20.11.19 – Seanad – Statements on the need for Public Inquiry into the death of Shane O’Farrell – Senator David Norris

The Dáil and the Seanad both passed strong resolutions calling for an independent inquiry to be established into the death of Shane O’Farrell. The Minister has not acceded to this so he is actually in defiance of the wish of both Houses of Parliament and that is an extraordinary situation.

I listened to the Minister on the wireless during the week and he said that Judge Haughton had been appointed and was in a position to make recommendations regarding the terms of reference for the scoping inquiry. That was very disingenuous because we knew beforehand that the Minister had rejected Judge Haughton’s detailed suggestions about the terms of reference of the scoping inquiry. The Minister had already turned them down. It is rather extraordinary for the Minister to go around saying that Judge Haughton could make representations on this. The O’Farrell family also made representations and were ignored.

The Minister has replied to questions in the other House. On 12 March 2019, Deputy Bríd Smith asked a question and the Minister’s reply was that he had “invited them to give their views on those terms of reference directly to Judge Haughton”. He continued by stating “Judge Haughton has met the O’Farrell family to discuss the terms of reference and to seek their input into any amendments that might be required.” He further stated “Of course, it is open to Judge Haughton to propose changes to the terms of reference to me” and “I have not placed any restriction on Judge Haughton”. The Minister did not place any restrictions on Judge Haughton but he did not accept the recommendations of Judge Haughton on the terms of reference.

Deputy Bríd Smith asked another question on 16 May. In response, the Minister stated:

I invited them to give their views on those terms of reference to the judge … I understand that Judge Haughton has met with the family to discuss the terms of reference and to seek their input into any amendments which might be required.

That deliberately gives the impression that the O’Farrell family and Judge Haughton will be listened to, but they were not listened to and considerable restrictions were placed by the Minister on the terms of reference for the scoping inquiry. My good friend from Fianna Fáil stated he accepted the Minister’s good intentions – we all do – and he hoped the O’Farrell family would be satisfied, but they are not satisfied. They are very far from satisfied. They are utterly disgusted by the situation and have made that clear in any meeting I have had with them. The family say they are concerned that the rejection of the judge’s proposed terms of reference undermines the scoping inquiry and that the new terms of reference proposed by the Department are deliberately narrow, thereby limiting the scope of what can be considered by the judge. That is not being satisfied; it is being very dissatisfied.

In June 2018, the Dáil overwhelmingly adopted a resolution calling for an independent public inquiry, which was followed up by this House. I tabled exactly the same motion that Fianna Fáil had tabled in the Dáil and it was passed unopposed. Neither the spirit nor intent of the resolution, however, has been enacted by the Minister or his Department. Instead, in February 2019, the Minister chose to appoint a retired District Court judge, Judge Gerard Haughton, to conduct a scoping exercise to address the public controversy surrounding the circumstances of Shane’s tragic death. The O’Farrell family met Judge Haughton and had a good, positive meeting, following comments by the Minister to the effect that the family would have an opportunity to consult the judge in respect of the terms. The terms of reference under which the scoping exercise will be conducted are crucial. They tell the whole story. The scoping inquiry sets it down clearly. To limit it is to limit any inquiry into the circumstances surrounding the death of Shane O’Farrell.

Judge Haughton subsequently submitted terms of reference to the Department on 24 April 2019. The family respect the terms, which go some way to reflect the spirit of the motions passed by the Houses. The Department rejected Judge Haughton’s terms of reference and further narrowed the original terms of reference, which the Department had proposed in February 2019. I have a list of clear, specific and factual complaints from the family. The Department removed references to Shane and the family’s rights under the ECHR to ensure an effective investigation into the unlawful killing. To date, the State has failed in its obligations under the ECHR. It removed consideration of the prosecution of Shane’s case, the first matter for consideration by the Department in the February terms of reference, and any consideration of the coroner’s inquest into Shane’s death, in which serious irregularities have emerged, yet they are not being investigated. Surely to God this is the precisely the type of matter that should be examined and included in the terms of reference. The Department also removed any investigation into the previous prosecutions of the accused, despite him being in breach of multiple counts of bail when he killed Shane. It is tragic that the car which killed him was stopped a couple of hours before the accident and drugs were found in the car. The car was defective, it had not passed the national car test and it was not licensed. It should have been seized at that point, and Shane O’Farrell’s death would not have taken place. The Department has limited the judge to take into account the outcome of reports prepared – reports that, in the family’s view, are deficient – rather than a review of the investigations behind the reports, as originally envisaged in the February terms of reference.

The family have stated:

An independent public inquiry is the last chance for the State to meet its ECHR obligations to investigate properly Shane’s unlawful killing and to carry out an effective investigation into the true and full circumstances of the unlawful killing and the role of State authorities in Shane’s death. The family has the utmost respect for Judge Haughton, however the family believe that the terms of reference now proposed by the department do not reflect the spirit of the Dáil and Seanad resolution. [It is clear that is the case.] These terms will not allow the inquiry to ascertain the full and relevant facts pertaining to Shane’s case and appear to be an attempt to curtail the scope of the Inquiry and further delay matters. The terms proposed by the department would lead to a narrow and unfair consideration of the complex legal and public policy issues that are at play in Shane’s case and they are not sufficiently broad or exhaustive to address the State’s ECHR obligations. The family attend Dáil Éireann today [to speak about the case].

In his speech, the Minister seemed to hide behind the Shatter v. Guerin judgment but he is being unnecessarily coy in his approach. He stated he must act within in the law and that the terms of reference must respect the law. His proposed amendment to the motion stated, “[T]he terms of reference of the scoping exercise must be compliant with the line of jurisprudence established by the Supreme Court in the case of Shatter v. Guerin”. In my opinion, the terms are compliant. Does the Minister seriously think Judge Haughton would propose something illegal? He has paid tribute to the judge’s long experience and expertise in matters of law, but he suggested that he might propose something illegal.

I will read the Minister’s reply with great interest. Unfortunately, my car has broken down and I have to take it to hospital.