Statement by Alan Shatter TD Minister for Justice and Equality 15 May 2013
The Minister for Justice and Equality, Alan Shatter TD, today published the report he received from the Garda Commissioner into allegations which were made of improper cancellation of fixed charge notices by some members of An Garda Siochana. The Minister also published a report by the Garda Professional Standards Unit of an examination of the processes and systems in place to deal with the cancellation of Fixed Charge Notices.
Publishing the Reports, the Minister said "Since controversy arose relating to the cancellation of Fixed Charge Notices, I have been committed to ensuring the maximum transparency possible with regard to the publication of any Report furnished to me of any investigation conducted into allegations made. An Garda Siochana holds a position of enormous trust and responsibility in our communities and it is of paramount importance that the public can be confident that the Garda Fixed Charge Notice system is, and is seen to be, fair and impartial and that any allegation of wrongdoing by a member of An Garda Siochana is treated seriously and properly investigated."
"I took extremely seriously allegations of improper cancellation of Fixed Charge Notices made against some members of An Garda Siochana. I referred these allegations to the Garda Commissioner and requested that they be rigorously investigated and that a Report on the investigation conducted be furnished to me. Assistant Garda Commissioner John O'Mahoney was appointed on 31 October 2012 to conduct an examination of the allegations and reported on 28 March 2013. He led a team including 5 Chief Superintendents, 6 Superintendents, together with their respective staff, and an incident room staff of 7, and together with this team, conducted a detailed examination of the allegations."
"I have received Assistant Garda Commissioner O’Mahoney’s Report relating to the allegations of improper cancellations of Fixed Charge Notices and have very carefully considered its contents. I am today publishing it. I am also publishing the subsequent Report of the Garda Professional Standards Unit."
"On the basis of legal advice from the Attorney General, for reasons of personal privacy and data protection, appendices detailing each allegation made and the detailed outcome of the investigation in each case, which contain names and other identifying information, are not being published by me but, with appropriate redactions, are being furnished by me to the Joint Oireachtas Justice, Defence and Equality Committee for its consideration. It is a matter for that Committee whether it deems it appropriate, to facilitate it properly undertaking the task I have requested, to publish the appendices in their redacted form. It is also open to that Committee, if it considers it necessary to facilitate its work, to request that I furnish to it, under parliamentary privilege, the appendices in un-redacted form and to consider whether it is necessary to its work that they be published."
[The Garda Professional Standards Unit is a statutory unit within An Garda Síochána, and was established by virtue of section 24 of the Garda Síochána Act 2005. It must be headed by a Garda officer not below the rank of Chief Superintendent. Its function is to examine and review, as directed by the Garda Commissioner, the operational, administrative and management performance of the Garda Síochána, to propose measures to improve that performance and to promote the highest standards of practice by reference to the best standards of comparable police services.]
The seven essential principles relating to Fixed Charge Notices
As Minister for Justice, Equality and Defence, I believe there are seven specific basic, essential principles which should apply to the Fixed Charge Notice (FCN) system and the consequent application of penalty points. These are as follow:
1. There must be no question mark hanging over the integrity of the Fixed Charge Notice system and in the application of penalty points.
2. No individual should receive preferential treatment because of their perceived status, relationship or celebrity.
3. The law and any discretionary application of it to individuals must be administered fairly, with compassion and common sense.
4. No member of the Garda Force should feel compelled by a person’s position, relationship or celebrity status to treat that person any more or less favourably than any other person.
5. There must be proper oversight and transparency to the discretionary decision making process and the applicable rules and procedures must be fully complied with.
6. All statutory provisions, regulations, rules, protocols and procedures applicable to the termination of Fixed Charge Notices must be readily accessible to all members of the Garda Force and the circumstances, factors and procedures applicable to the termination of Fixed Charge Notices should be detailed clearly on the Garda website for the information of members of the public.
7. Where application is made to terminate a fixed ticket charge, where possible and appropriate, material to support any application made should be sought while understanding in some circumstances no such material may exist or be obtainable.
The Minister continued "In implementation of the recommendations contained in the two Reports published today, I am asking the Garda Commissioner to ensure that these seven essential principles are incorporated and central to the decision making process in relation to Fixed Charge Notices."
Report of 28th March
The Minister continued "Many of the more serious allegations made against members of An Garda Siochana have not been substantiated and I am relieved that no evidence has been found to suggest any criminality in the cancellation of Fixed Charge Notices. However, I am concerned that it appears that there have been cases where clearly laid out procedures for the cancellation of Notices were not followed, for example where tickets were cancelled by some Superintendents outside their Garda District areas. It also appears that, in some cases, detailed records were not maintained."
"I am conscious that, even where correct procedures were followed, the subjectivity of judgements made in accepting petitions for the cancellation of fixed charge notices inevitably leaves room for disagreement on individual decisions. It is also clear from the Report I received from the Garda Commissioner that strengthened procedures and protocols with regard to the cancellation of Fixed Charge Notices are necessary and should without undue delay be put in place."
"As a consequence of the investigation carried out into allegations of the improper cancellations of Fixed Charge Notices, three Garda officers are now the subject of disciplinary inquiry, and of course nothing must be said which could prejudice that process. Some other members, while not subject to inquiry, have been reminded of the absolute requirement to strictly follow procedures."
"I very much welcome the two reports’ recommendations for enhanced safeguards to ensure integrity in the Fixed Charge Processing System. In addition, in order to provide even further public reassurance as to the effectiveness of these changes, and with the agreement of the Garda Commissioner, I have asked the independent Garda Síochána Inspectorate to validate these changes prior to implementation, including making any necessary supplementary recommendations, and to review their implementation after 18 months."
Joint Oireachtas Justice, Defence and Equality Committee
In addition to referring the Reports to the Garda Inspectorate Minister Shatter is also referring the two Reports and the appendices to the 28th March Report (which address each individual allegation and the result of the Garda investigation) to the Joint Oireachtas Committee on Justice, Defence and Equality. [Pursuant to the advices from the office of the Attorney General the appendices to the 28th March Report being furnished to the Committee have been redacted to exclude names of individuals and other identifying features.]
The Minister said, "I am asking the Joint Oireachtas Committee on Justice, Defence and Equality to consider, in the context of the Reports furnished, holding such hearings as it deems appropriate and to seek such submissions it considers relevant to its work."
"I am asking the Committee for its observations on the recommendations contained in both Reports and on their substantive content. I am also asking the Committee to furnish to me any additional recommendations it believes appropriate including whether any additional legislation or regulations are required in this area.
"A particular issue to be addressed is the extent to which there should be specifically detailed the circumstances in which Fixed Charge Notices can, on a discretionary basis, be terminated in circumstances "other" than where there has been a family bereavement or medical emergency. It is clear from Assistant Commissioner O'Mahoney's Report and its appendices that such circumstances can be very varied. Many, but not all, would fall under the heading "Humanitarian Reasons". This in itself is an imprecise phrase but is more precise than the word "other". I am conscious that the application of fairness, compassion and common sense to individual circumstances requires the making of subjective judgements and that each of us may address the same circumstances differently. Nevertheless, I believe there is a need for great care to be taken in the making of such judgements and this is an issue I would like the Oireachtas Committee to specifically consider. From my reading of the Appendices I am concerned that decisions made in a small minority of instances in which Fixed Charge Notices were terminated defy logic and common sense, albeit the correct procedures were complied with."
"If, in order to facilitate its deliberations, that Committee considers that it requires some information which has been redacted from the Appendices to be furnished to it, I am advised I can facilitate the Committee, in that parliamentary privilege will attach to such information. Should the Committee hold oral hearings it is also a matter for it, in accordance with parliamentary rules, to determine the questions it may raise, with those responsible for the Reports published, in relation to redacted information."
Commenting on the rights and responsibilities of whistleblowers, the Minister said "I believe that there should be a supportive environment in the Garda Síochána and every workplace for whistleblowers who have genuine concerns over apparent wrongdoing. Already there is a system in place in the Garda Síochána, underpinned by regulations, whereby any member may report concerns in confidence to a Confidential Recipient. They should be enabled to report those concerns without fear of adverse consequences. That is recognised by the Programme for Government, and comprehensive legislative proposals to strengthen protection for whistleblowers will be published by Minister Brendan Howlin shortly."
But whistleblowers also have responsibilities. Their concerns must be real and genuine, and based on evidence rather than conjecture, especially when the allegations made are of widespread criminality in the authority responsible for enforcing the law and are therefore such as to be likely to undermine trust in and respect for that authority. They should also be mindful of the rights of others."
"No reasonable person could expect that a whistleblower could or should get every minor detail right. What matters is the substance of a whistleblower's concerns."
"However, even allowing that latitude in this case, it is a matter of concern that the allegations made by this Garda whistleblower were in many instances seriously inaccurate and without any foundation in fact, or else involved an incomplete understanding of the facts."
Allegations relating to fatal road traffic accidents
On the allegations relating to fatal road traffic accidents, the Minister commented "The most serious aspect of the allegations was the contention that fixed charge notices were cancelled improperly in 9 cases where the motorist concerned went on to be involved in a fatal collision, the implication being that deaths might have been avoided in these cases if the motorists concerned had been dealt with properly in the first instance and had as a result changed their driving habits. This is an issue of such critical importance to public confidence in An Garda Siochana, that I believe it is appropriate to summarise the allegations and the facts, as revealed by the investigation carried out into the allegations, in each of these cases."
Allegation: concerns a motorist who was killed in a road traffic collision and who had allegedly had a fixed charge notice cancelled "one month earlier. She may have learnt her lesson and slowed down if she was possibly facing 4 penalty points for a second offence."
Fact: the notice was cancelled subsequent to, and as a direct consequence of, this motorist's death.
Allegation: a motorist who killed a pedestrian in a hit and run collision previously had a fixed charge notice for speeding cancelled.
Fact: a duplicate notice was wrongly issued for the speeding offence and it was this duplicate notice which was cancelled. The valid fixed charge notice was not cancelled. The motorist was prosecuted and had a fine imposed by a court as well as 4 penalty points applied to his driving licence.
Allegation: a motorist lost control of his vehicle and killed a passenger, having previously had a fixed charge notice for speeding cancelled.
Fact: while the original notice was cancelled because of an error in it, a duplicate notice was issued and the motorist was prosecuted in the District Court.
Allegation: a motorist who was killed driving his car had, 6 months earlier, had a fixed charge notice for driving without reasonable consideration cancelled.
Fact: what was cancelled was a duplicate notice issued in error. The motorist paid the fixed charge on the valid notice. It is also worth noting that, in the Garda investigation of the subsequent accident in which this motorist died, no fault was found with him.
Allegation: a person who was involved in a fatal road traffic collision, and who was arrested for killing the other driver, had 2 months earlier had a fixed charge notice for driving the wrong way up a one-way street cancelled.
Fact: a data entry error required the cancellation of the notice. A corrected notice was issued, but legal difficulties led to its cancellation. The important point here, however, is that the person concerned was a passenger in the subsequent crash, not a driver.
Allegation: a person involved in a fatal road traffic collision had 3 months earlier had a fixed charge notice for speeding cancelled.
Fact: there was a very specific reason for the cancellation. The alleged speeding offence was detected by an off-duty sergeant driving his private car. The notice was terminated because of technical difficulties arising from the non-calibration of the speedometer in the sergeant's car. The motorist concerned is currently before the courts on a charge relating to the fatality.
Allegation: a motorist who killed a pedestrian had 6 weeks earlier had a fixed charge notice for speeding cancelled.
Fact: the notice was terminated, along with other notices relating to other motorists, because of an incorrect speed limit in the area concerned, but the important point here is that it was issued some weeks after the fatal accident.
Allegation: a motorist who was involved in a collision where a pedestrian was killed had, 6 months later, a fixed charge notice for speeding cancelled.
Fact: in this case, a Garda investigation file was forwarded to the Director of Public Prosecutions, who directed that there should be no prosecution of the driver. The cancellation 6 months later of a notice for speeding was on the basis of a petition citing a medical emergency, and clearly could have had no bearing on the previous fatal collision.
Allegation: a motorist who was killed in a road traffic collision had, 10 months earlier, had a fixed charge notice for speeding cancelled.
Fact: the motorist petitioned for a cancellation on the grounds that he was never at the location where the offence was detected. On reviewing the image captured by the safety camera, the Fixed Charge Processing Office validated the petition and cancelled the notice.
The Minister continued, "In making these and many other allegations, the Garda whistleblower appears to have extensively searched the PULSE system for information relating to the cancellation of fixed charge notices, and to have arrived at assumptions based on an incomplete knowledge of the facts and, in some cases, an incomplete knowledge of Garda procedures."
In conclusion, the Minister commented "These allegations of serious wrongdoing by members of the Garda Síochána have understandably received significant publicity and, I am sure, caused serious concern.
"The fact that the allegations were made by a member of the Force, acting as a whistleblower, undoubtedly added to their perceived gravity and reliability."
"I hope that the very comprehensive investigation conducted by Assistant Commissioner O’Mahoney and his team and the publication of his Report and that of the Garda Professional Standards Unit will reassure the public that their trust in An Garda Siochana is well founded and that any allegations of wrong-doing on the part of a member or members of the Force will be fully and properly investigated. The additional oversight of the Garda Inspectorate should provide additional assurance."
"The Garda Síochána, in partnership with the Road Safety Authority and other stakeholders, have made a major contribution to the hugely significant reduction in road traffic deaths and injuries in recent years. No one should doubt their determination to continue to enforce the law and save lives. I hope that this is the lasting message that comes out of the investigation into these allegations."
Correspondence from a member of the Garda Síochána
In September 2012, correspondence was referred to the Department of Justice and Equality by the Office of the Taoiseach and the Department of Transport, Tourism and Sport. The correspondence, which was from a member of the Garda Síochana, contained a large number of allegations that fixed charge notices had been improperly cancelled by members of the Garda Síochána. The Department of Justice and Equality referred the correspondence (without revealing the name or identity of the member of the Garda Síochána) to the Garda Commissioner for investigation.
Investigation of allegations
On 28 March 2013 the Minister received from the Garda Commissioner a report of an investigation led by Assistant Garda Commissioner John O’Mahoney into the allegations. The Department of Justice and Equality then engaged with the Office of the Attorney General on how best to make public the findings of the report while protecting the identities of individuals and respecting data protection law. Subsequently, on 3 May 2013, the Minister received a related report by the Garda Professional Standards Unit of an examination of the processes and systems in place to deal with the cancellation of fixed charge notices.
The conclusion of legal considerations and the receipt of the report from the Garda Professional Standards Unit has now cleared the way for this comprehensive statement.
Fixed charge notices
Fixed charge notices are provided for in the Road Traffic Act 2002. They replaced the previous system of fines on the spot. Where a motorist is believed to have committed a road traffic offence which is covered by the fixed charge system, he or she is issued with a fixed charged notice. If the motorist pays the fixed charge within a certain time limit, he or she will not be prosecuted for the offence. If the fixed charge offence is also a penalty point offence (not all are), then the relevant number of penalty points are applied to the motorist's driving licence.
The first fixed charge offence (for exceeding speed limits) was introduced in October 2002, and the number of offences covered by the fixed charge system was thereafter progressively increased. There are now 89 fixed charge offences, 48 of which incur penalty points.
Administrative arrangements in the Garda Siochana
The Garda Siochana have a national Fixed Charge Processing Office in Thurles, Co Tipperary. It is staffed by approximately 60 civil servants, with only one member of the Garda Siochana (a Garda Inspector). There is also a national Garda IT system, the Fixed Charge Processing System, which is separate from but integrated with PULSE, the main Garda IT system.
Cancellation of fixed charge notices
There has been some commentary stating Gardai have no legal basis for applying discretion in relation to the cancellation of fixed charge notices. I want to state clearly that Gardai using their discretion in this regard, in accordance with Garda procedures, protocols and regulations, is entirely appropriate and lawful.
Where a fixed charge notice is issued, and the motorist does not pay the fixed charge in time, a prosecution for the offence will normally follow. However, this is not always the case. Members of the Garda Síochána (who prosecute offences on behalf of the Director or Public Prosecutions by virtue of section 8 of the Garda Siochana Act 2005) have discretion in whether to initiate a prosecution in individual cases. This discretion is informed by Guidelines for Prosecutors, issued by the Director of Public Prosecutions and Garda Policy and Procedures on termination/cancellation of fixed charge notices.
It should be noted therefore that the description of this process by some commentators as cancelling or quashing penalty points is inaccurate.
Non-discretionary and discretionary cancellations
It is also important to appreciate that many cancellations of fixed charge notices are in reality non-discretionary.
For example, a speed camera may detect a vehicle exceeding the speed limit and a fixed charge notice may issue, only for it to be shown subsequently that the vehicle was an emergency response vehicle such as a Garda car or an ambulance. These vehicles are exempt from speed limits. In such a case there is no offence committed and the fixed charge notice must be cancelled. Other instances where it might transpire that no offence has been committed would include fixed charge notices for not wearing a seat belt where it turns out that the driver has a medical exemption from this requirement.
In addition, a significant number of cancellations relate to cases of non-display of tax or insurance discs where it turns out that the tax or insurance is in fact in order, or where the vehicle has changed ownership and the previous owner has been issued with the notice.
Also, where it is realised that a fixed charge notice has issued to a juvenile, it is cancelled and the case referred to the Juvenile Diversion Programme. This does not mean that the case is dropped, but simply that it is dealt with in a different way.
There are also cases where cancellations must be made due to detection errors, such as where a speed camera does not capture a registration number accurately.
In total, the Garda Fixed Charge Processing System provides for 18 categories of non-discretionary cancellations and 3 categories of discretionary cancellation, namely "family bereavement", "medical emergency" and "other".
Members of the Houses of the Oireachtas
It may also be worthwhile clarifying the position regarding the issuing of fixed charge notices to members of the Houses of the Oireachtas, as comments have been reported in the media to the effect that TDs are exempt from liability for road traffic offences on their way to or from Dáil Éireann. This assertion is simply incorrect.
Article 15.13 of the Constitution provides that "The members of each House of the Oireachtas shall, except in case of treason as defined in this Constitution, felony or breach of the peace, be privileged from arrest in going to and returning from, and while within the precincts of, either House …".
Article 15.13 clearly, therefore, does not provide immunity from liability for offences, but only immunity from arrest in respect of certain offences. Where a member of either House has simply been issued with a fixed charge notice, for example for a speeding offence detected by a speed camera, Article 15.13 provides no basis for the cancellation of that notice, even if the offence allegedly occurred when the member was travelling to or from Leinster House.
Procedure for cancellation
Any person issued with a Fixed Charge Notice may petition for the cancellation of that notice. Under the Garda policy referred to, cancellations may be authorised by a Superintendent (or an Inspector acting as Superintendent) or the Inspector in the Fixed Charge Processing Office.
A Superintendent may only cancel a fixed charge notice which relates to his or her area of responsibility. For a superintendent in charge of a Garda District (a District Officer), this effectively means fixed charge notices for offences detected in that District. For other superintendents who have a functional rather than geographical area of responsibility, for example Traffic Superintendents, this effectively means fixed charge notices for offences detected by Garda members under their direct control. The Inspector in the Fixed Charge Processing Office may cancel fixed charge notices nationally, which leads to a large number of cancellations being attributable to that member.
Incidence of cancellations
The report covers the period from 1 January 2009 to 30 June 2012, the period of the allegations.
The key statistics for the period are:
1,460,726 fixed charge notices issued
1,394,319 processed (95.45%)
66,407 cancelled (4.55%)
However, of these 66,407 cancellations:
14,686 were for non-display of tax or insurance discs where the tax or insurance was in order or where the vehicle had changed ownership;
11,783 were cancelled because of system/detection errors; and
2,554 were cancelled due to referral to the Juvenile Diversion Programme.
The balance of 37,384 cancellations (2.5% of total) were discretionary, based on the existing policy and guidelines already described, out of a total of 1.46 million fixed charge notices issued during the period in question. This is a rate of around 10,700 a year or around 200 a week. Discretionary cancellation categories are; Family Bereavement; Medical Emergency; Other".
The report analysed the allegations and identified 189 separate allegations, covering a total of 2,198 cancellations of fixed charge notices.
The majority of the allegations were specific in that they named members of the Garda Síochána and members of the public. Some were general in nature and referred to the allegedly improper cancellation of fixed charge notices in unspecified hundreds or thousands of cases. The allegations are that the cancellations of these fixed charge notices were improper, and involved criminality by members of the Garda Síochána including corruption, deception and falsification of records.
Findings of report of investigation
Assistant Garda Commissioner John O'Mahoney was appointed on 31 October 2012 to conduct an examination of the allegations and reported on 28 March 2013. He led a team which included 5 Chief Superintendents, 6 Superintendents, together with their respective staff, and an incident room staff of 7, and, together with the team, conducted a detailed examination of the allegations. Assistant Garda Commissioner John O'Mahoney also conducted a parallel examination of a randomly-selected sample of 1% of cancellations of fixed charge notices (672 in number) made during the same period, for comparison purposes.
A detailed analysis of each allegation, and a conclusion, is set out in the report and its appendices.
In summary, the report found no evidence to suggest any act of criminality, including corruption, deception, or falsification of records.
However, the report did recommend the referral of 3 officers for disciplinary investigation as it appeared that some cancellations made by them may not have been conducted strictly within administrative policy and procedures. These 3 officers accounted for 661 of the cancellations under examination, although it must be stressed that only some of these cancellations will be the subject of inquiry. Any final determination of the propriety of those cancellations must await the outcome of the disciplinary process.
Leaving aside these 661 cancellations for that reason, the findings in relation to the balance of 1,537 cancellations (out of the total of 2,198 cancellations covered by the allegations) are as follows:
1,339 cancellations (87%) were found to have been within the correct administrative procedures; and
198 cancellations (13%) were found not to have been strictly within administrative procedures (such as cancellation by a Superintendent of fixed charge notices originating outside his or her District).
The same analysis of the 1% randomly-selected sample of cancellations (672 in number) resulted in the finding that:
600 cancellations (89%) were found to have been within the correct administrative procedures; and
72 cancellations (11%) were found not to have been strictly within the correct administrative procedures.
Recommendations of Reports of 28 March 2013 and 03 May 2013:
Arising from this, and in addition to the ongoing disciplinary inquiries in the three cases mentioned, the two Reports published today have made a number of recommendations on how this should be done. These include:
· the issue of a new Garda Headquarters Directive to re-state correct procedures and to emphasise the absolute duty to follow them strictly, in particular to require that petitions to cancel fixed charge notices be made in writing and such documentation retained; the decisions taken in relation to petitions to be recorded and this documentation also retained for audit purposes.
· "Humanitarian Grounds" to be included as a "Termination Reason" on Pulse.
· The 3rd May 2013 Report proposes that cancellation of a fixed charge notice should be authorised only by the District Officer of the Garda District where the fixed charge offence occurred (or an Inspector only when acting for the District Officer or the person in charge of the Fixed Charge Processing Office). The Report of 28th March proposes that such terminations could continue to be effected by the Superintendent in charge of the member who issued the Notice in another District.
· the Fixed Charge Processing System should be limited to a central authority – the Fixed Charge Processing Office. The decision made by the Cancelling Authority is forwarded to the central authority where the Fixed Charge Notice will be cancelled on the System.
· a renewed emphasis on evidence-based decision making, so that a person petitioning on the grounds of, say, medical emergency could be required to provide independent corroboration of the claim;
· where a conflict of interest arises in relation to a fixed charge notice the District Officer or cancelling authority should remove him or herself from the process.
· the introduction of enhanced safeguards to ensure no question can arise as to propriety in the cancellation of fixed charge notices in respect of Garda members on duty, retired Garda members and Garda family members; public figures
· new checks to identify recidivist petitioners;
· renewed emphasis on security in the operation of the Fixed Charge Processing and PULSE IT systems;
· a strengthened system of regular audits of cancellations of fixed charge notices, using management information generated by Garda IT systems, supplemented by annual,random audits by an Assistant Commissioner, with any irregularities reported by the Garda Commissioner to the Minister. Ownership of audits should be assigned to the Garda Internal Audit Section. Monthly Management Reports should be made available to Divisional Officers and Division Officers should include Fixed Charge Processing Terminations as part of their Divisional Audits.
Implementation of recommendations
The Garda Commissioner has decided to put in place strengthened procedures for the cancellation of fixed charge notices. He is establishing an implementation group, chaired by Assistant Garda Commissioner Jack Nolan, to revise the Garda policy document on the fixed charge notice system and to incorporate the recommendations of both the investigation report by Assistant Garda Commissioner John O’Mahoney and the report by the Professional Standards Unit, in consultation with the Office of the Director of Public Prosecutions.
15 May 2013