Imagine if the Court Services suspected that a jury room or a judge’s chambers in the criminal courts building had been bugged.
Imagine if they had hired a UK- based security consultancy to conduct a sweep of the building and tests of the integrity of its telecommunications and that these revealed three different “technical and electronic anomalies” which “could not be conclusively explained; and which “raised concerns” about the integrity of jury and judicial deliberations.
Imagine then, if in possession of this information the board of the services, which as it happens is chaired by the Chief Justice, decided not only not to tell the Department of Justice but not to reveal publicly that all this had happened. Imagine if they had decided that this suspicion of surveillance at the heart of our criminal justice system should never become political or public knowledge.
That is the equivalent of what the Garda Síochána Ombudsman Commission (GSOC) did late last year. They suspected they were under surveillance and commissioned a sweep of their offices and telecoms. On the basis of the consultants' findings they started inquiries focused on a suspicion of Garda involvement.
They told no one about the fact that the confidentiality which both complaints to GSOC and members of An Garda Síochána were entitled to might have been compromised. Instead, last December , the ombudsman commission made a “strategic decision” that public confidence in GSOC and its work would be better safeguarded by not making any of this public. They also, somewhat naively, presumed these matters would not leak.
Alleged Garda misbehaviour
Querying how
the Garda watchdog handled this matter is not, as some have suggested, turning them from victim into villain. It is simply appropriate questioning of their judgment as commissioners. Whether there was any substantial basis for their original suspicion, whether they acted appropriately in launching a public interest inquiry and whether they were correct in their decision not to make these matters public are all proper issues for political and public oversight.
The bulk of GSOC’s work arises from complaints made by the public about alleged Garda misbehaviour. However, GSOC, unlike many watchdog-type agencies, has been given the power to initiate its own investigations where it decides this is in the public interest.
These own initiative public-interest inquiries are, as you would expect, rare and in most, if not all, other instances the ombudsman commission has made a point of announcing that they have launched such an inquiry, of keeping the public informed of the time scale for progress in these investigations and of publishing the findings.
In this instance, however, the Garda watchdog which was also the suspected victim came to a view that members of the Garda might be involved and decided to launch a public interest inquiry. Then it further decided that it was not in the public interest to tell the public about the existence, nature or outcomes of this inquiry.
While there is still much about this controversy we do not know, it seems clear that the political system and general public has reason to be grateful to whoever leaked this matter to the Sunday Times . Were it not for that fact we still would not know that the ombudsman commission suspected its offices were being bugged or that it had launched an inquiry.
Identifying the source
One man's leaker is another man's whistleblower. Given the obvious public interest in these matters and the fact that GSOC has now accepted it should not have kept them from
Minister for Justice Alan Shatter, it seems that the Sunday Times is more a whistleblower than a leaker. Notwithstanding this, it appears that GSOC is to expend further effort on identifying the source.
The manner in which the ombudsman commission has responded to this story since last Sunday has been confused. It should have been upfront and consistent by putting as much information as possible in the public domain last weekend. GSOC has not been alone in its confused response to the controversy. The Government, and Taoiseach in particular, were wrong to focus on a purely legal (and inaccurate) basis for the ombudsman commission’s obligation to share this information with the Department of Justice.
Much of the political opposition and many media commentators are so blinded by antagonism towards Shatter that they want to believe that only he has done wrong. He certainly doesn't come from the Dale Carnegie school of How To Win Friends and Influence People, but his combative style should not detract from the fact that on this issue there is merit in what he has to say. There is no definitive evidence that GSOC was bugged.
The fact that the ombudsman commission suspected it was under surveillance and that this may have involved Garda members is an issue of great public importance, which is why they should have told us about it months ago. GSOC accepts that its decision not to publish these matters more widely was wrong but say they did so out of the best of intentions. It remains to be seen whether confidence in their judgment can be restored.