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Ireland's political and cultural magazine
24 July 2022
O
N JUNE 30 John Barrett, An Garda
Síochána’s suspended Executive
Director for Human Resources and
People Development, secured a
High Court order for discovery
against the Minister for Justice and the Garda
Commissioner. He was also awarded costs.
Barrett , whistleblower,
suspended
He was suspended with pay on in October,
2018. News of his suspension was leaked to
the media in advance, and it was widely
covered in the broadsheets, social media and
on radio and television. Bizarrely he remains
suspended for the ‘tone’ but not the ‘content’
of two letters he wrote to the former Acting
Garda Commissioner, Donall Ó’Cualáin. In his
letters of August 2018 Barrett disclosed
serious wrongdoing which he believed was
being perpetrated against him.
What happened?
‘Speaking up and
reporting wrongdoing’
– the consequence in
An Garda Síochána?
By Michael Smith
But John Barrett is getting his day in court over an improper
investigation of him ordered by Commissioner Drew Harris and
endorsed by Minister Charlie Flanagan
Barrett discussed the matter directly with the
alleged complainant Assistant Commissioner
Fanning but Fanning made clear that he had
made no such complaint against him. He had
raised a concern about an appeal decision
made by Barrett in a recruitment process
Barrett’s impugned 2018 letters argue that a
disciplinary ‘misconduct’ investigation
launched against him in May 2018, by Kate
Mulkerrins, the Garda’s Executive Director of
Legal and Compliance, was invalid, not founded
upon any complaint and seemed to be
retribution for his track record of ‘speaking up’
as required by the Code of Ethics for An Garda
Síochána.
The Acting Commissioner, the recipient of
the letters, made no complaint concerning
either the tone or the content of the
correspondence sent by Barrett to him in
August 2018 and as required by the Garda’s
Protected Disclosures policy, the Acting
Commissioner forwarded the letters to the
Minister for Justice.
The Mulkerrins’ letter of 3 May, 2018,
asserted that a complaint had been made
against him on foot of a text message he had
sent in November 2017 to Assistant
Commissioner Fintan Fanning. Mulkerrins
stated that this matter now was considered
possible misconduct and warranted
investigation under the Civil Service
Disciplinary Code.
Barrett was advised that an external
NEWS
investigator, Luán Ó’Braonáin SC had already
been appointed. When Barrett requested
details of the complaint made and the powers
and authority under which Mulkerrins had been
empowered to act, his requests were ignored.
In July 2018 Barrett discussed the matter
directly with the alleged complainant, Assistant
Commissioner Fanning on two separate
occasions. Fanning made clear that he had
made no such complaint against him. Instead,
he explained, that he had raised a concern
about an appeal decision made by Barrett in
October 2017 in a recruitment process.
Assistant Commissioner Fanning asked at the
time that Barrett’s decision be reviewed by the
Commission for Public Service Appointment
(CPSA). Based on this assurance and
clarification, Barrett wrote to the Acting
Commissioner on 1 August and 20 August
2018, challenging the basis of the Mulkerrins
misconduct disciplinary process.
Harris replaces Ó’Cualáin
In September 2018, Drew Harris became Garda
Commissioner. Within days he took delivery of
two Lever Arch folders presented to him by the
Chief Administave Ocer (CAO), Joe Nugent. In
October 2018, Barrett was summoned by the
Commissioner and presented with a 7-page
letter to which he was given 24 hours to reply,
setting out the reasons why Harris should not
recommend to the Minister to suspend him.
While Barrett’s legal team asked for time to
consider the letter, Harris wrote to the Minister,
Charlie Flanagan TD, the following day, seeking
Barrett’s suspension pending a new
investigation.
July 2022 25
Harris then established a ‘serious
misconduct’ investigation, which he ‘directed’
and ‘commissioned’. He appointed/
reappointed the investigator, Ó’Braonáin. He
upgraded the subject of the investigation to
serious misconduct such that dismissal
became a possible sanction.
Later, even when Harris jettisoned the entire
basis of the original misconduct investigation,
he maintained that the reduced scope (the
‘tone’ of letters!) still amounted to ‘serious
misconduct’.
In this investigation process, Drew Harris
assumed the conflicting roles of sole
‘complainant’ and also ‘relevant manager’
under the Civil Service Disciplinary Code. The
only oral evidence presented to the
investigation was from Harris himself.
His evidence related to events which
occurred before his appointment and when he
was resident in a dierent jurisdiction. In his
evidence he said that he had never spoken to
the former Acting Commissioner about Barrett’s
correspondence.
It was Harris who played the role of ‘relevant
manager’. In this capacity he considered the
eventual report from the investigator (whom he
appointed) reciting Harris’s own evidence. It
was Harris who considered whether the
investigator had acted appropriately under the
Civil Service Disciplinary Code.
As relevant manager, it was also Harris who
decided that Barrett had indeed received due
process. So much for ‘nemo iudex in causa
sua’?
In December 2020, and on the back of Harris’s
satisfaction with the report of the investigator
and supposed adherence to the code and due
process, the Garda Commissioner wrote to the
Minister for Justice recommending that Barrett
be dismissed within days of Christmas.
During the disciplinary investigation Barrett
sought access to documents and to cross-
examine witnesses, both explicitly provided for
under the Code.
He sought for matters of protected
disclosure, under statute, to be considered so
that he could advance his defence. He sought
that the factual context and background to his
letters be inquired into.
All these applications were denied to him.
Barrett withdrew from the process per the
code, for ‘good reason’ and put matters before
the High Court.
But behind the scenes….
In May 2019, the original terms of reference
which suggested that Assistant Commissioner
Fanning had made a complaint against Barrett
was suddenly dropped. The investigator was
informed of this by the Commissioner and no
further inquiries were made by the investigator
as to why this occurred.
Barrett told Village he saw this as
“vindicating the entire substance of what he
wrote even while so much more was kept from
view”.
Therefore, matters which were only to
emerge later concerning interference in the
investigation did not come to light then and
were not inquired into at the relevant time in
the disciplinary investigation.
Bizarrely though, a serious misconduct
investigation was maintained based solely on
the ‘tone’ of the letters in which Barrett had
called out wrongdoing.
However, no details of Harris’s repeated
written ‘directions’ to Assistant Commissioner
Fanning between March and May 2019 to
breach the Garda Investigative Code were
revealed by the Commissioner in his four days
of evidence to the investigation.
Only in May 2020 did Barrett and his legal
team learn that Harris interfered by formally
directing Fanning, the alleged original
complainant to breach the Garda policy.
These directions were for Fanning to give a
statement of his evidence to the investigation
to the Garda side in advance. Harris repeatedly
directed Fanning to meet Nugent privately with
the Garda legal team at an appointed date and
time.
Fanning refused to attend such a meeting
citing this ‘direction’ from Harris would be in
contravention ofGarda Síochána policy. (HQ
Directive 29/2014).
In reply, in a letter of May 2019, the
Commissioner admonishes Fanning, saying “I
have commissioned the Ó’ Braonáin process
and it continues under my direction….it is not
your role to determine the process by which
your alleged serious allegation is investigated”.
Further, through FOI Barrett also learned that
between January 2018 and March 2020,
Nugent and Mulkerrins engaged secretly with
the Commission on Public Service
Appointments (CPSA) on Fanning’s original
concern. In correspondence with the CPSA they
purported to be conducting a ‘fair investigation’
into Fanning’s concern regarding the
recruitment process about which Barrett
upheld an appeal made by Garda Christopher
Rushe.
No investigation was ever conducted by
Nugent or Mulkerrins. At no point was Barrett,
Fanning or the Garda appellant in that
recruitment competition, ever made aware of
the existence of the purported investigation.
Nonetheless, groundless ‘findings’
detrimental to Barrett were made in writing by
Nugent and sent to the CPSA in March 2020.
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.
JOHN BARRETT
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 drew the attention of the Public
Accounts Committee to the astounding
financial irregularities in the Garda
College in Templemore.
He uncovered the fraud on EU Grant
Funds drawn down by the Garda, a
matter curiously still ‘under investigation’
by GSOC more than five years on.
He sought to defend the confidentiality
of disclosures made to him by Sergeant
Maurice McCabe, for whom he was
protected disclosures manager.
Grd Commissioner
26 July 2022
Barrett’s impugned
2018 letters argue
that a disciplinary
‘misconduct’
investigation launched
against him, by the
Garda’s Director
of Compliance,
was retribution for
‘speaking up’
This investigation was established under
section 1(2)c of the Tribunal of Inquiries Act
(1921). In his four days of evidence to the
disciplinary investigation, however, the
Commissioner omitted to refer to this though he
was explicitly questioned about the Disclosures
Tribunal which alone justified action under the
Tribunal of Inquiries Act. ( ??)
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.
Curiously, these reports emerged 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.
But isn’t the Minister in charge?
Barrett is a civil servant of the government at
Assistant Secretary General grade.
The statutory authority for such senior civil
servants is vested exclusively in the Minister. In
matters of discipline or suspension it is only the
Minister, (or his/her formal delegate) who can
commence a disciplinary investigation of sta
at or above the level of principal ocer.
The delegation of this Ministerial power is
explicitly restricted to civil servants. ???
Barrett further learned that the Minister who
suspended him, Charlie Flanagan TD, was
informed in writing by Fanning that he, as AOC,
had been inappropriately directed to act
contrary to the Garda HQ Directives by
Commissioner Harris at a time when Harris had
formal authority over him.
The Minister was informed that the Garda
Commissioner ‘directed’ Fanning to collaborate
(unknown to Barrett) with Nugent, (whom
Fanning described as a “witness”) and the
Garda legal team in what purported to be an
‘independent investigation’.
Assistant Commissioner Fanning made clear
that such a direction was contrary to the Garda
investigative code.
The Minister and his ocials seemingly
ignored this highly relevant information and
failed in their lawful duty to bring this evidence
to Barrett’s attention.
Barrett’s solicitors wrote to the Minister in
June of 2020 and notified him of what they had
come to know with respect to the Minister’s
knowledge of material facts. The letter formally
requested that the Ministerial wrongdoing be
fully investigated by his superior, pursuant to
the provisions of the Protected Disclosures Act
2014. However, no substantive reply was ever
received.
And what is the cost to the
taxpayer?
Through FOI it was learned that the Garda
Commissioner, Harris, has already spent more
than €480,000 of taxpayers’ money on the
Garda costs of the ‘disciplinary investigation’ he
‘commissioned’ and ‘directed’. This takes no
account of the costs awarded to Barrett in the
recent discovery order.
So, what will happen next?
The Minister and the Commissioner have now
been ordered by the High Court to make
discovery of ten categories of documents by 25
August. This case promises to be extraordinary
with Ministers, Commissioners and other high-
ranking officials all facing searing cross
examination in open court.
As Judge Anthony Barr asked when he was
given the background to this case at the
discovery hearing, “Are the Guards living in a
parallel universe?”.
