
26 July-August 2023 July-August 2023 PB
investigator by Mulkerrins did not come to light
until the discovery process.
Barrett claims this makes the notion of the
investigator’s independence difficult to
comprehend.
The Court of Appeal has its say!
On 8 May 2023, the Court of Appeal found prima
facie that Barrett’s letters to the then Acting
Commissioner disclose information setting out
his reasonable belief that wrongdoing had
indeed occurred and his letters were therefore
protected acts pursuant to the Protected
Disclosures Act. Those letters of course
precipitated the disciplinary action against
Barrett.
What emerged in the discovery
of documents?
Critical elements of the Commissioner’s direct
evidence to the disciplinary investigation and
the adavit evidence relied upon by the High
Court and Court of Appeal is flatly contradicted
by documents discovered.
Discovery makes clear that the Garda
Commissioner was, at all material times, in
possession of evidence which shows that there
was no basis to what Mulkerrins wrote to Barrett
on 3 May 2018.
Documents withheld by the Garda
Commissioner show clearly that there was never
a disciplinary complaint made for, or on behalf
of, Fanning. The High Court and Court of Appeal,
however, relied upon the misleading and
untruthful adavit evidence adduced for and on
behalf of the Minister for Justice and the Garda
Commissioner.
Those documents show that on 19 November
2018, less than a month after Barrett’s
suspension began, solicitors for Assistant
Commissioner Fanning wrote to Kate. Mulkerrins
making clear that they had never sought any
form disciplinary action. On 2 November 2018,
they wrote again stating that matters had been
‘completely subverted’ by Ms Mulkerrins and
pointing to their prior chain of correspondence
with her making that point stretching back to
January 2018.
On the eve of the first meeting of the
disciplinary investigation, in December 2018,
Costello & Co, solicitors for Fanning wrote to Joe
Nugent, the then Chief Administrative Ocer of
An Garda Síochána, stating”, “What Mr.
O’Braonáin is dealing with related to the
investigation under the Civil Service Disciplinary
Code which was never the subject of
correspondence between this oce and Kate
Mulkerrins”.
All this exculpatory correspondence was
withheld from Barrett and his legal team for four
and a half years.
None of this crucial evidence was referred to
in the affidavits sworn on behalf of the
Commissioner or the Minister. (Despite the
Commissioner’s deponent, Síle Larkin, being a
solicitor, an officer of the court, with a
professional duty of candour). It is never referred
to by the Commissioner in his evidence to the
disciplinary hearing. In the Commissioners
written update/report to the Department of
Justice of January 30th, 2019, Mr. Harris makes
no reference whatsoever to the Costello
correspondence of November/December 2018
which endorsed completely Barrett’s claim that
there was never a complaint by Fanning as
stated by Mulkerrins on 3 May.
In May Barrett failed in his attempt on appeal
in the Court of Appeal to get an injunction
preventing his suspension, on full pay, on the
basis he had delayed too long. The court heard
that the Garda Commissioner no longer has any
trust or confidence in Mr Barrett as a member of
the Garda senior management team. However,
the overall issue of his suspension will be heard
in the High Court later in the year.
‘Eyes wide shut’ – Have
Ministers for Justice been doing
their duty?
Between September 2019 and February 2020,
Assistant Commissioner Fanning wrote on six
occasions to the then Minister for Justice, Charlie
Flannigan TD. He set out the details of how the
Garda Commissioner pressurised him to secretly
meet with the Garda legal team and to ‘collude’
with another witness (Joe Nugent) unknown to
Barrett and his legal advisors.
He expressed his deep concern about being
directed to deliver a statement of his evidence
to the Commissioner ‘in advance’ of giving
evidence to the investigation. He said the
repeated written direction which he received
from Mr. Harris were contrary to Garda policy
(HQ Directive 29/2014), excerpts of which he
enclosed in his correspondence with the
Commissioner. He complained to the Minister
that this was not the conduct expected of an
‘independent investigation’.
In October 2019 the Minister’s office
acknowledged the Fanning correspondence and
said he ‘was awaiting legal advice’ – but he took
no action. Through deliberate inaction, Minister
Flannigan and his successors, knowingly
facilitated the continuation of a deeply flawed
disciplinary process. In that process the Minister
had a specific role, as ‘Appropriate Authority’
(under the Disciplinary Code of the Civil Service),
to ensure that the provisions of the Code were
properly ‘implemented’. In failing to advise Mr.
Barrett and his legal team of this highly relevant
information, the Minister breached his duty as
Appropriate Authority. He also breached his
common law duty of care to a very senior Civil
Servant of the Government, whom he himself
had suspended.
Only in the Summer of 2021, did it emerge that
the Garda Commissioner had used his powers
to institute a criminal investigation against
Barrett within weeks of his suspension in
December 2018.
This investigation was established under
section 1(2)c of the Tribunal of Inquiries Act
(1921).
This use of the criminal code only came to
Barrett’s attention through leaked media
reports more than two and a quarter years after
the Garda Commissioner launched this
investigation — just weeks before a scheduled
hearing of Barrett’s application to the High
Court.
In the 101 years since this statute was
enacted, no criminal prosecution under this
section has ever come before a court.
Hrris
John Barrett, who was brought in to the
Garda from a successful career in
business, has an established record of
calling out wrongdoing in the Garda.
He supported Sergeant Maurice
McCabe as his de facto protected
disclosures manager. He called out the
dangers and conflicts inherent in the
structure and operation of the Garda
Tribunal Liaison Oce as established by
a party to that Tribunal, Garda
Commissioner Noirín O’Sullivan. Barrett
identified the scope and scale of the
bizarre financial irregularities at the Garda
College in Templemore and gave clear and
courageous evidence to the Oireachtas
Committee of Public Accounts.
He uncovered the fraud on EU Grant
Funds drawn down by the Garda, a matter
curiously still ‘under investigation’ by the
Garda Ombudsman (GSOC) more than six
years on.
He made the correct and appropriate
decisions with respect to the
whistleblower, Garda Christopher Rushe,
in accordance with law and Code of
Practice of the Commission of Public
Service Appointment. Immediately before
his suspension, in September 2018, he
raised directly with Drew Harris, the plight
of certain missing persons in Limerick.