The official Prison Service line is that whistleblowers are welcomed, but the reality on the ground is very different, says Special Correspondent Michael Clifford.
The Irish Prison Service (IPS) is adamant about where it stands on whistleblowers. Up-to-date procedures are in place.
There are supports aplenty for anybody who comes forward with concerns about wrongdoing or malpractice. The prison service stands firm in welcoming internal criticism as it might contribute to improving the service.
So goes the official line. This was articulated at a meeting of the Public Accounts Committee (PAC) on January 17. Before the committee were the newish secretary general of the Department of Justice, Aidan O’Driscoll, and the new director general of the IPS, Caron McCaffrey.
The appearance before the committee of the top officials came two months after a whistleblower in the prison service gave evidence to the committee behind closed doors.
Noel McGree’s odyssey since he first made complaints is detailed elsewhere on these pages, but his evidence to the PAC is understood to have been forthright and open.
On January 17, Ms McCaffrey delivered an opening statement that began with the IPS’ policy on protected disclosures, the tool used by whistleblowers to raise concerns.
“I would like to inform the committee that a review of the protected disclosures policy for the Irish Prison Service has taken place and a revised policy was introduced in July 2018,” she said.
“The review was carried out to ensure that procedures regarding protected disclosures are up to date, in line with best practice, and to take into account any lessons learned from protected disclosures received to date. An assessment undertaken with Transparency International Ireland informed the review.
“Arising from the review, a number of new measures have been put in place in relation to the protected disclosure process. They include independent professional advice for staff in relation to the process and enhanced independent external assessment of disclosures, including all notifications of penalisation.
“Employees making disclosures are now also provided with periodic and confidential feedback regarding assessment, investigation or review.”
All of which sounds top notch. Except the lived experience begs to differ.
It is now widely acknowledged that the law on protected disclosures is potentially a valued weapon in highlighting wrongdoing and corruption.
This reality is amplified when it comes to organisations that are removed from outside scrutiny. The IPS is one such organisation.
The only instrument of scrutiny of the IPS is the Inspector of Prisons, an office that is understaffed and operating within a restricted remit.
There is no ombudsman for prisons, and neither is there any oversight body such as exists for An Garda Síochána.
As such, the flow of information from the inside, via whistleblowers, takes on a heightened significance.
Yet a number of cases examined by the Irish Examiner suggest that the attitude towards such whistleblowers — known as disclosers under the Protected Disclosures Act — leaves much to be desired.
One theme that runs through contacts with employees of the IPS at every level is that the driving ethic is to keep a lid on controversies or anything that might reflect badly on the IPS. This is denied by management in the service.
Since the introduction of the Protected Disclosure Act in 2014, there have been 25 disclosures in the prison service, alleged wrongdoing of one sort or another.
Of these, according to the Department of Justice, 11 were deemed not to constitute disclosures under the act. Once a complaint is categorised as a disclosure, it attracts protections for the discloser and an obligation to conduct a proper investigation.
One protected disclosure that was deemed not to meet the standard was that of Noel McGree. He successfully appealed the decision.
It is not known whether other disclosers appealed decisions on their complaints, nor on what basis decisions are made.
The only encouraging note on the matter of decisions is that in the most recent figure, for 2018, only two of 11 disclosures were deemed not to meet the criteria for a protected disclosure.
The range of complaints is another issue. Over the last two years the Irish Examiner has reported on disclosures such as that from prison officer Gerard Butler, who claims with documentary evidence, that an assault on a prison officer was allegedly covered up for reasons of expediency.
Noel McGree’s complaints also include an incident where an assault was not fully investigated because of a failure to interview him, a central witness.
Elsewhere, assistant chief officer David McDonald has alleged that deaths in custody are not handled properly. Another disclosure of which the Irish Examiner is aware, contains allegations of a cabal within the prison service which, without any evidence, alleged to gardaí that other officers were bringing contraband into prisons.
Earlier this month, the Irish Examiner reported on a disclosure that three managers were transferred inappropriately after over a dozen officers left a block with the most dangerous criminals in the State unattended.
The discloser alleges that the managers were transferred instead of the officers who walked off the job in order to appease the Irish Prison Officers’ Association.
The Irish Examiner has also followed the case of an alleged sexual harassment within the service of which the gardaí were not informed. That incident led to an out-of-court settlement with public funds.
Disclosures are only allegations unless and until an investigation confirms they are based on facts. There is a case to be made that investigations into protected disclosure in the prison service may be less than rigorous.
Last year, as noted by Ms McCaffrey at the PAC, there has been a shift towards hiring external legal firms to investigate disclosures. The sexual harassment/settlement case featured here followed this route.
The outcome of that has been kept within a tight circle. It took a year to complete and the only public utterance on it was that “undertakings” have been given to follow policy in future.
Ms McCaffrey was appointed as director general of the IPS in December. She has been working in the IPS since 2006. She succeeded Michael Donnellan, who announced in October last that he was stepping down two years into his second five-year term in office.
Whether change at the top will prompt any change in the culture of responding to internal criticism remains to be seen.
On September 20, 2017, four Government departments received a copy of a protected disclosure alleging serious malpractice in the Irish Prison Service (IPS).
The protected disclosure, which was anonymous, made a series of allegations. These included:
The protected disclosure detailed how the manager and the woman had previously been involved in a relationship, a fact that led the woman to believe that management “did not treat her sensitively and failed to treat her allegations seriously”.
The disclosure raised issues around whether the gardaí should have been contacted, how management in the IPS had treated a female employee with a harassment complaint, and whether the public money used to settle the claim was properly spent.
Nothing was done about the protected disclosure for over two months. In early December 2017, this newspaper ran a story about it.
A query was put to the Department of Justice as to whether any outside agency had been appointed to investigate the matter. No answer was forthcoming, but a reply stated: “Action is being taken in relation to this correspondence in line with the proper procedures.”
Last week, a statement by the department said a private law firm “was appointed in December 2017”. The firm in question was McCann Fitzgerald, one of the so-called ‘big five’ legal firms in Dublin.
Thereafter, a relatively straightforward matter took nearly a year to investigate and report on.
This was not rocket science. All of the records about the matter, including sworn affidavits, were readily available. Around half a dozen people might have been required to be interviewed.
A source has confirmed to this newspaper that representatives of the legal firm visited Portlaoise Garda Station early last year in connection with the investigation. A statement from the Department of Justice last week confirmed that co- operation was forthcoming from anybody who was asked for it.
The department also revealed the cost of the investigation, €74,773. The going rate for the major legal firms involved in state work is somewhere north of €300 per hour and often as high as €500.
At the lower rate, the bill for this investigation would come in at somewhere around 250 hours. There was no explanation from the department as to why the investigation took so long.
Last November, in response to a query from this newspaper, the Department of Justice stated that the investigation was complete but the report on the investigation had not yet been completed.
The statement last week said the report was received on November 27. This was five days after the Irish Examiner query.
No statement was issued by the department, the Irish Prison Service, or the minister, following receipt of the report into a serious matter, that took nearly a year to investigate.
The first indication that it had even been received came in the course of a Public Accounts Committee (PAC) meeting on January 17.
The secretary general of the department, Aidan O’Driscoll, was responding to a question from Independent TD Catherine Connolly.
“There was one anonymous protected disclosure on sexual harassment,” he said. Again a private law firm was engaged to examine the case. That report was received in November and shared with the Prison Service. As a result, certain undertakings have been given to the department about procedures in the prison service, especially under the new dignity at work policy.”
This, thrown out in the course of a long session at the PAC, was the only indication that the case was effectively closed. Following that contribution, the Irish Examiner submitted a number of questions about the case to the department. The response came in the form of a statement.
Nowhere in the response is there any suggestion that the allegations within the protected disclosure were unfounded. Yet the response does not address what in the first instance was an alleged criminal act.
It makes no mention of any “wrongdoing”, which is the basis for making a protected disclosure under the Protected Disclosure Act.
The response also states that, “as there are no negative findings relevant to the work of any other organisations, sharing the report is not necessary and would risk undermining the confidentiality at the heart of the protected disclosures process”.
That passage is inexplicable. If an alleged criminal act occurred, surely that impinges on the work of the gardaí. If the alleged perpetrator of the harassment has been re-employed by that state surely that impacts on the agency employing him.
And the statement that “confidentiality at the heart of the protected disclosure policy” is laughable. The confidentiality is for the discloser, who in this case is anonymous. Sharing the outcome of the protected disclosure has no impact on the discloser’s anonymity.
Some observers are convinced that rooting out wrongdoing and instilling accountability are lesser priorities in areas like justice than keeping controversy at bay.
The manner in which the department has handled this matter would do little to dispel any such notions.
On November 22, 2018, the Irish Examiner published a front page story about serious claims of malpractice being made in an affidavit by a serving prison officer.
Among the claims are:
He also claimed that the handling of investigations into deaths in custody was seriously flawed.
In this regard, he claims to have conducted a number of meetings with the late Judge Michael Reilly, formerly the Inspector of Prisons, to discuss his concerns.
On the day the Examiner story was published, Minister for Justice Charlie Flanagan issued a statement saying he was aware of the claims and was asking the Inspector of Prisons to conduct an “urgent” preliminary investigation.
He did not state when he became aware of the claims or why an investigation was only being initiated when the information came into the public domain.
He appointed the Inspector to investigate under the 2007 Prison Act.
The following morning, the prison officer who made the claims contacted the office of the Inspector of Prisons.
Assistant chief officer David McDonald, a veteran officer of nearly 30 years, is, along with a number of colleagues, now in dispute with the Irish Prison Service.
He told the office of the Inspector that he was available for interview. They said they would get back to him.
The inspector is Patricia Gilheaney, a public servant with a background in the area of mental health.
Her appointment to this task is curious.
Under the act which the Minister appointed her, she does not have the power to investigate the claims.
She has the power to order the production of documents held in the state’s prisons and to interview serving prison officers.
Mr McDonald’s claims centre on the employment of a private firm.
Any payment to such a firm would not be recorded in a prison, but most likely in the IPS headquarters in Longford, a domain beyond the inspector’s powers.
She does not have the power to order the production of documents or to demand an interview from any element of An Garda Síochána.
Mr McDonald claims the gardaí were aware of the illegal surveillance as they received intelligence from it.
Ms Gilheaney does not have the power to interview anyone who has left the prison service since the matters alleged of — some of the allegations date from 2015.
As such, any investigation she conducts will, through no fault of her own, be less than rigorous.
If the Minister had asked, for instance, a senior counsel to conduct this preliminary investigation, awkward questions might have arisen.
Lawyers are understandably wedded to the law. Any self-respecting SC would have told the minister that the power required to investigate the actual allegations was woefully lacking.
A public servant does not have that luxury.
Despite the “urgency” of the investigation, the inspector did not make direct contact with Mr McDonald until January 23, two months after Mr Flanagan ordered it.
Prior to that contact, Ms Gilheaney did contact Mr McDonald’s solicitor, rather than approach the man himself.
The solicitor replied to her by pointing out that she did not have the power to investigate the claims.
The investigation is due to be completed by the end of this month.
Why the minister ordered the Inspector of Prisons to head an inquiry, the nature of which is way beyond the scope of routine duties for the inspector, remains a mystery.
Why the minister told her to do so without assigning the proper power to carry out the procedure is baffling.
In September 2013, Noel McGree began raising concerns about the use of resources at Midlands Prison. By then, he had been a prison officer for more than 20 years.
His concerns centred on resources in the catering area of the prison and the use of untrained personnel.
His complaints did not go anywhere. He approached the secretary general of the Department of Justice who passed on the complaints to the department’s internal audit unit in March 2016.
By then, Mr McGree believed that he was being targeted within the system because he had raised concerns. In February 2015, he had reason to believe that he might be the subject of a security threat. This kind of issue arises for many prison officers periodically.
The threat was assessed by gardaí, who concluded that whatever threat there had been was now negligible. The result was conveyed to prison management in April 2015.
Yet, for some reason, Mr McGree was not informed that the threat had passed. He would not be officially informed for another 14 months, and only then because he chased the issue.
Believing that the threat still existed during those 14 months took a toll on his family.
The failure to inform Mr McGree of the lifting of the threat would in time be regarded by the Workplace Relations Commission (WRC) as a form of reprisal against the prison officer. Last year, the WRC awarded Mr McGree €30,000 over the incident in the first ruling of its kind related to the Protected Disclosure Act.
The WRC ruled that the “failure of management to inform the complainant, despite his very clear, cogent descriptions of the effects of the matter on his family, constituted unfair treatment” under the act.
That was not all. In February 2015, he witnessed an assault on a colleague by an inmate in the prison. Yet he was never interviewed about the incident.
The DPP would conclude that the incident did not merit a prosecution, which greatly aggrieved the victim of the assault, who was baffled as to why Mr McGree had not been interviewed as a witness.
Later, in assessing Mr McGree’s complaints, Judge William Early touched on this incident.
“The discloser was the officer in charge of the area where the incident occurred and participated in the restraint of the violent prisoners,” he said.
However, the judge was not impressed.
“The incident of March 2015 suggests a serious criminal offence was committed… it is quite extraordinary that a primary witness to a serious assault was not interviewed.”
Meanwhile, Mr McGree’s complaints were considered by the department’s internal unit which concluded that they didn’t constitute a protected disclosure. Among other things, this would deprive the discloser of protections under the Protected Disclosures Act.
Mr McGree appealed and retired district court judge William Early upheld his appeal in February 2017. He found that the Internal audit unit report into Mr McGree’s complaints was “inadequate” and that its conclusions were “not in conformity with the preponderance of the evidence.”
Following the judge’s ruling, the department and the IPS both offered apologies to Mr McGree.
Yet, a few months later, the IPS refused to recognise the complaint as a PD at a WRC hearing. Eventually, the IPS conceded the point. As noted above, Mr McGree’s complaint was upheld at the commission resulting in the €30,000 award.
Currently, McCann Fitzgerald is examining further complaints of whistleblower reprisal made by Mr McGree since 2017. That process began early last year and is yet to conclude.
Late last year, Mr McGree appeared in private session before the Public Accounts Committee to relate his experiences of how his complaints, and he himself, were dealt with by the IPS and the department.
Following that appearance, the secretary general of the department and the director of the IPS appeared before the committee on 17 January last, although they refused to answer any direct questions about Mr McGree because of the ongoing investigation.
What leaps from the narrative of Mr McGree’s experience over the last five years is the amount of time, money and energy that has been spent fighting him.
He made complaints in good faith, but has been subjected to treatment which two outside agencies have determined was driven by this status as a whistleblower.
In a properly functioning organisation his complaints would have been welcomed, acted upon, and his status as a conscientious employee enhanced.
Instead, it would appear that he rendered himself a persona non grata by his actions, and suffered the consequences of breaking from the herd.
Marc McSharry lobbed a grenade into the Public Accounts Committee (PAC) meeting hearing about prison spending.
What was the story with the mess committees, he wanted to know. It is yet another example of issues within the prison system.
The mess committees organise feeding staff in nine of the State’s prisons. They buy the food, take in the cash, and cover the costs of providing decent canteen facilities for staff who work in a difficult environment.
Prior to 2012, this was done by a private company which declined to renew its contract that year.
At the PAC, TDs Catherine Murphy and Catherine Connolly enquired about governance of the mess committees, but Mr McSharry went further. He put together an estimate of costs and revenue for the committees.
“My research suggests that the mess committees typically buy meat and vegetables,” he said. “Ms McCaffrey said earlier that they pay for all their own food.
“My research indicates that a very substantial amount of the resourcing is subsidised from central prison stock. That routinely includes bread, milk, cheese, chips, cooking oil, gravy powder, curry powder, salt, tinfoil, pepper, and so on.”
Ms McCaffrey responded that, if that was so, it “would be a matter of grave concern to me”.
Mr McSharry went on to project spending and costs figures, which he calculated to garner a profit of €1,715, 500 for a calendar year.
“We need to bear in mind that my information is that all these other things are routinely drawn from central prison stores,” he said. “We know they do not pay anything for heat or light.
“Ms McCaffrey can correct me if I am wrong in this. My research indicates the mess committees have no memoranda of articles of association. They have no rules. They are not registered charities. They are not limited companies.
“The Comptroller and Auditor General, the top accountant in the State, is present. He can tell me if I am off the wall in my very crude calculation.
"They may have at their disposal in the region of €1,715,500 in profit, subsidised by taxpayers’ payment of resources for the Irish Prison Service’s stores, staff costs, heat, and light. Nobody audits that money. Nobody knows where it goes and nobody knows what it is used for.”
The chair of the PAC, Sean Fleming, pointed out that the figures were speculative, but auditing of the mess committees may be worth pursuing.
The Comptroller and Auditor General, Seamus McCarthy, said the model used in examining finances at the Garda training college in Templemore was a good example of how something like the mess committees should be audited.
“I have been through the Templemore inquiry and this matter puts Templemore into the ha’penny place,” Mr McSharry said, referencing the scandal of mismanagement of finances in Templemore exposed last year.
Speaking to the Irish Examiner, Mr McSharry said his research came from a number of sources, that he was continuing to gather information, and he would be pursuing the matter at the PAC.
His comments and analysis of the figures didn’t go down well with some elements of the Prison Officers’ Association (POA).
Assistant secretary general of the POA, Gabriel Keaveny, told Ocean FM that the deputy’s comments could “jeopardise, seriously damage, or dilute [canteen] service or prompt the prison service to close [canteens] down.”
Mr Keaveny said the deputy also raised issues with heat and light in relation to the mess committees.
“Does he expect us to live in a dark cave?” Mr Keaveny said.
The deputy denied that he wanted to deprive any prison officer of a hot meal and pointed out that prison officers were approaching him with information.
If the PAC does decide to audit the mess committees, the results will be fascinating to observe, irrespective of the outcome.