RTEs reporting of the Rossiter case

I was puzzled and to some degree I’m still puzzled by RTE’s coverage of the Brian Rossiter report.

The presenter of Today with Pat Kenny (See previous post) clearly said to Philip Boucher Hayes, who had seen the report:

“You’ve seen the report; the rest of us will not get to see the full report.”

I think the crucial word here is ‘full’. It seems that some of the report has been published but because the former Minister for Justice, Michael McDowell, insisted on setting up the inquiry under the arcane Metropolitan Police Act, 1924, sections of the report must remain secret because the act offers no protection from defamation on publication.

For me, the most disturbing aspect of the report’s release is how RTE news dealt with the event. Admittedly, I’m only making comment here on one programme, Six One News, but the impression given, I think, was that the Gardai had little to answer for.

Viewers were not informed that the arcane legislation this inquiry was set up under would seriously compromise its publication. My understanding is that only a summary of the report has been published. Viewers were not told that they were only getting a small part of the story.

RTE news placed great emphasis on the unreliability of witnesses who were hostile to the Gardai.

While reporting that Brian Rossiter was unlawfully detained overnight by Gardai, RTE emphasised that Hugh Hartnett SC, the reports author, was not satisfied that Brian Rossiter was assaulted in Garda custody.

Viewers were not informed, however, that the report also found there was a statistical probability that Brian Rossiter sustained his fatal injury while in Garda custody.

I’m puzzled here because of the apparent contradiction, perhaps an expert witness came to the conclusion regarding the statistical probability. In any case, RTE did not make any of this clear to viewers.

The overall impression given was that the report was fully published, that all the details of the case were available and that the Gardai were, in the main, innocent of any wrongdoing.

The Rossiter family does not agree and are very unhappy with the report. I tend to agree with them

Brian Rossiter case – A State secret

Brian Rossiter (14) was found unconscious in a cell in Clonmel Garda Station following his arrest in the town on 10 September 2002. He died a few days later.

Despite repeated calls for an independent investigation into the matter it wasn’t until June 2005 that the then Justice Minister, Michael McDowell, established an inquiry. That report has now completed its work.

No evidence was found to support the claim that Rossiter was assaulted while in custody but the report did find that there was a statistical probability that that was when he sustained the fatal injury.

In keeping with the culture of secrecy and non-accountability in Ireland, this report will not be published.

Philip Boucher Hayes of RTEs Investigative Unit did, however, read the report and explained on Today with Pat Kenny (Friday, 32nd minute) why it is being kept secret from the public.

Former Justice Minister, Michael McDowell introduced a new vehicle for investigation into enquiries of this kind called a commission of investigation. This was to be the slimmed down version of a tribunal of enquiry.

Yet, for some reason, at the same time he was pushing this idea enthusiastically he set up the inquiry into the death of Brian Rossiter under an arcane piece of legislation, the Metropolitan Police Act, 1924.

It was pointed out to him that the Commission of Inquiry would be perfect for this kind of inquiry so why not use it?

No, this was to be a disciplinary procedure, if you like within An Garda Siochana, this was the piece of legislation to use and oddly, it was one that he ended up scrapping off the statutes a couple of months later.

This was the last time that this piece of legislation was used and the problem with it is that it offers no protection from defamation when the report of the inquiry is published.

Tribunal reports can be quoted and analysed without the fear of being sued. We cannot do this with this report because there’s no protection against defamation and that’s because Michael McDowell set it up under this piece of legislation.

Previous posts here, here and here

Useful links here and here.

Rossiters to boycott inquiry into son's death

The parents of Brian Rossiter have decided to boycott the inquiry into their son’s death, and the story was making the rounds in the evening news stories yesterday. McDowell was on Morning Ireland this morning to give his view, you can listen to that here.

He argued that the fees are reasonable, while the hack on Morning Ireland argued that the Garda Representative Association (GRA) may end up helping the Gardai involved by paying extra for the more expensive (read ‘better’) Senior Counsels. Some SC’s can charge as much as 3-4000 euro per day, while the Rossiter’s have been given a fee of €1008 a day.

Conor Lally and Joe Humphries report in the Irish Times:

He said a daily fee of €1,008 had been offered for senior counsel, €720 for junior counsel and €800 for a solicitor.

However, because there was no provision for payment for preparatory work or for expenses incurred during the hearing, the Rossiters could not take part in the inquiry.

“I think everybody is going to have to get used to the daily fee, but if the Minister thinks this works like a district court, where you just stand up and talk, that’s not how it works,” Mr O’Carroll said.

He was having difficulty finding a senior counsel who was available and willing to take on the work because they were not going to be paid for their preparation.

Mr O’Carroll also said that because he was based in Cashel and Clonmel, the lack of any expenses on offer was a cause of considerable difficulty.

“They won’t be [able to attend], it’s as simple as that. And we should not be expected to hand over any of the information we have gathered over the last three years if I am not there to represent the interests of my clients,” he said.

Mr McDowell said he regretted the Rossiters hadn’t availed of the “generous legal fees” he had provided for lawyers in the inquiry.

The inquiry had statutory powers to request people to attend whether or not they had a lawyer.

The Minister said all solicitors and barristers were being paid the same rate for all commissions of inquiry in accordance with recently passed legislation. This followed “a pattern of higher fees which has been the subject of much public criticism”.

While some lawyers might have “ingrained expectations” for the old pattern of fees, a new era had arrived and expectations would move to reflect that.

Mr O’Carroll told The Irish Times he has also informed the chairman of the statutory inquiry, Hugh Hartnett SC, that the Rossiter family believed the inquiry’s terms of reference were too narrow.

They were concerned the inquiry was taking place in closed session and could not be reported on by the media. The inquiry proper is expected to begin next week.

Brian Rossiter was found unconscious in a cell in Clonmel Garda station on the morning of September 11th, 2002, following his arrest on suspicion of a public order offence the previous night.

He was taken to St Joseph’s hospital in Clonmel and later transferred to Cork University Hospital but never regained consciousness and died there on September 13th, 2002.

Four weeks ago Mr McDowell announced that Mr Hartnett would conduct the inquiry into the death. The dead boy’s parents, Pat and Siobhan, are also pursuing a civil action.

They have questioned the appropriateness of establishing an inquiry under Section 12 of the Dublin Police Act, 1924, which Mr O’Carroll has said means the inquiry is “in essence a Garda Sa­ochana disciplinary forum”.

Mr Hartnett will have the power to summon witnesses and to examine them under oath.

Rossiters believe inquiry terms too narrow

As I expected would happen, the family of Brian Rossiter consider that the terms of the Dublin Police Act are not enough for an investigation into the death of their son. It seemed to me like a rather convenient way for McDowell to shut Village magazine up.

The parents of schoolboy Brian Rossiter (14), who died after a night in Garda custody, might not participate in an inquiry into the circumstances of his arrest and detention because they believe its terms of reference are too narrow.

Cian O’Carroll, solicitor for Pat and Siobhan Rossiter, told The Irish Times the family is considering their position because they feel the inquiry will be unable to answer why Brian died.

Mr O’Carroll pointed out the Rossiter family may opt to pursue a High Court action instituted by Siobhan Rossiter over her son’s death as they feel the Government inquiry is being brought under legislation that is overly restrictive.

He said the Dublin Police Act 1924 will limit the inquiry to simply a Garda disciplinary-type forum and that the Rossiters believe the High Court action will provide a better forum to investigate what happened to Brian.

Mr O’Carroll said the promise by Minister for Justice Michael McDowell to pay legal costs did not reflect the market reality of legal fees as charged by senior counsel.

“The figure that’s on offer here for senior counsel per day is €1,008 but there’s no senior counsel currently before any tribunal in the country appearing for that amount.”

McDowell defends Rossiter inquiry

The mechanism being used to investigate the death of Brian Rossiter is a rather odd one, and McDowell has come under fire because of it:

The Minister for Justice has insisted that the inquiry he has set up into the 2002 death of 14-year-old Brian Rossiter after a night in Garda custody will be able to get at the truth.

The Department of Justice issued a statement to this effect at the weekend after the Rossiter family’s solicitor Cian O’Carroll said he had concerns about the legislation on which the inquiry was based, the Dublin Police Act. Mr O’Carroll said he believed this Act only allowed for an investigation into alleged wrongdoing if there was a complaint against a specific named garda.

“For that reason, it would not appear to give Hugh Hartnett licence to embark into a general inquiry into the manner and condition of Brian Rossiter’s arrest and detention,” he said.

Officials at the Department of Justice worked over the weekend on the terms of reference for the statutory inquiry to be conducted by barrister Hugh Hartnett SC. Mr O’Carroll said yesterday that the Rossiter family would like the inquiry to take place in public, but they did not yet know whether this would happen.

The department said yesterday it would send the terms of reference to Mr Hartnett next week “following consultation with the relevant parties”. Mr O’Carroll confirmed yesterday that as the family’s representative, he was among those to be consulted.

“The terms of reference will enable Mr Hartnett to inquire into all the circumstances surrounding the arrest and treatment in custody of Brian Rossiter and the role of all gardaa­ who came into contact with him over the relevant period,” the Department said.

“The Minister is completely satisfied that this can be achieved through the inquiry format which has been decided upon, ie the Dublin Police Act 1924, as amended,” it added.

Mr O’Carroll said he believed the most appropriate mechanism to carry out a full and proper inquiry would be through the Commissions of Investigations Act 2004, which would allow for a comprehensive and more efficient inquiry.

On this score I would be inclined to agree with the family’s solicitor.

Here is the Dublin Police Act 1924
Here is the Commissions of Investigations Act 2004

Anthony O'Sullivan on 5-7 Live

It took RTE a while to cop onto the Brian Rossiter story. I started posting about it on Friday June 24th, prompted by Vincent Browne. While the VB show is broadcast on RTE, it took the RTE news department nearly a full week to start covering the story. And when they did, it was not their Crime Correspondent Paul Reynolds, but instead Political reporter David McCullagh. I would guess that has something to do with Reynolds wanting to keep his sources.

I think it started with a 6 o’clock news bulletin on RTE1 on June 30th, to report on McDowell setting up an ‘investigation’ into the incident.

Since then 5-7 Live have been covering the story, including an interview with Brian Rossiter’s father, and on Friday last, his friend Anthony O’Sullivan.

The interview with Anthony O’Sullivan by Philip Boucher-Hayes is something everyone should listen to. I should say that it is very emotional, Hayes ends up consoling Anthony on the death of his friend, and reminding him that Brian’s death was not his fault.

Mae Sexton on Vincent Browne

Last Thursday, June 23rd, there was a discussion on the Vincent Browne show on RTE Radio 1. The panel included various politicians, including Mae Sexton, PD TD for Longford/Roscommon.

The debate in question centered on the death of Brian Rossiter in Garda custody in Clonmel in 2002. I have transribed a portion of the debate, but the audio will be available on archive at the RTE website.

I have highlighted some curious remarks by Mae Sexton.

VB: Mae Sexton, how could we be in a situation like this after all that has come out about the Gardai. How could the Minister for Justice behave like this yet again?

MS: Well I suppose, could I first of all say that it is regrettable that anyone would die in Garda custody. Can I just ask this question by the way for clarity. Is this the young boy whose parents decided to leave him in the station over night to teach him a lesson?

VB: His father did yeah. By the way it was illegal to have him remained, to have him retained in the station, but anyway..

MS: Yeah but I mean first and foremost, as I say, it’s regrettable that any child, at the end of the day it’s a child

VB: We all know that, and when somebody starts off…

MS: Ah no no

VB: …some blather…diversionary blather..

MS: Not it’s not, it’s not. In defference to the family because they’ve lost a child.

VB: We know, everyone knows that…

MS: Just want to say….secondly, certainly if my 14 year old was arrested there’s absoultely no way, Vincent, that I would allow him to remain in a Garda station, no matter what he had done. Like he’s still a child, and…

VB: Deal with the main points

MS: Thirdly, this young man appears to have been assaulted before he ever got to the Garda station. He had been on the streets for a number of nights, apparently, before it happened.

VB: He’d been playing around the streets beforehand…on the streets doesn’t mean that he was living rough or something. He wasn’t.

MS: Well he was on the streets anyway and he was obviously being watched by the Gardai, because…I am only sayingthat this is my comprehension of what I’ve read, eh, about the case. And, so, I have to ask the question, y’know, why was he brought in and left there by his parents who should have been there…

VB: His father…

MS: Somebody should have been there…

VB: His father..

MS: Well his father but someone should have been there in loco parentis, that’s the first thing I’d say in this particular case.

VB: That’s the first thing you’d say? My god. Breathtaking.

MS: Having said that, I am trying to defend what you are saying in relation to the reports that appear to have been given by Michael McDowell or to Micheal McDowell from the Gardai. I imagine that the first report would have been pretty much the same as any other reports, you can’t get involved in a case that is being pursued by the Gardai until it’s finished. I understand that there was a civil case being pursued as well which would have excluded the Ministers involvement in it.

VB: No, no, no, no. What happened was that the fella who assaulted…and this too is a bit worrying, I would have thought. The fellow who assaulted him on the Sunday night was charged with manslaughter. So get in first and charge this fellow with manslaughter, fix the blame straight away. Now they’ve backed off that and they’re not going to charge him with manslaughter anymore they are just going to charge him with assault.

MS: I’ll just finish the point I’m making, that there would appear to be a whole load of people responsible for what has happened. I would absolutely agree with you though, and Vincent I grew up beside the Garda barracks in Longford and I have the height of respect for the Gardai. But I am also fully aware that there are groups, in the country, of Gardai, who are capable of doing things that they shouldn’t do but I would be concerned first of all to hear exactly what the assault that took place was, and the reports on that assault.

VB: Mae, Mae. The fact of the matter is that a boy, a 14 year old boy, died in Garda custody.

MS: Absolutely

VB: Wouldn’t you think that would necessitate an independent examination on it’s own?

MS: Well I, yes I would imagine that will happen now..

VB: It didn’t happen

MS: Well…

VB: It hasn’t happened since, just a minute, just a minute. And then when this evidence begins to mount that there’s reason to be greviously worried about what happened to a boy in Garda custody. Wouldn’t you think after all we know about the Gardai that the Minister for Justice woul day, would now have the sense to say, let alone the humanity, but the sense to say ‘My god we better make sure we are not caught on the wrong side on this one, let’s have some independent examination of this’.

The conversation then broadens, but comes back to VB versus MS:

VB: Mae Sexton’s first response was to fix blame on the father

MS: I absolutely believe that as a parent I have a responsibility…my 14 year old, anytime…and I make no apologies for that Vincent. Even though I am sorry for the father who didn’t….I still believe I would not leave my 14 year old in a Garda station. And I’ll tell you what, particularly when you talk about the McBrearty case and all that has gone on, who in their right mind would leave a 14 year old in the custody of Gardai?

VB: You go on about this as a diversionary tactic to avoid the responsibility of Michael McDowell.

MS: I’m not, I would welcome an investigation…absolutely

The above marked comment is very strange indeed. Mae Sexton is saying that no minor is safe to be held in any Garda station anywhere, and by implication I would assume that if a 14 year old boy is not safe, then neither is anyone. Bringing the McBrearty case into only deepens the hole she has already gotten herself in. The question she poses is correct, but she doesn’t seem to realise that it makes her look incredibly hypocritical. Who indeed would either leave a 14 year old in Garda custody, or indeed an 18 year old, or a 30 year old, or anybody for that matter?

MS: You have already said that the charges have been changed from what were orginally manslaughter charges to assault charges, I presume he is trying to find out if the assault happened prior to i mean there’s natural justice here Vincent and I still say I would not have left my 14 year old son in a Garda station

MS: (speaking over VB) to learn a lesson, Vincent come here listen, there is personal responsibilty on parents. You know there wouldn’t be any need for ASBOs and all the things that are needed if parents took responsibility for their children. Simple as that. Simple as that. And I fully accept that the Gardai are entitled to be defended, just because you find one group…

VB: (speaking over MS)It’s shocking, shocking, shocking that you fix responsibility on the father for this appalling thing, is really appalling, it really is, I am actually sorry I brought it up, I didn’t think there would be anybody as cynical as you are to blame the boys father in the circumstances. Sorry about this, let’s go to a break.

The above passage was a shouting match. Vincent became so angry he cut to a break.

Brian Rossiter

Vincent Browne has taken this story to heart. It is an extremely serious incident, and one that I believe people do not know enough about. In fact it’s not extremely serious, it’s blatantly and completely unbelievable that this could happen in any country that claims to be a democracy.

The long and short of it is, that in 2002 in Clonmel, a 14 year old boy went into a Garda cell and came out of it, for all intents and purposes, dead.

There are very serious inconsistencies in this story, that would lead a reasonable person to call for a fully independent investigation into the circumstances of the death of Brian Rossiter.

But the arms of the State do not see it that way. There are extremely serious questions to be asked of the behaviour of the Minister for Justice, Michael McDowell. Various things about this story could shock a reasonable person, but to me, what is most shocking is the behaviour of An Garda Siochana and the Minister.

Here is the Irish Times reports on it:

Brian Rossiter was involved in a row with an older man in the town around September 8th, 2002, during which he received a black eye. He was also complaining of headaches.

Two days later he was arrested and taken into custody on suspicion of having committed public order offences following the breaking of windows in the town.

His father Pat Rossiter said he consented to his son being held overnight in custody at the time because he felt that a “short, sharp shock” would teach him a lesson.

Gardaa­ told him Brian had overdosed on alcohol and ecstasy, but two toxicology tests showed no alcohol or drugs in his system.

So prima facia the Gardai lied to the family. It is also illegal for a 14 year old to be held in a Garda cell overnight. Brian was taken from the cell in a coma, and died after having his life support machine switched off.

There are reasonable grounds for an independent, non-Garda investigation into the circumstances of someone becoming comatose in Garda custody and subsequently dying. More importantly when that person was a minor.

I will be coming back to this story following the outrageous comments of Mae Sexton (PD) on the VB show last night.