Garda Síochána Act 2005 (Section 42)

(Special Inquiry relating to the Garda Síochána)

Order 2017

(S.I. No. 196 of 2017)

Report of Judge Mary Collins

District Court - Retired

17th April 2018

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Table of Contents

Acknowledgements ............................................................................................................................ 3

PART ONE............................................................................................................................................ 4

1. Introduction ................................................................................................................................ 5

1.1 Background ............................................................................................................................. 5

1.2 Establishment of the Special Inquiry ..................................................................................... 6

1.3 Terms of Reference .................................................................................................................... 6

1.4 Structure of the Report .......................................................................................................... 7

1.5 Methodology adopted by the Inquiry ................................................................................... 8

1.6 Procedures adopted by the Inquiry ....................................................................................... 9

PART TWO ........................................................................................................................................ 11

2. The first term of reference ....................................................................................................... 12

2.1 Filing and storage of the Clancy file at Tullamore Garda station ....................................... 12

2.2 Potential destruction of the Clancy file at Tullamore Garda station .................................. 20

2.3 Further copies of the Clancy file outside Tullamore Garda station .................................... 24

2.4 Other data pertaining to the Clancy investigation .............................................................. 28

PART THREE ...................................................................................................................................... 32

3. The second term of reference .................................................................................................. 33

3.1 Materials falling within the second term of reference ....................................................... 33

3.2 Transmission of materials to the Chief Superintendent in Portlaoise ............................... 35

3.3 Storage of materials sent to the Chief Superintendent in Portlaoise ................................ 36

3.4 Subsequent loss of materials sent to the Chief Superintendent ........................................ 37

3.5 Conclusions ........................................................................................................................... 39

PART FOUR ....................................................................................................................................... 41

4.1 Emergence of allegations made in connection with the death of Mr. James Clancy ........ 42

4.2 Initial steps taken on foot of the allegations ...................................................................... 43

4.3 Scoping exercise conducted by Mr. F ................................................................................. 44

4.4 Actions taken by Mr. G ........................................................................................................ 46

4.5 Lack of further action ........................................................................................................... 48

4.6 Conclusions ........................................................................................................................... 49

Appendix ........................................................................................................................................... 53

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Acknowledgements

The Inquiry wishes to thank:

Ms. Geraldine Kennedy and Mr. David O’Brien, Administrative Staff to the Inquiry, for their

valuable support and willingness to assist at all times.

The Garda liaison person to the Inquiry, Ms. Anne Marie McMahon, for providing

documentation to the Inquiry.

The Office of the Chief State Solicitor for providing documentation to the Inquiry and for its

assistance in arranging the attendance of Garda witnesses.

The Coroner for Co. Offaly, Mr. Brian McMahon, for his assistance in obtaining the inquest file.

Gwen Malone Stenography Services for their excellent service.

The witnesses for their co-operation and willingness to assist the Inquiry.

The legal teams for the respective parties for their assistance, co-operation and

professionalism at the hearings and in their submissions.

Our counsel, Ms. Emma Roche Cagney B.L., for her invaluable assistance, her expertise and her

attention to detail.

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PART ONE

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1. Introduction

1.1 Background

1.1.1 On the 1st December 1987, Mr. James Clancy, a pedestrian, died as a result of a road

traffic accident involving a truck in Tullamore, Co. Offaly. The driver of the truck

involved in the accident failed to stop.

1.1.2 A truck was stopped in Clara, six miles from the scene, shortly after the accident.

According to members of An Garda Síochána, the driver of the truck, having denied

knowledge of any impact or any such accident, and there being no mark on the truck,

was allowed to continue on his way after he and his passenger gave statements and

the truck was examined by a public service vehicle inspector.

1.1.3 It was assumed by the investigating Garda that this was the truck which caused Mr.

Clancy’s death. No further searches were carried out to ascertain if any other vehicle

could have been involved in the accident.

1.1.4 An inquest into the death of Mr. Clancy took place before a jury on the 10th February

1988. The verdict was that death was due to the injuries sustained and that these were

consistent “with being involved in a road traffic accident.”

1.1.5 Rumours began to circulate, in or around 2000, connecting a member of An Garda

Síochána to the accident. In 2005, an allegation was made by one Mr. A to Mr. B, the

Superintendent in Tullamore, that he, Mr. A, had been told by another local man, Mr.

C, that a member of An Garda Síochána was responsible for Mr. Clancy’s death. Mr. A

told Mr. B that Mr. C stated that he had helped the member of An Garda Síochána, Mr.

D, to destroy a truck which he had been driving when it collided with Mr. Clancy.

According to Mr. A, Mr. C had stated that Mr. D was under a compliment to him for this

favour and that he could avoid prosecution for illegal activities such as driving while

disqualified and possessing firearms without a valid licence.

1.1.6 An investigation into this allegation was commenced in 2005 by Mr. E, the then Chief

Superintendent in Portlaoise. Mr. E directed an Inspector, Mr. F, to get confirmation

from Mr. A of this allegation and a signed statement from him verifying the allegation.

Mr. E also directed a Superintendent, Mr. G, to obtain a statement from Mr. C accepting

or denying those allegations. Mr. E looked for the original investigation file concerning

the fatal accident but a copy of this file could not be found. No further action was taken

regarding the allegations made in respect of the death of Mr. Clancy.

1.1.7 The son of the deceased, Mr. Joe Clancy, continued to look for answers from An Garda

Síochána regarding the investigation into his father’s death. As a result of a letter

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written by Mr. Clancy to the Commissioner of An Garda Síochána, further inquiries and

searches were conducted in 2014 for the investigation file, and any relevant reports. It

was confirmed that the original investigation file from 1987 was missing, as were some

statements and reports concerning the later investigation in 2005/2006, which were

understood to have been sent to Mr. E by Mr. F and Mr. G.

1.1.8 Following a request made directly by Mr. Clancy to the Minister for Justice and Equality,

the Minister referred the case to an Independent Review Panel in 2014.

1.1.9 The Independent Review Panel reported back to the Minister in 2015 and

recommended that an inquiry be set up pursuant to s.42 of the Garda Síochána Act

2005, to inquire into issues relating to the filing and storage of material concerning the

death of Mr. James Clancy and the allegations made in 2005, as well as the adequacy

of the investigation conducted with regard to those allegations.

1.2 Establishment of the Special Inquiry

1.2.1 By order of the Minister for Justice and Equality dated the 15th May 2017, the Special

Inquiry was established pursuant to s. 42 of the Garda Síochána Act 2005 (No. 20 of

2005), as amended.1 The text of the order establishing the Special Inquiry is included

at the Appendix to this report. Notice of the order establishing the Special Inquiry was

published in Iris Oifigiúil on the 19th May 2017.

1.2.2 The Minister for Justice and Equality appointed Judge Mary Collins, retired Judge of the

District Court, to:

(a) inquire into a matter of public concern, namely—

(i) the storage and retention of investigation files relating to the death of Mr.

James Clancy in a road traffic accident on 1 December 1987, and

(ii) the Garda Síochána investigation into the allegations made in 2005,

and

(b) make a report to the Minister on the conclusion of the inquiry.

1.3 Terms of Reference 1.3.1 The terms of reference for the Special Inquiry were specified as follows:

1 Garda Síochána Act 2005 (Section 42)(Special Inquiry relating to the Garda Síochána) Order 2017 (S.I. No. 196 of 2017).

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The objective of the inquiry should be to inquire into—

(a) the storage, retention and any subsequent destruction of files, reports, minutes,

correspondence or data in Tullamore Garda Station between the years 1987 and

2005 relating to the death of Mr. James Clancy on the 1st December 1987;

(b) the transmission, storage and any subsequent loss of files, reports, minutes,

correspondence or data relating to allegations in connection with the death of Mr.

James Clancy understood to have been sent to the Chief Superintendent in

Portlaoise in or around 2006;

(c) the adequacy of actions taken by the Garda Síochána to investigate allegations that

were made in connection with the death of Mr. James Clancy between 2005 and

2006 in particular.

1.4 Structure of the Report

1.4.1 Part 1 of this report outlines the methodology and procedures adopted by the Inquiry

in discharging its mandate. This Part also provides an overview of the ranks held by key

Garda witnesses at salient points in time during the period 1987 to 2006.

1.4.2 Part 2 summarises the evidence received by the Inquiry in respect of issues arising

under its first term of reference. This Part sets out the conclusions of the Inquiry in

respect of the first term of reference.

1.4.3 Part 3 summarises the evidence received by the Inquiry in respect of issues arising

under its second term of reference. This Part sets out the conclusions of the Inquiry in

respect of the second term of reference.

1.4.4 Part 4 summarises the evidence received by the Inquiry in respect of issues arising

under its third of reference. This Part sets out the conclusions of the Inquiry in respect

of the third term of reference.

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1.5 Methodology adopted by the Inquiry

1.5.1 The Inquiry commenced its work by seeking to identify all appropriate documents and

sources of information necessary for the discharge of its mandate.

1.5.2 Upon its establishment, the Inquiry received from the Department of Justice and Equality: (a) Copy report of the Independent Review Panel appointed by the Minister for Justice

and Equality on foot of representations made by Mr. Joe Clancy together with relevant documents which were part of the IRM process.

(b) Copy report dated the 12th November 2014, compiled by Mr. H and addressed to the Chief Superintendent, Portlaoise outlining the enquiries made and searches carried out for the investigation file concerning the death of the late Mr. Clancy and the documents and reports generated in 2006 relating to the investigation into allegations regarding Mr. D.

(c) Copy report of Mr. I, to Mr. J, Department of Justice and Equality, in response to a

request for information from the Minister for Justice and Equality regarding the investigation into the death of the late Mr. Clancy and relevant documentation.

1.5.3 On the 21st August 2017 the Inquiry wrote to Ms. K, the appointed Garda liaison person

to the Inquiry, requesting relevant files, reports and documents for the period 1987 to

2006 as detailed.

1.5.4 On the 18th September 2017, further documentation and information was sought by

the Inquiry.

1.5.5 In response to a request, the original inquest file pertaining to the death of Mr. Clancy

was received by the Inquiry on the 26th September 2017 from the Coroner for Co.

Offaly. This file was received in the format in which the Coroner obtained it from the

Courts Service.

1.5.6 By letter dated the 27th September 2017, the Office of the Chief State Solicitor informed

the Inquiry that it had been instructed to act on behalf of An Garda Síochána.

1.5.7 Documents were furnished to the Inquiry by way of disclosure by the Chief State

Solicitor on differing dates between the 25th October 2017 and the 8th March 2018.

These documents included redacted extracts from relevant official Garda journals, copy

correspondence and reports dating from 2005, and copy reports from 2014 which

outlined searches conducted for missing material relating to the case. The original

investigation file concerning the accident of the 1st December 1987 and certain

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material relating to the investigation commenced by Mr. E in 2005 were not included,

and it is understood that these have not been retrieved.

1.5.8 On the 8th March 2018, the Office of the Chief State Solicitor furnished the Inquiry with

extracts from the following internal regulations and procedures:

Third edition of the Garda Síochána Code, dated December 1984.

Fourth edition of the Garda Síochána Code, dated November 1995.

Fifth edition of the Garda Síochána Code, dated August 2005.

Garda Headquarters Directive of the 24th May 1958.

Garda Headquarters Directive No. 4 of 1991, dated the 10th January 1991.

Garda Headquarters Directive No. 47 of 1995, dated the 4th April 1995.

Garda Headquarters Directive No. 89 of 1998, dated the 18th May 1998.

Garda Headquarters Directive No. 219 of 2002, dated the 6th December 2002.

1.5.9 Where relevant to issues arising under its terms of reference, the Inquiry has

referenced provisions from these extracts in this report. 1.5.10 The Inquiry had regard to the provisions of the National Archives Act 1986 and the Data

Protection Acts 1988 and 2003 in its consideration of the first and second terms of reference.

1.5.11 The Inquiry had the benefit of written submissions prepared by counsel for the Clancy

family and by counsel for the Garda Commissioner. 1.6 Procedures adopted by the Inquiry

1.6.1 Having considered the documentation received by it, in conjunction with information

furnished by Mr. Joe Clancy, the Inquiry identified 19 members of An Garda Síochána,

either serving or retired, that it wished to interview on the basis that they had been

stationed at Garda stations in Tullamore, Clara and Portlaoise in 1987 and/or during

the years 2005 and 2006 and may have been in a position to assist the Inquiry.

1.6.2 The Inquiry also identified four civilian witnesses, including Mr. Joe Clancy, who could

be of assistance.

1.6.3 The Inquiry agreed dates for interviews and requested the Chief State Solicitor to

ascertain the availability of Garda witnesses so as to ensure their attendance on the

dates agreed, in so far as this was possible.

1.6.4 Many of the Garda witnesses changed rank during the period 1987 to 2006, or have subsequently changed rank or retired. For the sake of clarity, the following identifies

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each relevant Garda witness by reference to his rank at points in time which are salient for the purposes of this Inquiry. For the sake of simplicity, the Inquiry refers to all Garda witnesses by the title of “Mr.” throughout the remainder of this report.

Mr. L – investigating Garda in respect of the death of Mr. James Clancy. Mr. L was stationed in Tullamore in 1987 and transferred from Tullamore on promotion in 1995.

Mr. M – stationed at Tullamore Garda station in 1987.

Mr. N – stationed at Tullamore Garda station in 1987. Mr. N became District Clerk in Tullamore in 1991

Mr. O – stationed at Clara Garda station in 1987.

Mr. D – Detective in Tullamore in 1987. Mr. D was Sergeant in Charge in Clara during the period 1997-2006.

Mr. B – Sergeant in Charge at Tullamore Garda station in 1987. In 2005, Mr. B was Superintendent at Tullamore Garda station.

Mr. P – Inspector at Tullamore Garda station in 1987.

Mr. F – Inspector at Portlaoise Garda station in 2005.

Mr. Q – Superintendent at Tullamore Garda station in 1987.

Mr. G – Superintendent at Portlaoise Garda station in 2005.

Mr. R – Detective Sergeant at Tullamore Garda station in 2005.

Mr. E – Chief Superintendent at Portlaoise Garda station in 2005.

1.6.5 The purpose of the interviews conducted was to inform the Inquiry about matters relevant to its terms of reference.

1.6.6 The Inquiry developed its own procedures for carrying out these interviews. 1.6.7 Those who appeared before the Inquiry were informed that the Inquiry was established

pursuant to the Garda Síochána Act 2005. The terms of reference for the Inquiry were read out and drawn to the attention of the witnesses. It was explained to witnesses that their information was being given to the Inquiry by way of unsworn recital and that they were not subject to cross-examination.

1.6.8 While witnesses were not cross-examined, counsel for the Clancy family and counsel

for the Garda Commissioner were permitted to request clarification of any matters that arose in the course of the interviews.

1.6.9 The family members of Mr. James Clancy were accompanied by their solicitor and

counsel. The members of An Garda Síochána were accompanied by a state solicitor and senior and junior counsel. In one case, a member of An Garda Síochána was also accompanied by his own solicitor.

1.6.10 Of the other two civilian witnesses who appeared before the Inquiry, one was

accompanied by a support person. 1.6.11 At no stage was it necessary for the Inquiry to invoke the power to compel cooperation

under s.42 of the Garda Síochána Act 2005.

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PART TWO

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2. The first term of reference

“The storage, retention and any subsequent destruction of files, reports, minutes,

correspondence or data in Tullamore Garda Station between the years 1987 and 2005

relating to the death of Mr James Clancy on the 1st December 1987”

2.1 Filing and storage of the Clancy file at Tullamore Garda station

Possible contents of the Clancy investigation file

2.1.1. Mr. L told the Inquiry that he could not specifically recollect how he dealt with the

investigation file concerning the death of Mr. James Clancy. He said that the file which

he compiled would have consisted of witness statements, an index of those

statements, his report into the accident, including his conclusions, and any other

material that he had at the time.

2.1.2. Mr. L said that no statements were taken at the immediate scene of the accident. He

said that he and another Garda, Mr. S, took statements from the driver of the truck that

was stopped in Clara on the day of the accident, and from the passenger. The Inquiry

considers it likely that these statements would have been included in the investigation

file. Mr. L stated that in the weeks following the accident, he interviewed a number of

other people and further statements were taken. Mr. L could not recall how many such

statements were taken by him or from whom they were taken.

2.1.3. The Inquiry obtained the original inquest file from the Coroner which was prepared on

the basis of the investigation file. Form C.71, which the investigating Garda is obliged

to lodge with the Coroner on the day of a sudden death, is on the inquest file. This form

lists the names of witnesses who may have been of assistance at the inquest hearing

and it includes the name of Mr. L. The only statements that were on this file were those

taken from the medical and ambulance professionals who attended to Mr. Clancy, and

that of the son of the deceased, Mr. Joe Clancy. Mr. L signed and witnessed these

statements. The Inquiry considers it likely that these statements were also included on

the original investigation file. It is of note that there was no statement from Mr. L

himself, as the investigating Garda, included in the inquest file.

2.1.4. In her evidence to the Inquiry, a witness at the scene of the accident, Ms. T, said that

she went to the Garda station and gave a statement on the day of the accident, as did

the passenger in her vehicle. The Inquiry considers it likely that these statements were

also included in the investigation file.

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2.1.5. Mr. L said that the file would not have included a report from Mr. U, a scene of crime

examiner who inspected the truck that was stopped in Clara. Mr. L could not recall

whether a report was received from Mr. V, a public service vehicle inspector who also

attended to inspect the truck.

2.1.6. Mr. L did not recall photographs being taken at the scene and it is unlikely that the file

would have included photographic evidence. Mr. P, who had a supervisory role in the

investigation, said that he did not attend at the scene.

2.1.7. Mr. L told the Inquiry that the report which he prepared would have outlined the

accident and included subheadings dealing with his arrival at the scene and every action

taken thereafter. He said that his report would have included the following conclusion:

“I believed at the time, I suppose the one thing I can remember about the file, [sic], my conclusion was that I believed that Mr. Clancy was standing at Hayes’ Cross at Church Street right at the traffic light. There were pedestrian traffic lights there, [sic] that he was standing there and possibly stumbled out off the footpath as the truck went by. My conclusion was that that was the truck, even though there was no physical evidence to support that and that he fell out as the truck passed and got caught underneath the lorry, or the truck, in some shape or form and finished up out in Hayes’ Cross, or somewhere at Hayes’ Cross.”

2.1.8. Mr. L said that he had ascertained that the truck stopped in Clara had come from

McDonald Engineering, transporting a piece of machinery, and that it had passed

through Hayes Cross’ at around the time of the accident.

Submission of investigation file to the Office of the Superintendent

2.1.9. Mr. L surmised that upon completing his preparation of the file, he “would have

retained the original file, the original statements that I took” and submitted a copy “to

the Sergeant’s Office who would have forwarded it on to the Superintendent’s Office.”

Mr. L did not recall who the sergeant was at this time. He stated that he would in all

likelihood have left the file in the tray outside the Sergeant’s office, rather than handing

it over directly.

2.1.10. Whilst Mr. L does not specifically recall submitting the investigation file, the Inquiry

accepts his evidence that it would have been his practice to submit the investigation

file to the Office of the Superintendent, via his Sergeant.

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Preparation of inquest file

2.1.11. Mr. L stated that he did not know what the Superintendent did with the file submitted

but he surmised that the inquest file would have been prepared on the basis of the

investigation file:

“… [T]hey’d have worked off the copy that I submitted, the typed copy that I submitted to the Superintendent’s Office, or through the Sergeant’s Office to the Superintendent’s Office.”

2.1.12. Mr. L stated that he did not follow up on the file thereafter; in his own words, having

submitted the file, “that would be my job more or less done”. Mr. L would have awaited

further directions from the Superintendent.

2.1.13. Mr. P conducted the inquest on behalf of the Superintendent, Mr. Q, and stated that

he had the inquest file with him in the Coroner’s Court. Mr. P told the Inquiry that he

would have returned the inquest file to the Office of the Superintendent after the

inquest.

2.1.14. The Inquiry was furnished with two newspaper articles relating details of the inquest

into the death of Mr. Clancy. This report confirms that Mr. L attended the Coroner’s

Court on the day of the inquest but that he did not give evidence. Mr. L told the Inquiry

that he does not recall the inquest but that he presumed that he would have brought

with him his file, along with his statements and notebook.

Filing and storage of investigation file in the Office of the Superintendent

2.1.15. The Inquiry has considered how the Clancy investigation file would have been dealt

with in the Office of the Superintendent, following the verdict of the Coroner’s Court.

2.1.16. A number of Garda witnesses gave evidence regarding the filing and storage practices

which were in effect in the Office of the Superintendent in Tullamore.

2.1.17. With regard to the numbering of files, the evidence of the witnesses broadly accorded

with a directive contained in Chapter 24, section 26.11 of the 1984 Code. This provision

required that a prefix number assigned to each division be used as the initial of the file

number. This initial, and a serial number assigned to all correspondence entered in the

correspondence register,2 would be combined with the year of the file to form the file

number. Section 26.11 further provided that:

2 The relevance of the maintenance of “correspondence registers” in all Garda stations during this period is addressed separately below.

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“a file finally dealt with, will be initialled and dated on the front page by the officer concerned” and that “[s]uch files will be put in bundles in consecutive order and the numbers written on each bundle, viz. 1 – 100/82 thus indicating the number of files in each bundle and the year to which they refer.”

2.1.18. The file numbers assigned were recorded in an index book. Mr. N gave evidence

regarding the indexing of files at Tullamore Garda station. He stated that, prior to his

appointment as District Clerk circa 1991, the indexing system that was in place was not

to his liking and that he found files difficult to find. He told the Inquiry that he

introduced a new index card system circa 1992 and that this system covered both files

kept in the Office of the Superintendent and those which had been moved to storage.

Mr. N indicated that, to his knowledge, the index cards may still be available.

2.1.19. With regard to the issue of storage, Mr. N said that files were filed in the office on a

yearly basis, starting on the 1st January, and that closed files were bundled away and

stored in the District Office, which formed part of the Office of the Superintendent.

The District Office was located in a small bungalow beside the Garda station up to the

year 2000.

2.1.20. A number of Garda witnesses gave evidence of the poor conditions which prevailed at

Tullamore Garda station prior to 2000. It was also their evidence that, when the old

station was demolished, all of the members moved on an interim basis to the bungalow

which prior to this had been the District Office. Mr. M described this move as “chaotic”

given the small size of the building which was now expected to house all of the

members stationed in Tullamore. Mr. E gave evidence that there were “horrific

conditions” in the bungalow and that it was “very unsuitable” as a location from which

members were to carry out their functions. He stated as follows:

“To be quite honest with you, Judge, how they operated out of that house was beyond me. Because… the conditions were very very poor. They had no facilities really.”

2.1.21. Mr. N gave evidence that when the members were moving to the new Garda station in

2000, all of the files were moved in hand carts under his supervision. He stated that

files were then stored on steel shelving which formed part of the office in the new

Garda station. Mr. N indicated that record books were likewise transferred.

Retention period applicable to the Clancy investigation file

2.1.22. A number of Garda witnesses gave evidence that the Clancy investigation file should

have been retained indefinitely on the basis that the case was unsolved. No witness

suggested that it would be acceptable practice to dispose of an investigation file

pertaining to an unsolved fatal accident.

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2.1.23. In his evidence, Mr. E informed the Inquiry that where there was “a live investigation…

the file should have been there for all time, especially where there was an indictable

case involved.” Such files “were never closed because there could always be new

evidence or fresh evidence could come in.”

2.1.24. Mr. M gave evidence that “back then any file that wasn’t finished… was still an open

file.” It was his understanding that while a file remained open, “the original file would

be kept by the Super's [sic] office.”

2.1.25. Similarly, Mr. N and Mr. P indicated that where a case was unsolved, the file should

remain open and be retained indefinitely.

2.1.26. Although Mr. G was not stationed in Tullamore during the relevant period, he gave

evidence that he would have expected the Clancy file to be available when Mr. L

transferred in 1995, “because it was unsolved”.

2.1.27. The Inquiry has not been furnished with any policy or procedure, applicable during the

period 1987 to 2005, which expressly required that open files be retained indefinitely.

Nonetheless, the Inquiry accepts the evidence provided by a number of Garda

witnesses that this would have been regarded as appropriate practice in the case of an

unsolved fatal accident.

2.1.28. The Inquiry notes that, pursuant to the Data Protection Act 1988, An Garda Síochána is

obliged to retain personal data for no longer than is necessary for the purpose for which

the data is required.3 In his evidence, Mr. B remarked that, on foot of the introduction

of the 1988 Act, “more emphasis” was placed on materials not being kept for longer

than required.

2.1.29. The Inquiry is satisfied that the Clancy file should have been retained in circumstances

where the case remained unsolved. It should have been filed as a live file and readily

accessible if required. However, in light of the evidence of Mr. L and Mr. Q, the Inquiry

is of the view that they did not perceive this to be an unsolved fatal accident. Rather,

the investigating Garda was satisfied that he had identified the driver and lorry involved

and, based on his conclusions, the Superintendent decided that there was no evidence

upon which to prefer charges.

2.1.30. Mr. L informed the Inquiry that he had reached the following conclusion in respect of

the investigation:

3 Section 2(1)(c)(iv) of the Data Protection Act 1988.

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“I believed at the time, I suppose the one thing I can remember about the file, [sic], my conclusion was that I believed that Mr. Clancy was standing at Hayes’ Cross at Church Street right at the traffic light. There were pedestrian traffic lights there, [sic] that he was standing there and possibly stumbled out off the footpath as the truck went by. My conclusion was that that was the truck, even though there was no physical evidence to support that and that he fell out as the truck passed and got caught underneath the lorry, or the truck, in some shape or form and finished up out in Hayes’ Cross, or somewhere at Hayes’ Cross.”

2.1.31. He subsequently reiterated in his evidence that “I believed that was the lorry involved

in the accident but, unfortunately, there was no physical evidence… that showed the

truck coming into contact with the body.”

2.1.32. Mr. Q could not specifically recollect how he dealt with the Clancy file but offered the

following explanation as to why charges were not preferred:

“Well, I mean they traced the driver. He was stopped out, I don't know how many miles out at Clara and he was interviewed and obviously he admitted possibly passing the scene. I don't know what's in the statement. And if he said he didn't feel the impact it would be difficult to sustain a prosecution against him then for the accident… .”

2.1.33. Having regard to this evidence, the Inquiry considers that Mr. L had reached a firm

conclusion as to the circumstances of the fatal accident and did not regard this as an

unsolved case. This is also reflected in his evidence as to how he would have dealt with

the file that he held in his locker at the time of his transfer in 1995. In this regard, he

said that he would have handed the file “to the sergeant for storage when I left on

transfer on promotion.” Mr. L did not consider this to be a file which required

reassignment for the purposes of continued investigation; Mr. L described the file as

one suitable for “storage.”

2.1.34. The Inquiry is of the view that Mr. Q accepted this conclusion and gave no further

instruction to continue the investigation, despite the fact that it had been stated at the

inquest that the investigation was ongoing.

2.1.35. As a closed file, the Clancy investigation file would have been filed off, sent into storage,

and retained for an uncertain number of years.

2.1.36. The Inquiry found that there was a marked lack of clarity amongst the Garda witnesses

as to the periods for which closed files should be retained.

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2.1.37. Certain witnesses recalled a Garda Headquarters Directive which specified the length

of time for which files should be kept. Others said that, insofar as they were aware,

there were no guidelines as to the appropriate periods of retention.

2.1.38. In his evidence to the Inquiry, Mr. E stated that the retention of files was ultimately “a

matter of space and usefulness” and that there was no set policy in effect. Mr. E

remarked that:

“… there was no policy that I am aware of for keeping files for saecula saeculorum. There was no policy. Now, neither was there any policy… saying to get rid of files that I am aware of either.”

2.1.39. Mr. E gave evidence that, as a matter of practice, a closed file would have a limited life

span and that “after six or maybe seven years you had to make room for more important

files.” In particular, he stated that once a court had finalised a criminal case, the file

would no longer be useful after approximately six years, having regard to the Statute

of Limitations.

2.1.40. Mr. M said that files were retained for “either five or six years” and that, from his

recollection, this “was the code instruction.”

2.1.41. Mr. N gave evidence that when he arrived at Tullamore Garda station two months prior

to the fatal accident, there was an instruction in place which prescribed a seven-year

retention period in respect of traffic accident files:

“It was an old instruction that was in existence in the office when I got there on the notice board. As far as I can recall traffic accident files were seven years. I can stand corrected on that. It listed all types of files, records, everything that should be retained in the different offices and how long they should be retained for.”

2.1.42. In his evidence, Mr. B was “fairly certain” that the destruction of records was at the

time governed by a circular from Garda Headquarters and that this circular specified a

retention period of seven years in respect of all files and notebooks:

“That period I think, Judge, to the best of my recollection was seven years… . So files had to be retained. … The same applied to members' notebooks and everything, Judge.”

2.1.43. Mr. P gave evidence that closed files were to be kept for six years:

“I kept files for six years. … I don't know where the legal authority for doing that came from. From my early days in the Garda Síochána I learned that important documents should be retained for six years. I have no idea where the legal basis for this came from but I always observed it.”

19

2.1.44. Mr. D told the Inquiry that files would generally be kept for “six, seven years” but that

important files would in all likelihood be retained indefinitely. Mr. D did not recall any

express policy or guidance to this effect:

“It wasn't set out as far as I can recall now. But… any important files were generally kept by investigating members. I don't recall any specific instruction as regards how long we were supposed to keep them for. But generally speaking if you asked an investigating member you [sic] investigated an incident say five, ten years ago, they would generally be able to come up with… a copy of the file.”

2.1.45. In his evidence, Mr. R indicated that the retention period for closed files was governed

by the Garda code and that the period applicable was “on a par with the seriousness of

the files.” With regard to files concerning serious offences, Mr. R stated that he

“personally couldn’t see them ever being retired.”

2.1.46. The Inquiry is cognisant that, at the time of the death of Mr. Clancy on the 1st December

1987, the National Archives Act 1986 had yet to be commenced. Section 7 of the Act,

which governs the retention and disposal of departmental records, came into force on

the 1st June 1988. It is unclear to the Inquiry what, if any, guidance was in place

regarding the retention of records by An Garda Síochána during the intervening period.

2.1.47. The Inquiry has been furnished with a copy of a Garda Síochána Headquarters Directive

dated the 24th May 1958, which addressed the retention of records. It is unclear

whether this Directive remained in force as of the 1st December 1987; however, in the

event that it did, the evidence of the Garda witnesses suggests that its requirements

were not widely known amongst the members stationed at Tullamore.

2.1.48. As outlined above, Mr. N and Mr. B gave evidence that there was a Headquarters

Directive in effect as of December 1987, which prescribed a seven-year retention

period in respect of traffic accident files. Whereas the Inquiry requested copies of all

relevant protocols and regulations pertaining to the retention of documentation, it has

not been furnished with a copy of any Directive, applicable as of the 1st December 1987,

which prescribed a seven-year retention period in respect of traffic accident or other

files.

2.1.49. Following the commencement of the National Archives Act 1986 on the 1st June 1988,4

An Garda Síochána was required to retain original records, including files and papers,

unless they were transferred to the National Archives or their disposal authorised by a

4 With the exception of s. 5, the 1986 Act was commenced on the 1st June 1988 by the National Archives Act 1986 (Commencement) Order 1988 (S.I. No. 228 of 1988). Section 5 of the 1986 Act was commenced on the 24th April 1989 by the National Archives Act 1988 (Commencement) Order 1989 (S.I. No. 116 of 1989).

20

designated officer of the National Archives. Disposal would not be authorised unless it

was certified by a certifying officer within An Garda Síochána that the records were not

required in connection with the administration of An Garda Síochána and that they did

not warrant preservation by the National Archives.5

2.1.50. The Inquiry has been furnished with a number of Garda Headquarters Directives

concerning the obligations of An Garda Síochána under the 1986 Act. Three of these

Directives – Headquarters Directive No. 4 of 1991, Headquarters Directive No. 47 of

1995 and Headquarters Directive No. 219 of 2002 – are salient to the period 1991 to

2005. These do not, however, provide guidance as to how long records should have

been kept by An Garda Síochána prior to their disposal being sought in accordance with

the provisions of the 1986 Act.

2.1.51 While the Inquiry has concluded that the Clancy file was considered to be closed, rather

than an open investigation, it is unclear what the applicable retention period was. The

evidence of the Garda witnesses is indicative of a general practice of retaining closed

files for at least five to seven years. The Inquiry was surprised by the lack of clarity

amongst the Garda witnesses as to the retention periods applicable to closed

investigation files. If there were guidelines in place between 1987 and 2005 they were

not effectively brought to the attention of members.

2.2 Potential destruction of the Clancy file at Tullamore Garda station

2.2.1 No witness had any knowledge of the Clancy investigation file being destroyed. In his

evidence to the Inquiry, Mr. L affirmed that he was never asked to do anything, or

anything untoward, with the file. Mr. B similarly emphasised that he “never destroyed

any file belonging to Joe Clancy’s father.”

2.2.2 A number of Garda witnesses gave general evidence regarding the approach adopted

towards the destruction of closed files during this period. Mr. E stated as follows:

“… you stored according to the limitations you had. The important files were kept and then there was a stage coming in after maybe six or seven years you had to make room for more important files. And some of the older files would probably have been disposed of.”

2.2.3 It was the evidence of Mr. E that, on this basis, “[a] lot of old files were probably burned”

and that “there was a time I remember we would have incineration facilities different

places and they would be destroyed.” Given the age of the Clancy investigation file, Mr.

E surmised that it may have been disposed of: “we can’t find it, it obviously was

5 Section 7(4) of the 1986 Act.

21

disposed of, in other words pulled up, that is what – burned in incinerators or

something.” The witness emphasised, however, that there was no policy requiring the

destruction of files and that when he went to search for the Clancy file, “[e]ven though

it was that old, I expected to find it… I wouldn’t have gone looking for it if I knew there

was a policy of disposing… .” Speaking of his own practice, Mr. E noted that he had

never disposed of, or given a direction to dispose of, a file in the course of his career.

2.2.4 Mr. E emphasised that “it is definitely incorrect to suggest or to infer this particular file…

was one of the few files that went missing and rare files that went missing”. He stated

that he “would be very surprised” if any files dating from Tullamore in the 1980s were

still there. He was adamant that the Clancy investigation file was not deliberately

disposed of for any improper reason. In this regard, he stated as follows:

“I don’t want the word to go out here… that this file was all of a sudden plucked out of an archive somewhere and dumped or got rid of for other reasons. That I can say, didn’t happen, I know it didn’t happen. That kind of system [sic] things are not done like that. We don’t go around getting rid of files just because of a question mark come [sic] up about them.”

2.2.5 Mr. N gave evidence that old records, such as “miscellaneous papers, obsolete books,

obsolete records”, were destroyed “if you wanted more storage space”. He stated,

however, that he had never destroyed any files during the course of his career: “I had

more than 20 years’ files when I left the job from the time I went into it… .” Mr. N

informed the Inquiry that he was not unusual in his attitude to retaining files. He

indicated that this was something that was often discussed among district clerks and

that he considered that his approach “would be the norm” and that “everybody seemed

to be holding on to files.”

2.2.6 The Inquiry finds that there was no set policy in place regarding the destruction of files;

it would appear that files were destroyed on an ad hoc basis when space was at a

premium. While there was a lack of clarity about the appropriate retention period, the

majority of the Garda witnesses agreed that files stored in the District Office should be

retained for a period of at least five years.

2.2.7 The Inquiry is satisfied that members stationed in Tullamore during this period worked

in cramped, overcrowded conditions, with limited space for the storage of files

particularly during the temporary move to the bungalow referred to earlier in this

report. It is probable that the Clancy file, which had been inactive since February 1988,

would have been destroyed. In circumstances where there were incineration facilities

available it seems highly probable that older files were destroyed by burning.

22

2.2.8 The Inquiry has not found evidence of any deliberate intent to destroy the Clancy

investigation file for an improper purpose.

Retention of copy investigation file by investigating Garda

2.2.9 The Inquiry heard from a number of Garda witnesses that it was general practice to

retain copies of investigation files and statements in their personal locker for their own

reference.

2.2.10 Both Mr. M and Mr. P gave similar evidence in relation to the submission of

investigation files to the Office of the Superintendent, and the retention by the

investigating Garda of a copy file in their personal locker. Mr. D agreed that the

“investigating member would generally keep a copy of the file” in their locker, and that

the “main file” would be submitted to “your supervisor and he in turn would submit it

to the superintendent.”

2.2.11 Mr. N, the former District Clerk at Tullamore Garda station, recalled a similar practice

whereby an investigation file would be submitted to the Office of the Superintendent

and a copy retained by the investigating member. Mr. B said that “a member would

have his own file” and that while “he would send it to the district officer for direction…

it would come back to him where he would retain it… .”

2.2.12 The Inquiry notes that Chapter 44, section 44.24 of the third edition of the Garda

Síochána Code6 (the “1984 Code”) required that “every crime committed will be the

subject of a proper investigation file which can afterwards be referred to if necessary by

a member seeking appropriate details.” This provision did not, however, advise as to

the appropriate procedure for storing, filing or submitting investigation files for review.

2.2.13 Chapter 73, section 73.17 of the 1984 Code addressed the preservation of original

witness statements. Subject to certain exceptions,7 which do not apply in this instance,

section 73.17 provided that:

“Original statements of… witnesses need not be preserved in the custody of members who take them, but may be forwarded by post or otherwise to the district officer for copying if necessary. The original should be preserved by the District Officer for

6 The third edition of the Garda Síochána Code was published in December 1984 and remained in force until the publication of the fourth edition of the Garda Síochána Code in November 1995. 7 This provision required that the following original statements be retained by the member who had taken them, until such time as they were produced in court: (i) statements of an accused or suspects likely to be charged; (ii) dying declarations; (iii) complaints in cases of wounding and assaults occasioning actual bodily harm; and (iv) complaints in cases of rape, indecent assault or defilement, where the time or nature of the first complaint was material evidence. Section 73.17 stated that where a case was disposed of by a court, and such statements were not retained by the court, they should be “forwarded to the District Officer for preservation with the file”.

23

production in courts, including civil courts in which proceedings may follow as in the case of road accidents and assaults.”

2.2.14 Mr. L stated that he would have retained his copy investigation file, with the original

statements, in his closed locker. He agreed that the filing arrangements at Tullamore

Garda station during this period were of an ad hoc nature. He did not, however, accept

that there was a lack of security surrounding the storage of files. Mr. L gave evidence

that his own files “would have been kept under lock and key” in his personal locker, and

that nobody else would have had access to these. He confirmed that he was never

asked to do anything, or anything untoward, with the Clancy investigation file.

2.2.15 It was the evidence of Mr. L that he may have handed the Clancy investigation file to

his sergeant or to the District Clerk when leaving Tullamore. Mr. L was not certain of

having done so as he could not recall handing the file to anybody in particular. The

witness stated that, as he no longer had the file when Mr. E sought a copy at some

point between 2006 and 2009, “I am presuming that I handed them to the sergeant for

storage when I left on transfer on promotion.”

2.2.16 A number of witnesses gave evidence as to the manner in which files were dealt with

upon the retirement or transfer of an investigating Garda.

2.2.17 Mr. N said that closed files should have already been filed in the District Office and

should not be in the locker of the investigating member. An open file, on the other

hand, would be given to the Unit Sergeant who would most likely hand the file to the

Sergeant in Charge. Mr. N stated that “files that were still active were allocated to other

members to investigate by the sergeant in charge or another unit sergeant… .”

2.2.18 Mr. M gave evidence that, when a Garda retired or transferred, they would have been

asked whether they were up to date with all of their files and that this “was always

monitored.” The witness stated that where a file remained open, it would be

reassigned by the sergeant in charge for investigation by another member.

2.2.19 In his evidence, Mr. O stated that he left his files behind him upon retiring in 2009 but

that there was no direction on this at the time. Mr. O gave evidence that members

were obliged to complete their files prior to retiring but that, where a file was ongoing,

he presumed that it could be reassigned.

2.2.20 There is no evidence to suggest that the Clancy investigation file was reassigned upon

the transfer of Mr. L. Indeed, it is the evidence of Mr. L himself that the file would

probably have been stored in the District Office after his departure. The Inquiry is

therefore of the view that, if the file was handed over when Mr. L left Tullamore in

24

1995, it was in all likelihood treated as though it were a file which had been closed since

1988.

2.2.21 The following extract from Garda Headquarters Directive No. 89 of 1998, which is dated

the 18th May 1998 and titled “Obligation on members retiring or discharged from the

Force”, is informative:

“It has come to notice that members are retaining Investigation Files and/or Official Documents on leaving the force. Members on retiring or discharge should surrender any Investigation Files and/or Official Documents to the District Officer. The District Officer should certify that the member has been asked and has complied with the request and a copy should be forwarded to the Assistant Commissioner, ‘B Branch.’ The Investigating Files and Official Documents should be retained at the District Office… .”

2.2.22 This Directive is indicative of a practice, existing prior to 1998, whereby copy

investigation files retained by investigating Gardaí in their lockers, were taken by them

as part of their personal papers when they retired or were discharged. The Inquiry is

aware that at least one member, on his own evidence, retained the contents of his

locker, including copy investigation files and notebooks, following his retirement. This

practice illustrates that, in the years preceding 1998, there was a lack of direction as to

how copy files, and notebooks, which Gardaí retained in their lockers, were to be dealt

with in the event of retirement or transfer.

2.2.23 Mr. L said that he would have handed over any files and notebooks remaining in his

locker upon transferring from Tullamore, notwithstanding that he cannot specifically

recall doing so. The Inquiry accepts his evidence in this regard and surmises that if a

copy of the Clancy investigation file was amongst his personal papers at the time of his

transfer, it would in all likelihood have been destroyed as a mere working copy of the

file in the Office of the Superintendent.

2.3 Further copies of the Clancy file outside Tullamore Garda station

2.3.1 The Inquiry has been informed that, apart from the investigation file and the copy

retained by the investigating Garda, further copies of the Clancy investigation file

should have been generated. During the interviews, however, the Inquiry noted a great

deal of uncertainty amongst the Garda witnesses as to how many copies of the file

ought to have been produced, and to whom these should have been submitted.

2.3.2 Mr. B gave evidence that there should have been at least four copies of the

investigation file and that these should have been held by the investigating Garda, the

Superintendent, the Chief Superintendent and Garda Headquarters:

25

“So a fatal accident file [sic], it's submitted in at least triplicate through the Sergeant's office to the Superintendent. So the Superintendent's office should have a copy. The Chief's [sic] office should have a copy and Garda Headquarters should have a copy. So… there was the investigating member, the District Office, the Chief's office and Garda Headquarters.”

2.3.3 Mr. B maintained that it was “standard procedure” in 1987 that a copy of the file would

have been submitted to the Chief Superintendent and to Garda Headquarters in the

case of a fatal accident.

2.3.4 Mr. N gave evidence that there should have been at least four copies of the Clancy

investigation file, in addition to the original held by the investigating Garda:

“… when the investigation file came in, it came in in four copies, I think. The Superintendent would put his covering letter on it and recommendations and he would send them on to the State solicitor. He would send two to the Chief Superintendent, one for the Chief's office, I think, and one for the Traffic Section in Dublin. And one would be retained and, of course, naturally the investigating member would have the original one.”

2.3.5 Mr. Q stated that a file would only be sent to the State solicitor where there was

evidence of a breach of the Road Traffic Acts.

2.3.6 The Inquiry notes that this evidence accords with Chapter 37, section 37.36 of the 1984

Code which provided as follows:

“The DPP has instructed that the following matters be considered when decisions are being taken: (a) The mere fact that a person is killed or severely injured is not in itself a reason for a prosecution. In this as in all other areas of the criminal law there must always be available before charge, evidence of a criminal act or omission, in these cases evidence of a standard of driving which warrants a criminal as distinct from a merely civil sanction… .”

2.3.7 In his evidence, Mr. P stated that, in addition to the copies of the file held by the

investigating Garda and the Superintendent, a copy “possibly would have gone to

headquarters.”

2.3.8 Conversely, Mr. R informed the Inquiry that a fatal accident file would not ordinarily be

sent beyond the District Office or to the Chief Superintendent. The witness explained

as follows:

26

“… a fatal accident, Judge, would never go outside the district office. It wouldn't go to a Chief [sic] unless there was some query. This is my opinion. Like in a district a fatal accident should be a very straightforward incident… .”

2.3.9 Based on these conflicting accounts, it is not possible for the Inquiry to form a definitive

view as to how many additional copies of the file would have been generated, or to

whom these copies would have been sent. Save for the following exception, the Inquiry

has not been furnished with any policy or procedure which provides guidance on the

point.

2.3.10 Chapter 37, section 37.36 of the 1984 Code outlined the circumstances in which it was

necessary to submit traffic accident files to the Deputy Commissioner of Operations

(Legal Section). This provision stated as follows:

“Files will be submitted by the District Officer to Deputy Commissioner, Operations (Legal Section):

(a) Where a fatality is caused by or results from an act of driving, whether or not the

responsible driver has been traced, including cases where the driver of the only vehicle involved received fatal injuries, and

(b) In serious bodily harm cases where hit and run drivers are involved.”

2.3.11 No reference was made in the evidence of any witness to the role of the Deputy

Commissioner, Operations (Legal Section).

2.3.12 There is no evidence before the Inquiry to suggest that further copies of the Clancy file

were in fact generated and forwarded to the above mentioned offices.

Notwithstanding this, the Inquiry considers that a thorough search should have been

carried out in all possible destinations to which the file may have been transmitted, and

queries whether this was done.

2.3.13 The Inquiry is satisfied that the movements of the Clancy file should have been

recorded in correspondence books which were maintained in each divisional and

district office.

2.3.14 In his evidence, Mr. P stated that a correspondence book was “key to tracing any file”

because whenever a file entered or left Tullamore Garda station, this would have been

recorded in the correspondence book. Mr. P commented that the correspondence

book was “kept properly” and “near enough indefinitely.”

2.3.15 Mr. B also gave evidence that the movement of the Clancy file should have been

captured in a number of correspondence registers:

27

“Now there are other records that should capture the accident, I would suggest, like correspondence registers both [sic] in the Sergeant's office, the Superintendent's office, the Chief Superintendent's office and in Garda Headquarters, wherever it ended up.”

2.3.16 Mr. N agreed that there was a correspondence register in every Garda station and that

“everything would be written into that, correspondence coming in and going out as

well.”

2.3.17 The Inquiry notes that Chapter 26, section 26.11 of the 1984 Code required the use of

a register book and accompanying index, in each Divisional and District Office. This

provision stated as follows:

“A Register Book will be used in each divisional and district office. All reports, letters etc. received in or sent from a Divisional or District Office will, with certain exceptions, 8 be entered in this register. The entries, which should be brief, will be made upon receipt or transmission of the report or other document. Each entry will, in the case of entries made in a Divisional register, be given the appropriate prefix letters and serial numbers.”

2.3.18 Section 26.11 further provided that:

“[a] serial number will be given to the original of all correspondence entered in the correspondence register – the serial number to commence on the 1st January each year at 1 and to continue in sequence, throughout the year.”

2.3.19 In turn, it was stipulated that:

“[t]he serial number given to any particular subject, on first entry, will be used for all subsequent correspondence in connection therewith and, in subsequent entries, will be entered, in red ink, in column 3 with date of last relevant entry.”

2.3.20 Similar instructions regarding the use of correspondence registers were contained in

Chapter 12, section 12.21 of the fourth edition of the Garda Síochána Code and in

Chapter 47, section 47.10 of the fifth edition of the Code. One distinction is that the

2005 Code includes additional references to electronic recording and to the use of

correspondence register software.

8 The following exceptions were listed in respect of each office. Divisional Office: (a) Annual Leave – Officers, Inspectors, Sergeants and Guards; (b) Ordinary Sick Files; (c) Crime Reports; (d) Public Service Vehicle Correspondence; (e) Secret Correspondence. District Office: (a) Annual Leave; (b) Ordinary Sick Leave; (c) Crime Reports; (d) Warrants; (e) Applications for Firearms Certificates; (f) Applications for Firearms Certificates; (g) Secret Correspondence; (h) Passport Applications.

28

2.3.21 The Inquiry is satisfied that the movement of the Clancy investigation file would in all

likelihood have been caught by the correspondence registers maintained at that time.

The Inquiry has not, however, been furnished with any regulation, applicable as of

1987, which prescribed the length of time for which a correspondence register should

have been retained.

2.4 Other data pertaining to the Clancy investigation

2.4.1 Based on the interviews conducted, and the written procedures furnished to the

Inquiry, a number of other records should have been compiled in the context of the

Clancy investigation, aside from the investigation file.

Form C.71

2.4.2 Form C.71, which the investigating Garda was obliged to send to the Coroner on the

day of the accident, has been retrieved from the Coroner’s file. The two carbon copies

of the completed Form C.71, which should have been lodged with the District Officer

and the Commissioner C.I.B respectively, are still on the Coroner’s file.

Form C(T)68

2.4.3 Mr. N gave evidence that, in the case of a fatal accident, a preliminary form C(T)68

would also have been prepared setting out the day, date, and time of the accident, as

well as the name of the deceased, and that copies of this form would have been sent

to the District Office, the Divisional Office, the Traffic Office in Dublin, and that one

copy would have been retained at Tullamore Garda station.

2.4.4 The Inquiry notes that Chapter 37, section 37.18 of the 1984 Code required an

investigating Garda to report all road traffic accidents by way of a Form C(T) 68. Section

37.18 provided as follows:

“All road traffic accidents will be reported on Form C(T)68. An investigating member will complete a set of three forms, original and two carbon copies. The original and first carbon copy will be sent through the district officer to An Foras Forbartha. An Foras supplying a copy to the local authority. The final copy will be retained at the station of origin. Report forms will be furnished to the District Officer within three days of the accident coming to the knowledge of the Garda. If the accident is reported more than 30 days after its occurrence, Form C(T)68 will not be completed.”

2.4.5 In accordance with section 37.18, the District Officer was required to file copies of any

Forms C(T) 68 received so as to “have a record of all accidents reported to the Garda in

their respective areas.”

29

Form C.1

2.4.6 The Inquiry further notes that, in an instance where the responsible driver had not been

traced, Chapter 37, section 37.37 of the 1984 Code required that a fatal hit-and-run

accident be recorded as a manslaughter case by way of a Form C.1. Section 37.37

outlined the following procedure:

“All cases of fatal road traffic accidents where a manslaughter charge has been preferred on the directions of the DPP or otherwise, will be recorded on Form C.1.

Hit-and-run fatal accidents, where the responsible drivers have not been traced, will also be recorded as cases of manslaughter and likewise accounted for on Form C.1. Should however such driver(s) be subsequently traced and the DPP does not direct proceedings for manslaughter, application should be made to have the case marked ‘No record’ or ‘Dangerous driving causing death’ as the case may be.”

2.4.7 There is no evidence before the Inquiry to confirm whether Form C(T) 68 and Form C.1

were submitted, where they may have come to reside, or for what period they would

have been retained.

Garda notebooks

2.4.8 Mr. L stated that he would have kept a number of Garda notebooks while stationed in

Tullamore and that he may have returned these notebooks to the station, including

that pertaining to the day of the fatal accident, at the time of his transfer.

2.4.9 The Inquiry notes that Chapter 38, section 38.11 of the 1984 Code governed the

retention of Garda notebooks. Section 38.11 required that notebook entries should

“contain sufficient detail to be useful as an aid to memory” and that completed refills

should be “preserved for three years.” This provision also stated that “[m]embers

leaving the Force are advised to keep them for a similar period before destroying them.”

2.4.10 Chapter 4, section 4.10 of the 1995 Code contained similar guidelines but specified that

a completed notebook refill should be preserved for five years or until the completion

of a case thereafter. Under this provision, members of An Garda Síochána were again

advised to retain their notebooks for a similar period before destroying them.

2.4.11 In accordance with the Code, Mr. L may have destroyed the notebook concerning the

accident within three years of it becoming full. Mr. L was not obliged to hold on to all

of his notebooks until retirement, nor is there anything to suggest that he was obliged

to hand them back when he transferred. The evidence of Mr. L is that he did hand back

his notebooks; if he did so, it would seem likely that they would have been destroyed

30

in the ordinary course by the time that any query arose in relation to the Clancy

investigation. Both the 1984 and 1995 Codes allowed for the destruction of diaries.

These did not have to be filed or retained beyond the periods specified.

2.5 Conclusions

2.5.1 The Inquiry is satisfied that the investigation file, as prepared by Mr. L, was submitted

by him to the Office of the Superintendent via his sergeant and that Mr. L retained a

copy of the file in his locker.

2.5.2 The Inquiry accepts that Mr. L would have brought his personal copy of the

investigation file to the Coroner’s Court, and that he would have returned the file to

his locker after the verdict. The Inquiry also accepts the evidence of Mr. P, who

conducted the inquest on behalf of the Superintendent, that he would have returned

the inquest file to the Office of the Superintendent after the inquest.

2.5.3 The Inquiry concludes that the main investigation file was deemed to be closed

following the verdict of the Coroner and that it was stored in the District Office in

accordance with the filing procedures in place at the time. The Inquiry is satisfied from

the evidence of the Garda witnesses that the old manual filing system was generally

effective and that it is likely that the Clancy file could have been retrieved, if required,

while it was retained in the District Office.

2.5.4 The Inquiry is also satisfied that files were stored securely and accepts the evidence of

the Garda witnesses that it would have been difficult for an unauthorised person to

gain access to the Clancy file whilst stored in the District Office.

2.5.5 As to the length of time the Clancy file would have been retained, the Inquiry found

that there was a lack of direction, and consequently an absence of clarity, as to the

periods for which closed files should be retained, and the circumstances in which they

might be destroyed. In general, it would appear from the evidence of the witnesses

that closed files were typically retained for at least five to seven years. The Inquiry

surmises accordingly that the Clancy file should have been retained for a period of

between five to seven years.

2.5.6 The Inquiry has considered what may have happened to the Clancy file following its

storage in the District Office. There was ample evidence of a severe shortage of storage

space at Tullamore Garda station prior to the year 2000. The Inquiry is satisfied that

although there was a general reluctance to destroy investigation files, an older file was

31

liable to be destroyed on an ad hoc basis, if there was a requirement for additional

storage space and the file was no longer deemed to be useful.

2.5.7 If the Clancy file had not been destroyed beforehand, the Inquiry considers it highly

unlikely that the file would have survived the major move in the year 2000 when the

former Garda Station was demolished and all of the members had to move to the

cramped adjacent bungalow. The Inquiry was informed that incinerator facilities were

available for the destruction of records. In those circumstances, the Clancy file, which

had been inactive since 1988, was liable to be destroyed with a view to creating space.

2.5.8 The Inquiry accepts that Mr. L would have handed over the contents of his locker, which

may have included a copy of the Clancy investigation file and his notebooks, at the time

of his transfer from Tullamore in 1995. As the main investigation file would have been

filed and retained in the Office of the Superintendent, the Inquiry considers it likely that

this copy and the other contents of his locker would have been destroyed.

2.5.9 The Inquiry heard evidence that further copies of the investigation file may have been

forwarded to offices beyond Tullamore Garda station. While the Inquiry is confined to

a consideration of the fate of the records held at Tullamore, further searches might

usefully be conducted at the other possible destinations to which copies of the file may

have been transmitted.

2.5.10 Aside from the investigation file, the Inquiry is satisfied that other records pertaining

to this case should have been generated, such as Form C.1 and Form C(T)68, in addition

to Form C.71 which the Inquiry has a copy of. In light of the time which has elapsed,

the Inquiry does not consider the absence of these further records to be surprising.

2.5.11 The Inquiry heard extensive evidence regarding the filing, storage and retention of files

at Tullamore Garda station between the years 1987 and 2005. There was no evidence

to suggest that the Clancy file was ever sought or interfered with by any person with a

view to its destruction for any improper purpose.

32

PART THREE

33

3. The second term of reference

“the transmission, storage and any subsequent loss of files, reports, minutes, correspondence

or data relating to allegations in connection with the death of Mr. James Clancy understood

to have been sent to the Chief Superintendent in Portlaoise in or around 2006”

3.1 Materials falling within the second term of reference

3.1.1. Based on the documentary and oral evidence before it, the Inquiry is satisfied that, in

or around 2006, the following materials were sent to the Chief Superintendent in

Portlaoise in relation to allegations made in connection with the death of Mr. James

Clancy.

Report dated the 1st December 2005, authored by Mr. F

3.1.2. As outlined in the context of the third term of reference, Mr. E charged Mr. F with

conducting an initial scoping exercise in respect of allegations made by family A in

relation to the death of Mr. Clancy.

3.1.3. The Inquiry has been furnished with a report dated the 20th February 2006, sent by Mr.

F to Mr. E detailing the work undertaken by Mr. F in the context of this scoping exercise.

This report references an earlier report submitted by Mr. F on the 1st December 2005.

The latter report cannot be found.

3.1.4. In his evidence to the Inquiry, Mr. F could not recall the content of this report but he

assumed that it updated Mr. E on the actions he had taken in relation to the scoping

exercise, including meetings or attempts to meet with relevant persons.

Report dated the 20th February 2006, authored by Mr. F

3.1.5. The Inquiry has seen a copy of the report authored by Mr. F, and addressed to Mr. E,

dated the 20th February 2006. This report gives an account of the initial meeting

between Mr. F and family A on the 29th November 2005; the meeting between Mr. F

and Mr. Joe Clancy; and the statement taken by Mr. F from Mr. A on the 9th February

2002. In his report, Mr. F also furnished the name of Mr. DD, a potential witness to the

accident who was located by Mr. Joe Clancy but had never been interviewed.

3.1.6. The letter referred to four attachments:

(i) the signed statement of Mr. A dated the 9th February 2006;

34

(ii) a copy report from Mr. B to Mr. R dated the 21st July 2005;

(iii) a copy report referred to as being from “D/Superintendent Crime & Security to

C/Superintendent, Portlaoise”, and dated the 13th June 2005; and

(iv) a copy investigation file sent from Mr. R to the Superintendent at Tullamore in

respect of a search conducted at the home of Mr. C, dated the 20th October 2005.

3.1.7. With the exception of the report of the 13th June 2005, addressed to the Chief

Superintendent in Portlaoise, all of these attachments were retrieved and made

available to the Inquiry. In his evidence to the Inquiry, Mr. F stated that he was

“puzzled” by the reference to the report of the 13th July 2005 and that he did not know

what it contained.

Statement of Mr. C taken by Mr. G on the 4th April 2006

3.1.8. As outlined in the context of the third term of reference, Mr. E charged Mr. G with

taking a statement from Mr. C regarding allegations made by family A that Mr. D was

involved in Mr. Clancy’s death.

3.1.9. Mr. G informed the Inquiry that he went to Clara, with Mr. AA a Detective Sergeant, to

meet with Mr. C. Mr. G recalled that he may have gone to Clara twice and believed that

a statement may have been taken from Mr. C on the second occasion. Mr. G stated that

this would have occurred within weeks of the direction given to him by Mr. E on the

3rd March 2006. The Inquiry has been furnished with a copy of an extract from the

official journal of Mr. G, dated the 4th April 2006, which records the taking of the

statement as having occurred on this date.

3.1.10. Mr. G told the Inquiry that he would have returned to his office in Portlaoise after taking

the statement and that he would have given it to a clerk to type up. He stated that he

would have prepared a report for the Chief Superintendent outlining what was done

and attached the statement and whatever recommendations he had. Mr. G confirmed

that he would have created a file in relation to this matter.

3.1.11. Neither the statement taken from Mr. C, the report of Mr. G, nor any accompanying

file, have been retrieved.

Statement of Mr. W taken by Mr. F on the 1st August 2006

3.1.12. A journal entry dated the 1st August 2006 recorded the taking of a statement by Mr. F

from a Mr. W in Limerick Prison, in relation to a complaint made by Mr. X, a son of Mr.

A. The entry reflects that Mr. F was on this occasion accompanied by a Mr. Y. Mr. F told

35

the Inquiry that he has “absolutely no recollection” of taking that statement and that

he could not remember who Mr. W was. A copy of this statement has not been

retrieved. There is no indication that this interview related to the allegations made in

relation to the death of Mr James Clancy.

Statement of Mr. Z taken by Mr. F on the 18th August 2006

3.1.13. An entry in the official journal kept by Mr. F records that Mr. F took a statement from

Mr. Z, the son of Mr. A, on the 18th August 2006. This statement has not been retrieved.

3.1.14. Mr. F gave evidence that he would not have compiled a file in relation to his scoping

exercise as he had “very little paperwork moving in relation to this matter.” He

identified the following documents as being the sum total of the material that he would

have generated in conducting his inquiries:

“There was one report which was probably an update. I eventually got the statement and I attached the statement and sent it in. I then took another statement which is not accounted for now. But I would imagine I would have sent it, I don't see why I wouldn't. Then I took a third statement from Limerick Prison which I have absolutely no recollection of.”

3.2 Transmission of materials to the Chief Superintendent in Portlaoise

3.2.1 The Inquiry was informed that files were ordinarily transmitted by post. Mr. E gave

evidence that on “rare occasions, like [sic] very large files might be delivered by car in

the case of say a murder file where there would be volumes of files”; however, “the

average file was posted from one office to the other.” The Inquiry is satisfied that the

materials at issue under this term of reference were in all likelihood posted to Mr. E;

there is no evidence to the contrary.

3.2.2 In his evidence, Mr. F told the Inquiry that he would “be happy that I would have sent

everything in this case” to Mr. E “because there was so little involvement [sic] in it

really.” He stated that these materials would have gone to the office of the Chief

Superintendent because the exercise was “tasked by the Chief Superintendent.”

3.2.3 With regard to the materials which he compiled in the course of his scoping exercise,

Mr. F stated as follows:

“I wouldn't have held those for any reason. They would - they would be part of the follow up in relation to this matter. I wouldn't have any reason to hold them.”

3.2.4 In his evidence, Mr. E could not recall receiving the report of the 20th February 2006,

compiled by Mr. F, or the attached statement of Mr. A. He told the Inquiry that he did

36

not “know anything about the names of new witnesses,” or of Mr. F having given him

the name of Mr. DD. Subsequently, Mr. E was furnished with copies of these materials

at the Inquiry and accepted that they had been sent to him by Mr. F.

3.2.5 Mr. G gave evidence that he would have retained a copy of the file and the original

statement of Mr. C, and that he would have forwarded the original file and a typed copy

of the statement to Mr. E. Mr. G gave evidence that he “had no doubt” that these

materials were transmitted to the Office of the Chief Superintendent. In this regard,

he explained as follows:

“I have no doubt because we wouldn't have left that hanging in the air… . I was experienced, Mr. AA was very experienced. Anyone reading the report of the chief superintendent could see this is a very serious allegation against a serving member. And there is no way we would have left that hanging in the air or been allowed to have left it hanging in the air by the chief superintendent. There would have been a reminder out pretty quick if we hadn't, if we hadn't returned it. So, I have no doubt but that the job was done and it was returned to the chief superintendent's office.”

3.2.6 The Inquiry notes that a correspondence register within the Divisional Office recorded

receipt of the letter of the 3rd March 2006, whereby Mr. E instructed Mr. G to interview

Mr. C. There is no entry recording a subsequent reply from Mr. G. On balance, however,

the Inquiry accepts the evidence of Mr. G that he would have returned his report and

the statement of Mr. C to Mr. E, and that Mr. E would undoubtedly have followed up

on this matter had no response been received.

3.2.7 In his evidence, Mr. E stated that he did not recall receiving a report or copy statement

from Mr. G. He said that he could not recall “the intricacies of whether there was a file

there”, and emphasised that these events had occurred over a decade previously when

he would have been dealing with a lot of files. Mr. E told the Inquiry that he had since

retired and no longer retained any of his files.

3.3 Storage of materials sent to the Chief Superintendent in Portlaoise

3.3.1 Mr. F told the Inquiry that he would not have retained copies of reports or statements

sent to Mr. E in the course of his scoping exercise.

3.3.2 Mr. F stated that these materials were sent by him to the Office of the Chief

Superintendent, which was the divisional office. He told the Inquiry that he would not

have had access to the files kept there. He stated that there was always somebody

present in the divisional office, and that if somebody were to enter the office, the staff

would “[v]ery quickly ask what your business was or can I help you or whatever [sic].”

37

Mr. F did not accept that the filing system in place was casual; he stated that offices

were secure, although he could not say for certain that every filing cabinet was locked.

3.3.3 Mr. G gave evidence that he compiled a file in respect of his enquiries and that he would

have retained a copy of the file and the original statement of Mr. C. He would have kept

these materials “in my own office, in my own desk.” He stated that upon his retirement

in 2012, he would have “boxed up all those, all my files, everything, copies of warrants,

copies of information” in three lever arch boxes for storage in the District Office

storeroom.

3.3.4 Mr. G described the storeroom at Portlaoise as a “make shift room with a bathroom”

that was “just a made up local remedy really.” He gave evidence that Portlaoise “was

a very busy station” housed in “a very old building”, and that there “was a problem with

storage.” Similarly, Mr. E told the Inquiry that “Portlaoise station, to this day, is still

antiquated.”

3.3.5 Mr. E was unable to assist the Inquiry as to how the materials sent to him in 2006 were

stored as he had no recollection of receiving these and did not retain any files after his

retirement.

3.4 Subsequent loss of materials sent to the Chief Superintendent

3.4.1 When asked who would have had authority to destroy materials kept at Portlaoise

Garda station, Mr. F indicated that he was not aware of any protocols with regard to

destruction; he assumed, however, that such protocols existed.

3.4.2 Mr. G gave evidence that there was no policy regarding the destruction of files at

Portlaoise. He stated that this was a matter of “practicality” and that there was a

practice amongst the district clerks whereby, in making room for new files, the oldest

files might be disposed of. Mr. G stated, however, that “you definitely never get rid of

anything that you thought might ever need further investigation or might be called on

by anybody or was an important file.” He told the Inquiry that most of the files that he

saw being removed from the stores for destruction “were routine maybe traffic

accidents, criminal damage [sic] because you know they built up in their thousands over

the years.”

3.4.3 Mr. E gave similar evidence that files were “stored according to the limitations you had”

and that “there was a stage coming in after six or seven years you had to make room

for more important files”, at which point “some of the older files would probably have

been disposed of.” Mr. E told the Inquiry that he had, however, never disposed of, or

given a direction to dispose of, a file during the course of his 40-year career.

38

3.4.4 The Inquiry notes that An Garda Síochána is a scheduled body for the purposes of the

National Archives Act 19869 and was therefore obliged, in 2005, and since, to retain

and preserve departmental records, which include, among other things, files, books

and papers, made or received and held in the course of the business of An Garda

Síochána.10 In accordance with the Act, the disposal of departmental records must not

be authorised unless it is certified by a certifying officer within An Garda Síochána that

the documents are not required in connection with the administration of An Garda

Síochána and do not warrant preservation by the National Archives.11

3.4.5 The Inquiry has not been furnished with any internal policy or procedure, applicable in

2005 and 2006, which prescribed the period for which files were to be retained.

3.4.6 The Inquiry has been furnished with a copy of Garda Headquarters Directive No. 11 of

2009, titled “Management of Departmental Records in An Garda Síochána”, which was

published on the 21st January 2009. This Directive was in force at the time of the

retirement of Mr. G in 2012.

3.4.7 The 2009 Directive provides that in order “to ensure a co-ordinated approach to the

management of non-essential departmental records held at offices throughout the

organisation a period of 7 years is set as the time limit after which certain documents

may be destroyed.” The Directive includes a “Document Disposal List” which sets out

the non-essential records which may be disposed of after seven years. These include

correspondence registers, district office minutes (local), divisional office minutes

(local), and witness accounts. The Directive further states that “[i]n light of operational

experience and current legislative provisions” a number of non-essential records are

subject to a longer period of retention of 10 years.

3.4.8 HQ Directive No. 11 of 2009 instructs that the Commissioner has directed that all Chief

Superintendents be designated as certifying officers for the purposes of the 1986 Act.

It states that:

“Certifying officers will have responsibility for overseeing the implementation of The National Archives Act 1986 and Regulations 1988 regarding their respective division/section/department, including certifying records deemed suitable for destruction or retention under the provisions of section 7 of the Act.”

3.4.9 The Directive states that “although listed as a Scheduled Body An Garda Síochána is not

legally required to transfer departmental records to the National Archives” and that it

9 Section 1(2) of the Schedule to the 1986 Act. 10 Section 2(2) of the 1986 Act. 11 Section 7(4) of the 1986 Act.

39

is “therefore imperative that proper record management procedures are put in place to

ensure the disposal of non-essential departmental records in line with current policy.”

It is emphasised that “[t]here will be no routine disposal of documents, regardless of

category without an objective assessment first being made of the need to retain each

such document.”

3.4.10 With regard to his file concerning the statement made by Mr. C, Mr. G informed the

Inquiry that he was “shocked to hear” that these materials were missing and that he

“cannot believe that the paperwork is not there.” He emphasised that “it wasn’t too

long ago, it is only back in 2006” that these materials were created.

3.4.11 Mr. G expressly queried whether a full physical search had in fact been conducted for

these materials. He observed as follows:

“I would like to know there was a full physical search done for those files because a copy of this file should be with my papers and another copy should be in the chief's office. It is hard to see how, you know, I still have a feeling it might be in one of those outlying areas where, you know, it wouldn't be marked under anything specific it could be hidden. It would need a physical, it may have been done, I am not saying it hasn't but it would need people to carry out a physical search of a number of areas to ensure that. Because, you know, I just can't see the two of them, especially the one in the chief's office, it wouldn't be just destroyed like that.”

3.4.12 Mr. E could not assist the Inquiry as to the current whereabouts of the materials sent

to him in 2006 as he had no recollection of receiving these, and had not retained any

files after his retirement.

3.5 Conclusions

3.5.1 The Inquiry accepts that Mr. F and Mr. G both sent reports and statements to Mr. E and

that these were mostly likely transmitted by post to the Office of the Chief

Superintendent.

3.5.2 The Inquiry finds it surprising that, in view of their more recent origin, some of these

documents have not been located, and notes the question posed by Mr. G, the author

of one of the missing reports, as to whether a full physical search has been carried out

in all locations.

3.5.3 The Inquiry is satisfied that a number of important and relevant documents were

retrieved and produced, including reports, official journals, extracts from

40

correspondence registers and, in particular, the signed statement of Mr. A. In those

circumstances, the Inquiry considers it likely that the respective missing reports of Mr.

F and Mr. G, and the statements taken from Mr. Z, Mr. W, and Mr. C, reside in some

space in one of the stations. It is unlikely that these materials were disposed of on a

routine basis due to their recent origin.

3.5.4 The Inquiry is satisfied that there is no evidence to suggest the deliberate destruction

or concealment of any materials falling within this term of reference. The existence of

Mr. A’s written and signed allegation, together with related reports, lead the Inquiry to

the conclusion that there is nothing untoward in the absence of the materials which

are missing.

41

PART FOUR

4 The third term of reference

42

“the adequacy of actions taken by the Garda Síochána to investigate allegations

that were made in connection with the death of Mr. James Clancy between 2005

and 2006 in particular.”

4.1 Emergence of allegations made in connection with the death of Mr. James Clancy

4.1.1 It would appear that, in or around the year 2000, rumours surfaced that a member of

An Garda Síochána had been directly or indirectly responsible for the death of a

pedestrian. It was alleged that a Garda had either been the driver of the truck that killed

the pedestrian or that he had been responsible for covering up the incident. These

rumours continued unabated and, in 2005, an allegation was made to Mr. B, the

Superintendent in Tullamore.

4.1.2 The Inquiry was informed by Mr. B that, on the 18th July 2005, a meeting took place in

his office by appointment with Mr. A and his son, Mr. Z. Mr. B stated that, during this

meeting, he was informed by family A that Mr. C had told them that Mr. D was

responsible for the death of Mr. Clancy 15 years earlier. The allegation made was that

Mr. C had assisted Mr. D by having the vehicle involved in the collision destroyed and

that, as a result of this favour, Mr. C was able to evade justice. By way of example, family

A alleged that Mr. C kept unlicensed firearms in his house and that he drove whilst

disqualified and uninsured.

4.1.3 Mr. B stated that this meeting was followed by a further meeting with a Ms. BB, who

was at the time in a relationship with Mr. X, another son of Mr. A. In his report dated

the 21st July 2005, Mr. B noted that Ms. BB stated that it was “common gossip in Clara”

that Mr. D was responsible for the death of Mr. Clancy.

4.1.4 It was the evidence of numerous Garda witnesses that, at the time of these allegations,

the A and C families were embroiled in a bitter feud. Mr. O offered the following insight

into relations between the families:

“There were allegations of threats of fire. … [I]t was part of our patrol duty that we would visit the areas of both of their homes as [sic] the threats that had been made to one another. They were not happy with one another. They seemed to take nearly pleasure out of really annoying or getting under one another’s skin and they knew how to do it.”

4.1.5 Mr. R also told the Inquiry of a “constant friction” between family A and family C which

started with a “falling out” between Mr. A and Mr. C, but “went down to the next

generation of lads” so that there were “six or eight people involved in it.” Mr. R

described the sons of Mr. C and Mr. A “running each other off the road” in a “kind of a

tit for tat.”

43

4.2 Initial steps taken on foot of the allegations

4.2.1 Mr. B gave evidence that he phoned Mr. E on the afternoon of the 18th July 2005 and

informed him of his meeting with family A and of the allegations made by them in

respect of Mr. D. This call is noted in the official journal of Mr. E, dated the 18th July

2015.

4.2.2 Mr. B stated that he prepared a report that afternoon, addressed to Mr. R. A copy of

this report, which is dated the 21st July 2005 and addressed to “D/Sergeant I/C,

Tullamore”, has been made available to the Inquiry.

4.2.3 The report outlined the allegations made by family A and requested that Mr. R: (i) liaise

with Mr. B without delay so that a search may be conducted for firearms at the home

of Mr. C; (ii) liaise with family A to give them the opportunity to make a statement; and

(iii) retrieve the original investigation file into the death of Mr. Clancy. Mr. B noted

therein that “[t]hese allegations are serious and warrant an appropriately professional

response” and instructed Mr. R to “report by 26/7/05 with interim report.”

4.2.4 In his evidence to the Inquiry, Mr. B stated that he was in effect asking Mr. R to

“investigate the death of Joe’s father and the firearms and all of the allegations.”

4.2.5 Mr. R told the Inquiry that he could not recall receiving the report of Mr. B dated the

21st July 2005. He queried whether this report was ever sent to him as the document

made available to the Inquiry is not signed and is marked as a copy. Mr. R gave evidence

that he recalls being instructed to investigate the firearms issue. The witness stated

that he did not hear about the allegations regarding Mr. D and the death of Mr. Clancy

until later and that he was never involved in investigating those allegations.

4.2.6 Mr. R carried out a search of the premises of Mr. C on foot of a warrant issued by Mr.

B. Mr. R gave evidence that Mr. C made a phone call to Mr. D during the search. Two

firearms were recovered for which Mr. C was subsequently prosecuted and convicted.

4.2.7 It was the evidence of Mr. B that Mr. E subsequently took over the investigation of the

allegation against Mr. D and that Mr. F and Mr. G were appointed to investigate the

matter. Mr. B told the Inquiry that while he would have liked to have investigated the

allegation, it would not have been good practice for him to investigate a member within

his own district. In this regard, Mr. B stated as follows:

“It had to be a chief superintendent, you know, in such serious matters. The chief superintendent had to appoint somebody to, well not discipline but to investigate it first and if it was appropriate then to initiate disciplinary proceedings. It's only fair I

44

suppose too because in the eyes of the public looking in it wouldn't be right that I'd be investigating much and all as you'd like to but no.”

4.2.8 Mr. B said that he had no involvement in the subsequent investigation; once he knew

that people had been appointed to investigate the matter, it no longer fell within his

remit. Mr. B stated that while he had initially requested Mr. R to retrieve the Clancy

investigation file, he did not obtain a copy thereafter and did not follow up on the

matter once the investigation had been removed from him.

4.2.9 Mr. E stated that he took the allegations made regarding the death of Mr. Clancy very

seriously. He informed the Inquiry that he had not previously been aware of the fatal

accident and that he looked for the original investigation file but could not locate it

either in Tullamore or in the District Office in Portlaoise. While he expected to retrieve

the file he was not surprised that it was not there given its age and the absence of an

archiving system. Mr. E gave evidence that he ascertained the name of the investigating

Garda, Mr. L, and that he spoke to Mr. L by phone and obtained an outline of his

investigation of the accident.

4.2.10 Mr. E said that he met with Mr. Joe Clancy, the son of the deceased, sometime in 2006

and that he “was concerned and rightly so, that his father’s investigation wasn’t

properly carried out”. Mr. E said that he explained to Mr. Clancy that, because he could

not obtain the investigation file, he could not help him in this regard.

4.3 Scoping exercise conducted by Mr. F

4.3.1 Mr. E told the Inquiry that he “would have made some kind of a scoping exercise” upon

being informed of the allegations, and that he would have directed Mr. F “to maybe get

a scope and find out was there any truth in the matter in relation to the allegations that

were made.”

4.3.2 In his evidence, Mr. F emphasised that he “was never asked to investigate or

reinvestigate or look into anything surrounding the traffic accident.” He stated that he

did not speak with Mr. L at any stage, nor did he look for the original investigation file

into the death of Mr. Clancy. In this regard, he stated as follows:

“… the file and the finding of the file or the losing of it, I wasn't concerning myself with that. I was there to find out what information family A had which was new and could be of relevance. That was my only function in relation to them… .”

4.3.3 Mr. F described his task as “more a scoping exercise to find out what knowledge or what

information Mr. A had in relation to the complaint he was making about Mr. D and

45

about Mr. Clancy’s death.” Mr. F told the Inquiry that he was requested to meet Mr. A

and that his “function was to report back.”

4.3.4 In the event that there was “new evidence or evidence that needed to be looked into”,

Mr. F was of the view that Mr. E “would appoint somebody to do the investigation” and

that this would be a “bigger investigation than just an inspector taking it on himself” as

an allegation against a member of An Garda Síochána would necessitate that somebody

“of a higher rank… would take it on.”

4.3.5 On foot of the direction given, Mr. F stated that he initially met with Mr. B and Mr. R at

Tullamore Garda station on the 14th November 2005, and that he was given a copy of

the file prepared for the Director of Public Prosecutions setting out the information

provided by Mr. A in respect of Mr. C’s possession of firearms.

4.3.6 Mr. F gave evidence that he arranged a meeting with Mr. A and noted from an entry

made in his official journal that this meeting took place on the 29th November 2005 at

the Bridge House in Tullamore. Mr. F informed the Inquiry that Mr. A’s sons and a Mr.

CC were also in attendance. He recounted that while he sought to discuss the allegation

with family A, they only wished to discuss other grievances that they had with Mr. D

and that Mr. CC called a halt to the meeting when Mr. F explained that he was there

“purely to scope and find out what information they had in relation to Mr. Clancy’s

death.” Mr. F gave evidence that he arranged to give the family A time to think about

the matter and that he informed them that he would contact them again.

4.3.7 In a later report by Mr. F, which has been furnished to the Inquiry, there is reference to

a report that he submitted to the Chief Superintendent on the 1st December 2005.

There is no available copy of this report and Mr. F does not recall what it contained. He

surmised that this report would have updated Mr. E on his progress, including with

regard to meetings or attempts to meet relevant people.

4.3.8 Mr. F gave evidence that he received a call from Mr. Joe Clancy on the 5th December

2005, and that Mr. Clancy expressed his disappointment that Mr. F was investigating

the fatal accident and had not contacted him. He sought to reassure Mr. Clancy that he

was not investigating the accident but only information received from Mr. A, and he

arranged to meet with Mr. Joe Clancy the following day. At this meeting, Mr. Clancy

furnished Mr. F with the names of two potential witnesses to the accident. These

events are reflected in an official journal entry made by Mr. F, dated the 6th December

2005, and were confirmed by Mr. Joe Clancy in his evidence.

4.3.9 Mr. F made a number of attempts during December 2005 and in January 2006 to

arrange a further meeting with Mr. A. He ultimately met with and took a statement

46

from Mr. A on the 9th February 2006. The Inquiry has been furnished with a copy of this

statement, in which Mr. A stated that Mr. C had said to him in 2000: “Mr. D killed a man

in Tullamore with a lorry and I got rid of the lorry for him, I chopped it up”.

4.3.10 Mr. F told the Inquiry that he sent a report to Mr. E on the 20th February 2006. The

Inquiry has been furnished with a copy of this report, which provides an account of the

initial meeting between Mr. F and family A on the 29th November 2005; the meeting

between Mr. F and Mr. Joe Clancy; and the statement taken from Mr. A, which was

attached. In his report, Mr. F furnished the name of Mr. DD, who witnessed the body

of Mr. Clancy being carried by the truck. This witness had been recently located by Mr.

Joe Clancy and had never been interviewed.

4.3.11 Mr. F gave evidence that he met with Mr. D a number of times in 2006 but that this was

mostly in relation to a separate matter. In an official journal entry dated the 14th June

2006, Mr. F referred to having “interviewed” Mr. D in relation to the allegations made

regarding the death of Mr. Clancy, but that he “did not take statement [sic] at this

stage.” In his oral evidence, Mr. F doubted whether he was correct to use the term

“interview” to describe this meeting. In this regard, he stated as follows: “Look, I know

I said I interviewed him but I had a conversation with him in relation to the complaint”.

Mr. F clarified that he certainly did not caution Mr. D as his purpose was merely to

report back to Mr. E.

4.3.12 A journal entry dated the 1st August 2006 refers to the taking of a statement by Mr. F

from a Mr. W in Limerick Prison, in relation to a complaint made by Mr. X, a son of Mr.

A. The entry reflects that Mr. F was on this occasion accompanied by a Mr. Y. Mr. F told

the Inquiry that he has “absolutely no recollection” of taking that statement and that

he could not remember who Mr. W was. A copy of this statement has not been

retrieved.

4.3.13 A journal entry dated the 18th August 2006 refers to Mr. F taking a statement from Mr.

Z, another son of Mr. A. As addressed under the second of term of reference herein,

the Inquiry has not been furnished with a copy of this statement, and has been

informed that it is not on file. Mr. F indicated in his evidence that he assumed that he

forwarded this statement to Mr. E.

4.4 Actions taken by Mr. G 4.4.1 Mr. G told the Inquiry that, by letter dated the 3rd March 2006, he was tasked by Mr. E

with interviewing Mr. C.

4.4.2 The letter outlines the nature of the allegation made by family A in respect of the death

of Mr. Clancy; an account of the original investigation obtained from Mr. L; and the

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animosity between family A and family C. In his letter, Mr. E informed Mr. G that Mr. D

was aware of the allegation which had been made. Mr. E directed Mr. G as follows:

“As a first step before this allegation can be acted upon we need to speak to Mr. C. This alleged statement is either true or false. If true you should revert to me so that I can appoint a team to fully investigate the allegation. If it is untrue then this matter can be put to bed.”

4.4.3 Mr. G was further directed to “arrange to see Mr. C” within the next week, to “[q]uery

his contacts with Mr. A and if he made the comment attributed to him” and to “[h]ave

a statement taken from him either way.”

4.4.4 In his evidence to the Inquiry, Mr. E stated that he asked Mr. G to take a statement

from Mr. C because “Mr. A had no evidence, all he had was hearsay”, whereas “Mr. C

was the man supposed to have the evidence.”

4.4.5 Mr. G informed the Inquiry that he went to Clara, with Mr. AA, a Detective Sergeant, to

meet with Mr. C. Mr. G recalled that he may have gone to Clara twice and believed that

a statement may have been taken from Mr. C on the second occasion. Mr. G stated that

this would have occurred within weeks of the direction given by Mr. E. The Inquiry has

been furnished with a copy of an extract from the official journal of Mr. G, dated the

4th April 2006, which records the taking of the statement as having occurred on this

date.

4.4.6 There is no copy of a statement taken from Mr. C. It was the evidence of Mr. G that he

believed that Mr. C denied having made the comments attributed to him and that he

may have referenced having been in England at the time of the fatal accident, and

possibly having been in prison there. Mr. G gave the following evidence as to the

content of this statement:

“If when we were interviewing Mr. C, myself and Mr. AA, [sic] that he would have admitted to us that yes, he did say this and yes he did do this back in 1987 [sic] because then the alarm bells would have been ringing. We would put him under caution because he would be admitting to a criminal offence and we would be straight into the chief superintendent the following morning and say look, this is the set up here, this is - we need to get this investigated. And the chief would have been appointing it, as he said in his report, if I came back in the affirmative that Mr. C was confirming that this is what he said and what he done, then there would have been an investigation team set up. That is maybe what is leading me to believe that is what was [sic] in the statement. If he did make a statement even.

I am sorry I can't be more conclusive. I believe he did, that is my gut instinct that he did and that he denied it and that there was a mention of him being in England at the time. And that he was even, I have a funny feeling that there was even prison in

48

England mentioned in all this. That it was checkable in some way. I am not a hundred percent [sic] I have that now - in my mind.”

4.4.7 Mr. G stated that either he or Mr. AA would have taken the statement of Mr. C down

in writing and that both would have witnessed it. He told the Inquiry that he would

have returned to his office in Portlaoise after taking the statement and that he would

have given it to a clerk to type up. He would have prepared a report for the Chief

Superintendent outlining what was done and attached the statement and whatever

recommendations he had. Mr. G stated that he would have kept a copy of the file for

himself and the original statement, and that he would have forwarded the original

report and a typed copy of the statement to Mr. E. As addressed under the second term

of reference, the Inquiry has not been furnished with a copy of this statement or the

report, as they cannot be located.

4.4.8 Mr. G acknowledged in his evidence that Mr. C may have made contact with him from

Portlaoise prison on a number of subsequent occasions. Mr. G told the Inquiry that it

was his belief that these contacts related to separate matters.

4.5 Lack of further action

4.5.1 Following receipt of the reports from Mr. F and Mr. G, Mr. E did not direct any further

investigation into the allegations made in respect of the death of Mr. Clancy. Mr. E

stated to the Inquiry that he could not see any further avenue of inquiry and that, in

his view, the steps which had been taken, as outlined above, were adequate. He stated

that these steps enabled him to assess whether there were grounds to start an

investigation:

“There was a proper investigation in so far as I can recollect that I got no evidence, I was - I was very anxious to get to see could I start to get grounds [sic] which to start an investigation.”

4.5.2 Mr. E described the statement of Mr. A as having no evidential value because “[t]here

is nothing there other than hearsay.” He stated repeatedly in his evidence that he never

received “one scintilla of evidence” to support the allegations which had been made,

and that he encountered only “innuendo”. Mr. E asserted that he “couldn’t act on

innuendo” and that although he put all of this innuendo to Mr. D, who, Mr. E stated,

consistently denied it, he was “very careful” not to put a formal allegation to Mr. D. In

this regard, Mr. E stated as follows:

“I would never put those allegations to him until they were… [sic] I was always waiting for the opportunity to see could they have been substantiated. I wasn't going to run out and start talking or get someone to start talking to Mr. D, we had to build up a case against him. … you have to go through proper procedure. And that is what

49

I was looking at. I was looking down the road if I had to start an investigation, was [sic] proper procedures going to be carried out. He was entitled to natural justice. He was entitled to his good name, he was entitled to defend himself.”

4.5.3 In his evidence, Mr. E maintained that the allegations made by family A were “ludicrous”

and that “they change their story from A to B, they don’t stand up.” It was his view that:

“the allegation as far as I was concerned, appeared to be a witch hunt. That a sergeant was involved in the accident when there was never a vehicle found, the one vehicle that was likely to be involved in the accident, [sic] could have been involved in the accident was stopped and it was examined.”

4.5.4 Mr. E referred in his evidence to “grudges” held by certain members of the community

against Mr. D, and a “vendetta out there ably led” in the broader context of a feud

between family A and family C. Mr. E stated that “the people who were coming forward

had no credibility” and that they “[c]ould not be trusted by any manner or means, any

of those parties, family A, Mr. C, Mr. CC … .”

4.5.5 Mr. E acknowledged in his evidence that he had no knowledge of the information

provided by family A regarding firearms found at the house of Mr. C. Nor was Mr. E

aware of the fact that Mr. C had phoned Mr. D during the course of the search of his

premises.

4.5.6 As to why Mr. E did not seek to have Mr. DD interviewed as a potential new witness to

the fatal accident, Mr. E did not recollect that the name of Mr. DD had been furnished

to him by Mr. F in his report of the 20th February 2006.

4.5.7 Mr. E told the Inquiry that had he received any evidence to substantiate the allegations

made in respect of the death of Mr. Clancy, he would have started a “major

investigation” and that, because the allegations were “of a most serious nature,” he

would have suspended Mr. D while this was ongoing. Mr. E stated that “[i]t was my job

to take a case against him if I had a case again him. But I hadn't a case against him.”

4.6 Conclusions

4.6.1 The Inquiry is satisfied that Mr. E took very seriously the allegation that Mr. D was

involved in the death of Mr. Clancy. It was evident that his primary concern on hearing

of the allegation was to move quickly and find out the full facts relating to the

allegation. This is evidenced, in the first place, by his efforts to inform himself about

the death of Mr. Clancy which had occurred 18 years earlier and of which he had no

knowledge; secondly, by the appointment of two senior members to ascertain if the

50

allegations verbally reported to him could be verified and substantiated; and, thirdly,

by his meeting with Mr. Joe Clancy, the son of the deceased.

4.6.2 Mr. E initially looked for the investigation file and, when this could not be found, he

contacted the investigating Garda, Mr. L, and received a full account of the accident

from him. He immediately thereafter appointed an Inspector from his district to carry

out a scoping exercise which entailed interviewing Mr. A to confirm both the nature of

the allegations being made and whether other relevant information or evidence could

be elicited.

4.6.3 The Inquiry is satisfied that Mr. F carried out Mr. E’s instructions in a diligent and

efficient manner. Mr. F arranged a meeting with Mr. A shortly after being tasked with

conducting a scoping exercise. After this initial meeting, when Mr. A would not give a

formal statement, Mr. F made continual efforts to arrange a further meeting with a

view to obtaining a statement, which he succeeded in doing, and had the statement

signed by Mr. A and forwarded to Mr. E on the 20th February 2006.

4.6.4 Mr. G, a Superintendent, was instructed promptly thereafter, on the 3rd March 2006,

to obtain a statement from Mr. C either verifying or denying the allegation of Mr. A.

The tenor of the letter of instruction from Mr. E again demonstrates that this matter

was afforded due urgency. Mr. G was directed to make arrangements that week to

meet with Mr. C and, in the event that Mr. C admitted the allegations made, Mr. E

stated that he would “appoint a team to fully investigate the allegation.”

4.6.5 The Inquiry is satisfied that Mr. G carried out his role with reasonable diligence and

found Mr. G to be a truthful and helpful witness, although he did not have a full

recollection of certain matters due to the passage of time. The Inquiry accepts the

evidence of Mr. G that, in all likelihood, he met with Mr. C and procured a statement

on or about the 4th April 2006, within weeks of his instruction by Mr. E. The Inquiry also

accepts his evidence that this statement, in all probability, amounted to a denial of the

allegations made.

4.6.6 The Inquiry noted the belief of Mr. E that he could not formally put the hearsay

allegation to Mr. D, which had not been substantiated by Mr. C, as he was mindful of

the need for fair procedures and natural justice. He said that he put the innuendo to

Mr. D who vehemently denied it. In circumstances where Mr. C and Mr. D, the two

parties alleged to have first-hand knowledge of the events complained of, both denied

the allegation, the only evidence that Mr. E had was an unsubstantiated hearsay

allegation from a person he considered to be somewhat unreliable.

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4.6.7 The Inquiry is of the view that it was reasonable for Mr. E to bring his experience to

bear in assessing the credibility of the person making the allegation, particularly against

a background of ongoing bitter feuding, allegations and counter allegations and, in

particular, the fact that this allegation was brought to the attention of An Garda

Síochána five years after the remark in issue was allegedly made by Mr. C, and where it

related to an accident that took place 18 years previously.

4.6.8 The Inquiry accepts the fact that some of Mr. A’s allegations of wrongdoing by Mr. C

were substantiated; however, it does not accept that this lent greater credibility to the

allegation relating to Mr. Clancy’s death or indeed that it was sufficient to support a

case for further investigation in light of Mr. C’s denial.

4.6.9 In assessing whether sufficient steps were taken to find support for the allegation, the

Inquiry considers that two aspects of the preliminary enquiries might usefully have

been pursued:

Mr. DD, one of the two people whose names had been provided by Mr. Clancy

as having witnessed the accident, should have been interviewed. While it

transpired during the hearings before the Inquiry that Mr. DD did not have

information which supported the allegation made by family A, this was not

known in 2006. At that point in time, it would have been prudent to ascertain

whether Mr. DD had such information.

Second, it was unclear to the Inquiry that steps were taken to ascertain whether

Mr. C was in the jurisdiction at the time of the fatal accident. In his evidence,

Mr. G recalled that Mr. C may have claimed to have been living in England at

the time of Mr. Clancy’s death, and that he may even have been serving a

sentence of imprisonment there. If this state of affairs had been verified, it

would have ended any speculation as to the veracity of the allegation made by

family A and would undoubtedly have been of some consolation to the Clancy

family.

4.6.10 On balance, however, the Inquiry has come to the view that the actions taken by the

Gardaí to investigate the allegation were reasonable and, in all the circumstances,

adequate. The Inquiry accepts that Mr. E conducted what he considered to be a

thorough examination of the circumstances in determining whether he had sufficient

grounds to commence a full investigation, and that he took his decision after due

consideration and in good faith. The Inquiry is satisfied that Mr. E was best placed to

evaluate the quality of the evidence available on foot of these enquiries, and that his

52

rationale for not proceeding with the investigation is persuasive in circumstances

where he was left with an unsubstantiated hearsay allegation.

4.6.11 Of concern to the Inquiry is the low level of engagement with the Clancy family since

the death of their father in 1987. The family have been left, for the past 30 years, with

unanswered questions about the circumstances of their father’s death. They have had

to endure years of allegations and speculation which is, and has been, upsetting and

distressing for them. There has been an unacceptable lack of communication by An

Garda Síochána both with regard to the status and progress of the initial investigation

into the fatal accident, and the subsequent investigation of the allegations made in

2005. This is a totally unacceptable situation for a caring and loving family, and the

Inquiry would urge that An Garda Síochána appoint an appropriate liaison person to

meet with the family and to assist them in bringing closure to their father’s death. The

Inquiry is sincerely grateful to Mr. Clancy for his attendance throughout the hearings

and sympathises with the family on their very sad loss.

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Appendix

GARDA SÍOCHÁNA ACT 2005 (SECTION 42) (SPECIAL INQUIRY RELATING TO

THE GARDA SÍOCHÁNA) ORDER 2017

S.I. No. 196 of 2017

Notice of the making of this Statutory Instrument was published in “Iris Oifigiúil” of 19th May,

2017.

WHEREAS I, FRANCES FITZGERALD, Minister for Justice and Equality, consider the

matter specified in Article 2 of the following Order to be of public concern;

AND WHEREAS I have, in accordance with subsections (1) and (3A) of section 42 (amended

by section 35 of the Garda Síochána (Policing Authority and Miscellaneous Provisions) Act

2015 (No. 49 of 2015)) of the Garda Síochána Act 2005 (No. 20 of 2005), consulted with the

Policing Authority in relation to that matter;

AND WHEREAS I am of the opinion that the person specified in the said Article 2 has

appropriate experience, qualifications, training and expertise for the purposes of the said

section 42 to conduct an inquiry into the said matter of public concern:

NOW, I, FRANCES FITZGERALD, Minister for Justice and Equality, in exercise of the

powers conferred on me by section 42 (amended by section 35 of the Garda Síochána (Policing

Authority and Miscellaneous Provisions) Act 2015 (No. 49 of 2015)) of the Garda Síochána

Act 2005 (No. 20 of 2005) (adapted by the Justice and Law Reform (Alteration of Name of

Department and Title of Minister) Order 2011 ( S.I. No. 138 of 2011 )), and having consulted

the Policing Authority, hereby order as follows:

1. (1) This Order may be cited as the Garda Síochána Act 2005 (Section 42) (Special Inquiry

relating to the Garda Síochána) Order 2017.

(2) This Order shall come into operation on 15 May 2017.

2. Judge Mary Collins, retired judge of the District Court, is hereby appointed to—

(a) inquire into a matter of public concern, namely—

(i) the storage and retention of investigation files relating to the death of Mr. James

Clancy in a road traffic accident on 1 December 1987, and

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(ii) the Garda Síochána investigation into the allegations made in 2005,

and

(c) make a report to the Minister on the conclusion of the inquiry.

3. The terms of reference of the inquiry are specified in the Schedule.

SCHEDULE

Terms of Reference

The objective of the inquiry should be to inquire into—

(a) the storage, retention and any subsequent destruction of files, reports, minutes,

correspondence or data in Tullamore Garda Station between the years 1987 and 2005 relating

to the death of Mr. James Clancy on the 1st December 1987

(b) the transmission, storage and any subsequent loss of files, reports, minutes, correspondence

or data relating to allegations in connection with the death of Mr. James Clancy understood to

have been sent to the Chief Superintendent in Portlaoise in or around 2006;

(c) the adequacy of actions taken by the Garda Síochána to investigate allegations that were

made in connection with the death of Mr. James Clancy between 2005 and 2006 in particular.

GIVEN under my Official Seal,

15 May 2017.

FRANCES FITZGERALD,

Minister for Justice and Equality.