The three most senior officials in Wicklow fire service declined to answer over 1,300 questions put to them by gardaí investigating the deaths of two of their colleagues.
Jim Dunphy, the chief fire officer of Co Wicklow, now retired, refused to answer more than 500 questions from detectives. His two assistants, senior assistant chief fire officer Tadhg O'Shea and senior assistant chief fire officer Joanne O'Connor, refused to answer more than 430 and more than 360 questions respectively, according to transcripts of the interviews seen by The Irish Times.
Both O’Shea and O’Connor remain members of the fire service, holding the same rank and continuing to have supervisory authority over members of the service, as they did in 2007. Dunphy retired in 2012. The three were arrested on separate dates in 2008 and 2009. Each was cautioned and each opted, as entitled under law, to exercise a right to remain silent. Gardaí told them that, by exercising their right to remain silent, a court “may in future draw such inferences from the failure [to answer questions] as appear proper”.
Also arrested and questioned under caution was Wicklow county manager Eddie Sheehy. While he answered questions put to him, he declined to sign five transcripts of interviews but did sign one. In declining to sign, Sheehy said he would not do so “without consulting my solicitor”.
The arresting gardaí were investigating the deaths, on September 26th, 2007, of two Bray firefighters: father-of-15 Brian Murray (46) and Mark O’Shaughnessy (26), who was single. They died fighting a blaze inside a disused factory at Adelaide Terrace in Bray.
Wicklow County Council initially denied any responsibility for events on the day and the circumstances leading to them. But in July 2013 changed its plea to an amended indictment and, in Dublin Circuit Criminal Court, admitted multiple breaches of health and safety at work legislation. It was was later fined €355,000 plus costs. The plea came on the ninth day of the trial and only after the original indictment was amended to remove a causal link between the breaches of health and safety at work laws and the men’s deaths. In the original indictment, the council had been charged that the men died “as a result” of the council’s breaches of the law.
Joint investigation
The case arose from a joint investigation by the Garda and the Health and Safety Authority (HSA). It began informally in the hours after the fire, when HSA inspector Kevin Broderick arrived at the scene and conducted an initial examination along with Dalkey-based Garda scene- of-crime investigators. The joint approach was formally set in train the next day, after a meeting at Bray Garda station presided over by Insp (now Supt) Tony O'Donnell of Bray. The two agencies agreed that, under a pre-existing memorandum of understanding and protocol between the Garda – notably Det Garda Maurice Hickey of Bray – and the HSA, they would work together, sharing information and resources.
While the Garda and the HSA were satisfied almost immediately that the fire had been caused accidentally (by a welder sealing shut a metal gate into the disused factory, thereby setting on fire rubbish dumped illegally behind it), this did not mean that crimes had not been committed. In this case, the chief suspect quickly emerged as Wicklow County Council.
Less than two months after the fire, on November 13th, 2007, chief fire officer Dunphy was interviewed by Broderick, who was assisted by his fellow HSA inspector on the case, Frank Kerins.
It was a routine session. In the course of 38 questions, Dunphy was asked about his qualifications, what his job involved, how he did it, to whom he reported and who reported to him, and what their duties were. He explained that he reported to Bryan Doyle, director of environmental services in the council and one of county manager Eddie Sheehy’s senior management team.
Dunphy said Tadhg O’Shea was responsible for procurement. Joanne O’Connor was responsible for training, and for the service’s training centre at Bray fire station. Each of them was also responsible for human resources and industrial relations matters and, in addition to her training duties, O’Connor for major emergency management. The interview was carried out under section 21 of the 1984 Criminal Justice Act and, as evidenced by the nine-page transcript, Dunphy answered all questions without difficulty.
Things were different on February 6th, 2009, however. Dunphy was interviewed again, this time after being arrested under section 4 of the Criminal Justice Act for, he was told, “the offence of endangerment to members of Wicklow fire service”. The alleged offences related to performance of his official duties from appointment in June 1998 to November 2007.
Dunphy told the gardaí, O’Donnell and Det Garda Stephen Ryan, that the charges were “ludicrous”. They told him that if he failed to mention a fact on which he relied in his defence at a later date, a court could draw an inference from that failure. This did not affect his right to silence, they said, but “there may be consequences for you in any future court proceedings”.
Having been read this aspect of the law formally, Dunphy declined to sign a document to that effect. “On the basis of my legal advice I do not wish to sign that document,” he told the gardaí.
The interview proper then began.
“Please state your rank in Wicklow fire service,” said the gardaí.
“On the basis of legal advice I wish to make no comment,” replied the county’s chief fire officer.
“How long have you held this rank?” asked the gardaí.
“On the basis of legal advice I wish to make no comment,” said Dunphy.
“How long have you served in Wicklow fire service?” asked the gardaí.
The transcript of the interview then records his answer as “As above”.
In the course of 196 questions, he repeated the same answer: “On the basis of legal advice I wish to make no comment.”
There was one exception – question 13 from the gardaí. “You have been arrested for the offence of endangerment,” they told him. “We believe that you performed the duties of CFO [chief fire officer] attached to Wicklow fire service recklessly, resulting in conduct which created a substantial risk of death or serious harm to others. Do you understand?”
Dunphy: “Repeat question, I understood and I totally deny.”
The interview, having started at 9.37am, continued until 11.27am, during which Dunphy refused to answer 196 questions. It resumed at 1.14pm and carried on until 2.23pm, during which time he refused to answer a further 90 questions.
More questions
After a break, the interview resumed for a third session at 3.55pm until 4.59pm, during which Dunphy refused to answer 231 more questions. The transcript of this part of the interview ends with a question from Ryan. "Having heard this memo [the record of the interview] read over to you, do you wish to add or change anything?" asked the detective.
Dunphy: “I’ve slept through some of it. I’m sorry I nodded off there a couple of times.”
Ryan: “Do you want me to read it over to you again?”
Dunphy: “No.”
Ryan: “Are you sure?”
Dunphy: “Yeah.”
The interviewing resumed at 5.56pm until 7.13pm, this time the questions being led by O’Donnell and Det Garda Maurice Hickey. After preliminaries, the first question of substance was number 419: “What did you mean on the 26/9/2007 when you instructed Tadhg O’Shea to ‘handle the cops’?”
“I deny ever using such a phrase. It is not language that I use,” replied Dunphy.
Other than this answer, Dunphy’s answers on responsibility for the deaths of Murray and O’Shaughnessy, training, or the lack of training, in the use of compressed air foam, and memos to other officials, were the same: “On the basis of legal advice, I do not wish to comment.”
There was one exception. “I think this is unfair,” he said in answer to question 461, “that you are showing me random documents and I wish to consult my solicitor.”
“Do you consider it unfair,” asked O’Donnell, “that I am giving you the opportunity to read these documents and then comment on these documents? What is unfair about that?”
Dunphy replied: “Because they stretch over a number of years and their context is not always clear to me at this remove.”
The final section of the interview began at 9.30pm and ended at 11.30pm. It was conducted by Ryan and Hickey. The questions concerned the fire service budget; training and research; the new compressed air-foam system known by its acronym as Cafs; and the operation of the watch room, Bray station’s communications control centre. To all questions, Dunphy declined to answer or said, simply, “No” (usually when offered the chance to refresh his memory by reading a document). In one instance, he said when asked if he wished to read a report on the watch room: “Fifteen pages, too much to read.”
By the time the interview concluded, the chief fire officer had refused to answer 507 questions.
When he was interviewed by the Garda, Tadhg O’Shea initially answered questions put to him. During an interview under caution in Bray station, to which he went voluntarily on February 13th, 2008, 114 questions were put to O’Shea, to which he gave replies. The questions covered areas such as his career, his responsibilities and to whom he reported – chief fire officer Dunphy. Asked if he kept notes from meetings with Dunphy, O’Shea said he had some notes. “Can we have these notes,” asked the detectives, Ryan and Hickey.
“I’ll see what I have and I’ll fulfil my legal requirements,” said O’Shea.
Watch room
The interview covered areas such as the operation of Bray station watch room, the room that received 999 calls and from where alerts were sent to firefighters needed in an emergency. O'Shea was asked about responsibility for equipment in the watch room and the alert equipment to summon firefighters.
The detectives asked about pre-determined attendances (PDAs) – fire-service-speak for the agreed level of response by the service to stated situations, such as a house fire or a blaze in a skip. Just one written PDA existed at Bray: for vehicle incidents on the N11, two tenders would automatically be dispatched.
They also asked how Bray and Greystones stations co-ordinated their work.
The interview over, the detectives gave O’Shea a record of the questions and his answers, and asked him if it was accurate. “Not entirely,” he said.
The gardaí asked him to point out the parts with which he was taking issue. “I would like to come back to you on that,” said O’Shea, adding that he did not wish to sign the transcript “at the moment”.
O’Shea was next interviewed on September 19th, 2008, following his arrest for conduct that allegedly placed firefighters at risk of death or serious injury. During four sessions, starting at 11.38am on September 19th, 2008, and ending at 10.59pm, O’Shea declined to answer 437 questions.
At the start of the first session, O’Shea told detectives Ryan and Hickey: “I’ve never been arrested before and I’d like to help the investigation and I consider this to be a very serious matter and I’ll be as helpful as I can and write down your questions and give written replies in consultation with my solicitor. I would like it recorded that I did request writing materials for the purpose of facilitating the investigation with the intention of giving written replies taken in consultation with my solicitor and the request was declined.”
The detectives, having confirmed from O’Shea that he had spoken to his solicitor, asked him if he had any issues with Wicklow fire service’s health and safety statement from July 2003 to the date of the firefighters’ deaths and, if so, what they were.
“I have never been arrested before,” he said, before repeating his earlier answer, which he repeated throughout, almost without exception, in reply to every question. The first session of questions concentrated on the health and safety statement, which was 13 years out of date, and what he did, or did not do, regarding the new fire tender equipped with the Cafs foam system. One of the few questions he did answer was when the gardaí asked him what he thought Jim Dunphy meant when he instructed him to “handle the cops”. O’Shea replied: “To assist the gardaí.”
The second session, with Ryan and a colleague, Garry McGrath, dealt with the purchase of the Cafs-equipped fire tender, its operation and use. The detectives put it to O’Shea that the lack of Cafs training “resulted in the deaths of Mark O’Shaughnessy and Brian Murray”.
Alleged failings
He repeated his refusal to answer. The session concluded with the detectives putting to O'Shea a series of his alleged failings – on training, on researching equipment before buying it and understanding how it was to be used, and on the management of the Bray watch room – with the result that firefighters and the public were put at substantial risk of death or serious harm.
O’Shea repeated his refusal to answer.
The third session covered issues including leave and personnel management; the history of complaints by Bray firefighters over resources; the operation of the watch room; and many of the training and other issues raised earlier. The fourth and final interview proceeded along similar lines.
Transcripts of each were read to O’Shea and on each occasion he declined to sign the records.
Like O’Shea, Joanne O’Connor went voluntarily to Bray station, on February 7th, 2008, and answered questions, 134 in all, put to her. They covered her career and qualifications, to whom she reported, who reported to her and what were her duties.
On October 21st, 2008, she was arrested on terms similar to those put to Dunphy and O’Shea, and was cautioned about the inferences that could be drawn from remaining silent. O’Connor told detectives Ryan and Hickey that she would “like to assist the Guards in any way possible”.
She continued: “To this effect, my solicitor wrote to you in early April saying that and requesting information on the nature of your investigation. In this letter, my solicitor requested you furnish us with a list of questions that you wish to put to me and said that when we had time to consider and get the appropriate advice that I’d be happy to answer those questions. However, to date no reply has been received from An Garda Síochána.”
“Joanne,” replied Hickey, “from my experience, An Garda Síochána do not forward questions and details of their investigations to the solicitors of people who are going to be interviewed under caution.”
Ryan then asked: “The letter [from your solicitor] states that you will address relevant issues in court. What do you mean by that?”
O’Connor: “I’d need time to consider that with my solicitor.”
The detectives asked her if she was responsible for Bray fire station’s health and safety statement, but she repeated her earlier answer. The transcript continues: “Explained to prisoner that we will not provide her with pen. Explained that questions are available to her at a later date and also are being recorded on video tape so there is no requirement for her to write them down.”
“Is anyone in Bray fire station responsible for health and safety?” asked the gardaí, but there was no answer.
The questions continued, covering similar issues as put to O’Shea, and in response to 367 instances, the reply was the same and recorded in the transcript as “As above” – a reference to wanting questions in advance and in writing, to be answered after talking to her solicitor.
A handful of questions were answered. The interview concluded with O’Connor repeating her desire “to help as much as possible” but only on the basis of being given a list of questions to which she would reply in writing after talking to her solicitor.
County manager
County manager Eddie Sheehy went to gardaí on November 11th and 25th, 2009, and answered questions. During these sessions, Sheehy, who was accompanied by a solicitor, Eamonn Shannon, was questioned by O'Donnell and Hickey.
On May 11th, 2010, he was arrested, told of the inferences that could be drawn if he remained silent, and was then questioned during four sessions at Bray station by Hickey and others. After each session, Sheehy refused to sign a record of the interview, on one occasion saying he wanted to consult his solicitor.
Gardaí had raided the council’s offices in February 2010 and seized computer records, files and other documents. “These materials contained personal matters and matters unrelated to your investigation and also contained correspondence between me, my colleagues and Wicklow County Council and their solicitors,” said Sheehy at the start of the first session, adding that gardaí had said some of the material would be returned but this had not happened. Questioning proper then began. It centred on Sheehy’s responsibilities as manager, as defined by the Local Government Act 2001, and assertions within the Act that he remained responsible, notwithstanding his devolving of certain functions to members of his senior management team. In the course of 155 questions, Sheehy was asked how he ran Wicklow and about the various directors of services, what functions were devolved to them and how they reported to him.
They asked Sheehy if delegation of running the fire service to director of services Bryan Doyle occurred “under the general direction and control of the Wicklow county manager”. “It says that on the document you gave me,” replied Sheehy.
Ryan and Hickey continued: “This supports section 154(4) of the Local Government Act 2001, which states where a function is delegated under section 154 of the Local Government Act 2001, the function shall continue to be vested in the county manager but shall be so vested concurrently with the director of service to whom it is delegated, therefore making both responsible for the operation of Wicklow fire service? Do you agree?”
Sheehy: “That’s a legal question which I couldn’t comment on.”
Gardaí: “Can you confirm that even though you have delegated the functions in respect of the fire service they still remain under your control?
The transcript records his answer to this: “As above.”
Over the following three sessions, the detectives returned repeatedly to the point of responsibility. At the end of the interviewing, Sheehy refused to sign the transcript record of each of the four sessions.
In May 2011, Wicklow County Council was charged with failing to provide a system with clear rules of engagement for firefighters; failing to ensure they were not exposed to unnecessary risk; failing to ensure sufficient assistance was available to them within a reasonable period; failing to have an adequate plan to summon assistance from other fire brigades so that they had safe levels of resources; failing to set up and maintain an effective central control system; and that, as a result of these fa- ilures, Brian Murray and Mark O’Shaughnessy suffered personal injury in the fire of September 26th, 2007, in which they died.
The council was also charged with failing to review its safety statement for the fire service; failing to identify hazards and assess risks those hazards posed to firefighters; and failing to give sufficient training for firefighters using Cafs in the fire in which Murray and O’Shaughnessy died.
The case went to trial in the Circuit Criminal Court and the council pleaded not guilty. It changed its plea to guilty to all charges in a new indictment from which the link between the failings and the deaths of the two firefighters had been removed. In October 2013, Judge Desmond Hogan took into account mitigating factors when sentencing. Imposing fines totalling €355,000 plus costs, he said: “Wicklow County Council, at all times during the course of the investigation by prosecution, co-operated with the prosecution.”
