonable and competent persons may take a different view of a situation. It follows that there are many situations where there are a range of possible responses or decisions which a competent person may take in the light of the circumstances then known. It would be wrong to be critical of an individual simply because someone else might have made a different decision. It follows that where a decision or action taken by a GSOC designated officer falls within the range of actions or decisions which could reasonably have been taken in all the circumstances 70

73 known at the time in question, no personal criticism could or should properly be directed to the officer concerned However, that may not necessarily be the end of the matter. There may, of course, be cases where it will be hard to be critical of a particular decision made on the basis of the information then available but where questions may be raised as to whether further information should not have been available or should have been obtained. Likewise persons may follow an established practice which, with the benefit of hindsight, might be one which ought be reviewed. In such circumstances it may be difficult to be individually critical but it might be nonetheless necessary to recommend a change in practice It seems to the Inquiry to follow, therefore, that personal criticism should only be made of individual designated officers where the Inquiry is satisfied that an action or decision taken by the officer concerned was outside the range of the actions or decisions which could reasonably have been taken by a competent officer in all the circumstances of the case. In that context issues of fact should be determined on the balance of probabilities However, even where personal criticism may not be appropriate, an inquiry under s.109 should, where appropriate, report on any more general issues which appear to be relevant arising out of the circumstances investigated in accordance with its terms of reference Two final observations seem appropriate. It may well be possible to identify circumstances where, in the Inquiry s view, a particular course of action or decision was mistaken in the sense that it should not have been taken in all the circumstances of the case but where, nonetheless, the Inquiry feels that those circumstances are such that it would not recommend that any personal action be taken in respect of the individual concerned. There is clearly a difference between a mistaken view or error of judgment, on the one hand, and conduct which might merit action, on the other. The Inquiry is mindful of that distinction and will apply it when considering the individual issues to which it will be necessary to turn First, the Inquiry is also mindful of the submission made by Counsel for the GSOC designated officers which drew attention to the fact that this inquiry has been focused on 71

74 a single GSOC investigation. On that basis counsel cautioned against the Inquiry drawing overbroad conclusions and, thus, making overbroad recommendations in the light of the facts of a single case. There is merit in that point and the Inquiry has taken it on board. However, it does seem to the Inquiry that there are two bases on which it is, nonetheless, appropriate to consider whether more general recommendations should be made. First, as will appear from the facts which are uncontroversial and, more directly, from the analysis of some of the specific issues which have arisen and which require consideration, much of what was done in the circumstances of this case appears to have been general practice. In quite a number of respects the evidence was that GSOC designated officers followed general practice. There were very few instances where there was even a suggestion that what was done might have been significantly outside the parameters of that which was considered normal. It follows that, in the circumstances of this case, general practice within GSOC comes into much greater focus than might be the case in other circumstances where what occurred was clearly unorthodox or unusual Secondly, it seems to this inquiry that it would be failing in its obligation to report fully to the Minister if it did not identify issues of more general concern which might merit further consideration by the relevant authorities. It is almost inevitable that an inquiry of this type will identify such issues. Not to report on them would seem to be a waste of the resources put into an inquiry such as this. However, in the light of the danger identified by counsel, it is the Inquiry s intention not to make definitive recommendations concerning the precise detail of the solution to any generic or systemic problems which the Inquiry feels have been identified. Rather, the Inquiry s intention is to identify the problem and suggest that detailed consideration be given by those directly involved to the production of new or revised guidance, protocols, practices or the like, designed to remedy the problem identified. To fail to report on problems identified and suggest that action be taken to provide solutions would be to fail to report properly. However, to attempt to provide a detailed solution to those problems in the light of the experience of having investigated a single case would be as likely to produce a solution which might make matters worse rather than better. 72

75 (ii) The Scope of the Inquiry: The Inquiry sought submissions from the interested parties on the scope of the Inquiry s remit, on two principal issues First, a jurisdictional question was raised by legal representatives of the designated officers of GSOC as to whether the initial decision to designate the investigation under s.98 of the Garda Síochána Act 2005 fell within what is contemplated in s.109 of the Act. Following written and oral submissions from the interested parties the Inquiry was of the view that the principal intention of the legislature in enacting s. 109 of the Garda Síochána Act, 2005 was to provide oversight in respect of the exercise by designated officers of GSOC of the police powers conferred upon them in the context of s.98 investigations. It was the Inquiry s view that an interpretation of s. 109 which precluded a judge appointed to conduct an inquiry under that section from considering the circumstances in which a decision was taken to commence an inquiry under s. 98 would result, in the words of s. 5(1)(b)(i) of the Interpretation Act, 2005, in an interpretation which failed to reflect the plain intention of the Oireachtas Second, the Inquiry invited submissions on the question of whether it is within the Inquiry s remit to make recommendations as part of the report. Legal submissions were made by all parties on this issue in the course of written and oral submissions. Submissions on behalf of the designated officers resisted the making of recommendations, primarily suggesting that it might be unwise to base recommendations of a general nature on the evidence concerning one particular investigation. It was submitted by Counsel for the designated officers that where there was accepted to have been some confusion in the instant case (particularly in relation to the taking of statements), this does not appear to be typical generally and warned against a phenomenon of a potential danger arising in basing recommendations on a single case where a practice which is used generally does not generally seem to cause confusion Written submissions made on behalf of the extended Galvin family conclude with the expression of a desire that all parties can learn from the Inquiry how such investigations can be improved. Counsel for the extended Galvin family referred to the wording of s.109 "On completing the Inquiry the appointed Judge shall report its results to the Minister who shall forward a copy of the report to the Ombudsman Commission 73

76 for such action as it considers appropriate in the circumstances. " It was submitted that this suggests a conclusion or an outcome and that nothing in the legislation suggests that results cannot include recommendations and that given the nature of a Section 109 inquiry the report should include recommendation if the Inquiry were so minded to make them. Submissions made by An Garda Síochána invited such a course, stating that there are no restrictions imposed by statute on the contents of a report envisaged under s.109 and that the report would unnecessarily be shorn of some of its worth and utility if it did not contain recommendations. It was submitted that s.109 provides for a novel statutory function which gives significant latitude, and that by comparison an Inquiry as contemplated under the Commissions of Inquiry Act, 2004, would have a narrower focus. Counsel for An Garda Síochána submitted that there was no apparent basis in the Act for limiting what the report could contain and as the report must be sent to the Ombudsman Commission to do with what they see fit, the Act itself seems to suggest that the contents of the report may be acted upon. In light of that it was submitted that there necessarily follows that there should be a power to make recommendations. (iii) Preliminary: As noted in Part II, the Inquiry initially identified seven issues which might require resolution. For the purposes of this part of the Inquiry s report the issues have been reduced to five. That reduction has occurred for two reasons. First it is proposed to deal with issues III and IV of the issues originally identified together. These are dealt with in subs. (iii) of this part. The issues concerned are the question of the extension of the GSOC investigation to include possible offences concerning making false and misleading statements or perverting the course of justice together with the decision to conduct interviews with Sgt Galvin and Gda Clancy in respect of those offences under caution. In the way in which the evidence and submissions before the Inquiry developed it became clear that those two issues were very closely linked and the Inquiry ultimately considered that it would be easier to deal with both of them together rather than separately The second reason for a reduction in the number of issues to be addressed stems from the fact, as already identified, that the Inquiry has previously concluded that there was 74

77 no basis for reaching any adverse conclusion in respect of any GSOC designated officials in relation to the manner in which the interviews under caution of either Sgt Galvin or Gda Clancy were conducted In fairness to all concerned, it is appropriate that the basis for the Inquiry coming to that view is clearly set out. The following points require to be recorded: There were significant differences between the way in which the interview under caution of Sgt Galvin, on the one hand, and Gda Clancy on the other, progressed. While both made an initial statement Gda Clancy was, in the main, happy to answer any further questions which the relevant GSOC officers wished to put to him. On the other hand Sgt Galvin indicated that he did not wish to answer any further questions. That significant difference between the two interviews was, it must be recorded, as a result of, and in respect for, Sgt Galvin s wishes and did not reflect any difference of approach on the part of the GSOC officers. It is clear that questions broadly along the same lines as those which were put to Gda Clancy were intended to be asked of Sgt Galvin had he indicated a wish to answer same The Inquiry heard evidence both from Gda Clancy and his solicitor who attended at the interview with him. Both described the interview as having been conducted in a professional manner. Unfortunately, and tragically, the Inquiry could not, of course, hear from Sgt Galvin himself but his solicitor, who attended the interview with him, likewise did not indicate that the interview was conducted in anything other than a professional manner The Inquiry did hear evidence of certain comments made by Sgt Galvin as a result of discussions with Gda Clancy at a time after Gda Clancy had been interviewed but before he, Sgt Galvin, was interviewed and also of further comments made after Sgt Galvin s own interview. As a result of conversations with Gda Clancy at the earlier stage it would appear that Sgt Galvin came to the view that it was necessary for Gda Clancy s solicitor to intervene on a number of occasions in the course of the interview and that the interview generally had been difficult. The evidence did not support the view that the interview with Gda Clancy was anything other than prodessional. The interventions question was explored in the course of the evidence of all those who were present at Gda 75

78 Clancy s interview. It seems to the Inquiry to be clear that what, in fact, occurred was that Gda Clancy s solicitor, on occasion, asked for time to consider certain materials which were put to Gda Clancy in the course of interview. The evidence clearly establishes that Gda Clancy and his solicitor were given as much time as they sought and needed. Insofar as there might have been a suggestion that any intervention on the part of Gda Clancy s solicitor was necessary to prevent inappropriate questioning of Gda Clancy the evidence makes clear that this was not so. Rather, the interventions were to seek appropriate accommodation for Gda Clancy which accommodation was readily afforded. Subsequent to his own interview a number of witnesses gave evidence of conversations with Sgt Galvin which suggested that he had formed the view that GSOC did not want to listen to his side of the story and reference was also made to the fact that the GSOC officers did not make eye contact. It is impossible, at this remove, to make any specific findings as to precisely what happened. However, it may well be that the eye contact issue derived from the fact that the substance of the interview with Sgt Galvin simply involved him reading out a preprepared statement where copies of that statement had also been provided to the GSOC officers present and where, therefore, it may well have been that those officers were reading the same statement as it was read into the record. As already noted, there was, at Sgt Galvin s request, no further questioning In the light of all of that evidence the Inquiry felt that there was no legitimate basis for any suggestion that the manner of the conduct of the interviews with Gda Clancy or Sgt Galvin was anything other than entirely professional. It will never be possible to tell precisely why Sgt Galvin felt as he did after his interview. However, it does need to be recorded, in that context, that all of the evidence suggested that Sgt Galvin had become especially preoccupied by the matter and depressed as the time for the interview approached The report will, therefore, now deal with each of the five remaining issues which require to be resolved. In the context of each issue the report will set out the position adopted by the respective interested parties before going on to set out the Inquiry s conclusions in respect of the issue concerned together with a summary of any recommendations made. 76

79 (12) The Issues (i) The initial decision to designate an inquiry under s.98 of the 2005 Act which was made on the 1st January, 2015 (a) Submissions on behalf of the interested parties: 12.1 A s.102 referral was made on 1 st January, 2015 by Supt Finan to SIO Harden. Later that day it was decided to designate the investigation as a s. 98 investigation under the 2005 Act The principal submission both of Counsel for the extended Galvin family and of Counsel for An Garda Síochána was that the designation of the investigation in question as one to be carried out under s. 98 of the 2005 Act was inappropriate and incorrect for a variety of reasons. The designation of an investigation by GSOC officers as a s. 98 investigation confers certain police-type powers on those officers which would not otherwise be available to them. It was submitted by both of the above interested parties that, on a proper interpretation of ss, 91, 95, 98 and 102 of the 2005 Act, in order for GSOC to investigate a matter under s. 98 there must be prior consideration and assessment of the circumstances surrounding the referral and a decision must be made by GSOC that the conduct of a member or members of An Garda Síochána appears to constitute an offence. Otherwise, it was submitted, the matter should be investigated under s. 95 or discontinued under s It was noted by Counsel for An Garda Síochána that, by virtue of s. 102 (3), the provisions of Part 4 of the 2005 Act, with necessary modifications, apply to a referral under s.102 as if the matter were the subject of a complaint referred to in s. 91. Accordingly it was argued that, as per s. 91, there should be an examination of the referral for the purpose of recommending whether the matter should be investigated under s. 95 or s. 98 or discontinued under to s. 93. It was submitted that the legislative scheme requires a proper consideration of the matter and the proper exercise of a statutory decision making power 77

80 rather than what was said to be the automatic adoption of a policy or position of designating all s. 102 referrals (or such referrals involving death) as s. 98 investigations. Indeed it was submitted that the testimony before the Inquiry indicated that the approach of GSOC was that all s. 102 referrals which are investigated by GSOC (i.e. which are not discontinued under s. 93 of the Act) in effect inevitably become s. 98 investigations. It was submitted by An Garda Síochána that this practice and understanding by GSOC is at odds with the scheme of the 2005 Act which was said not to suggest a presumption in favour of one form of investigation or the other In addition, Counsel for the extended Galvin family suggested that the legislation is somewhat silent as to the test to be applied by a designated officer in determining whether there should be a s. 95 or s. 98 investigation. Section 95(1) states: if the Ombudsman Commission decides to investigate a complaint about conduct that does not appear to constitute an offence 12.5 Accordingly, it was submitted that the correct test to apply was to ask whether there was an appearance of an offence, as opposed to whether there may have been an offence. It was submitted that an appearance of an offence suggests a readily identifiable offence and a requirement of some evidence to suggest that the identifiable offence occurred. Consequently, it was submitted that GSOC officers appear to be incorrectly applying the statutory test when designating investigations under s Counsel placed particular reliance in that regard on the evidence which suggested that in almost all cases (with one possible exception) where a formal investigation (rather than a discontinuance) had resulted from a s.102 referral, the investigation was designated as a s.98 criminal investigation rather than a s.95 disciplinary investigation On this issue it was noted by Counsel for GSOC that the legislation does not set out a specific test in positive terms. For example, the 2005 Act does not say, a section 98 investigation shall be commenced when and then define the relevant circumstances. Instead, it was submitted, that it is necessary to engage in a close reading of ss 91, 95 and 98 to ascertain the position, and unfortunately these provisions do not yield up total clarity. It was further noted that s. 95 provides a negative test for when 78

81 a criminal investigation should be commenced. It is suggested that the legislation could be interpreted to mean that one commences a s. 95 investigation only when a section 98 investigation has been ruled out. It was further submitted that the word appears does not assist in establishing what appropriate factual threshold needs to be ruled out or in before a s. 95 or s. 98 investigation is commenced. Counsel for GSOC submitted that the appropriate test is that of whether the designated officer had reasonable grounds for considering that an offence may have been committed and that the GSOC understanding, and that of DI Isaac, was that an offence may have been committed in this case. The context of the decision was also highlighted in that a designation decision is made on the ground, operationally, and not as an abstract legal decision. Some reliance was also placed on the need, in certain circumstances, for police powers if evidence which might potentially be relevant to a possible future prosecution were not to be lost In reply on that topic both Counsel for the extended Galvin family and Counsel for An Garda Síochána submitted that the consideration of policing powers was not something that should have been considered and the factor of policing powers was a wholly inappropriate consideration on the part of SIO Harden Counsel for the extended Galvin family also submitted that there was an inadequate examination under s. 91 of the Act to determine whether an investigation should be carried out under s. 95 or s. 98. It was submitted that the examination was, at best, a cursory evaluation of the situation prior to a recommendation and designation being made. In that context the fact was highlighted that SIO Harden based his recommendation on a telephone call he received from Supt Finan, which took no more than 10 minutes and possibly just five minutes. SIO Harden had not attended at the scene of the RTA nor was he in Donegal at the time. Within 25 minutes of Supt Finan making the referral under s. 102, DI Ken Isaac, on the recommendation of SIO Harden, designated the investigation a s. 98 investigation Counsel for GSOC, contended that both DI Isaac and SIO Harden acted in the utmost good faith; DI Isaac in designating the investigation as a s. 98 investigation, and SIO Harden in making his recommendation to DI Isaac. It was said that their decisions were based on 79

82 information which had been provided by Supt Finan. It was submitted by GSOC that a number of factors properly influenced the decisions in question. These were: The fact that a Superintendent had taken a view that the s. 102 test had been met. In this regard it was submitted that what was significant was the fact that an officer of the senior rank of a Superintendent was placing before DI Isaac facts which the Superintendent himself considered to be reliable; The actual facts as relayed to SIO Harden; Article 2 of the European Convention on Human Rights. In this regard it was submitted that each Contracting State under the ECHR has a positive obligation to conduct an effective and official independent investigation where there is a death following on duty police contact and it was stated that this obligation is taken seriously by GSOC. Where there is a death following police contact, this is always considered potentially to engage Article 2 of the ECHR; The fact that this case involved a death In reply it was submitted by both Counsel for an Garda Síochána and Counsel for the extended Galvin family that these factors do not bear scrutiny. In particular it was suggested that: The fact that a Superintendent made a referral is present and applicable in all s. 102 referrals and cannot be relevant to the subsequent decision to be made as to whether s. 98 or s. 95 is the appropriate vehicle; The facts relayed were not such that could lead to any basis for considering that the conduct of the relevant gardaí, through their interaction with Ms Stewart, appeared to constitute any criminal offence, still less the offence of misconduct in public office; In relation to Article 2 ECHR the view was expressed that it cannot be the position that, in every case where there is a death, Article 2 mandates a s. 98 criminal investigation. It was submitted that such an interpretation of the legislative provisions is not mandated in order to comply with the provisions of the ECHR. (b) The Inquiry s Findings: As noted earlier, a decision was made on the 1 st January, 2015 by Supt Finan to refer issues arising out of the death of Sheena Stewart to GSOC under s.102 of the 2005 Act. 80

83 As also noted earlier, a decision was taken on the same day by appropriate GSOC officials to designate the investigation as being one under s.98 of the 2005 Act The designation of an investigation as being one to be conducted under s.98 carries with it certain police type powers which are conferred on those GSOC officers who may become involved in the investigation. Without the designation of the inquiry as being one to be conducted under s.98 those powers are not available It must be noted that an investigation under s.98 involves a criminal investigation. It will be necessary to consider the precise wording of the relevant legislation in due course. However, it would appear that, in general terms, it must be necessary that there be at least some sufficient basis for considering that it is appropriate to conduct a criminal investigation in order that it also be appropriate to designate the investigation as being one to be conducted under s.98 of the 2005 Act. In reality, much of the difference between the parties concerned the precise threshold which should be applied before an investigation should be designated, or properly be designated, as a s.98 investigation, together with the application of whatever threshold might be appropriate to the circumstances of this case As noted earlier the submission made on behalf of both the extended Galvin family and An Garda Síochána was that there must be a sufficient prior consideration and assessment of the circumstances surrounding the referral such that it must appear that the conduct of a member of An Garda Síochána (or, of course, a number of such members) constitute an offence in order that an investigation can properly be designated as a s.98 investigation. In like vein, it was also submitted that, in the absence of it appearing that an offence may have been committed, the matter should either be investigated under s.95 of the 2005 Act (which involves disciplinary matters), or should be discontinued under the provisions of s The starting point has, therefore, to be a consideration of what the legislation itself says. It seems to the Inquiry that the legislation in this regard is less clear than it might be. One of the difficulties stems from the fact that there are, in reality, a number of different ways in which a matter may come within the remit of GSOC. The legislation is drafted in a way which deals in detail with how GSOC is to consider complaints made by members of the public. However, as an alternative to an issue being initiated before GSOC by such 81

84 a complaint, the referral of a matter to GSOC by An Garda Síochána, under s.102, provides one of the other methods. Section 102(3) provides that a matter referred under that section should, with any necessary modifications, be considered as if the matter were the subject of a complaint referred to in s.91. In other words, this is an example of legislation by reference where a regime is put in place for dealing with complaints and it is then sought to apply that regime to a somewhat different type of circumstance being where a matter is referred to GSOC by An Garda Síochána In that context, it is important to note that there can be a significant distinction between the type of matter which may be the subject of a complaint, on the one hand, and a reference, on the other. It seems unlikely that a person would make a complaint to An Garda Síochána without it being the case that the complainant was at least asserting that some member of An Garda Síochána had done something wrong. It may be that the complaint might be considered to be inadmissible for one of a number of reasons. One of the criteria for determining admissibility is to be found in s.87(2)(b) which requires that, in order that a complaint be admissible, conduct is alleged which would, if substantiated, constitute misbehaviour by a member of An Garda Síochána Misbehaviour is defined in s.82 as meaning conduct that constitutes an offence or a breach of discipline. It follows that where a member of the public makes a complaint which does not involve an allegation of some type of conduct which, if true, might constitute either a disciplinary matter or a criminal offence, the complaint will be regarded as inadmissible and will not be pursued further. Therefore, if the complaint is considered to be admissible, it follows that what is alleged must, if true, arguably constitute either a criminal offence or alternatively a matter which might be the subject of disciplinary proceedings On the other hand, the pre-requisite for a reference under s.102 from An Garda Síochána to GSOC is simply that it is indicated that conduct of a garda may have resulted in the death or serious harm to a person. It was suggested by garda witnesses, correctly in the Inquiry s view, that in order for there to be a referral, the senior garda concerned (being the garda to whom the Commissioner s power to make a referral under s.102 has been 82

85 delegated) does not have to form the view that there was any culpability on the part of any member of the Force. It is possible to envisage a whole range of circumstances where entirely innocent conduct on the part of a garda may, unfortunately, lead to death or serious injury. Even if, as was suggested by some of the evidence, senior gardaí may, to avoid any suggestion of cover up, have become inclined to refer under s.102 in any case of doubt, nonetheless the threshold for such a referral is low in any event It follows that, unlike in the case of an admissible complaint where there will be at least a suggestion of wrongdoing, a referral may simply reflect the fact that there was a sufficient causal connection between some conduct on the part of a member or members of An Garda Síochána and a death or serious injury to warrant the making of the relevant referral. It follows, in turn, that there is an initial additional consideration which arises in the case of a referral (as opposed to a complaint) which is to find out enough about the circumstances to determine whether there is any basis for suggesting that there was any misconduct on the part of a member of An Garda Síochána at all (being conduct which might, if it were ultimately to be established, constitute criminal misconduct or conduct which might warrant the possibility of disciplinary proceedings) A complaint concerning death or serious injury must, in accordance with s.87, be considered to determine admissibility. If admissible, such a complaint must be examined in accordance with s.91 to decide whether it is to be investigated under s.95 or s.98. Those provisions are required (by s.102(3)) to be applied with the necessary modifications to a referral under s.102. However, a referral may or may not, at least initially and in and of itself, provide enough information to allow those assessments to be made. Applying the complaint procedure to referrals is not, therefore, clear cut. A complaint without sufficient information to constitute arguable wrongdoing, can be dismissed as inadmissible. A proper referral need not, however, contain such information. The best that can be done is to suggest that there must, therefore, be an implied obligation on GSOC to conduct a preliminary inquiry or examination to obtain sufficient information to make the decision required by analogy with ss 87 and In addition to that it has to be said that the legislation is somewhat opaque about the precise basis on which a decision should be made as to whether to investigate under 83

86 s.95 or s.98. Section 98 itself simply provides that, if a decision is made to investigate a complaint under that section (and, in the somewhat convoluted way in which the legislation is crafted, a complaint must, for these purposes, be taken to include a referral), then a designed officer is given a variety of police powers. However, that is all the section says. It is, in its terms, a power-conferring section rather than a section which sets out the purpose for which those powers are to be exercised Section 95 suggests that If the Ombudsman Commission decides to investigate a complaint about conduct that does not appear to constitute an offence, then various procedures are to be followed Section 91 relates to complaints concerning the death or serious harm to persons as a result of garda operations or while in the custody or care of the Garda Síochána.. Section 91 appears to contemplate that GSOC should examine the complaint for the purposes of deciding whether it should be investigated under s.95 or s.98 and makes provision for an appropriate GSOC officer to make recommendations to the Commission and for a decision by the Commission in that regard. So what s.91 provides for appears to be a two stage process. First an examination of a complaint. Then a decision as to whether that complaint should be investigated under either s.95 or s.98. It does not, in itself, provide for any criteria for the decision relating to the section under which the complaint should be investigated It is also necessary to have regard to s.93(1)(c) which permits GSOC to discontinue any investigation if having regard to all the circumstances, the Commission considers that further investigation is not necessary or reasonable practicable It has to be said that it appears unfortunate that the legislation does not set out clearly what is to happen in the event of a referral under s.102. The legislation provides that what is to happen is that the procedure to be followed after a reference should be the same as if there had been a complaint with the necessary modifications, but that does not reflect the fact that there is, as noted earlier, a significant difference between a complaint (which, if admissible, certainly involves an allegation or suggestion of culpability), and a referral (which does not necessarily do so or, indeed, contain any allegation at all). 84

87 12.29 Also the initial function required to be carried out in respect of a complaint is, as already noted, an examination of the complaint for the purposes of deciding whether it should be investigated under s.95 or s.98. But s.102 (3) provides that it is the provisions of that part of the Act relating to investigations and reports which is to apply by analogy to cases referred under s.102. It must be presumed, although it could be clearer, that investigations, as that term is used in the section, includes an examination for the purposes of deciding on an appropriate designation for either criminal or disciplinary investigation But, perhaps, one of the key difficulties with the legislation, which is brought into focus in the context of the issues which have arisen in this case, is the fact that the legislation provides no clear and express roadmap as to how a s.102 referral is to be handled and, in particular, how the circumstances giving rise to the referral are to be examined for the purposes of deciding whether they warrant any formal investigation at all, an investigation under s.95, or an investigation under s Given those difficulties, it appears that the interpretation which has been placed on the legislation by GSOC (which may well be the best that can be done in the circumstances) is that a referral should initially be examined to see if there may be conduct which might constitute misbehaviour disclosed. It would appear on the evidence that sometimes the examination remains at that stage for quite some time and that, in the event that no such conduct is disclosed, the matter may be discontinued under the provisions of s.93. The phrase that appears to be used during the currency of such an examination (that is, an examination which has not yet reached a conclusion as to whether there should be a formal investigation at all and if so whether it should be under s.95 or s.98) is that the matter has been left in s.91. The evidence also suggests, however, that in the event that that initial examination does not lead to the conclusion that the matter should be discontinued but that there should be a formal investigation under either s.95 or s.98, it almost inevitably follows (there was anecdotal evidence that there may have been one case to the contrary) that the investigation is designated under s.98, rather than s In other words, as a matter of practice, there appears to be a period of examination to decide whether there should be any formal investigation at all. Sometimes that does, 85

88 indeed, lead to the matter being discontinued without any formal investigation because the preliminary examination does not disclose any basis for suggesting that there was misconduct on the part of the gardaí. However, if the matter is not discontinued on that basis, it seems to almost inevitably follow that there is a designation as a criminal investigation, rather than a disciplinary investigation, although it must always be kept in mind that the legislation does contemplate the possibility that a criminal investigation may be, as it were, downgraded to a disciplinary investigation, if it should transpire that there was insufficient evidence to warrant a criminal prosecution, but that there nonetheless was evidence to warrant disciplinary procedures That brings into focus the distinction between a s.98 and a s.95 investigation. As already pointed out, the practical consequence is that GSOC has, under s.98, powers closely analogous to the powers which the gardaí would have in investigating a criminal offence. GSOC does not have such powers in a s.95 disciplinary investigation. However, the only clue in the legislation as to the distinction between the two types of investigation is to be found in s.95 which specifies that that section applies in a case where GSOC is investigating a complaint about conduct that does not appear to constitute an offence. It would, it has to be said, be much better if the legislation set out in clear terms what the criteria were for a decision to proceed with an investigation under s.98, but it is possible to infer that a s.98 investigation is to occur in cases where, to use a double negative, which seems to be appropriate given the way that the legislation is drafted, it does not appear to GSOC that relevant conduct does not appear to constitute an offence Part of the purpose of this somewhat detailed consideration of what seems to be unnecessarily complex and opaque legislation is that the lack of clarity identified does form part of the backdrop against which any decision taken by GSOC to designate an inquiry under s.98 must be judged. That consideration applies, in particular, to the decision taken in this case. However, what is clear is that a determination that an investigation should be conducted under s.98 is an important decision carrying with it the conferring of significant powers on GSOC. It follows that any such decision should be properly taken and should only be taken where there is a legitimate basis for determining that the circumstances warrant a criminal investigation. The legislation certainly suggests that the circumstances must disclose at least some appearance of a possible offence. 86

89 12.35 On the other hand, it must be acknowledged that what arises under either s.95 or s.98 is an investigation. The purpose of any investigation is to ascertain the facts and to determine whether there is sufficient evidence to support, on the facts, either a criminal prosecution or the commencement of a disciplinary process. It seems to follow that it could not be considered necessary that there be evidence of either criminality or disciplinary misconduct in order that an investigation be carried out. The whole purpose of an investigation is to gather evidence. But there must, nonetheless, be a legitimate basis for a decision to designate an investigation as one to be conducted under s.98. Making the best of the legislation it seems, by analogy with the complaint procedure, that GSOC must have conducted a sufficient preliminary examination of the circumstances giving rise to the referral under s.102 to identify possible conduct which, if substantiated, would amount to misconduct. In the absence of having identified such conduct, or possible conduct, then it is hard to see how an investigation under either s.98 or s.95 could be justified. That situation would be analogous to a complaint by a member of the public which would be regarded as inadmissible as not disclosing an allegation of misconduct Where, however, the preliminary inquiry by GSOC discloses a suggestion of conduct which, if substantiated, might amount to misconduct as defined, then a decision must be taken as to whether that conduct can be said not to appear to constitute an offence (in which case an investigation under s.95 ought follow), or otherwise (in which case an investigation under s.98 would be justified). One of the problems is that, in the case of a complaint, the conduct alleged will be specified in the complaint whereas, in the case of a referral under s.102, GSOC has to conduct, at least to some limited extent, its own inquiries to ascertain enough about the circumstances of the case to identify whether there is any suggestion of conduct which might warrant statutory investigation under either of the sections It is in that context that the specific issues arising in the circumstances of this case need to be considered. The key complaints made, both by Counsel on behalf of the extended Galvin family and Counsel on behalf of An Garda Síochána., so far as this issue is concerned can, in the Inquiry s view, be grouped under three headings: (a) A suggestion that the level of information available at the time when a decision to designate an investigation under s.98 was made was insufficient 87

90 and that further examination or inquiry ought to have been conducted before any decision was made; (b) (c) That, on the basis of the materials or information available at the time, there was no sufficient basis for concluding that there was a legitimate justification for instigating a criminal inquiry; and That many of the factors identified by GSOC witnesses as having informed their decision were not matters which ought properly have influenced the decision at all Against that backdrop it is appropriate to turn to the basis on which the GSOC decision to designate was made It is necessary at this stage to restate the factors which GSOC suggested justified a criminal investigation, which were:- 1. The fact that a Superintendent had taken the view that the s.102 test had been met. In this regard it was submitted that what was significant was the fact that an officer of the senior rank of a Superintendent had placed before GSOC facts which the Superintendent himself considered to be reliable; 2. The actual facts as relayed by the Superintendent to SIO Harden; and 3. Article 2 of the ECHR. 4. The fact that there was a death after Garda contact As already noted, each of the other parties contested the validity of each of those items as a legitimate basis for a s.98 designation. It is proposed to deal with those matters which are of more general application first before proceeding to the specific facts of this case So far as points 3 and 4 are concerned, it is clear that there is a positive obligation on each subscribing State to the ECHR to conduct an effective and efficient independent investigation where there is a death following from on duty police contact. The fact of a death in such circumstances would, 88

91 independently of the ECHR and in any event, warrant a proper investigation. It is said that GSOC, as a State Agency, is obliged to seek to comply with Ireland s obligations under the ECHR to conduct such an inquiry and that this factor was, therefore, properly taken into account when considering whether to designate the investigation under s.98 or s Article 2 of the ECHR provides as follows: 1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: 15 a. in defence of any person from unlawful violence; b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c. in action lawfully taken for the purpose of quelling a riot or insurrection The European Court of Human Rights ( ECtHR ) first ruled on the question of the relevant aspect of the right to life in 1995, in McCann, Farrell and Savage v. United Kingdom 15, which was a case brought by the relatives of three individuals shot by members of the SAS in Gibraltar. The ECtHR considered the obligations imposed by Article 2 and held that the first, and most obvious, obligation under article 2 is for the state, through its agents, to refrain from itself causing the deprivation of life, that is to say that domestic law must regulate the permissible use of lethal force by agents of the State. Importantly in the context of this inquiry the ECtHR noted a further obligation imposed upon the State by Article 2 being the obligation to conduct a full, open and transparent investigation into the circumstances in which a public body may have taken a life. This should be public, 15 European Court of Human Rights, Judgment of 27 September 1995, Series A no. 324, p. 49,

92 independent, effective and prompt. The investigation should involve members of the family of the victims This should be public, independent, effective and prompt. The investigation should involve members of the family of the victims The European Convention of Human Rights Act 2003 ( the 2003 Act ) gave further effect to the ECHR in Irish law. The courts are thereby required to interpret legislation in line with the ECtHR insofar as it is possible so to do and public bodies are required to perform their functions in a manner compatible with the ECHR, unless precluded by law. In that context s. 3 of the 2003 Act requires that, subject to any other provisions of domestic law, 'organs of state' must perform their duties in a manner compatible with the ECHR. Section 1 defines an organ of state as including any body through which the powers of the State are exercised. That definition clearly includes GSOC Evidence was heard by the Inquiry from Michael O Neill (formerly Head of the Legal Affairs department of GSOC) that, in circumstances where death follows police contact, GSOC considers that the ECHR requires that a number of criteria be met in relation to the independent investigation of that death, not only in relation to the actions of police officers but also systems around policing, to ensure the protection of life. He outlined that that would be the rationale behind such an investigation by GSOC, and that part of the reason for the establishment of GSOC would have been so that Ireland could comply with its Article 2 obligations So far as Article 2 of the ECHR is concerned it seems clear both from contemporaneous documentation and from the consistent evidence of GSOC officers that Article 2 played an important part in the decision to designate a s.98 investigation in this case. However, the Inquiry finds it difficult to see how Article 2 can provide a legitimate basis for conducting a criminal inquiry as such. Either there is a sufficient basis to meet whatever may be the appropriate threshold under the 2005 Act for a criminal investigation 16 (See also R (Amin) v S.O.S Home Dept) [2001] High Court, Administrative Court (England and Wales) 719, 5 October 2001) 17 (See also R (Amin) v S.O.S Home Dept) [2001] High Court, Administrative Court (England and Wales) 719, 5 October 2001) 90

93 or there is not. If there is a legitimate basis to meet that threshold then Article 2 of the ECHR does not add anything to the consideration. If there is not a legitimate basis for meeting that threshold then Article 2 cannot provide a justification for conducting a criminal investigation which was not otherwise justified It is clear that Article 2 does place an obligation on Ireland, as one of the countries bound by the ECHR, to conduct the sort of inquiry which the jurisprudence of the ECHR mandates in the case of death after on duty police contact 18. It is also true that, under s.3 of the 2003 Act, all State agencies, and this includes GSOC, are required to conduct themselves, if legally possible, in a way which conforms with Ireland s obligations under the ECHR. But the combined effect of both of those measures cannot be to give a jurisdiction to GSOC to conduct a type of inquiry when it does not have that jurisdiction in the first place. It was implicit in a significant amount of the GSOC evidence that there was a feeling that, in the absence of having the sort of police powers which are conferred in the context of a s.98 investigation, it might not prove possible to 18 See for example Salman v. Turkey, 21986/93, Council of Europe: European Court of Human Rights, 27 June 2000 and McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, p. 49, 161, and Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, p. 324, 86 conduct a sufficiently thorough investigation so as to comply with the requirements of Article 2. Whether that is actually so is not a matter on which this Inquiry can express any view. But even if that were to prove to be the case, same would not justify conducting a criminal inquiry where there was no sufficient appearance of a criminal offence simply because it was felt necessary to secure the powers which s.98 carries. In fairness, when that point was put to a number of senior GSOC officials, they all agreed that Article 2 could not be invoked simply because it might be felt that the powers contained in s.98 might assist in an Article 2 compliant investigation of conduct which might have contributed to a death. But given that admission it is very hard to see what role Article 2 could possibly play in the decision to designate an investigation under s The Inquiry does not doubt that, once an investigation has been legitimately commenced under s.98, Article 2 may well play an important role in defining the manner in which that investigation should be carried out including, for example, the need to keep relatives of a deceased informed. But the Inquiry fails to see how Article 2 could play any 91

94 legitimate role in a decision to designate a criminal investigation in the first place. It seems to the Inquiry that, in some unspecified way, there appears to have been a view within GSOC that Article 2 lent in favour of a criminal investigation precisely because of the powers that came with it. Unless that were so it is very hard to see how Article 2 could have played any legitimate role in the decision to designate under s.98 at all. Yet all of the GSOC documentation, as well as witness statements and evidence, made clear that the designated officers on the ground at the time considered Article 2 to play a material role In that context the Inquiry is of the view that GSOC designated officers generally have allowed their perception of their obligation to conduct an inquiry consistent with Article 2 of the ECHR to colour their view on whether it was appropriate to conduct a criminal investigation. The Inquiry is satisfied that each of the officers involved in this case acted bona fide in the belief that it was appropriate to take Article 2 into account, but is also of the view that those officers were mistaken in that view It is next necessary to turn to point 1 being the fact that the matter had been referred under s.102 by a Superintendent was taken into account. In that context, it was argued, in particular by Counsel on behalf of An Garda Síochána., that such a consideration could not properly be a factor for it was present in every case While that argument is true so far as it goes, it does seem to the Inquiry that it is, nonetheless, legitimate for a GSOC designated officer to take the fact of a referral into account as part of an overall assessment. One of the questions which it might be necessary to ask in deciding whether there is a sufficient appearance of a possible criminal offence present in any case is as to whether it appeared that there was a causal link between certain possible or alleged conduct on the part of members of An Garda Síochána and the death or serious injury of an individual. Such a causal link would not, of course, be sufficient to rule out the absence of an appearance of a criminal offence for there would have to be more in that the conduct concerned would also have to appear to be culpable in a criminal way. But that causal link may be a necessary, if not a sufficient, element of the equation. It is also clear that, under s.102, the relevant Superintendent (acting on the delegation of the Commissioner) must, before referring, come to the view that conduct may have caused the relevant death or serious harm. Thus, the Superintendent must have been satisfied that 92

95 such a causal link may have been present. The fact that a senior police officer on the ground at the time in question was required, as a condition of making the referral in the first place, to have been satisfied about the possibility of that causal link is a factor which can, in the Inquiry s view, properly be taken into account However, as already noted, it is clearly not, in itself, sufficient precisely because a superintendent concerned could quite properly make a referral even though that superintendent did not consider that any of the conduct in question was culpable even to a disciplinary, let alone a criminal, standard. Indeed Supt Finan, on the facts of this case, gave clear evidence that he did not consider, at the time of making the referral concerned, that there was any basis for considering that any of the conduct of the members in question was culpable That leads, to what appears to the Inquiry, to be the critical question. Were there sufficient circumstances known at the time to DI Isaac (and indeed to SIO Harden who recommended a s.98 investigation to DI Isaac) which would justify taking the view that there was not the appearance of there not being a criminal offence The starting point of any consideration under this heading must be to note the relatively limited interaction with and within GSOC which had occurred prior to the decision being taken to designate the investigation under s.98. While it is not possible to be absolutely precise about the length of time that the two relevant conversations on the telephone took it is clear on all the evidence that both were brief. The evidence of Supt Finan in respect of his initial conversation with SIO Harden, when Supt Finan made the s.102 referral, was that it took approximately five minutes. SIO Harden gave an outside estimation of ten minutes in his evidence. Supt Finan had initially contacted GSOC Command and Control and was later called back by SIO Harden who was the Investigating Officer on call. There was a Garda case conference in relation to the Road Traffic investigation at 1pm on that date and it was during that conference (at approximately or 13.12pm) that Supt Finan took the call from SIO Harden and then returned to the meeting. He outlined what he knew of the contact between Ms Stewart and members of the Gardaí from his notes of his conversation with Sgt Doyle. After his briefing from Supt Finan, SIO Harden gave evidence that he considered the 93

96 information he had received, he concluded that an offence may have been committed, and he then had a telephone discussion with his superior, DI Isaac - which, on the evidence of DI Isaac, took approximately five or ten minutes during which he recommended a designation under s.98. DI Isaac considered what he had been told, there was a discussion about potential offences which were contemplated and DI Isaac agreed with the recommendation. The investigation was designated a s.98 investigation at 13.35pm, some 25 minutes approximately after SIO Harden s first telephone conversation with Supt Finan It is also clear that the only information available to SIO Harden when he made his recommendation was information which had been obtained by him from Supt Finan. Likewise, the only information available to DI Isaac was the information imparted to him by SIO Harden. The evidence concerning the information which was then available was as set out by SIO Harden and DI Isaac, who outlined that they had been told that there had been a referral from An Garda Síochána under the provisions of section 102 of the Act. This referral was made by a senior manager and the gist of it was that that person (Supt Finan) had formed the opinion that the conduct of a member of An Garda Síochána may have resulted in the death of or serious harm to a person. The circumstances which were relayed to him were that a woman by the name of Sheena Stewart had died. She had been run over and killed by a bus. SIO Harden had explained to DI Isaac that, shortly before her death, members of An Garda Síochána saw her in Bundoran. She had had an argument with her boyfriend, was upset and gardaí had brought her to Ballyshannon. His understanding was that there would be a bus available to take her home later that morning or later that day. He was told there were a number of interactions between the gardaí and Sheena Stewart at that location in Ballyshannon by the bus station and also there had been calls to the gardaí highlighting that a female was on the roadway. He had been told that one of those calls was a 999 call. He was also informed that Sheena Stewart had been drinking, but was not drunk The evidence from both SIO Harden and DI Isaac was that, while they considered the offence of endangerment briefly as a possibility, it was quickly determined that there was no sufficient basis to justify conducting a criminal investigation in relation to such an offence. Both witnesses were clear that the offence which they considered might have been committed and which required that there be a criminal investigation was the offence of 94

97 misconduct in a public office. Before returning to the facts it seems to the Inquiry to be important to first consider the possible ingredients of such an offence for it is in the context of such a possible offence that the facts or circumstances known or understood at the relevant time need to be considered It is clear that the offence of misconduct in a public office has never been the subject of a prosecution in this jurisdiction. However, such an offence is recognised in the United Kingdom, where it is an offence at common law triable only on indictment. It carries a maximum sentence of life imprisonment. It is an offence confined to those who are public office holders and is committed when the office holder acts (or fails to act) in a way that constitutes a breach of the duties of that office In the United Kingdom, the Court of Appeal in Attorney General's Reference (No 3 of 2003) [2004] EWCA Crim 868 has made it clear that the offence should be strictly confined. It can raise complex and sometimes sensitive issues and it has been noted by the Crown Prosecution Service that there has been a certain reluctance in preferring this charge. In fact the CPS has stated that misconduct in public office should be considered only where: there is no suitable statutory offence for a piece of serious misconduct (such as a serious breach of or neglect of a public duty that is not in itself a criminal offence); there was serious misconduct or a deliberate failure to perform a duty owed to the public, with serious potential or actual consequences for the public; the facts are so serious that the court's sentencing powers would otherwise be inadequate Given that the issue had been raised in the course of cross-examination and given that evidence had been tendered to the effect that the DPP had, prior to the events with which this Inquiry is concerned, indicated to GSOC that a prosecution would be brought for that offence in an appropriate case, confirmation of the views of the DPP was obtained by letter of the 10 th of December 2015, addressed to Ms Justice Mary Ellen Ring, Chair of GSOC, which stated the following:- Dear Judge 95

98 I refer to our conversation in relation to the offence of misconduct in public office. While this offence is prosecuted frequently in England and Wales and other common law jurisdictions, it has not been the subject of a prosecution in Ireland in recent years. Indeed, I am not aware of any reported example of it being prosecuted here since Notwithstanding the above there is no reason to believe that if a prosecution were taken here that the courts would hold that this common law offence is unknown to Irish law. In England the ingredients of the offence have been set out in the case of Attorney General s Reference (No 3 of 2003) [2004] 3 WLR 451. In an appropriate case the Director would prosecute for the offence of misconduct in public office. She would argue that the ingredients of the offence are those identified in the Attorney General s reference case and that those ingredients meet the test of legal certainty as set out in the decision of the Supreme Court in King v Attorney General [1981] IR 233 and subsequent authorities. This view of the Director has in the past been communicated to the Commission. Of course in the event of a prosecution being taken the question of whether the offence is known to Irish law, the precise parameters of the offence and whether it meets the test of legal certainty would be matters for the courts to determine. Yours sincerely, Barry Donoghue Deputy Director Some play was made in the course of the hearings of the Inquiry about the fact that the offence in question had never been the subject of prosecution in this jurisdiction. However, in the Inquiry s view, in the light not only of the position taken by the DPP but also of the fact that the view of the DPP was known to GSOC at the relevant time, it does not seem that the fact that no prosecution had previously been brought for the offence is 96

99 particularly relevant. It would obviously be for a court of competent jurisdiction to decide if the offence is known to the law of Ireland and if so what the parameters of the offence might be. But such a decision could only be reached in the event that a prosecution was brought and sufficient facts proved or alleged to satisfy the criminal standard of proof so as to bring into play the possibility that a sustainable conviction might be achieved. In all the circumstances the Inquiry is satisfied that, provided that a sufficient threshold was met in respect of the possible offence of misconduct in a public office, no legitimate criticism could attach to any relevant designated officer for instigating a criminal investigation into the possible commission of that offence But that is not the end of the matter. There was no suggestion that an offence of that type might be recognised as forming part of the common law of Ireland which went beyond the parameters of the offence which has been recognised in the United Kingdom. It follows that any possible prosecution for that offence would require that there be evidence of wilful neglect rather than mere inadvertence. In DPP v Bartley, an unreported decision of the High Court, dated the 13 th of June 1997, the judgment of Carney J, by way of comment, briefly referred to the offence and approved the English case of R. v. Dytham [1979] QB 722. In Dytham it was held that the relevant neglect of duty must be wilful and not merely inadvertent, and further that it must be culpable, being without reasonable excuse or justification. The level of culpability had to be 'of such degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment.' Given that misconduct in public office was the only offence to which real consideration was given and given that wilful and serious neglect forms an essential ingredient of that offence (if it were to be found to exist in this jurisdiction) then the information available both to SIO Harden and DI Isaac when the recommendation and decision to designate a s.98 inquiry was made needs to be viewed in that context. In other words, whatever the threshold may be, was there a sufficient basis for instigating a criminal investigation into conduct which would, necessarily, in order that a conviction might be pursued, involve wilful and serious neglect. In the course of his evidence DI Isaac said the following:- His recommendation was that the matter should be investigated under the provisions of section 98 of the Act. I considered his recommendation. I didn t make my decision lightly. I was mindful of 97

100 the fact of the whole circumstances, a lady had died, mindful of the fact that a senior manager had referred the issue to my organisation and the whole circumstances, especially in relation to the interaction and a member of the public, highlighting the fact that a person was on the floor, on the roadway and there was interaction around about that time and that person subsequently died in circumstances which were relayed to An Garda Síochána. As a consequence, I was comfortable to authorise a section 98 investigation (Day 1 Evidence of DI Isaac, page 5, line 6 page 6, line 20) It seems to the Inquiry that, apart from general considerations which have already been commented on such as the fact of there being a reference under s.102, the key matter identified by DI Isaac, and the one which he himself emphasises in his evidence, relates to the interaction and the fact that there had been public concern expressed to An Garda Síochána about Ms Stewart lying on the roadway in the context of the fact that it was precisely in those circumstances that, after garda interaction, Ms Stewart came to be killed The Inquiry has already noted the difficulty in applying, by statutorily required analogy, the process which would be followed in the event of a complaint to that which follows subsequent to a reference under s.102. In that context the Inquiry has some sympathy with the difficulties which are faced by senior GSOC personnel in making decisions concerning the designation of an investigation after a referral. But it must be recalled that, at the time in question, there was no suggestion that any member of An Garda Síochána had actually seen Ms Stewart lying on the roadway. On the contrary the only suggestion was that, whatever might have been the case when concerned members of the public contacted An Garda Síochána, by the time that there was interaction thereafter Ms Stewart was on the footpath. This is confirmed by the notes made by IO Gallagher of his understanding of the matter. IO Gallagher s notes were made after he was briefed initially on the investigation and, therefore, represent a contemporary account of what was then known to GSOC There is no doubt but that there was a legitimate matter of concern to GSOC. The facts, as they appeared at the relevant time, were that the actions of Ms Stewart were such that members of the public were sufficiently concerned to contact An Garda Síochána because they believed that she was a danger to either or both herself and road users. In 98

101 addition, sometime later, she was killed in exactly the kind of circumstances which had generated that public concern in the first place. But it seems to the Inquiry that that legitimate concern could not, without more, justify a criminal investigation under s.98 centred around a possible offence of misconduct in public office for there were no circumstances or indicia to suggest any degree of wilful and serious neglect of duty on the part of any member of An Garda Síochána or, indeed, sufficient circumstances that would warrant instigating a criminal inquiry into whether there might be evidence of such wilful and serious neglect As noted earlier the legislation concerning the circumstances in which a s.98 investigation can be designated is somewhat opaque and particularly so in the context of circumstances following a referral under s.102. The Inquiry has already noted its sympathy with the GSOC officers concerned in the light of the difficulties caused by the lack of clarity in the legislation. The Inquiry would wish to strongly emphasise that it would not, in any way, question the bona fides of the actions taken by either SIO Harden or DI Isaac. The Inquiry is entirely satisfied that they genuinely considered that an investigation under s.98 was warranted in all the circumstances of the case. However, the Inquiry has come to the view that, in being so satisfied, both SIO Harden in his recommendation and DI Isaac in his decision were mistaken. As already noted the legislation cannot be taken to require that there be evidence, as such, before a decision to designate a criminal investigation be taken. The whole point of an investigation is to undercover evidence. But as also noted earlier a decision to designate an investigation under s.98 is an important one precisely because it confers on GSOC significant powers. It is a decision which should, therefore, only be taken where there is a proper basis for reaching the conclusion that there is a sufficient appearance, from such circumstances as may appear from an initial examination of relevant events, of a possible criminal offence. In order for there to be such a sufficient appearance of a possible criminal offence it followed, in the circumstances of this case, that it was necessary that there be some material or information from which it might be inferred that it was possible that a member or members of An Garda Síochána were guilty of wilful and serious neglect of duty. The Inquiry is not satisfied that sufficient circumstances or information had been disclosed or uncovered at the time when the decision to designate under s.98 was taken to warrant a conclusion that there was any appearance of wilful and 99

102 serious neglect, thus warranting a criminal investigation. It seems to the Inquiry to follow that, as of the time in question, and using the language of s.95, it must have been the case that the circumstances then known did not appear to constitute a criminal offence The Inquiry is mindful of the issue already addressed concerning the standard by reference to which the conduct of designated officers should be judged. The Inquiry does not consider that the decision to designate the investigation in question as a criminal s.98 investigation was within the range of decisions which it was open to those involved to recommend or take because of the Inquiry s view that there was no sufficient basis for considering that there might have been wilful and serious neglect. On that basis the Inquiry concludes that the decision was mistaken. However, the Inquiry also reiterates its finding that the decision was taken bona fide and, in the light of the lack of clarity which is to be found in the legislation itself, the Inquiry feels that it must also conclude that the decisions to recommend and designate respectively, while mistaken, would not justify any action being taken against the individuals concerned Before going on to the next issue it should, however, be recorded that a principal basis for the Inquiry coming to the view that the designation of a criminal investigation, at the stage when it was in fact so designated in this case, was mistaken stemmed from the limited information then available. While the issue is somewhat hypothetical, it should be mentioned that it may well have been the case that a decision to designate a criminal inquiry could have been justified when more information had been gathered and in particular when certain CCTV footage became available to GSOC. The content of that CCTV footage will require to be discussed in later sections of this report but for present purposes it is sufficient to note that it clearly shows Ms Stewart lying on the roadway as a garda vehicle, being driven by Gda Clancy and in which Sgt Galvin was a passenger, approached. The Inquiry s view that the decision to designate a criminal investigation on January 1 st was mistaken must, therefore, be clearly seen to be based on the information available at the time of the decision in question and should not be taken to mean that the Inquiry feels that no criminal investigation at all could properly have been instigated when more information became available. 100

103 (c) Summary of Conclusions and Recommendations: The Inquiry has concluded that the 2005 Act lacks clarity as to the circumstances in which a criminal investigation under s.98 can properly be commenced by GSOC. Given that lack of clarity it appears to the Inquiry that the best interpretation which can be placed on the relevant provisions is that, to use a double negative required by the legislation itself, a criminal investigation can be commenced when it does not appear that the circumstances do not appear to constitute a criminal offence. Nonetheless the Inquiry has concluded that it is not necessary that there be any evidence of potential criminal action present before such an investigation can be commenced In addition the Inquiry has concluded that it is necessary, where a matter arising out of the death or serious injury of a person after garda contact is referred to GSOC by An Garda Síochána in accordance with s.102 of the 2005 Act, that GSOC must first conduct a sufficiently thorough examination of the circumstances to enable a proper conclusion to be reached as to whether the threshold referred to is met The Inquiry has also concluded that GSOC designated officers generally appear to have allowed their perception of their obligation to conduct an inquiry consistent with Article 2 of the ECHR to colour their view as to whether it is appropriate, in particular circumstances, to conduct a criminal investigation and that this consideration also applied to the facts of this case In relation to the designation of the investigation in this case as a criminal investigation it is necessary to consider the possible offence of misconduct in public office as that was the only possible offence considered by the GSOC officers concerned. While accepting that the offence in question has never been the subject of a prosecution in Ireland, the Inquiry is of the view that it was not, in and of itself, inappropriate to commence a criminal investigation into such a possible offence. The Inquiry had regard to the fact that the DPP had indicated to GSOC, at an earlier stage, that a prosecution for such an offence would be considered in appropriate circumstances on the basis of the likelihood that an offence, similar to that which is recognised in the common law of the United Kingdom, would be recognised in this jurisdiction. 101

104 12.73 However, the Inquiry also noted that the equivalent offence in the United Kingdom required wilful and significant misconduct. In the circumstances of this case, the Inquiry was not satisfied that, as of the time when the designation of an investigation into a criminal offence occurred (which was within 30 minutes after the circumstances were first intimated to GSOC), there was available sufficient information to warrant considering the possibility of the sort of wilful neglect which would be necessary to constitute the offence of misconduct in public office if such an offence forms part of the law of Ireland. In summary the Inquiry has concluded that it must have been the case that, at the relevant time, the circumstances then known did not appear to constitute a criminal offence On that basis the Inquiry has concluded that the decision, at that time, to instigate a criminal investigation was mistaken. However, the Inquiry also has found that the decision was taken bona fide and, in the light of the lack of clarity which is to be found in the legislation itself, the Inquiry has come to the view that it must also conclude that the decisions respectively to recommend and designate the investigation as a criminal investigation, while mistaken, would not justify any action being taken against the individuals concerned Finally, the Inquiry notes that, while it views the decision to instigate a criminal investigation at the time when that decision was taken as having been mistaken, this should not be taken to mean that the Inquiry feels that no criminal investigation at all could properly have been instigated when more information became available. (ii) The Initial Stages of the GSOC Investigation (a) Submissions on behalf of the interested parties: As a number of different questions arose under this heading it is proposed to deal with each of them in turn, setting out the respective submissions of the interested parties separately in respect of each different issue. 102

105 12.77 The first issue in time relates to the decision taken at the meeting in Ballyshannon garda station on the 1 st January which, in substance, meant that the making of initial statements concerning their involvement in the events leading to the death of Ms Sheena Stewart were left to the gardaí themselves rather than being the subject of interviews with those gardaí by GSOC personnel. A subsidiary question under that heading arises out of the fact that the statements made by those gardaí were, therefore, uncautioned notwithstanding the fact that the gardaí concerned had been identified, in the original GSOC decision to designate the investigation as a criminal investigation under s.98, as being persons who were the subject of that investigation The second set of issues concerns the extent to which the three gardaí concerned (being Sgt Doyle, Sgt Galvin and Gda Clancy) were made aware of the fact that the statements which they were required to produce were intended, at least in part, for GSOC purposes as well as being for the purposes of compiling a file in respect of the RTA incident. That question also raises the issue of the lack of knowledge of the three gardaí concerned, during this period of the fact that they had been identified as being the subject of the GSOC investigation Returning to the first question Counsel on behalf of the extended Galvin family drew attention to the provisions of para of the Protocol which is in the following terms:- the arrangements will include the taking of any lawful measures which appear to the Garda GSOC Liaison Officer on scene to be necessary or expedient, for the purpose of obtaining and preserving evidence relating to the incident, including the: Preservation of the scene; Preservation and provision of potential exhibits or evidence, including Garda documentation, vehicles, firearms, uniforms etc; Arranging for initial accounts On that basis it was suggested that it was appropriate for GSOC to seek such accounts from the members concerned directly rather than through Insp Joyce. 103

106 12.81 In addition, reliance was placed on the evidence given by a number of GSOC officials as to the importance of there being an independent investigation so as to satisfy the requirements of Article 2 of the ECHR. In that context it was said that it was inconsistent for GSOC officers to then delegate the taking of initial accounts to the gardaí themselves Counsel for An Garda Síochána supported those submissions and suggested that the Protocol provides for a scheme whereby the taking of initial accounts should have been more appropriately done directly by GSOC officers Counsel for GSOC placed reliance on the evidence given to the effect that the practice of allowing, in appropriate cases, members of An Garda Síochána to make their own statements was a common practice frequently adopted when appropriate. It was argued that the decision as to whether such a course of action was appropriate was essentially an operational matter and that the Inquiry should not attempt to second guess reasonable operational calls in that regard. Reliance was placed on the fact that it had been agreed at the meeting of the 1 st January that there would be a split-investigation in which the gardaí would investigate the RTA and GSOC would investigate garda interactions with Ms Stewart prior to her death. Reliance was also placed on the fact that it had been agreed at that meeting that the statements to be made by the gardaí concerned would be required to deal with their interactions with Ms Stewart and that it had further been agreed that the relevant statements would be transmitted to GSOC All parties noted that there was a conflict of evidence, which the Inquiry would be required to resolve, as to whether, at the meeting of the 1 st January, it was communicated to Insp Joyce that a criminal investigation under s.98 of the 2005 Act had already been designated On the connected question of whether it was appropriate, in the light of the fact that the investigation had been designated as a criminal investigation, that the statements in question would be uncautioned statements, Counsel for the extended Galvin family referred to the evidence which suggested that all s.98 criminal investigations involving a death were, as a matter of GSOC policy, referred to the 104

107 DPP On that basis it was suggested that an uncautioned statement should not have been taken after the investigation had been designated as a s.98 investigation. Reliance was also placed on s.67(1)(a) of the 2005 Act which provides for a principle of full fairness in the context of a GSOC investigation. It was argued that this provision required GSOC to lean in favour of a cautioned statement certainly in any case where a criminal investigation was in being. Furthermore, reliance was placed on the fact that, at least from the 12 th January onwards, GSOC had identified apparent discrepancies between the initial account given of events and what appeared from CCTV footage. It was noted that the statements of the gardaí concerned had not, by that stage, been furnished to GSOC (although it appears as a fact that some of them had already been made). On that basis it was suggested that persisting with uncautioned statements, when such a discrepancy had been identified, was inappropriate Counsel for GSOC argued that different thresholds apply to the commencement of a criminal investigation under s.98 and a situation where a caution requires to be administered which was said to arise only where it can properly be said that the individual sought to be interviewed is in jeopardy of prosecution. In that context an analogy was drawn with a criminal investigation conducted by An Garda Síochána and it was submitted that a caution is only administered if a stage is reached when an interviewing garda believes that a person is in jeopardy of prosecution. It was suggested that, at an earlier stage in an investigation, there may well be persons who can properly be described as persons of interest but in respect of whom the investigation had not progressed to a sufficient stage that it can properly be said that they are in jeopardy of prosecution. It is said that such persons of interest can properly be interviewed without caution provided that the threshold which might lead to it reasonably being considered that they were in jeopardy of prosecution have not been reached In reply Counsel for An Garda Síochána suggested that there was no valid distinction between a member being suspected of an offence and a person being in jeopardy of prosecution. It was said that the policing powers conferred by s.98 are provided because a criminal investigation under s.98 comes into being on the basis of there being a reasonable suspicion of the commission of an offence. 105

108 12.88 Turning to the question of the understanding of the members concerned in relation to the statements which they were required to give it must first be noted that the submissions on that issue were, to some extent, dependent on a resolution of the conflict of evidence concerning whether Insp Joyce was made fully aware of the existence of a criminal s.98 investigation at the meeting of the 1 st January. On GSOC s case Insp Joyce was so aware and, on that basis, it was suggested that any failure to fully appraise the relevant members was due to a failure on the part of An Garda Síochána to adequately communicate that fact internally to the members concerned. It was also suggested on behalf of GSOC that the evidence was not disputed concerning the fact that it had been agreed at the meeting of the 1 st January that the relevant members would be required to justify their actions in respect of Ms Stewart in the course of their statements and that it was also agreed that those statements would be made available for use by GSOC as part of its investigation. To the extent, therefore, that any individual members may not have been aware of the requirement to justify their actions in their statements and/or of the fact that the statements were to be used for GSOC purposes, same was submitted to result from a failing of internal communication within An Garda Síochána On the other hand Counsel for An Garda Síochána and Counsel for the extended Galvin family relied on the evidence of Insp Joyce to the effect that the existence of a criminal s.98 investigation had not been made clear to him at the meeting of the 1 st January. On that basis it was said that, given that there had been no other formal notification of the existence of such an inquiry until, at least, the 26 th January, any lack of understanding on the part of the members concerned must be put down to the failure of GSOC adequately to communicate the existence of a s.98 inquiry All parties noted that there was something of a conflict of evidence as to precisely what had been communicated specifically to the three gardaí concerned concerning the question of whether their statements might be required for GSOC purposes (as well as for the RTA file) and also the requirement that they should justify their actions in respect of Ms Stewart in the course of such statements. However, Counsel for An Garda Síochána did suggest, in that context, that GSOC must accept responsibility for any inadequacy of communication on the basis that it was GSOC designated officers who had decided to 106

109 adopt the practice of not taking direct initial accounts themselves but rather leaving that matter to the gardaí. (b) The Inquiry s findings: On the basis of those submissions there are two broad sets of issues which need to be considered. First, there is the suggestion that the method of investigation adopted by GSOC left too much of the evidence gathering to An Garda Síochána. The second set of issues concern the extent to which, as a result of the way in which the initial investigation was conducted, individual gardaí may have had a significantly less than clear view of what was required of them and of the status of the investigation itself. That latter issue somewhat overlaps with a general question of communication and information which it is intended to address separately. As part of those issues the question of whether it was appropriate to secure uncautioned statements also arises Much of the precise sequence of events is not, in itself, in dispute. As already noted the initial stage of the GSOC investigation involved a meeting at Ballyshannon garda station on the evening of the 1 st January between SIO Harden, IO Breen and Insp Joyce. One of the few contested issues of fact which arises from the evidence tendered concerns what happened at that meeting with particular reference to the information conveyed to Insp Joyce about the nature of the GSOC investigation itself and the types of statements which would be required from those gardaí who had had contact with Sheena Stewart prior to her death. What is clear is that it was agreed that statements would be furnished from the gardaí concerned and that Sgt Mullaney, who was not one of those gardaí directly involved in contact with Sheena Stewart, would be in charge of the RTA element of the investigation. One of the criticisms made both by An Garda Síochána and by representatives of the Galvin family is directed towards the fact that GSOC did not interview those gardaí who were centrally involved at that time. It is, therefore, necessary to set out the evidence concerning the suggestions which were made relating to such interview: SIO Harden gave evidence that it had been agreed between himself and Insp Joyce that the members themselves would provide their own statements in relation to the incident and that this would be done through Insp Joyce. He said that, taking into account the fact 107

110 that it was New Year s Day, that the members in question had been working a night shift, that they had experienced a death, and that there were, therefore, welfare considerations, he and Insp Joyce believed that this was a suitable way to deal with the members themselves. However, he said that at the end of that meeting he proposed to Insp Joyce that there should be an opportunity to meet the members should they choose to do so. He said that this was something he does on every referral that he attends and that he feels that it is an important part of the job. He explained that, while there is in his view no statutory obligation to meet the relevant members, it would be something that he does as a matter of course to ensure that the members concerned understand who GSOC are, what it is they do and how they intend to investigate. He said a lot of his job in those instances is trying to get over the canteen gossip of what GSOC does. He said that this was one of very few occasions where such a meeting did not take place. When he had sought a meeting with the relevant members, Insp Joyce had told him they were not on shift. He had understood that Insp Joyce was to pass on the message to the three members that he was offering to meet them and would provide any information or clarification they wished in respect of GSOC itself and the investigation. He stated that the meeting could have taken place at any stage. IO Breen said that he thought there had been some discussion about meeting the members when they had called back to the garda station on the 2 nd of January but said that he knew they were not on duty. Insp Joyce said that all SIO Harden had asked was whether the three members were around and that he might have indicated that he had not seen them around. He said he had no idea whether they were on duty or not. He denied telling the GSOC officers that they were off duty and did not recall any specific request to speak with them. This was the extent of the exchange on this point Under cross-examination Insp Joyce said that there could not have been any realistic offer to meet members because the GSOC investigators were leaving the following morning and that they only dropped into the station that following morning for a couple of minutes to drop off the document request and to collect the CCTV. He indicated that, if SIO Harden had expressly said that he wished to meet with the relevant members, there would have been no difficulty contacting them. He did not understand that he was to convey a message to them to the effect that SIO Harden was available for a meeting. 108

111 12.95 The next issue of controversy concerns the information imparted at that meeting about the status of GSOC s involvement. Inspector Joyce indicated in his evidence that he understood the GSOC investigators were carrying out a general inquiry rather than an investigation into specific members of the gardaí. He said that he understood that the GSOC investigators simply wanted members who had had contact with Ms Stewart to make statements justifying their actions. He indicated that SIO Harden would not have had a clear idea at the initial meeting as to which gardaí should make such statements for the GSOC investigation because he would not have been fully aware of all the facts at that stage. However, he indicated that he spent perhaps minutes obtaining details from the PULSE record for the GSOC investigators and telling them what he knew from the case conference earlier that day. It was he who identified the three members who had contact with Ms Stewart. He gave evidence that he was not aware that there was a s.98 investigation in being and that, if the term investigation had been used, this would have caught his attention and he would have approached matters differently. He understood that GSOC would normally do a general inquiry first and decide what they are actually investigating. He said the impression he got at the time was that SIO Harden was going to prepare a file for the coroner. He had understood that this was for the purpose of demonstrating impartiality, lest the interaction between Ms Stewart and the gardaí was an issue at the inquest SIO Harden was adamant in his evidence that he did explain to Insp Joyce that they were conducting an investigation in accordance with Section 98. However he said that he did not believe that he elaborated on exactly what that meant because he did not feel that he needed to do so when addressing an Inspector of the Gardaí. He said that in his mind Insp Joyce was well aware that it was a s.98 investigation. He said that GSOC do not carry out inquiries, they are in the business of investigations and that the term inquiry was not one which he would have used IO Breen, who attended the meeting with SIO Harden, also stated that SIO Harden had said to Insp Joyce that it was a Section 98 investigation. He said it would be normal procedure to say that it was a referral and outline what section the investigation was under. When asked about whether the statements to be provided were for the purposes of the investigation of a criminal offence, IO Breen said but you are requesting an initial 109

112 statement in relation to that just accounting for the interaction with the person who is Ms Stewart. Just their duty, you know, the meeting and what occurred. That s it On the question of whether the persons under investigation were identified it was put to SIO Harden that Insp Joyce had perceived that there was nobody in particular under investigation. He said that once an incident is referred and GSOC are investigating the incident, then the members in question are the subject of that incident. He indicated that while he might not have used the express words that they were under investigation, they were certainly the subject of that incident and that investigation. He did not wish there to be a suggestion that GSOC were targeting guards as this is not their purpose In the light of that evidence it will, therefore, be necessary to return to the question of whether any criticism can legitimately be directed towards those GSOC officials concerned for not having personally interviewed the relevant gardaí and for having made arrangements to allow the position of those gardaí to be set out in statements made by the gardaí themselves There is a conflict of evidence concerning whether, at the meeting in Ballyshannon on the evening of the 1 st January, it was communicated to Insp Joyce that a criminal or s.98 investigation had been designated. It must be recalled that, by that stage, the decision to so designate the investigation had already been taken. The GSOC officers concerned gave evidence that that fact was communicated to Insp Joyce. Insp Joyce denied any such communication. Unfortunately, although IO Breen took some notes, there was a dearth of helpful notes on the issue It is difficult at this remove to express a definitive view as to what was or was not said at that meeting with any real degree of confidence. However, the Inquiry is of the view that the most probable explanation is that the fact of there being a criminal investigation was, in some way, expressed by the GSOC officers but in a way which did not fully or adequately communicate the criminal nature of the investigation to Insp Joyce. It may well be that this lack of effective communication stemmed from the use of terminology which would be entirely familiar to GSOC officials but may have been much less so to even a relatively senior garda officer such as Insp Joyce. For example, it may well be that terminology such as a s.98 investigation or the like, was casually used but not in 110

113 a way which communicated to Insp Joyce the fact that such a designation meant that there was a criminal investigation afoot or that particular individuals were the subject of that investigation. The Inquiry accepts that the GSOC officers concerned attempted to communicate the fact that there was such a criminal inquiry in being and genuinely believed that they had properly communicated that fact to Insp Joyce. However, the Inquiry also accepts that Insp Joyce did not have that fact communicated to him in a way which he clearly understood and that he was, therefore, not actually aware, as a result of the meeting, that a criminal inquiry was in being Perhaps this lack of communication emphasises the need for greater care in the precise communication of important information arising in the context of GSOC inquiries. The fact that senior GSOC officials believed that they had communicated to a senior garda the existence of a criminal investigation but that the senior garda concerned did not fully appreciate that such an inquiry had been designated, demonstrates the need for ensuring a much greater level of clarity of communication It is important at this stage to recall at least one aspect of the relevance of that lack of clear communication. As already noted, neither Sgt Galvin nor Gda Clancy were aware of the fact that they were the subject of a criminal investigation right up to the time when they were contacted by IO Gallagher about a cautioned interview. Sgt Doyle did not know that he was the subject of such an investigation until it was, to all and intents and purposes, over. While, as has been noted elsewhere, there were other factors which also contributed significantly to the fact that those gardaí were unaware of the situation, nonetheless the failure of clear communication on the 1 st January must be said to have been a contributory factor. One of the unfortunate consequences was that, thereafter, relevant GSOC officials were clearly under the impression that all relevant gardaí were likely to be aware of the nature of their investigation when that was not, in fact, so. In the course of their evidence a number of GSOC designated officers suggested, correctly so far as it goes, that all gardaí in the district would have been aware of a GSOC involvement. That seems highly likely. The fact that GSOC officers arrive in a garda station after a death is most unlikely to go unnoticed. The fact, therefore, that some form of GSOC inquiry or investigation was occurring was likely to have been known to all concerned from the beginning. However, it is a different thing for gardaí to be aware of a GSOC involvement, on the one hand, and 111

114 to be informed that there is a criminal investigation and in particular that they may individually be the subject of such criminal investigation, on the other. The issue is not knowledge of a GSOC involvement. The issue which, on any view, necessarily arises centres on the fact that gardaí who had been identified as being the subject of a criminal investigation (whether rightly or wrongly) were not made aware of that fact for a very considerable period of time Another aspect of this issue concerns what happened next. It is at least agreed between all relevant witnesses that it was accepted that the gardaí concerned, in making their statements, would have to deal with or justify their contact with Sheena Stewart. In that regard the evidence of what happened at the Ballyshannon meeting on the evening of the 1 st January is as follows SIO Harden and IO Breen gave evidence that it was agreed at the meeting that the statements to be taken in relation to the GSOC investigation should be sourced by Insp Joyce who delegated this function to Sgt Mullaney (who was carrying out the RTA investigation and compiling statements for that purpose). IO Breen stated that, in his view, sourcing statements in that way could constitute the taking of accounts in accordance with the Protocol. In relation to the taking of statements, Insp Joyce said that he was not familiar with the typical procedure for such investigations but he did not have a difficulty with the statements being routed in this way, via himself However, there is, at a minimum, some differences in the evidence as to just how much of that was communicated to the three gardaí concerned. The Inquiry does not, of course, have any direct account from Sgt Galvin. However, the following evidence is of some relevance in attempting to assess what Sgt Galvin understood to be the role of the statement which he was required to make Insp Joyce said that he gave Sgt Mullaney the task of relaying to the three members, namely Sgt Doyle, Sgt Galvin and Gda Clancy, that their statements were required and that they should give a rationale for their actions. However, he also said that he subsequently spoke personally to Sgt Doyle and Sgt Galvin about the need to make statements justifying their actions. His evidence was that, even though he did not understand that there was a s.98 investigation in being, or perhaps did not appreciate the import of the reference to 112

115 that section, that the three members under investigation must have been live to the GSOC investigation and the fact that their actions were under scrutiny because the attendance at the station of the GSOC investigators was an unusual event and was referred to in the media. He also said that he would not normally be looking for statements in a fatal RTA investigation; that would be a sergeant s job. He said that he had had discussions with both sergeants, although he said that he never discussed the statement directly with Gda Clancy. He said that he had to follow up with Sgt Galvin several times in relation to the statement and that he felt Sgt Galvin was worried about it. He pressed him to provide the statement, reiterated that there was a time limit for its provision and reassured him that he simply had to justify his actions on the night with respect to his dealings with Ms Stewart. Insp Joyce expressed the view that the members under investigation may have turned a blind eye to the obvious in terms of the purpose of their statements. However, he accepted that his requests were reasonably informal and that he himself had continued to believe that GSOC were conducting a general inquiry rather than a criminal investigation The Inquiry did have the benefit of the evidence of both of the other two gardaí who were, unbeknownst to themselves, identified as being the subject of a criminal investigation. That evidence was as follows: Gda Clancy gave evidence that his understanding was that his statement had been made purely for the purpose of the RTA investigation. He said that it was in fact Sgt Doyle who had asked him to provide a statement, in the days following the road traffic accident and that he had made his statement on the 7 th of January and furnished it to Sgt Doyle. He did not have any recollection of a request coming directly from Sgt Mullaney. He did not have any contact with Insp Joyce about it and, as Sgt Doyle was his unit sergeant, he would have provided it to him in accordance with the rank structure, as all correspondence and requests would usually come from his unit sergeant. His understanding was that his statement should cover all aspects of the road traffic accident and his involvement in it, including his interaction with Ms Stewart and his role in preserving the scene. He said that he was aware GSOC investigators had been present in the garda station on the 1 st of January but he was not aware he was under investigation. He said that he had never received any notification that he was the subject of a GSOC 113

116 investigation and had never been given the names or contact details of SIO Harden or any other GSOC investigator prior to being contacted by IO Gallagher in late March Sgt Doyle gave evidence that he was initially asked to provide a report by Supt Finan. As he had been at the scene it would be normal that he would send in a report for the information of the Superintendent and the Chief Superintendent on the circumstances of what had occurred. However, when Sgt Mullaney took over the investigation, he asked for statements so Sgt Doyle had made a statement for that purpose within a few days. In his evidence he said that he had been asked to stand aside from the investigation into Ms Stewart s death as GSOC were getting involved in the investigation. However, he had no inclination that he was potentially one of the officers who was going to be investigated by GSOC. He understood that GSOC were going to look into the circumstances, which would be normal enough, if a person suffered a death or serious injury and the gardaí had interaction with them beforehand. He said that he prepared his statement on the understanding that it was for a criminal investigation of the RTA but had no idea that it would be used by GSOC. Initially he did not recall having any conversation with Insp Joyce about the making of his statement. However, Insp Joyce subsequently gave evidence in respect of having discussed it with him. This was put to Sgt Doyle in the course of his evidence on a later date and he indicated that he did in fact remember a conversation with Inspector Joyce. He said that he had made his statement already at that stage but that Insp Joyce said to him to make sure that he justified his actions. He said that he understood that there was a possibility that GSOC were going to look at the statement but that his understanding of the initial investigation was that this was just a general inquiry into the dealings of gardaí with Ms Stewart on the night. However, he reiterated that he was not aware that he was under any investigation as such. He said that, when Garda Clancy was informed by IO Gallagher that he was being investigated, he assumed that he would be similarly informed within a few days that he was also being investigated but that he never was In the light of that evidence a number of issues arise. The first is the question of fact as to exactly what was said to the three relevant gardaí concerning the purpose of the statements which they were required to make and in particular the extent to which it was communicated to them that the statements might be used for GSOC purposes in addition 114

117 to being potentially of some relevance in the event that there was a prosecution under the Road Traffic Acts. Second, there is the question of whether it was appropriate or proper to require gardaí who had been identified as being the subject of a criminal investigation to make such statements relating to their contact with Sheena Stewart without being cautioned. That latter issue comes into particular focus in the light of the fact that the gardaí concerned were unaware of the fact that they were identified as being the subject of a criminal investigation The Inquiry has earlier identified that the first question which arises is as to whether it was, in all the circumstances, appropriate for the relevant GSOC officers to leave the taking of initial statements from the gardaí concerned to the gardaí themselves. The Inquiry is mindful of the fact that there may well be many cases where there will be an overlap between what might be termed an ordinary criminal investigation being carried out by An Garda Síochána and a GSOC investigation of whatever type. Indeed, the legislation, and in particular s.108 of the Act, contemplates this in that express provision is made for the adoption of a protocol to be agreed between GSOC and An Garda Síochána to deal with precisely that situation. It would appear that the relevant protocol goes beyond the narrow confines of what the statute requires. There is nothing, of course, wrong with that. It obviously makes sense for GSOC and An Garda Síochána to agree practical solutions to the sort of operational questions which may well arise in the implementation of the legislation concerning GSOC s role. But it is important to emphasise that there is a special statutory status to those aspects of the Protocol which are directed towards ensuring the orderly conduct of parallel investigations into criminal matters involving members of the public (being conducted by An Garda Síochána) and GSOC issues The Inquiry has already commented on whether there was sufficient information or materials available at the time when a decision to designate the investigation in this case under s.98 was made. It is unnecessary to return to that issue again. The Inquiry is not persuaded that there is anything inappropriate, in and of itself, in GSOC, in an appropriate case, leaving it to members of An Garda Síochána to make statements which might form part of the materials relevant to both a criminal investigation relating to a member of the public and a GSOC investigation. The decision on whether that may be appropriate seems 115

118 to the Inquiry to be an operational matter best left for decision on a case by case basis for those involved The Inquiry is also mindful of the fact that there may well be a difference in the legal threshold appropriate to the instigation of a criminal investigation, on the one hand, and the requirement to interview a suspect under caution, on the other hand. The Inquiry has already dealt with what it considers to be the appropriate threshold for the instigation of a criminal investigation. It is necessary that there be sufficient information or available materials such that it cannot be said that there is not the appearance of a criminal offence disclosed (for the reasons already addressed the double negative is deliberate). The formal legal threshold for the requirement to caution a suspect before inviting that suspect to make a statement is different The caution is seen as underpinning the constitutional right to silence. 18 The Judge s Rules are a set of administrative directions for the guidance of police in the questioning of suspects and were originally intended to ensure the fair administration of justice. 19 The Judge s Rules are not rules of law but members of An Garda Síochána are expected to comply with them. There are 11 rules in total and Rule 2 provides that the gardaí must caution a person who they have decided to charge with an offence before asking any further questions. A number of cases have recognised the importance of administering a caution in a timely manner focusing on whether the person concerned has moved from being a suspect to being a person whom the gardaí have decided to charge with an offence The fact that a garda may have a suspicion that the suspect has committed a crime does not necessarily mean that he must immediately caution the suspect 21. However if a garda has decided to charge a person with an offence he should administer the usual caution before asking any further questions. If the garda is questioning a person and the garda is in possession of sufficient information to give rise to a possibility that the person may be charged with an offence, the member should administer the caution before asking any 18 People (DPP) v Finnerty [1999] 4 IR R v Voisin[1918] 531; McCarrick v Leavy [1964] IR Orange, Police Powers in Ireland, Bloomsbury Professional, People (DPP) v O Reilly [2009] IECCA

119 further questions. In addition if there are attendant factors concerning the manner or circumstances in which a statement is being made, the principles of basic fairness may require the administration of a caution It must, of course, be recognised that, as a matter of practice, investigating authorities may well decide to administer a caution as an exercise in prudence even if it may not, strictly speaking, be required in accordance with that jurisprudence. It is unlikely that any questions concerning the admissibility of evidence obtained at an interview will ever arise because a caution was administered in circumstances where it was not, strictly speaking, necessary. However, real questions can arise concerning the admissibility of evidence taken at an uncautioned interview if it can credibly be suggested on behalf of an accused that the circumstances required a caution. Thus an uncautioned interview runs the risk of an issue arising at a trial as to whether a caution was in fact required. It is in such circumstances that prudence may well dictate administering a caution for the avoidance of doubt There may well, therefore, be circumstances where it is appropriate to instigate a criminal investigation, where it may be reasonable to identify a particular member of An Garda Síochána as being one of those concerned with that criminal investigation, but where the case against the member concerned falls a long way short of the level of suspicion or intention to prosecute which would require the administration of a caution. The Inquiry is not, therefore, persuaded that there is anything necessarily wrong with inviting a member of An Garda Síochána, in the context of a s.98 criminal investigation, to make an uncautioned statement where that member has been identified as one of those who may be the subject of the investigation concerned However, it does seem to the Inquiry that basic fairness (and the provisions of s.67(1)(a) of the 2005 Act in that regard) would require that any such member should be made aware of the fact both that there is a s.98 criminal inquiry in being and that the 22 Orange, Police Powers in Ireland, Bloomsbury Professional, 2014; People (DPP) v O Reilly [2009] IECCA

120 member concerned has been identified as being one of those the subject of such an inquiry, prior to their being invited to make a statement In the circumstances of this case the Inquiry is not persuaded, even if it were wrong on the question of whether there was enough information to warrant a s.98 inquiry at the initial stage in the first place, that there was anything approaching the level of information or materials which would have required, at that stage, that the three gardaí concerned be interviewed under caution. The Inquiry is also not persuaded that, in the particular circumstances of this case, there was anything necessarily wrong with statements being sought from the gardaí concerned in the manner adopted. It was not, in the Inquiry s view, necessarily the case that GSOC officers ought to have interviewed each of the gardaí themselves at an early stage, although that was a course of action which could have been adopted However, the Inquiry does consider that it was wrong that the three gardaí in question were invited to make statements at a time when a criminal investigation was in place and where they had been identified as being members in respect of whom that investigation was directed, without those gardaí being clearly told, prior to them furnishing their statements to GSOC, that such was the case. In the Inquiry s view those who sought statements in that manner (and therefore, in particular, SIO Harden and IO Breen) should have done more to ensure that the gardaí concerned knew the full situation before making statements which were, at least in part, intended for GSOC purposes. The Inquiry concludes, therefore, on this issue that the relevant GSOC designated officers were entitled to request uncautioned statements in the manner which they did. That decision was within the bounds of the sort of reasonable call which would have been open to those designated officers in the circumstances of this case. The Inquiry does, however, conclude that more should have been done to ensure that the gardaí concerned were aware of the status of the GSOC investigation and in particular its status relevant to themselves, before they were required to submit such statement. The sequence of events which led to the gardaí concerned not being so aware have been partly addressed in this section and are further addressed in the section concerning information and communication generally. There was, in substance, a series of communications which lacked clarity, were insufficiently formal or where the agreed communication method failed which led to the gardaí concerned not 118

121 being aware of the situation prior to their statements being handed over the GSOC. In that context it would be wrong to place all of the blame on those GSOC offices who were involved in the initial meeting for, as has already been pointed out, they believed that the fact of a criminal investigation had been communicated and had, therefore, reasonable grounds for anticipating that the gardaí concerned would be made aware of that fact as part of the background against which statements justifying their position would require to be made. In those circumstances it does not seem to the Inquiry to be appropriate to take any action in that regard in respect of those GSOC officers who were involved in the meeting of the 1 st January The final question which arises concerns the circumstances in which it appears to have been significantly less than clear to the three gardaí who were the subject of the GSOC investigation as to the nature of the statements which they were required to provide and in particular the extent to which those statements might be used for the purposes of a GSOC investigation. It must first, of course, be recalled that Insp Joyce did not understand that there was a formal GSOC investigation in being at all. The circumstances in which that came to pass have already been commented on. But it follows that Insp Joyce could not, whether through Sgt Mullaney or otherwise, have imparted to any of the three members concerned that they were the subject of a formal GSOC criminal investigation or that their statements were required in that context, for he did not know or understand that to be the case himself However, it is clear, and indeed accepted by Insp Joyce, that it was agreed at the meeting of 1 st January that the statements required from the three members would need to justify the actions of the members concerned in respect of their contact with Ms Sheena Stewart. It was also clear that those statements would be made available to GSOC and would form part of whatever GSOC inquiry or investigation was afoot It certainly does not seem that Gda Clancy got that message in anything remotely resembling a clear fashion. The Inquiry accepts his evidence that he did not know that the statement which he was required to make was for GSOC purposes. The position is a little less clear in respect of Sgt Doyle for, while initially maintaining that he considered that he was simply making a statement for the purposes of an RTA file, he slightly qualified that 119

122 position when recalled in the light of evidence given by Insp Joyce. The Inquiry is satisfied that he was told that his statement should justify his actions in respect of Ms Stewart but is not satisfied that it was made sufficiently clear to him that his statement might be used for the purposes of a GSOC investigation of any type. Given that, for tragic and obvious reasons, the Inquiry did not have the opportunity of hearing from Sgt Galvin it is difficult to reach any definite conclusions as to his state of knowledge but it seems reasonable to infer that it was not dissimilar to the position of Sgt Doyle It follows that the Inquiry is satisfied that, at the time when they made their respective statements, it had not been made sufficiently clear to the three members concerned that those statements were to be used, at least in part, for GSOC purposes. At least in the case of Sgt Doyle and Sgt Galvin it may well have been the case that there was some, informal and unclear, communication broadly to that effect but in all the circumstances it does not seem likely that any of the members had a sufficiently clear view of the purpose for which their statements were required. They most certainly were not aware of the fact that they were, at the time in question, the subject of a formal criminal investigation. But they were not, in the Inquiry s view, even sufficiently clear as to the precise multiple purposes for which their statements were required. This finding brings again into focus the lack of clear and effective communication which, in the Inquiry s view, underlies many of the issues which have arisen in the context of this case and which will be returned to in the section of this report which deals specifically with those questions Given that the specific focus of this inquiry is, as has been pointed out, the conduct of designated GSOC officers it is necessary to record that any lack of sufficient communication to the three members concerned of the fact that their statements were required for GSOC purposes as well as RTA purposes cannot be laid at the door of any GSOC designated officers. Whatever may have been the case concerning the lack of communication of the fact of a criminal investigation, which occurred at the meeting of the 1 st January, it is clear that the GSOC officers concerned reached, at that meeting, an agreement that the statements which were to be obtained from the three relevant members were to be used for GSOC purposes and were to include a justification of the interaction of the three members concerned with Ms Stewart. To the extent that the requirements for those statements and the intended purpose of those statements were not adequately 120

123 communicated to the relevant gardaí, same cannot, therefore, be blamed on any GSOC designated officers. (c) Summary of Conclusions and Recommendations: The Inquiry has found that it is difficult to express a definitive view on a conflict of evidence between GSOC officers (SIO Harden and IO Breen) and An Garda Síochána (Insp Joyce) as to precisely what was said at a meeting in Ballyshannon garda station on the 1 st January concerning whether a criminal investigation under s.98 of the 2005 Act was in being. The Inquiry accepts that the GSOC officers concerned attempted to communicate the fact that there was such a criminal inquiry in being and genuinely believed that they properly communicated that fact to Insp Joyce. However, the Inquiry also accepts that Insp Joyce did not have that fact communicated to him in a way which he clearly understood and that he was, therefore, not actually aware, as a result of the meeting in question, that a criminal investigation was in being. That lack of clear communication was one of the factors (but not by any means the only factor) which led to the fact that the three members of An Garda Síochána who had been identified as being the subject of the criminal investigation (Sgt Doyle, Sgt Galvin and Gda Clancy) were not informed of the fact that there was a criminal investigation and that they were the subject of it The Inquiry has noted, however, the agreement of all those who were present at the meeting of the 1 st January to the effect that it was accepted that statements from the three gardaí concerned would be obtained in which those gardaí would be required to justify their conduct in the context of their contact with the late Ms Sheena Stewart prior to her death. Those statements were to be taken in conjunction with the taking of statements of the gardaí concerned in the context of the preparation of a file in relation to a possible criminal prosecution under the Road Traffic Acts. It was also clear at the meeting in question that the relevant statements would be made available to GSOC for the purposes of its investigation The Inquiry has concluded that there was nothing wrong, in and of itself, in GSOC using that method for obtaining initial statements from the gardaí in question and that there 121

124 was nothing wrong, in and of itself, in such statements being requested without the members concerned being cautioned. However, the Inquiry has concluded that it was wrong that those members were required to submit statements to GSOC without the members concerned having been informed of the existence of a criminal investigation and of the fact that they were the subject of the criminal investigation concerned The Inquiry has also concluded that, at the time when the three gardaí concerned made their respective statements, it had not been made sufficiently clear to those members that the statements which they were to make were, at least in part, for GSOC purposes. In that regard, whatever about the lack of communication which occurred at the meeting of the 1 st January referred to in the conclusions of the previous section of this report, it is clear that the GSOC officers concerned at that meeting reached an agreement that statements were to be taken from the three members at least in part for purposes of the GSOC investigation. The fact that that aspect of the agreement was not clearly communicated to the members concerned must be laid to a failing of adequate internal communication on the part of An Garda Síochána. (iii) The extension of the GSOC investigation and the decision to conduct cautioned interviews: It should be noted that this section includes analysis of the extension of the GSOC investigation to one involving possible offences concerning making false and misleading statements or perverting the course of justice, which for the purpose of this Report, has been combined with the issue of the decision to interview Sgt Galvin and Gda Clancy under caution. (a) Submissions on behalf of the interested parties: Having reviewed the uncautioned statements and the CCTV footage of the incident, GSOC officers made the decision to extend the investigation to one involving the potential offences of perverting the course of justice, or making false and misleading statements. 122

125 Both of those offences are essentially to do with making a false statement; one statutory and one common law. It was submitted by GSOC that there was a conflict between what was said in the relevant statements with what appeared on the CCTV and the evidence of passers-by In particular it was submitted that once all the evidence was available, there was a clear conflict on what was said to be the crucial issue of whether Ms Stewart was lying on the road or standing on the footpath as the garda van approached. It was argued that the state of information at that time admitted a number of possible interpretations with one being the possibility that the garda members concerned had deliberately omitted to say that Ms Stewart was lying on the road as the Garda van approached, so as to put forward a wholly different context to their interaction with her at that precise time. If, when they approached her, and then spoke to her, she was standing on the footpath, their conduct in leaving her would be easier to justify than if she was lying on the roadway when they approached. Moreover, if the omission of this fact from their statements was deliberate (which again was one of several possibilities) then it might suggest that there was something to conceal, which, if so, would be relevant to the original suspected offence of misconduct in a public office In the context of the question of whether an interview under caution was appropriate, it was submitted on behalf of the designated officers that that issue was interwoven with the question of the extension of the investigation to contemplate a s.110 offence or the offence of perverting the course of justice. Where the state of the information admitted of a number of interpretations, but one of them was the possibility that gardaí had deliberately omitted to say that Ms Stewart was lying on the road when the garda van approached, that gave rise to a potential offence and it was proper to interview the members concerned after caution. It was stated that GSOC have a statutory obligation to carry out a thorough and independent investigation in accordance with appropriate legal procedures and that it was in this context that the decision was made to interview after caution so as to provide proper legal protection for the relevant members Submissions were made in respect of what was said by some witnesses before the Inquiry to the effect that the giving of a caution was something which was offensive or 123

126 wrongfully increased stress levels for Sgt Galvin. On behalf of the designated officers, it was submitted that this was a bizarre stance and that the reality is that a caution is a legal protection for the suspect. (It should be noted that this was not a stance which was adopted by any of the parties in legal submissions and there was no submission advanced that the cautions should not have been administered.) On behalf of the designated officers, it was submitted that a suspect has a right not to incriminate himself and that this right enjoys constitutional recognition and protection under the European Convention on Human Rights. It has its source in the Judges Rules and is therefore an obligation upon the interviewer and a protection for the accused. It was submitted that there could be no wrongdoing identified in administering the caution once the evidence had reached the stage described above It was submitted that the threshold for administering a caution employed by GSOC is precisely the same as that used by members of An Garda Síochána and that the decision is made on the basis of their understanding of the law and fair procedures. In circumstances where the investigating officers understood that the members had been told their statements were being made for the GSOC investigation, the conflict identified was sufficient to raise a suspicion in the legal sense of the term that the members had deliberately chosen to omit the fact that Ms Stewart was lying on the road. If this omission were deliberate then this would amount to an offence under s.110 of the Act and an offence of attempting to pervert the course of justice contrary to common law and in those circumstances it was said to be entirely appropriate to seek to interview the relevant members and to caution them in relation to both offences Submissions made on behalf of the extended Galvin family in relation to this issue referred back to the position that it was inappropriate that the task of recovering the initial statements from members was delegated to Insp Joyce and that this caused confusion from the outset. Essentially, the failing identified was of a failure to seek cautioned statements at the outset, where the members were the subject of an investigation under s.98. No submission was made that the members should not have been cautioned at this later stage, but rather that the caution should have been administered at a far earlier stage. Like submissions were made on behalf of An Garda Síochána. 124

127 (b) The Inquiry s Findings: The facts which form the backdrop to this issue have already been set out in some detail. The relevant parts of the statements made respectively by Sgt Galvin and Gda Clancy have been quoted. A detailed account of what can be seen from the CCTV footage has also been set out. The Inquiry has already set out its views on the circumstances in which the statements of both Sgt Galvin and Gda Clancy came to be made and it is unnecessary to revisit those questions again here. However, it is absolutely clear that, however it arose, there is a material inconsistency between the statements concerned and the CCTV footage. Sgt Galvin s statement suggests that, as the garda van approached the bus station, Ms Stewart was on the footpath on the left hand side of the road... Likewise Gda Clancy stated that, as the van got near the bus station, he saw Sheena Stewart standing on the footpath. However, the CCTV footage makes clear that, as the van approached the relevant part of the roadway, Ms Stewart was lying on the road at a time after the van s brake lights are on but that she got up quickly and went to the footpath At the time when the initial decision which is the subject of this issue was taken (which occurred, as already noted, at a review on the 12 th February) those involved, being SIO Leeman and IO Gallagher, had both the statements and the CCTV footage available to them. It also needs to be noted that the discrepancy related to a matter which was of some importance to the GSOC investigation. The focus of that investigation in whatever guise it might have been conducted (and without prejudice to the dispute as to whether an investigation under s.98 was warranted on the information available at the time that the decision to designate was taken) was on the conduct of those members of An Garda Síochána who had contact with Sheena Stewart for the purposes of ascertaining whether greater action should have been taken, in all the circumstances, to ensure that Ms Stewart was not a danger to herself or to road users. The reasons why there was at least cause for concern in that regard have already been set out in the course of this Report. Concerned members of the public had felt sufficiently worried about the situation to contact An Garda Síochána. It follows that the assessment of those members who had contact with Sheena Stewart, after the receipt of those calls from concerned members of the public, as 125

128 to Ms Stewart s state was an important part of any inquiry or investigation which might be conducted. That is so not least because it was in those very same circumstances, lying on the roadway, that, tragically, Ms Stewart met her death some short time thereafter. Therefore, on any view, material relevant to the question of whether members of An Garda Síochána ought to have had greater concern for Ms Stewart s wellbeing and ought, potentially, have acted differently because of that greater concern was clearly a central issue for consideration In that context the question of whether Sgt Galvin and Gda Clancy might be said to have actually come across Ms Stewart lying in the roadway in the circumstances disclosed by the CCTV footage but not have referred to that fact in their statements was, in the Inquiry s view, a matter which GSOC was fully entitled to investigate. We now know, of course, that explanations were given both by Sgt Galvin and by Gda Clancy, which persuaded IO Gallagher to a sufficient extent to warrant his decision not to recommend any prosecution and which also persuaded GSOC s legal advisors to concur with that recommendation. But as has been pointed out on a number of occasions earlier the purpose of an investigation is to inquire into matters and no particular end point to an investigation can necessarily be predicted before the investigation itself has taken place. The fact that satisfactory explanations were ultimately given does not take away from the fact that it was reasonable for GSOC to require such explanations in the light of the discrepancy between the statements and the CCTV footage Furthermore, had it transpired that either or both Sgt Galvin or Gda Clancy had not given a convincing explanation for the discrepancy, it was well within the bounds of possibility that a conclusion might have been reached that the original statements, rather than being mistaken as to Ms Stewart s location as the van approached for understandable reasons, might have been considered to have been designed to deliberately underplay the extent to which the officers concerned ought to have had legitimate concern about Ms Stewart s wellbeing. It should be emphasised that no such conclusion was ever reached and it would be wrong to give the impression that there is any basis for concluding that the explanations given did not fully satisfy the legitimate inquiries raised by GSOC. But before those explanations were given the situation was different. There was at least a material possibility that the explanations might turn out not 126

129 to be satisfactory and that adverse conclusions about why the statements did not correctly describe the situation might have been reached. In such circumstances, had the explanations not been satisfactory, it remained a possibility that a conclusion could have been reached to the effect that there was a deliberate understatement contained in the statements thus leading to the possibility that a criminal offence might have been committed Against that background the Inquiry is satisfied that the decision to extend the inquiry, taken on the 12 th February, was reasonable in the light of the information available at that time. Until a satisfactory explanation for the discrepancy between the statements and the CCTV footage was given, there was a realistic possibility that a conclusion might be reached that the statements were designed to deliberately downplay the extent to which it might be said that the members concerned ought to have had a greater level of concern for Ms Stewart s safety. Had that turned out to be the case the possibility of consideration having to be given for a criminal prosecution could not have been ruled out and in those circumstances it was, in the Inquiry s view, also reasonable for the GSOC officers concerned to decide to conduct the respective interviews under caution. The fact that satisfactory explanations were ultimately given does not change the circumstances which prevailed at the time when the decision to extend the investigation and to conduct interviews under caution was taken. That decision must be viewed on the basis of the information available at the time it was taken and, for the reasons already addressed, at that time there was a reasonable basis both for the extension of the investigation and the decision to conduct interviews under caution. (c) Summary of Conclusions and Recommendations: The Inquiry is satisfied that the decision to extend the Inquiry, taken on the 12 th February, to one involving possible offences of making false and misleading statements or perverting the course of justice was a decision which was reasonable in the light of the information available at that time. Until a satisfactory explanation was given for the discrepancy between the statements made by Sgt Galvin and Gda Clancy, on the one hand, and CCTV footage, on the other, there was a realistic possibility that a conclusion might 127

130 be reached that the statements were designed to deliberately downplay the extent to which it might be said the members concerned ought to have had a greater level of concern for Ms Stewart s safety It should be noted that satisfactory explanations were ultimately given but that does not, in the Inquiry s view, change the circumstances which prevailed at the time when the decision to extend the investigation was taken. For like reasons the Inquiry is satisfied that it was prudent, in all the circumstances, for the interviews in question to be conducted under caution. (iv) The releasing of information concerning the status of the GSOC investigation. (a) Submissions of the parties: The background to these submissions stems from the fact that, after the death of Sgt Galvin, GSOC released information relating to the status of the investigation into garda conduct with Ms Sheena Stewart and in particular the status of the investigation insofar as it related to Sgt Galvin. It was accepted on all sides that one highly unfortunate aspect of the manner in which that information was released concerned the fact that information came into the hands of certain members of the media before that same information reached the Galvin family and, indeed, the colleagues and friends of Sgt Galvin. In addition it seems likely that some of the information which came to the Galvin family by that indirect route was, at least to some extent, not strictly speaking accurate Against that background Counsel for An Garda Síochána submitted that the manner in which GSOC handled this aspect of the matter was mismanaged. Insofar as the information which came to the Galvin family was inaccurate it was argued that this was as a consequence of the method adopted for relaying the information concerned and in particular the fact that, it was said, insufficient efforts were made to ensure that the Galvin family were informed of accurate information in advance of any information being given to the press. 128

131 The submissions made on behalf of the extended Galvin family were broadly to the same effect On behalf of the GSOC designated officers it was submitted first that the decision to release the information concerned was made in good faith and for the purposes of seeking to avoid further stress on the Galvin family which might have been occasioned should media reports have appeared to the effect that Sgt Galvin might have been guilty of some offence. It was accepted that the strategy involved had backfired spectacularly. It was said that the decision in principle to release information was, therefore, justified in all the circumstances of the case even though it was accepted that it was not normal GSOC practice to issue information about an investigation which had not reached its final conclusion. It was also submitted that, while the sequencing of the giving of information to the media and communication with the Galvin family did not work out as planned, nonetheless regard should be had to the fact that SIO Croke (acting on the instructions of DDI Wright) made repeated efforts over five hours to get information through to the Galvin family but unfortunately failed. In that regard attention was also drawn to the evidence which suggested that it had been made clear to GSOC at the time in question that direct contact with the Galvin family would not be welcomed. The method sought to be used for that contact was, therefore, through An Garda Síochána which was said to have been an appropriate method in the circumstances. (b) The Inquiry s findings: The narrow focus of this issue has already been addressed earlier in this Report. For the reasons explained in some detail the only issue which requires to be considered is whether any designated officer of GSOC could be said to be culpable in respect of what turned out to be the most unfortunate event that information released by GSOC came second or third hand to the Galvin family prior to GSOC having managed to make contact. As noted earlier it seems likely that that sequence of events contributed to a level of misunderstanding about the actual status of the GSOC investigation. As also noted earlier there can be no doubt but that the way in which those events unfolded caused very 129

132 considerable distress indeed to the Galvin family and to the friends and colleagues of Sgt Galvin The Inquiry has already expressed its view that the general decision taken to the effect that it might prove necessary in certain circumstances to break with what would have been the almost universal practice of GSOC in the past and make comment on an investigation which had not reached a formal conclusion was one which, in the very unusual circumstances which prevailed, was reasonable. It is also appropriate to note that, at the time that decision was taken, it was agreed that it would be necessary to inform all interested parties in the event that it should prove necessary to give public information on the status of the investigation. The issue does not, therefore, in the Inquiry s view, turn on whether information might have needed to have been given out but rather whether more care should have been taken to ensure that the Galvin family received a detailed and accurate account of the precise situation before information was given out to other sources It is proposed to start by dealing with one minor issue which arose tangentially in the course of the hearings where it was suggested that the timing of the public statements was inappropriate given that it was a very fraught time for the family, friends and colleagues of Sgt Galvin. However, in that context, it does have to be said that the evidence suggests that coverage of the events surrounding Sgt Galvin s tragic death and the fact that he was the subject of a GSOC investigation at that time appeared highly likely to be about to come immediately to the fore so that the timing generally was, in the Inquiry s view, largely taken out of GSOC s hands The Inquiry is also mindful of the fact that, as already noted, it was clear to senior GSOC officials that direct contact with the Galvin family would not be welcome. It follows that it was reasonable for those involved to seek to contact the Galvin family though the medium of An Garda Síochána. The unfortunate, but it would appear entirely accidental, circumstances in which it took quite some time for that contact to be actually made have already been set out. It does not seem to the Inquiry that any blame or criticism can be attached to those involved on the GSOC side for the fact that it proved difficult, and thus gave rise to some delay, to make contact. 130

133 However, it does seem to the Inquiry that it would have been appropriate for greater care to have been exercised to ensure, to the greatest extent possible, that actual contact had been made with the Galvin family and accurate information conveyed to them through whatever channels could be established, before any information was given to the media. The Inquiry is mindful of the fact that, given the relevantly fast-moving situation which appeared to be in place on the ground, it might not have proved possible to have made contact - however indirect - with the Galvin family in advance of a time when a reasonable judgement might have been formed so that it was necessary to make some comment to the media to avoid potentially inaccurate speculation appearing concerning Sgt Galvin. It might not, therefore, have proved possible to avoid the unfortunate situation which ultimately came about. However, the Inquiry is of the view that it would have been significantly preferable if greater co-ordination had taken place to at least maximise the likelihood that information was not imparted to the media before there had been sufficient contact with the Galvin family That being said the Inquiry is mindful of the fact that all concerned were involved in a difficult and fast- evolving situation. The Inquiry got the impression from relevant GSOC personnel that, in reality, no one had considered the need for sequencing and how that might best be achieved. While acknowledging, therefore, that more could and should have been done to at least seek to ensure that the Galvin family was properly briefed in advance of any media information being disseminated, the Inquiry cannot conclude that it would, in all the circumstances, be appropriate to level specific criticism at any GSOC designated officers in that regard, not least because of the fraught, difficult and fast moving situation with which all were concerned. While the specific finding in that regard which is within the remit of the Inquiry can relate only to those GSOC designated officers involved (in particular SIO Croke) the Inquiry would also wish to record (lest by not so doing an inference to the contrary might be drawn) that it does not consider that Ms Lee could be the subject of any legitimate adverse finding as well. 131

134 (c) Summary of Conclusions and Recommendations The Inquiry notes the limited nature of its remit under this heading. The Inquiry is only entitled to consider the conduct of designated officers. Therefore, the Inquiry is concerned to determine whether any GSOC designated officer might be said to have been at fault in the way in which information concerning the status of the investigation into Sgt Galvin arising out of the death of Ms Sheena Stewart was given to the media and, in particular, the fact that that information was given prior to the Galvin family being briefed The Inquiry is satisfied that it was reasonable, in all the circumstances, for GSOC to give information to the media but concludes that it would have been significantly preferable if greater coordination had taken place to at least maximise the likelihood that information was not imparted to the media before there had been sufficient contact with the Galvin family. The Inquiry has noted the extreme distress which this sequence of events caused for the family, friends and colleagues of Sgt Galvin. The Inquiry is also of the view that the sequence of events in question has contributed to some of the misinformation which gained currency surrounding the GSOC investigation The Inquiry has concluded that, while acknowledging that more could and should have been done to at least ensure that the Galvin family were properly briefed in advance of any media information being disseminated, it would in all the circumstances not be appropriate to level specific personal criticism at any GSOC designated officers in that regard. The Inquiry has reached that view not least because of the extremely charged circumstances then prevailing. The Inquiry also notes that, while the specific findings under this heading relate only to relevant GSOC designated officers, it is appropriate to record, lest by not so doing an inference to the contrary might be drawn, that it does not consider that Ms Lee of the GSOC press office could be the subject of any legitimate adverse findings either. 132

135 (v) Communications Generally (a) Submissions on behalf of the parties: The positions adopted by the parties in respect of this issue were necessarily more broadly based than the positions adopted in respect of more specific issues. This was understandable given the general nature of the issue itself. The submissions of the parties in respect of some of the specific issues which arose under this heading have already been noted in the context of other issues. There was, of course, the issue concerning the extent to which sufficient information was imparted to Insp Joyce in Ballyshannon garda station on the 1 st January so as to lead Insp Joyce to understand that a criminal investigation had been designated and that Sgt Doyle, Sgt Galvin and Gda Clancy were the subject of that investigation. The fact that the formal notification to An Garda Síochána of the existence of such a criminal investigation, and of the identity of the gardaí who were the subject thereof, was made through normal channels for onward transmission to the gardaí concerned but that the relevant information was deleted, by error, in Letterkenny divisional office, has also been addressed However, there seemed to be a broad acceptance by all parties that, at least in general terms, it was important, not least for the avoidance of misunderstanding, that there be the maximum possible information available to members of An Garda Síochána as to the normal practice likely to be followed in the course of a GSOC investigation. The Inquiry will address some of the general issues which arise in that context in due course. The Inquiry remains mindful of the submission made by Counsel for GSOC to the effect that the Inquiry should be careful not to make overbroad recommendations arising out of a consideration of the circumstances of a single case. The Inquiry is also mindful of the submission made on behalf of An Garda Síochána which drew attention to the fact that the error which occurred in the Letterkenny divisional office, leading to the deletion of the which ought to have led to the formal notification of the three members concerned of the existence of the investigation, appeared to be a once-off event which should not lead to any recommendation for a change in practice On the other hand the Inquiry was also required to take into account the evidence of a number of GSOC designated officers that less serious problems had been encountered 133

136 in the past in relation to delay in the notification of members of the gardaí who were the subject of a s.98 investigation such that, on occasion, those gardaí were contacted by GSOC designated officers prior to receiving a formal notification of the existence of the investigation concerned. In that context a number of the GSOC witnesses suggested that it would be preferable if GSOC were directly involved in the notifications in question. (b) The Inquiry s findings: The issues which arise under this heading are more general than the specific questions which were required to be addressed in the context of the other issues identified. In the Inquiry s view the single most striking feature of the evidence heard was the very strong impression that, both at a general and a specific level, there was a material lack of information and understanding among members of An Garda Síochána about the precise way in which GSOC operated and also about aspects of this specific inquiry The Inquiry is mindful of the fact, as has already been noted, that there may be dangers in attempting to draw conclusions which are overbroad based on a consideration of evidence and materials which were, necessarily, confined to one specific GSOC investigation. It does also need to be noted that at least one important aspect of the lack of communication which occurred in this case (the deleted ) appears to be very much specific to the facts of the investigation into the death of Sheena Stewart and may have limited broader implications. Nonetheless it would appear that some of the more general issues which arose stem from what appears to be normal practice rather than anything unusual which occurred in this particular investigation. In those circumstances it is at least possible to draw some broad conclusions and make some tentative recommendations The single most striking lack of communication identified was the fact that none of the three gardaí who were identified right from the beginning as being the subject of what GSOC felt it appropriate to designate as a criminal investigation were initially, in fact, made aware of the fact either that there was a criminal investigation or that they were identified as being the subject of that investigation. As already noted the first that either 134

137 Sgt Galvin or Gda Clancy heard of the matter was when they were contacted about the fact that they were required to attend for a cautioned interview Sgt Doyle was the third member of An Garda Síochána who was under investigation by GSOC. He had been nominated by Supt Finan in the document entitled Annex 1 submitted by him in respect of the s.102 referral on the 1 st of January 2015 and he was named by IO Gallagher in his notification letter of the 25 th of January Neither of these documents were brought to Sgt Doyle s attention. Sgt Doyle confirmed, both in his direct evidence and when cross-examined, that he did not know that his statement would be used by GSOC and that he was not aware of a GSOC criminal investigation but only a preliminary investigation into the facts surrounding the death of Ms Stewart. He also confirmed that he was not aware that he was under investigation and was surprised to learn that he had been under investigation. Indeed Sgt Doyle did not discover that he had been actually under investigation by GSOC until after the funeral of Sgt Galvin. Shortly after the funeral Sgt Doyle learned from Supt Nevin that SIO Groenewald had informed Supt Nevin that Sgt Doyle was no longer under investigation SIO Groenewald in his direct evidence to the Inquiry said that DDI Wright contacted him on the 1 st June, 2015 and instructed him to make contact with Gda Clancy and Sgt Doyle in that regard. IO Gallagher, in an to DDI Wright, had previously suggested that Gda Clancy and Sgt Doyle should be notified personally that there was insufficient evidence of any criminal wrongdoing in the case and that the GSOC recommendation to the DPP would be to that effect. SIO Groenewald relayed this information to Supt Nevin who relayed same to Sgt Doyle. It was accepted in evidence that this was not the usual practice for notifying members. It is worthy of note that Sgt Doyle has not to date received any kind of written confirmation from GSOC in respect of any aspect of the investigation nor has he ever been in direct contact with GSOC The Inquiry has already commented on aspects of the circumstances which led to that unfortunate state of affairs. First there was the meeting at Ballyshannon garda station on the 1 st January when the fact of a criminal investigation was not, in the Inquiry s view, effectively communicated by the GSOC officers involved although, as the Inquiry has also noted, it is accepted that those officers used language which they believed had 135

138 communicated the fact of a criminal inquiry. Next there is the fact that a formal notification was not sent to An Garda Síochána until the 26 th of January There is a weekly log of s.102 referrals sent from GSOC to An Garda Síochána in the form of an Excel spreadsheet which contains brief details of each referral which has been made. One such log was sent by GSOC to An Garda Síochána on the 7 th of January 2015, which contained reference to the s.102 referral that had been made by Supt Finan on the 1 st of January Chief Supt Seán Ward of An Garda Síochána, in a letter to the Inquiry dated the30 th of September 2015, stated that this log is a briefing document pertaining to Section 102 referrals for the information of the Commissioner and that it has never been accepted as the formal notification of the designation of a s.102 referral as a s.98 investigation On the 12 th of January 2015, IO Gallagher sought the PULSE log in respect of Sheena Stewart through the Gearáin system. He was informed by a member of the Gearáin office that there had been no formal notification of the existence of a s.98 investigation received by An Garda Síochána. Ultimately, on foot of those communications, Sgt Gray of the Gearáin office spoke to David Smullen of GSOC and the issue was resolved by way of an assurance that correspondence would issue in due course to confirm the s.98 investigation. The materials sought by IO Gallagher were provided on the basis of that assurance. It was in response to this exchange that the formal letter of notification was sent to Garda Internal Affairs on the 26 th of January While some fault may be laid on the GSOC side in respect of the lack of early notification arising out of those matters it seems to the Inquiry to be clear that the principal reason why the three gardaí concerned were unaware for a prolonged period of the true situation must be laid on An Garda Síochána themselves. In that context it requires to be noted that the position of An Garda Síochána is that the proper means for notifying a member of the force that they are the subject of a criminal inquiry is through the channels identified in the Protocol. Indeed, in the closing submissions made on their behalf, An Garda Síochána strongly suggested that that means of communication was not only the correct existing means but also was one which should be maintained so that the Inquiry was urged not to make any recommendation which might suggest otherwise. It is, in those circumstances, in the Inquiry s view, fair to say that the means of communication with individual members of An Garda Síochána adopted in this case was one which is in place 136

139 at the insistence of senior garda management. It is also the case that that means of communication failed in this case due to the deletion of the communicating the information concerned which deletion occurred in the Divisional Office, Letterkenny There was, quite frankly, a lack of clarity about precisely how the relevant came to be deleted. It would appear that there had been a change in practice over recent times as to how such matters were communicated to divisional headquarters. Supt Louise Synott of Garda Internal Affairs gave evidence to the Inquiry that the system had previously been that a follow up hard copy letter of that same notification would be sent. However from about October 2014 onwards the system was modified so that the notification was only sent by . The rational for this practice was to speed up the notification process and ensure the timely scheduling of appointments following on from notification. Supt Synott outlined that the staff in the divisional offices would be aware that the notifications were coming and would record and process them in accordance with whatever practices were normal in the respective divisional offices. Following on from the events the subject matter of this Inquiry, that system was modified once again so that the notification is now followed up with a hard copy of the letter. That progression seems entirely sensible. However, it would not appear that everyone in senior garda management was aware of the changes. For instance Chief Supt McGinn in her evidence to the Inquiry stated that generally a hard copy version of the notification would be sent from GSOC following the notification in the internal post within An Garda Síochána. She noted that on this occasion no hard copy version of the correspondence from GSOC dated 26 th January was sent to her office. Chief Supt McGinn further expressed the view that there was an obligation on GSOC, as set out in S. 103(1)(b) of the 2005 Act, to keep members involved aware of the progress and results of their investigation and that this did not happen in this case Moreover, Chief Supt McGinn said that she expected, as the head of the relevant division, that she also would have been informed that members of An Garda Síochána were under investigation. In fact, Chief Supt McGinn was not aware that the relevant members were subject to a s. 98 investigation until the day before Sgt Galvin died. She happened to be in Ballyshannon Garda Station that day and Insp Joyce brought it to her attention that Sgt Galvin was not coping very well with the GSOC investigation. Chief 137

140 Supt McGinn was not aware until that conversation that the investigation was now a s. 98 investigation and she felt that she should have known about these serious allegations, particularly as she was responsible for managing the division and for the deployment of members However, it is clear that the reason why Chief Supt McGinn did not know of these matters in a timely fashion was principally due to failings within An Garda Síochána and, indeed, in particular, within her own divisional office The other questions which arise are, to a greater or lesser extent, somewhat more general. In order to fully consider those issues it is necessary to set out the legal framework within which the obligation to inform arises Section 88 of the 2005 Act states: 88. (1) On determining under section 87 that a complaint is inadmissible the Ombudsman Commission shall (a) notify, in writing, the complainant, the member of the Garda Síochána whose conduct is the subject of the complaint and the Garda Commissioner of its determination, (b) include in the notification the reason for the determination, and (c) take no further action in relation to the complaint. (2) On determining under section 87 that a complaint is admissible, the Ombudsman Commission shall as soon as practicable (a) notify, in writing, the complainant and the Garda Commissioner of its determination, and (b) where the complaint was made directly to the Commission, send the Garda Commissioner a copy of the complaint or, if the complaint was not made in writing, a copy of the record of the complaint. 138

141 (3) On being notified of an admissible complaint concerning the conduct of a member of the Garda Síochána, the Garda Commissioner shall, subject to section 89 (1)(b), notify the member that a complaint has been made and specify the nature of the complaint and the name of the complainant Section 103 of the 2005 Act states: 103. (1) The Ombudsman Commission shall provide the following persons with sufficient information to keep them informed of the progress and results of an investigation under this Part: (a) if the investigation resulted from a complaint (i) the complainant, (ii) the member of the Garda Síochána whose conduct is the subject matter of the complaint, (iii) the Garda Commissioner, and (iv) any other person that the Commission considers has a sufficient interest in the matter; (b) if the investigation is one to which section 102 applies (i) the member of the Garda Síochána whose conduct is the subject matter of the investigation, (ii) the Garda Commissioner, (iii) the Minister, and (iv) any other person that the Commission considers has a sufficient interest in the matter. (2) The duties imposed by subsection (1) do not extend to requiring the Ombudsman Commission to provide information the disclosure of which would, in its opinion (a) prejudice a criminal investigation or prosecution, 139

142 (b) jeopardise a person s safety, or (c) for any other reason not be in the public interest The Protocol is also instructive, particularly the notification provisions contained in section 7.4:- 7.4 Ongoing notification of progress on complaints, referrals and other investigations - sections 87 and 88 of the Act refer Notification by GSOC to the Commissioner of An Garda Síochána of admission, nonadmission or general progress of complaints shall be through Assistant Commissioner, Human Resource Management, and will be furnished, in writing, by the Director of Operations or on his behalf GSOC acknowledges that the Commissioner of An Garda Síochána is responsible for the management of a disciplined force and, in the exercise of that role, he/she needs to be informed, regularly and comprehensively, as to the progress and results of complaints, referrals and other investigations Both parties are mindful of the obligations on GSOC, under section 103 of the Act, to keep the Commissioner of An Garda Síochána informed of the progress and results of GSOC investigations, and also of the reliance of the Commissioner of An Garda Síochána on these reports in managing a disciplined force. Accordingly, both parties agree that the office of the Director of Operations and the office of Assistant Commissioner, Human Resource Management, will work closely to facilitate, and improve, the transmission and quality of information supplied by GSOC to the Commissioner of An Garda Síochána under section 103 of the Act. Both parties note the facility available to GSOC to disclose information to the Commissioner of An Garda Síochána under section 81(4)(a)(i), of the Act. 140

143 7.4.4 In investigations carried out by GSOC, under section 98 of the Act, GSOC will inform the Commissioner of An Garda Síochána of the names and details of the Garda Síochána members who have been identified as being subject of the complaint or the investigation The Commissioner of An Garda Síochána will provide the necessary notifications, under section 88 of the Act, to the members concerned and will notify GSOC of the members identified, where practicable. GSOC will inform the Commissioner of An Garda Síochána if any of the members notified are not subject of the complaint The Commissioner of An Garda Síochána will provide reasonable assistance to identify members who may be subject of a complaint or investigation A standard notification will be provided to all members identified subject of a complaint being investigated by GSOC pursuant to section 98 of the Act, which will state the name of the complainant; the nature of the complaint; and, where possible, appropriate contact details in relation to the GSOC D/O All notifications will be signed, as received, by the Garda member who is to be notified. Page 43 of In section 102 referrals, GSOC will inform the Commissioner of An Garda Síochána of the identity of any member whose conduct is subject of the investigation. Similarly, a standard notification will issue, pursuant to section 88 of the Act, to all members identified, which will state the details of the section 102 referral, the section under which the investigation is being conducted, and, where possible, appropriate contact details in relation to the GSOC D/O It is also of some relevance to note that the 2005 Act makes express provision for a protocol between GSOC and An Garda Síochána in section 108 of the Act, which provides: As soon as practicable after the commencement of this section, the Ombudsman Commission and the Garda Commissioner shall, by written protocols, make arrangements concerning the following matters: 141

144 (a) (b) (c) the use of detention facilities at Garda Síochána stations by designated officers of the Ombudsman Commission for the purpose of exercising their powers and carrying out their duties under section 98; the application of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Stations) Regulations 1987 (S.I. No. 119 of 1987) when those detention facilities are used by designated officers for the purpose referred to in paragraph (a); the handling of any investigations by the Ombudsman Commission under this Act that coincide with investigations by the Garda Síochána into the same matters; (d) the sharing with each other of information (including evidence of offences) obtained by either the Ombudsman Commission or the Garda Commissioner It is clear from that section that one of the types of protocol contemplated by the Act itself is one whose principal focus is to ensure that parallel investigations being conducted by An Garda Síochána and GSOC arising out of the same general circumstances are conducted in a manner which minimises any risk of those investigations interfering with each other. While those matters are dealt with in the Protocol it is also clear that the Protocol deals with many other matters as well. The Inquiry would wish to make clear that it is in no way suggesting that it is inappropriate for GSOC and An Garda Síochána to agree protocols which go beyond the scope of that required by section 108 of the Act. It obviously makes sense that there are agreed methodologies for the conduct of GSOC inquiries insofar as they might impact on An Garda Síochána generally. The Inquiry would, however, suggest that there may be some merit in separating into separate protocols those matters which are specifically mandated by the 2005 Act as being required to be the subject of a protocol, on the one hand, and those matters which involve an agreement outside the scope of that statutorily mandated protocol, on the other hand The Inquiry understands from the evidence that there was little or no legal involvement in the drafting of the Protocol concerned. While some of the matters dealt with can be described as purely operational and might reasonably be considered not to require legal input, it is clear that some of the matters involve the exercise of statutory 142

145 powers often of significant importance. In those circumstances it would, in the Inquiry s view, be preferable if there was at least some legal involvement in the finalisation of those aspects of any protocol which involved formal legal powers Against that background a number of important aspects of the legal framework are clear. First there is an express obligation on GSOC to keep both An Garda Síochána and any individual member concerned appraised of developments in any relevant investigation. There is, however, an important exception to that obligation which allows GSOC to refrain from giving information which might, at the relevant time, impair a GSOC investigation. Thus legitimate operational reasons can, quite sensibly, provide a good reason for keeping information confidential at least for the time being. That latter point is of importance in considering the overall structure of the legal framework although it needs to be emphasised that there was no suggestion, on the facts of this inquiry, that there was any basis for any particular information not being imparted at any particular time for such reasons. While, therefore, generally relevant, the operational exception is not specifically relevant to the facts of this case It is important to emphasise that the obligation to inform a member concerned is a separate obligation placed by the 2005 Act itself on GSOC in addition to the obligation to keep An Garda Síochána informed. That provision again makes sense. In basic fairness a member is entitled, subject to the sort of operational exception to which reference has already been made, to be kept reasonably appraised of the progress of an investigation which might affect their rights. But equally An Garda Síochána, as an organisation, through its senior management, needs to know the status of an investigation into an individual member not least because it may be necessary to consider how that member should be deployed in the light of the issues raised by the investigation While the provisions of the Protocol are not free from ambiguity, it is clear that the method which has been accepted as agreed, to date, for complying with the obligation to inform an individual member of the existence of a s.98 investigation has been through the central notification system already addressed. While it is also true that that system did not work in the particular circumstances of this case, it is fair to say, as was urged by counsel for An Garda Síochána, that the failure identified in this case seems to have been something 143

146 of a one-off and should not, in and of itself, lead to the view that that system does not work However, there seems to the Inquiry to be other reasons why a review of that system should be adopted. First the Inquiry should say that it would appear that a most fundamental aspect of the obligation to keep a member informed of a criminal inquiry involves informing the relevant member that the inquiry has come into being in the first place. It would be a strange interpretation of the section if it were not to be so construed for it would mean that there was a statutory obligation on GSOC to tell a member, subject to the operational exception, of each material step along the way but not to tell the member of the first step. It seems to the Inquiry to follow that, again subject to the operational exception, a member should be informed as soon as practicable of the fact that a criminal inquiry has been designated and that the member concerned is the subject of that inquiry. After all, the fact of the designation of an inquiry under s.98 as a criminal inquiry carries with it, as has been pointed out, very significant powers. Unless there is good reason to the contrary a person who is the subject of such an inquiry should know about it as soon as practicable. The Inquiry is mindful of the point made on behalf of An Garda Síochána, in arguing for the retention of the current system, that there may be an advantage in a senior line officer being the person who communicates the fact of an investigation to a member concerned which derives from the ability of that senior officer to put in place whatever support mechanisms or advice might be considered appropriate. While the point made is undoubtedly relevant it does not seem to the Inquiry to be decisive Ultimately, the obligation to inform the individual member lies on GSOC. That obligation is separate from the obligation which lies on GSOC to inform senior management. Indeed the Inquiry was struck, in that context, by the submissions made on behalf of An Garda Síochána in an admittedly slightly different context. As part of the argument on the question of the initial inquiries conducted by GSOC it was, as already noted, argued on behalf of An Garda Síochána that GSOC had largely delegated those inquiries to An Garda Síochána itself. The Inquiry s view on that issue has already been set out. However, one of the points made was that, having delegated that responsibility, GSOC was, as it were, stuck with the consequences. While acknowledging that that argument was made in the context of a materially different type of issue there is, 144

147 nonetheless, something of an inconsistency between that argument and the suggestion that GSOC should be required to delegate its clear statutory obligation to inform an individual member to garda management Be that as it may the Inquiry is of the view that the combined effect of the express statutory requirement on GSOC to inform a member coupled with the Inquiry s view that that task should be completed as soon as practicable leads to the view that it would be more appropriate if GSOC were to make arrangements to inform a relevant member directly rather than to do so through An Garda Síochána. It would, of course, be also incumbent on GSOC, in accordance with the same legislation, to separately inform garda management. In addition, the Inquiry sees no reason why appropriate arrangements, whether by protocol or otherwise, could not be worked out to ensure that an appropriate senior garda was present when the member was informed by GSOC so that the senior officer on the ground could take whatever steps, either by way of support or advice or in relation to operational matters, that might be considered necessary It does not seem to the Inquiry that this would impose any significant administrative burden. The Inquiry notes, for example, that so far as a request to An Garda Síochána by GSOC for documents and materials is concerned, GSOC officers have a standard form which can simply be filled in and handed over. It should not prove too difficult to devise an appropriate standard form for notifying an individual member of a relevant criminal investigation which could be filled in as appropriate by relevant GSOC officials. Such a form or document would also provide an opportunity to impart general information concerning GSOC inquiries including contact points, general procedures and the like in a form which ought to be readily understandable by any garda concerned. This could minimise the risk of a repetition of what appears to have happened in Ballyshannon garda station on the evening of the 1 st January where information was imparted by GSOC officials in a form which was not fully understood by a senior garda officer The next issue which arises concerns the application of the undoubted obligation on GSOC to keep, amongst others, a member concerned up to date on any investigation. While all GSOC witnesses acknowledged the clear statutory obligation to keep members informed of the progress of investigations it was by no means clear to the Inquiry that there 145

148 was a common understanding by those witnesses as to when that obligation might, in practice, arise. For instance SIO Groenewald in his evidence said that, if a file were to come back from the DPP with a recommendation that there was to be no prosecution, GSOC would simply send a standard letter to the relevant member to say that a file had been sent to the DPP but that there would be no prosecution and that GSOC would not intend to take further action in relation to their case. He further understood that the notification to members of the existence of an investigation was a function of the Garda Commissioner, not for GSOC. Moreover, under s. 103 of the 2005 Act he was aware of the duty to keep members involved and felt that this could be done through a variety of ways. It could be done by phone, in person or in writing SIO Harden also discussed the obligation to keep members abreast of the investigation. He felt that, if an investigation was progressing well, there might be no need to tell the members as there might be nothing to tell them Commissioner Fitzgerald also felt that the method of delivering updates under s. 103 could vary from to letter to phone call DI Isaac also thought that any notification of the existence of an investigation to a member is the responsibility of the Commissioner of An Garda Síochána. He felt that, in respect of notifying the members of progress of an investigation, as prescribed under s. 103, the requirement was that significant progress should be notified and gave the example of a file being sent to the DPP or the conducting of an interview under caution. He noted that progress was not defined in the Act and accepted that the legislation did not say significant progress. He felt that the taking of a statement was not progress and differentiated between progress and investigative steps of an investigation. He felt that progress was something that the lead investigator in each case had to make a judgment call on IO Gallagher felt that it was the responsibility of the Senior Investigation Officer to decide what information to impart to a member under investigation. He also differentiated between what he saw as progress and significant progress. He felt that the decision to interview members was significant progress. He also noted that s. 103 did not dictate the manner in which communication of such progress was to be conducted. 146

149 DDI Wright also felt that it was the responsibility of the Garda Commissioner to notify members of the existence of an investigation. He felt that the duty under s. 103 required members to be informed of milestones in the investigation. He also noted that s. 103 was silent on the format of updates. He said it could be a letter, a phone call, a text message or an . He said that this could also include a member calling GSOC SIO Croke believed that progress entailed key phases of the investigation, that a report had been finalised, or that significant lines of inquiry had been finalised The Inquiry is mindful of the valid point made on behalf of GSOC that it would be difficult, if not impossible, to be prescriptive about how the obligation to keep a member informed is to be implemented in the, doubtless, very differing circumstances of a whole range of different types of investigation. It will, necessarily, remain a matter, to a large extent, for the operational judgement of the GSOC officer leading the investigation concerned. However, the overall impression gained by the Inquiry from the evidence was that there was very little common understanding within GSOC as to the kind of development in an inquiry which would warrant informing, subject to the operational exception, the member concerned. The only common theme was that a member would be informed if a file was sent to the DPP. That aspect of the investigation is a point to which the Inquiry will turn It is beyond the scope of this Inquiry to make detailed recommendations as to how further guidance might be given to GSOC designated officers as to the circumstances in which appropriate information should be given to a member. Some witnesses used terms such as significant in relation to the sort of developments which would require to be notified although, again, there seemed to be little common understanding about what might constitute such a significant development. It was argued on behalf of the extended Galvin family and An Garda Síochána that the legislation does not use the word significant. However, it is necessary to take a practical view of the statutory obligations to keep informed. It can hardly have been the intention of the Oireachtas that a member has to be informed every time a GSOC officer makes a phone call or writes a letter in the context of a relevant investigation. A reasonable threshold of materiality must, in the 147

150 Inquiry s view, necessarily be implied into the statute as providing the threshold by reference to which the obligation to inform must be determined The Inquiry therefore, recommends that GSOC should give consideration to adopting guidance to its designated officers as to the sort of considerations which should be taken into account in determining whether developments in an investigation have been sufficiently material to warrant information being given to the member concerned. The Inquiry accepts that the application of such guidance to the facts of any individual case will, almost certainly, necessarily remain a matter for the operational judgement of the lead investigator. However, the Inquiry is strongly of the view that a greater common understanding of the factors to be taken into account in making that judgement would be beneficial all round. The Inquiry is also of the view that it would help members of An Garda Síochána to understand the process if such guidance were readily available so that a member could reasonably assess when and what type of information they were likely to receive in the course of an investigation. It is beyond the scope of this Inquiry to be specific as to the details of any such guidance The one matter which all witnesses agreed would be notified to a member concerned was the fact that a file had been sent to the DPP. It was also clear on the evidence that GSOC had, from almost the beginning of its operation, an established policy, determined at the level of the commissioners themselves, that in any case involving a death after police contact, the matter would be referred to the DPP even where GSOC did not consider that there was any basis for a possible criminal charge. As that policy was determined by the commissioners it lies outside the scope of this inquiry. It is easy to understand how it might be considered appropriate, even in cases where GSOC itself was not convinced that a legitimate basis for a criminal prosecution existed, to have a review conducted by the DPP for the purposes of obtaining a second opinion. Whether a policy of seeking such a second opinion in all cases, irrespective of the evidence or materials gathered, is quite as understandable is a separate question But for present purposes it is important to note that it seems that very few, if any, members of An Garda Síochána would have been aware of the relevant policy. It is in those circumstances that the notification of the fact that a file had been sent to the DPP 148

151 needs to be considered. Gardaí will, of course, be more than familiar with the idea of a file being submitted to the DPP. The gardaí submit such files on a regular basis as a result of the conduct of ordinary criminal investigations. As was confirmed in evidence by senior gardaí such files may involve a strong recommendation in favour of prosecution, may seek further guidance adopting, perhaps, a more neutral attitude or may, indeed, indicate the view of the gardaí that there is insufficient evidence to justify a prosecution but nonetheless seek confirmation of that fact from the DPP. However, it would not appear to be the case that the gardaí themselves would be likely, at least in most cases, to submit a file to the DPP where no significant evidence or materials indicating a possible criminal offence had been uncovered. It is against that background that the absence of any minimum threshold for the reference of a file by GSOC to the DPP even where, likewise, no significant evidence or materials indicating a criminal offence is discovered, should be judged Be that as it may, and in the light of the experience of the gardaí, it seems likely that any member, on being told that a file had been submitted to the DPP but being unaware of GSOC s practice, would be likely to infer that GSOC had at least some basis for considering that there was a possibility that a criminal prosecution might be considered even if GSOC did not, itself, consider that there was sufficient evidence to justify such a prosecution. In other words a member of An Garda Síochána, on being informed that a file had gone to the DPP,would be most unlikely to conclude that such action had been taken simply because of a policy in that regard in cases involving death after garda contact rather than because GSOC had reached the view that there was at least some possible basis for prosecution. However, in that regard such a conclusion might well be wrong. No such evidence might have been uncovered but a file might have been sent to the DPP nonetheless in accordance with GSOC s standing policy. A member of An Garda Síochána who received notification of the fact of a reference of a file to the DPP in a case involving the garda concerned but who was, like almost all gardaí, unaware of GSOC s policy would, therefore, have been potentially significantly misled by the information being imparted. It is easy to see how such a situation could lead to unnecessary and inappropriate stress for a member of An Garda Síochána in respect of whom no evidence of wrongdoing had been uncovered. Between the period when such a member was informed that a file had been sent to the DPP and the time when the DPP, as would almost certainly be the case, 149

152 determined that there should be no prosecution, the member concerned would be likely to be under a mistaken impression that the situation was a lot more serious than it actually was. That situation seems to the Inquiry to be unfair But it is a situation which would not have pertained if there was sufficient information available to gardaí, in a clear form, which made it likely that gardaí would both have access to it and understand it, and which would have informed members that the submission of a file to the DPP was standard policy in all cases such that no inference should be drawn, one way or the other, concerning the status of the GSOC investigation. A member of An Garda Síochána who knew the policy would be unlikely to read too much into being informed that a file had gone to the DPP. A garda who did not know the policy might reasonably, albeit inaccurately, reach a much more adverse conclusion concerning the status of the investigation. That issue goes to illustrate the need for much clearer communication for the absence of such information might well lead an exonerated garda to a period of significant and unnecessary worry In that context it is appropriate to return to a point touched on much earlier in this report. Mention was made of an information document which appeared on the website of GSOC. As noted earlier the Inquiry concluded that the document concerned, while inaccurate in a number of respects, did not disclose any relevant information about the specific issues which were the subject of this inquiry. The inaccuracies were explained by reference to the fact that a draft document, based at least in significant part on the experience of GSOC designated officers who had previously worked for the Police Ombudsman of Northern Ireland, had been used without that document being finalised and in particular finalised in a way designed to reflect differences in the legislation and practice as and between Northern Ireland and Ireland. The inaccuracies did not, on the evidence, reflect any actual practice adopted in Ireland or any erroneous view by GSOC designated officers as to the situation in Ireland. On that basis the Inquiry was not persuaded that the document which appeared on the website was of any particular relevance to the issues which are within its remit However, a document of that type, corrected for any inaccuracies, and potentially expanded, would, in the Inquiry s view, play an important role in minimising the risk of 150

153 members of An Garda Síochána, who come to be the subject of GSOC inquiries, misunderstanding the situation. It is almost inevitable that there will be some degree of suspicion between investigators and those investigated. To expect that there would be an entirely happy relationship between member of An Garda Síochána who may be the subject of investigation and those GSOC designated officers who have to conduct the investigation concerned, would be naively optimistic. However, it must surely be in the interest both of GSOC and of both An Garda Síochána generally and members of An Garda Síochána specifically, that any such natural tension is minimised by at least the greatest possible understanding on all sides (and in particular on the side of individual gardaí) of the way in which GSOC inquiries are generally conducted. Indeed it was well put by SIO Harden when, in the course of his evidence, he indicated that he normally sought to speak to the gardaí concerned at the earliest possible opportunity for the purposes of trying to get over the canteen gossip of what GSOC does. (See the evidence of SIO Harden quoted above) That comment suggests an understanding on the part of senior GSOC personnel that, without such clarity, there is a serious risk that misinformation about the precise role and operating methods of GSOC will persist and affect the way in which members of An Garda Síochána respond in the context of an investigation. The Inquiry has no doubt but that that is a legitimate concern. As noted earlier on a number of occasions, the Inquiry is reluctant to be over-prescriptive about general solutions given the fact that the focus of the Inquiry s investigation has been in respect of one case only. However, the Inquiry feels that it should recommend that urgent consideration be given by GSOC, senior management within An Garda Síochána and, indeed, the respective garda representative bodies, to the production and dissemination of much greater general information to ensure that misunderstandings about GSOC s role and its normal way of operating are minimal. The Inquiry is also strongly of the view that consideration needs to be given in any such process to making such information available, both generally, and in the context of specific cases, relating to individual members, in a way designed to maximise the likelihood that everyone concerned will fully understand the material. The mere fact that information may be available does not mean that it will be read, accessed or understood. While leaving the precise content and means of dissemination to those concerned, the Inquiry strongly recommends that such information be made available generally as soon as practicable and 151

154 that procedures should be put in place to ensure that specific communication of such information is made directly to any gardaí involved in a criminal investigation as soon as practicable after an investigation is designated as being a criminal investigation under s. 98. (c) Summary of Conclusions and Recommendations: The Inquiry notes that much of the evidence betrayed a significant lack of information and misunderstanding on the part of many gardaí as to the precise role, remit and practice of GSOC. The Inquiry notes that some of the lack of understanding which arose in the context of this case is specific to the circumstances investigated. The lack of adequate communication to An Garda Síochána at the meeting in Ballyshannon on the 1 st January is a case in point. In particular the fact that an , which was intended to lead to the formal communication to the three gardaí concerned that they were the subject of a criminal investigation, was inadvertently deleted in the divisional office of An Garda Síochána at Letterkenny was highly unfortunate. These factors combined to lead to the extraordinary situation that neither Sgt Galvin nor Gda Clancy knew that they were the subject of a criminal investigation until they were contacted (almost three months after the investigation commenced) about a requirement that they present themselves for a cautioned interview. Even more extraordinarily Sgt Doyle was unaware that he had been the subject of investigation until he was told, after the death of Sgt Galvin, that no action was to be taken in respect of him However, the Inquiry has also noted a lack of clarity amongst GSOC personnel as to the precise circumstances in which they should inform members of An Garda Síochána about the progress of a criminal investigation in accordance with the obligation to inform contained in s.103 of the 2005 Act. While recognising that a final decision on the imparting of information must necessarily be an operational decision taken by those on the ground, the Inquiry recommends that more detailed guidance be given by GSOC to its designated officers in that regard The Inquiry also recommends that much more detailed information be made available to members of An Garda Síochána, in a clear form likely to be read and understood, about the way in which GSOC investigations are carried out. It is in particular 152

155 suggested that such information should be specifically imparted directly to any member of An Garda Síochána who becomes the subject of a criminal investigation In addition, it is suggested that consideration be given to changing the current practice whereby the existence of a GSOC criminal investigation is notified by An Garda Síochána to the member concerned. It is suggested that this notification should be conducted by GSOC in conjunction, if that is considered appropriate, with an appropriate line manager within An Garda Síochána Finally, the Inquiry has tentatively suggested that GSOC might give consideration to whether it is appropriate to apply its policy, of always referring a file to the DPP at the conclusion of a GSOC criminal investigation under s.98 involving a death, in all cases. The Inquiry feels that some consideration should be given to considering whether there may not be some cases where no or so little evidence or materials are turned up in the course of a GSOC investigation of that type that a referral of a file to the DPP might be considered neither necessary nor truly justified. 153

156 PART V (13) Concluding Remarks 13.1 The largely undisputed facts as to the sequence of events which occurred between garda contact with Ms Sheena Stewart immediately prior to her death and the events immediately after the death of Sgt Galvin have been set out fully in this report. The Inquiry considers that all parties cooperated fully with its requirements and that it has, therefore, been able to identify those facts in some detail In addition the Inquiry has considered all of the issues which appeared to arise on the evidence both in respect of the small number of issues of fact in relation to which there was conflicting evidence and also in respect of questions as to the appropriateness of the actions and decisions taken by GSOC designated officers. Those questions include issues identified by the Inquiry itself but also all of those issues raised by the other interested parties and in particular those parties, being An Garda Síochána and the members of the extended Galvin family, who were fully represented during the entirety of the Inquiry s hearings. It may, of course, be too much to expect that all will agree with each and every one of the conclusions and, indeed, the recommendations made by the Inquiry This report started with a comment that great tragedy does not always mean great wrong but requires thorough investigation. The Inquiry would like to think that it has conducted an appropriate and thorough investigation. Insofar as mistakes appeared to the Inquiry to have occurred, same had been identified and commented on. Insofar as general practices or legislation appear to the Inquiry to have contributed to the situation, recommendations for review have been made. The Inquiry is of the view that it would be unfair to attempt to place any responsibility on any of the GSOC personnel involved which is greater than that which can be identified in what the Inquiry hopes are the measured findings contained in this report. Some mistakes were made, some policies and practices have been shown to be inadequate, but, in the Inquiry s clear conclusion, all GSOC officers acted bona fide and none were guilty of gross error less still actual misconduct. 154

157 13.4 It is impossible, of course, to ignore the death of Sgt Galvin which was the reason for the establishment of the Inquiry in the first place. But, as indicated at the beginning of this report, to make findings which were not made out on the evidence or to level a degree of criticism which was not warranted in all the circumstances, would not be appropriate The Inquiry would like to express its thanks to the parties, witnesses and observers together with their representatives. I think it is fair to say that the work of the Inquiry was always conducted in a dignified way. In particular those members of the Galvin family who were constant attendees deserve special note for the most dignified fashion in which they contributed to the work of the Inquiry in what must, for them, have been the most trying of circumstances. While issues, both legal and factual, were raised and debated in the course of the Inquiry s work, the representatives of the respective parties always, in the Inquiry s view, did so in an appropriate and measured fashion. While the Inquiry s process was, in substance, a mixture of the inquisitorial and the adversarial, the business of the Inquiry never became adversarial in the contentious sense of that term Finally, the Inquiry would wish to express its particular thanks to its own legal team, Ms Helen-Claire O Hanlon, B.L. and Ms Sorcha Cristin Whelan, B.L. for their invaluable advice and assistance. The efficient organisation of the Inquiry s work would not have been possible without the sterling work of its administrator Ms Valerie Fallon. Last but not least the laborious task of preparing the report in its very many drafts fell largely on the shoulders of the Chairperson s judicial secretary, Ms Tina Crowther, whose patience and hard work is more than worthy of note. APPENDICES 155

158 Appendix 1 Index to Booklet of Documents DOCUMENT INDEX BOOK I Documents from An Garda Síochána 1. correspondence with Annex 1 from Letterkenny Divisional Office to Chief Superintendent Internal Affairs re s.102 Referral dated 02/01/ Report of Superintendent Michael Finan dated 01/01/ Letter of Inspector Denis Joyce dated 01/01/ Report of Sgt Stewart Doyle dated 01/01/ Correspondence between Gearáin, Internal Affairs and IO Gallagher 12/01/ /01/ Letter enclosing documents requested in initial document request from Inspector Joyce to IO Gallagher dated 01/02/ Letter from AGS Internal Affairs to Chief Superintendent Donegal enclosing correspondence of IO Gallagher dated 26/01/ Letter with enclosed handwritten notes and diary entries from Superintendent Andrew Archbold dated 24/02/ Letter from Sgt Gerard Mullaney Superintendent Ballyshannon dated 26/02/2015 to enclosing documents requested in GSOC second document request for onward transmission. 10. CCTV Stills and accompanying narrative 11. RTA Investigation file DOCUMENT INDEX BOOK II SOBH File 1. Attendances, between SOBH and Sgt Galvin. 156

159 2. Notes from Sgt Galvin provided to SOBH. Documents from GSOC 3. Initiating Documents: s. 102 Referral Form, s. 98 Designation and ensuing Request for Documentation 4. PULSE Request (first request), Audit and Printout in relation to Sheena Stewart. 5. Duty Detail from Donegal Division. 6. Garda Incident Book from Ballyshannon and Tetra Radio calls Transcripts. 8. S. 98 Checklist with accompanying documents. 9. Second PULSE Request. 10. Civilian Witnesses Statements. Appendix 2 Index to Booklet of Statements All Statements: A. Gardaí: 157

160 1. Superintendent Andrew Archbold 2. Superintendent Michael Finan 3. Sgt Stewart Doyle 4. Garda John Clancy 5. Garda Aidan Mulvihill 6. Inspector Denis Joyce 7. Sgt Gerard Mullaney 8. Garda Kevin Garvin 9. Chief Superintendent McGinn 10. Superintendent Colm Nevin 11. Sgt Paul Wallace 12. Sgt Joe Hannigan 13. Garda Brian Tuohy 14. Garda Helen McNally 15. Garda Darragh Phelan 16. Garda Paddy Battle 17. Garda Louise Foy 18. Garda Yvonne Carolan 19. Garda Chris O Neill 20. Garda Sean Rogers 21. Gda Claire O Hara B. GSOC (Statements plus their exhibits): 1. SIO Nick Harden 2. IO Maurice Breen 3. IO Daniel Gallagher 4. DOI Ken Isaac 5. SIO Jon Leeman 6. SIO Rody Butler 7. DDOI Darren Wright 8. IO Pauline Byrne 9. SIO Johan Groenewald 10. Lorna Lee (Press Office) 11. SIO Garret Croke 12. Niamh McKeague 13. Michael O Neill 14. Commissioner Kieran Fitzgerald C. Solicitors: 15. Michael Hegarty 16. Gerald O Donnell 17. Gerry McGovern D. Family Members: 158

161 18. Colette Galvin 19. Damien Hamill Colette Galvin s brother 20. Pat Feely - close friend 21. John Gill- brother -in-law 22. Gerardine Gill sister 23. Family Statement 159

162 Appendix Provisional Ruling Request for Disclosure of Further Documentation Provisional Ruling 1. This is a provisional ruling which sets out the current view of the Inquiry in respect of a request made by solicitors on behalf of the extended Galvin family to the effect that two specific GSOC protocols should be disclosed and become part of the record for consideration by the Inquiry. While a range of such protocols have been disclosed by GSOC and now form part of the record, objection was taken by solicitors on behalf of GSOC in respect of the two protocols concerned on the grounds that their contents were said not to be relevant. 2. For the purposes of considering the matter further the protocols in question were submitted to the Inquiry so that a view could be formed as to their relevance. The purpose of this provisional ruling is to set out the current view of the Inquiry on that question of relevance. However, it should be noted that the Inquiry proposes to hear further from the representatives of the extended Galvin family and the representatives of GSOC before finalising its views on the matter. 3. Before setting out its provisional view the Inquiry would wish to make a number of observations. 4. First, the Inquiry is mindful of the fact that a lot of evidence, both oral and documentary, already forms part of the Inquiry s record and, where appropriate, such evidence has been the subject of cross-examination. In addition, the issues which appear to be relevant to the Inquiry s remit have been defined and refined. On that basis the scope of the issues which remain for consideration and ultimate decision are now significantly refined and it is appropriate that that factor be reflected in any decision as to relevance. Second, and on the other hand, it must always be recalled that materials which are not directly relevant to an issue can, nonetheless, play an indirect role by means, for example, of forming a useful comparison or an appropriate backdrop to issues which are directly relevant. The Inquiry has, therefore, in assessing the protocols in question for relevance, had regard not only to the 160

163 issue of whether the protocols in question might be directly relevant to any of the issues which remain for decision but also whether some or all of the content of the protocols concerned might, even if not directly relevant in that fashion, provide material assistance of an indirect variety in the assessment of live issues. 5. Bearing those matters in mind it is proposed to deal first with the GSOC policy on the operation of s.88(2)(b) of the 2005 Act. That section of the Act requires that a copy of any complaint received by GSOC should be sent to the Garda Commissioner. As such the protocol is clearly not directly relevant to this Inquiry. The Inquiry has considered the fact that much of the provisions of the 2005 Act concerning the handling of complaints are expressly applied to a consideration of matters referred to GSOC by the Garda Commissioner under section 102. The Inquiry therefore, considered whether any of the content of the protocol in question might have indirect relevance to issues within its remit. The current view of the Inquiry is that the protocol in question does not contain any matters which are indirectly relevant. The protocol in question is concerned solely with operational matters concerning the materials which should be supplied by GSOC to the Commissioner arising out of a complaint in circumstances where the Commissioner would not, obviously, have any information about the content of the complaint or any materials accompanying it until such time as such details were communicated by GSOC. There does not seem to the Inquiry to be any parallel with issues which arise in the context of a reference under section The second protocol concerns disciplinary inquiries under s.95 of the 2005 Act. Much of that protocol is concerned with operational matters concerning the procedures to be followed in the course of such investigations. In those circumstances much of the material does not appear to the Inquiry to be relevant, either directly or indirectly, to its remit. 7. However, there are some matters contained within the protocol which do seem to the Inquiry to have at least some potential relevance. These are the following:- (a) The introduction which sets out the main ways in which a s.95 investigation may take place. It is considered that the content of that aspect of the protocol might have some relevance to the issue concerning the decision to designate the investigation in this case as a s.98 (rather than a s.95) investigation. 161

164 (b) (c) Part 3 (which specifies the notices to be provided to a relevant Garda officer) may be indirectly relevant to the parallel issue which arises for the Inquiry concerning the notification of the relevant officers in this case. Furthermore, it seems to the Inquiry that the fact that the protocol does not appear to make any reference to the possibility of an investigation under s.95 being upgraded to a criminal Inquiry under s.98 may also be of some reference to the Inquiry. 8. In those circumstances the current view of the Inquiry is that a redacted version of the protocol in question should be prepared and form part of its record which should contain both the introduction and s.3 together with a note confirming that the protocol does not make any reference to a s.95 Inquiry being converted into a s.98 Inquiry. 162

165 Appendix Provisional Ruling Request for Disclosure of Further Documentation Provisional Ruling 1. This is a provisional ruling which sets out the current view of the Inquiry in respect of requests made by solicitors on behalf of the extended Galvin family to the effect that certain documentation specified in a letter of the 8 th January, 2016 should be disclosed and become part of the record for consideration by the Inquiry. Solicitors on behalf of the designated officers of GSOC have objected to that disclosure principally on the basis that the documents concerned relate to issues which are outside the scope of the Inquiry s remit. 2. The background to the request concerns evidence which was heard by the Inquiry concerning material ( Frequently Asked Questions ) which appeared on the GSOC website in the summer of last year. The evidence has established that the materials concerned had been uploaded to the GSOC website by its head of communication Ms Lorna Lee. There is no doubt that some of the content of what was uploaded had been the subject of some prior discussion with designated officers of GSOC. Furthermore, certain drafts of possible information that might be provided via the GSOC website had been in place for some time. 3. However, it must be recalled that the limit of the Inquiry s remit is to consider the conduct of designated officers of GSOC insofar as those officers were involved in the GSOC investigation into the involvement of An Garda Síochána in events surrounding the death of Sheena Stewart. First it must be noted that Ms Lee is not a designated officer of GSOC and the Inquiry is not, therefore, at least directly, concerned with her actions. Obviously her actions and evidence may be relevant but only to the extent that she may have interacted with designated officers of GSOC in the course of the carrying out by those officers of duties connected with the investigation into the death of Sheena Stewart. 4. It is noted that solicitors for the relevant GSOC officials suggest that there was, in fact, no policy but rather that a decision was taken to give further information by means of posting the material in question on the GSOC website. It does also appear on the evidence to date that 163

166 some of the content of what was posted may have been inaccurate. On that basis the material was removed from the website in November, However, it must be recalled that the events which are within the remit of the Inquiry were largely completed by the early days of June of Thus, even if it could be said that a policy was adopted after that time and before the relevant material appearing on the website, such a policy could not be relevant to the conduct of designated officers before any such new policy came into being. It must be emphasised that the question of the posting of the information itself is outside the remit of the Inquiry. The materials sought could only be relevant if there was a basis on which it might reasonably be felt that the content of that material was relevant to an assessment of the conduct of designated officers of GSOC at the time of the investigation into the circumstances leading to the death of Sheena Stewart. It does not at present appear to the Inquiry that there is any basis for considering that the material in question could be relevant. There is no evidence that any policy had been adopted which could have impacted on the assessment of the conduct of the designated officers in question. 6. Therefore, subject to such submission as may be made, the current view of the Inquiry is that the materials sought are not relevant to its remit. Appendix Final Ruling and Determination Request for Disclosure of Further Documentation and Other Matters Ruling and Direction The first part of this ruling is a final ruling which follows on from a provisional ruling issued in respect of a contested requested made by solicitors on behalf of the extended Galvin family to the effect that certain documentation specified in a letter of the 8 th January, 2016 should be disclosed and become part of the record for consideration by the Inquiry. Subsequent to issuing that provisional ruling and as contemplated thereby, an oral hearing took place at 164

167 which further submissions were made on behalf of the extended members of the Galvin family as to the reasons why, it was suggested, the Inquiry should reconsider the provisional ruling referred to above. As appears from that provisional ruling the principal ground on which the Inquiry indicated that it was not minded to direct any further disclosure concerned relevance. The argument put forward at the oral hearing on behalf of the family placed particular reliance on a GSOC document entitled RTC Investigation Guide (V3) ( the Guidance ) which appears to be a third version (hence the V3) of the document in question, appears to be authored by Darren Wright and is dated April, Attention was drawn to the fact that the Guidance does make reference to an information leaflet which, according to para. 3.9 of the same, might be given to Garda members concerned and which outlines the role of GSOC and will answer any queries they may have concerning GSOC procedures. Appendix 3 of the document contains what is described as a copy of this leaflet. On that basis it was suggested that there was at least some form of guidance in existence as far as back as 2009 which was not dissimilar to the content of the website to which reference has already been made in the provisional ruling. On that basis it was in turn said that there were materials from which it might be inferred that a policy or guidance concerning the handing out of a leaflet was in place as far back as This fact might, it was therefore argued, be relevant to the timescale with which this Inquiry in concerned. It should also be noted that the Guidance only became available to the Inquiry and the parties after the taking of evidence had completed and it was not, therefore, possible to explore either with Mr Wright or any other relevant witness, the provenance of the document in question. I am not persuaded that the existence of the Guidance provides a basis for inquiring in more detail into documents which would likely have passed between Ms Lee and other senior GSOC officials in the context of the material which ultimately appeared on the GSOC website between July/August 2015 and November of that year. The Inquiry remains of the view that such matters are outside its remit for the reasons set out in the provisional ruling. However, the Inquiry is of the view that it is necessary to obtain further clarification on the Guidance, given that it predates the events which are the subject of the Inquiry, has at least the potential to influence an assessment of relevant conduct of GSOC designated officers. 165

168 In that context the Inquiry proposes directing that a further witness statement or witness statements should be filed as soon as possible (whether from Mr Wright and/or others) addressing the following questions:- Whether the Guidance was a draft document or one which was regarded as operational; If it is said that the Guidance was in draft form only whether any steps were taken between 2009 and the earlier part of 2015 to produce a final and operational version thereof and if not, why not; or If operational, the identity of those persons to whom the Guidance would have been circulated and its status (by which is meant whether those to whom it was circulated would have been expected to comply with or at least have regard to the guidance therein contained); If operational, whether there were any amendments to the Guidance between April, 2009 and the time of the events with which the Inquiry is concerned; It is noted that the Guidance is concerned with what is described as a serious or fatal road traffic collision involving gardaí. It may well be debateable as to whether the events with which the gardaí were concerned in the circumstances of this inquiry come within that definition. Clearly the road traffic accident which tragically led to the death of Ms Stewart did not involve a member of An Garda Síochána as the driver of a vehicle. On the other hand the referral of the incident to GSOC in accordance with the provisions of s.102 of the 2005 Act seems to imply that the senior Garda officer making the referral in question must have considered that it appeared that the road traffic accident may have resulted from the conduct of a member of An Garda Síochána. GSOC s view on that question should be addressed; In any event, and even if it might be considered reasonable to conclude that the Guidance does not apply to an incident such as that with which An Garda Síochána were concerned in this case, a question arises as to whether there would be any logic in requiring a leaflet or information to be given to a member of An Garda Síochána who is under criminal investigation arising out of a motor 166

169 accident in which that member was a driver but not requiring that similar information be given to a member of An Garda Síochána who is under criminal investigation in circumstances where it might be considered necessary to investigate whether wilful neglect of duty on the part of such member might have resulted in a tragic motor accident. GSOC s position on this question should be addressed; Given that the evidence suggests that there was, in fact, no such leaflet in existence which was, as a matter practice, handed out to members of an Garda Síochána, the Inquiry would wish to know the status of appendix 3 of the document in question and in particular whether a leaflet in the form set out in that appendix was ever actually given out to members of An Garda Síochána and if not, why that was so. Given that the Inquiry is directing that additional information along the lines set out above should be provided it is also appropriate to deal with a similar requirement which arises out of a consideration by the Inquiry, in the light of the evidence and submissions received to date, of the questions which it may need to address in compiling a report to the Minister. The backdrop to this requirement for additional information is set out hereafter. The Inquiry feels that the evidence concerning the position, both as a matter of delegation and as a matter of practice, which pertain in respect of the discontinuance of an investigation under s.93 of the 2005 Act requires greater clarification. The Inquiry is mindful of the fact that there may be perfectly legitimate reasons why the position which pertains as a matter of formal delegation may differ from what is accepted to be the normal practice. For example, the evidence already heard makes clear that subsequent to a reference under s.102, as a matter of formal delegation, the question of the commencement of an investigation under either s.95 or s.98 can be determined by a senior investigating officer or either of the two senior officials. Under the legislation the relevant power is, of course, conferred on the Commission. However, that power of the Commission has, appropriately, been delegated in the manner just described. However, the evidence also suggested that, as a matter of practice and save in unusual situations of extreme urgency, the decision in question would not be taken by an SIO but rather by one or other of the two senior officials. The Inquiry mentions this point because it would like, in the context of the 167

170 requirement which follows, to emphasise the need to deal both with matters of formal delegation and with any matters of practice. The statutory power to discontinue is also conferred, in express terms, on the Commission itself. The Inquiry wishes greater clarity on the extent to which that power has been delegated and the persons to whom such delegation has been made. The Inquiry also wishes greater clarity on any practice concerning such matters. The Inquiry also wishes to know, again both as a matter of formal delegation and as a matter of practice, whether the entitlement to discontinue is different depending on whether:- a. The matter referred under s.102 has not, at the relevant time, been the subject of a decision to commence an investigation under either s.95 or s.98; b. An investigation under s.95 is in being; or c. An investigation under s.98 is in being. A witness statement dealing with these matters should also be filed. The Inquiry would also wish that, if such exist, any documents evidencing matters referred to are annexed to any relevant witness statement or statements. As noted earlier the Inquiry would, in the context of the current timetable for the completion of all evidence gathering, request that such witness statement(s) be filed as soon as possible. In addition an indication of the time within which such statements will be filed should be given immediately. 168

171 Appendix 6 Second Supplemental Statement of Darren Wright 169

172 170

173 171