Dec 4, 2014
Revenue Commissioners: Chairman Josephine Feehily called and examined
Deputy John Deasy: I welcome the witnesses. The authorised officer in this case would have been a source of information for Revenue and would have assisted Revenue's investigations as a matter of course. If Revenue, as an organisation, settled with somebody, would he have known that?
Ms Josephine Feehily: No, apart from the 58 cases which we have published. We have no way of advising him of same and I referenced that fact in one of my earlier answers.
Deputy John Deasy: This is a critical issue because to a great extent, we are talking in the dark here. He would not have known because Revenue would not have divulged such information to the authorised officer at any point because, as Ms Feehily has said several times, Revenue does not divulge personal information relating to the tax affairs of any citizen. If Revenue had pursued an individual, even someone who was identified in the reports of the authorised officer, and had settled with that individual, the authorised officer would not know about that, even today, would he?
Ms Josephine Feehily: No, he would not have known unless it came into the public domain through our defaulters' list. He would have known that we were making progress with the class because we regularly published updates but not at case level.
Deputy John Deasy: So, the individual who has pursuing this issue for many years has no information with regard to how Revenue has pursued prosecutions or made settlements. If Revenue made settlements with individuals, some of whom are named in the dossier, he would not have that information.
Ms Josephine Feehily: That is correct. He would not know what we did in individual cases.
Deputy John Deasy: So we really are talking in the dark here.
Not to beat around the bush, the accusation has been made that the Revenue Commissioners and other organisations did not complete investigations into particular Ansbacher accounts appropriately or properly. Accusations have been made of political interference. As Deputy Ross said, the main accusation relates to things Revenue did not do. Were there things that Revenue could not do, under legislation?
I refer in particular to the ten-year rule mentioned by Deputy Ross which was introduced in the 1997 Taxes Consolidation Act. Did Revenue have an opinion on that? Ms Feehily said that Revenue was given special powers in 1999 which really assisted it to prosecute. When it came to the ten-year rule, did Revenue have reservations? That rule obviously prevented Revenue from pursuing some cases.
The Revenue Commissioners are the administrators of the tax code. They are not the policy makers but it is fair to say that they have views and opinions on legislation that affects the tax code and they give those views and opinions to the Department of Finance regularly. It is expected that the board of the Revenue Commissioners would have an opinion on legislation, both formally and informally. Was a view presented by Revenue to the Department of Finance on the ten-year rule?
Ms Josephine Feehily: First, I am not entirely sure, without checking, in what year that provision was introduced because the Taxes Consolidation Act was a consolidation of the tax code. Deputy Ross said it was introduced in 1992 and he is probably the best source on that, subject to checking. I would have to check the papers around the drafting of that section to see what view was expressed. That said, my strong understanding on the basis of recent explorations of this issue, is that in the common law, even if we did not have that section in place, a prosecution for an offence committed more than ten years ago in this regulatory space, as opposed to other forms of jurisprudence, would be likely to fail the justice delayed - justice denied test.
Our role in a prosecution is to prepare cases and bring them to the Director of Public Prosecutions, DPP. Certainly, engagement with the DPP would confirm the view that such a time period is an impediment, regardless of the section that is in place. I can say that based on my own discussions in Revenue in recent years because I have explored it. I would have to research and get my officials to check the papers from the year that the section was drafted to see what view Revenue may have expressed then. I was not even in the Revenue Commissioners at that time.
Deputy John Deasy: Ms Feehily made reference to the fact that when a criminal investigation would not pan out, her office turns to civil action. Does the ten-year rule apply in those circumstances too?
Ms Josephine Feehily: Yes, in fact in civil actions, the common law view would be that the time period is even shorter. We have a four-year rule, generally speaking, vis-à-vis our authority to go backwards and that is considered relatively long.
Deputy John Deasy: I ask this because for the public looking in, this is the main issue. The public want to know why Revenue cannot go back 20 or 30 years in the course of an investigation. It would be helpful if Ms Feehily spelled out why that is the case. Is it because Revenue cannot get its hands on the original documentation, some of which may date back to the 1970s? Is it because of common law and the ten-year rule under the Taxes Consolidation Act that Revenue is prevented from doing so? It would be useful if Ms Feehily spelled out the various reasons Revenue cannot pursue an investigation after a certain period of time.
Ms Josephine Feehily: When one has two huge reasons, one tends not to go looking for three, four or five more. One needs original documents and evidence first.
One needs to be able to prove a connection between these documents, the person involved and tax evasion done knowingly, willingly or negligently. There needs to be a criminal standard of proof which is beyond reasonable doubt in respect of connections of this nature. This must all be done within ten years. We are talking here about events which took place in the 1970s and 1980s. That is a real difficulty. That was codified, so to speak, in law in the form of the ten-year rule.
Those are the reasons. They are common reasons which are not confined to Revenue, they apply across processes relating to the legal system and in terms of natural justice and fairness. In general law they have been commented on several times by judges in the context of fairness, the due process to which people are entitled, in the context of how far back regulatory bodies are permitted to go and so on. If it would be helpful, I can send a note to the committee in which I will set out all of the background considerations. However, it will come down to the issues to which I refer, namely, evidence beyond reasonable doubt, original documents and the ten-year rule.
Deputy John Deasy: I return to the reason we are here, that is, the accusation that Revenue did not investigate this matter properly. I would like Ms Feehily to provide information on the special projects team that was appointed to investigate the Ansbacher accounts, the number of people who were involved and the expertise they possessed.
Ms Josephine Feehily: The team was led by a very senior and experienced principal inspector of taxes who had previously carried out many investigations. He had available to him 20 staff, including half a dozen experienced investigators and research and clerical support staff. We invested in computer technology - the file magic system - we never had before and this proved to be an incredible asset to the team in sifting through all of the documentation. As the 2000s progressed and as I mentioned to Deputy Ross, other investigations were taking place. The investigation into bogus non-resident accounts ran in parallel in 2001.
We were also dealing with matters relating to High Court orders, offshore assets and tribunals. During those years, Revenue received sanction for 300 additional staff. We increased the number of people dealing with this group of cases from 20 to 30. The number of people on the team reached 30 in 2001. We maintained that number of people working on these cases until 2005. The ratio of people to cases was extraordinarily high by Revenue or any other standards. By the time the case base reached 289, there were 30 officers involved.
There was also a structure in place for the first couple of years of the process whereby very regular meetings were held. These were led by very experienced assistant secretaries who were all qualified inspectors of taxes in their own right and one of whom was a qualified barrister. There were also regular meetings with the then chairman, at which direction, strategy and decisions were continually questioned. The matter was taken extremely seriously.
Deputy John Deasy: Ms Feehily referred to the ten-year rule being a serious impediment. Were there other impediments? The legislation underpinning the 1993 tax amnesty was introduced. Did the then board of Revenue or any senior officials give an official opinion to the Department of Finance with regard to this amnesty? Some people, including a number of academics, remain of the opinion that the tax amnesty in question was unnecessary. There were massive differences between the 1988 amnesty, which was operated on the basis that all outstanding taxes be recouped, and the 1993 amnesty, which was known as the "15% incentive amnesty".
There is a theory - I have heard it outlined on a number of occasions - that as the investigations into the Ansbacher accounts proceeded in the period 2003 to 2005, plenty of people in senior positions in Revenue had major misgivings with regard to the way in which the legislation relating to the 1993 amnesty was drafted. Some Ansbacher account holders availed of the 1993 tax amnesty and when they were pursued, they had the certificates they had obtained as a result of that and these made them immune from prosecution.
This is a really important point. Some 20 Ansbacher account holders availed of the tax amnesty and there is a suggestion that the legislation under which that amnesty was established was politically motivated. I accept that Ms Feehily cannot comment on that matter to a certain extent. However, I am going to ask her about the kinds of reservations which continued to be expressed in Revenue while the investigations to which I refer were ongoing.
Ms Josephine Feehily: To be clear and as the Deputy stated, I must be careful not to comment on the policy area. I joined Revenue at the end of 1993 as the closing date for the amnesty approached. It was common currency among senior officials in Revenue that we were not exactly excited about this matter.
Deputy John Deasy: It is fair to say Revenue does not like amnesties at all.
Ms Josephine Feehily: Exactly.
Deputy John Deasy: It particularly did not like the one to which I refer.
Ms Josephine Feehily: No, we particularly did not like it and that is well known. Without reviewing the relevant files, I cannot inform the Deputy as to whether that was ever written down in a letter. However, it is well known - information in this regard has been placed in the public domain in the past - that the then board of the Revenue Commissioners was not in favour of it. I recall there being some criticism of the then board because the amnesty yielded a lot of money.
The board had stated that it was not necessary and should not be done because there would not be very much money forthcoming. I remember that aspect of a conversation taking place after the yield emerged. Revenue was not in favour of amnesties in general and would not have liked this one at all. The committee will be aware that in the past there have been various voluntary disclosure schemes, which are incentivised.
However, the Revenue position would always be that we should get the tax. That is just a general position of revenue organisations across the globe. We do not like to walk away from tax. I do not think I am commenting on policy when I say that the general position of Revenue and similar organisations elsewhere is that we do not favour amnesties which let people off paying tax. The amnesty was a huge impediment.
Deputy John Deasy: Specifically, what were the impediments involved?
Ms Josephine Feehily: The amnesty was designed to create a brick-solid Chinese wall between everybody and the office of the chief special collector, which was specially established. The chief special collector and his staff handled all of the amnesty declarations. On foot of those declarations - they were not allowed to examine them and they had no access to the tax files of the declarants - they issued the declarants with certificates. In law, those certificates were sufficient evidence to the rest of Revenue to the effect that, at any time in the future, we could not look behind them.
A special unit was established. Those present from the Office of the Comptroller and Auditor General will recall that Revenue had to suspend its internal audit function because of the difficulty of finding officials who had never seen tax files. An assurance had to be given that such officials would never see such files in the future and this meant that their careers had to be managed. I recall this because I worked in human resources, HR, at the time. We were obliged to suspend the internal audit function in order to find people who we could state were in compliance with the law because they had never been involved - as tax inspectors within the Collector General's office or anywhere else - in cases in the past. There was a logistical dimension involved which I do remember. An impervious wall - behind which the amnesty declarations are to this day - was put in place.
To this day we have a chief special collector and if a taxpayer produces an amnesty certificate to an inspector in the context of any investigation, the inspector, once he or she has it, can verify by asking the chief special collector whether the certificate is authentic and that is all that can be done.
Deputy John Deasy: Let us stick with the 20 Ansbacher account holders who availed of the tax amnesty in 1993. While Revenue was investigating this in 2003, 2004 and 2005, the Chairman had been there for ten years. For example, Revenue was not able to trace the source of moneys, which I understand to have been a major bugbear within the Chairman's organisation.
Ms Josephine Feehily: Yes.
Deputy John Deasy: At that time, when Revenue had made its considerations regarding its difficulties with the legislation that had been drafted and had been availed of by 20 particular Ansbacher account holders, did Revenue make its displeasure known to the Department of Finance?
Ms Josephine Feehily: Yes.
Deputy John Deasy: How did Revenue do that?
Ms Josephine Feehily: We wrote to it.
Deputy John Deasy: What was the response?
Ms Josephine Feehily: We wrote in the context of looking for additional powers and we got most of what we looked for. However, as for the response with regard to the amnesty legislation, it was not revisited.
Deputy John Deasy: Was the reason given for that? Revenue obviously spelled out serious concerns with regard to particular individuals because it was precluded from pursuing them.
Ms Josephine Feehily: We spelled out concerns with regard to the process and the difficulties it created for us. I have not been able to find a reply to the letter but I know that the other powers in the letter were secured. This one was not.
Deputy John Deasy: Which one?
Ms Josephine Feehily: Revisiting the amnesty legislation.
Deputy John Deasy: Did the Chairman state there was no reply?
Ms Josephine Feehily: I have not been able to find it in the time allowed.
Deputy John Deasy: Can the Chairman remember what the Department of Finance said to Revenue?
Ms Josephine Feehily: No. I certainly cannot remember but the fact it did not happen I guess is the answer.
Deputy John Deasy: It is an important question. The Revenue Commissioners are and at the time were the administrators of the tax code. They had one hand tied behind their backs with regard to particular individuals. Revenue made its opinion clear that it was not appropriate and that the legislation underpinning all of this needed to be changed but that was ignored.
Ms Josephine Feehily: I am reviewing a piece of paper to make sure I am giving the Deputy the complete answer. Our final paragraph stated that when the Department had had an opportunity to peruse the contents of this, it probably would be appropriate to have the views of the Attorney General and that we were available to discuss it with the Department and with that office, if required. This would not be an unusual process for us.
Each year, we write submissions to the Department of Finance and then certain results are achieved. That Department does not usually write back to say it is not doing X. That is not usually the way it works. What it tends to do in a normal year, and I imagine this was no different, is that it feeds into a tax strategy group paper and then the decisions emerge from a process, rather than in an itemised reply. We would not have got a reply in respect of the answers that were positive either. It is not that kind of process. We make our submissions and make known our views, analysis gets done and a finance Bill emerges. Policy decisions get made by the Government and a finance Bill emerges. However, we did try.
Deputy John Deasy: The Chairman outlined the profile of the people who were Ansbacher account holders. Of the 20 people who availed of the tax amnesty and who were Ansbacher account holders, can she tell me what was their profile?
Ms Josephine Feehily: No.
Deputy John Deasy: That is not possible, no?
Ms Josephine Feehily: No.
Deputy John Deasy: Is that a reason-----
Ms Josephine Feehily: I do not know who they are. I cannot know who they are.
Deputy John Deasy: Okay.
Ms Josephine Feehily: They are behind a wall.
Deputy John Deasy: The Chairman knows the profile of the overall group of Ansbacher account holders but she does not know the profile.
Ms Josephine Feehily: What I have said to the Deputy earlier, because I am in danger of getting close to classes and breaking confidentiality, I referenced the profile of the cases that were published as being the most suitable source of information for the committee and the profile there was of very wealthy people, the occupation largely being company directors and the behaviour as being about sheltering wealth. I need to be safe.
Deputy John Deasy: That is fair enough and I totally appreciate that. However, I must clear up something in this regard. The inference is that of those 20 people who availed of that tax amnesty in 1993, there was political pressure or a political motive behind the drafting of the 1993 legislation. My question is whether Revenue ever expressed a concern related to that.
Ms Josephine Feehily: I doubt very much if Revenue in 1992 or 1993 would have expressed a view-----
Deputy John Deasy: I am not talking about 1993. I am talking about ten tears later as Revenue was investigating this matter.
Ms Josephine Feehily: -----about a political motivation. No. I want to narrow it and that is the Deputy's question.
Deputy John Deasy: This is clear. It is important this is said.
Ms Josephine Feehily: Revenue did not express a view nor would ever express a view about the motivation of a policy decision taken by the Government.
Deputy John Deasy: That is fair enough.
Ms Josephine Feehily: A policy decision validly taken by the Government and passed into law by the Oireachtas. Revenue would then simply operate that law. The independence works both ways. While we have our independence we have our - incidentally, in the context of the amnesty, 38,000 people availed of it. The frustration that perhaps caused us to write letters was not related to Ansbacher. The 20 people were not the issue; it was the 38,000 people and it was a bigger issue for us.
Deputy John Deasy: A lot of money was raised but the argument is that a lot more should have been raised because it was only a 15% tax. That is a view expressed by the Chairman's organisation at the time.
Ms Josephine Feehily: Yes.
Deputy John Deasy: That is fair enough.
Mr. Seamus McCarthy: Another observation that is worth making is that 145 people did settle who could have availed of the amnesty at 15% but did not.
Deputy John Deasy: I have a couple of quick questions. I refer to the two reports under discussion today and acknowledge the Chairman does not have them to hand. Can she tell me whether they identified new cases?
Ms Josephine Feehily: No, and perhaps I can explain why. We are talking about the two dossiers that Revenue received from the relevant Ministers in 2008 and 2011. The reason is I am saying they were not new cases but there were new documents. There was supporting evidence and there was validation. However, there had been highly significant engagement with the authorised officer right through the period before that.
Deputy John Deasy: That is important and let me ask the Chairman a different question. Did that new information or those new documents cause Revenue either to bring a case to a conclusion or to reopen a case?
Ms Josephine Feehily: They certainly did not cause us to reopen any cases. They would have been helpful in advancing cases because the Deputy saw the graph and we really were in settlement mode there. However, I must repeat that by then, we had secured substantial documents, definitely more numerically, than those to which the authorised officer ever had access. As we had our own sources and our own documentation, what we were getting largely was validation and supporting documentation and that always is helpful.
Deputy John Deasy: I think that is it but if I may comment, I believe the first question I asked is very important and the response that was given is critical to this entire episode and that is that if Revenue actually have settled, for arguments sake, with individuals who have been named in a particular dossier, the authorised officer would not know about it. The authorised officer would not have any details with regard to the settlement, would not know how it was pursued or whether prosecution was pursued. The authorised officer would not have that information. We are talking in the dark and it is critical that this information be made known.
PAC Meeting | Nov 27, 2014
Chairman (Deputy John McGuinness): I will move to correspondence from Accounting Officers and Ministers ... There is correspondence, dated 26 November, from the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton. It is regarding correspondence received from the committee regarding a protected disclosure dossier. We agreed to write to the Minister last week and we are now scheduled to discuss with representatives of the Revenue Commissioners next week its investigation into the Ansbacher accounts. This is the issue that was raised in the protected disclosure. After this, the committee can review whether any further examination is required on its part. Our first port of call is with the Revenue Commissioners and we can decide from that point what is required next. Is that agreed? Agreed.
Deputy John Deasy: Who is coming in?
Clerk to the Committee: It is the Accounting Officer of the Revenue Commissioners.
Deputy John Deasy: Will there be somebody from the Department of Finance?
Chairman: We can ask.
Clerk to the Committee: We can ask if the Deputy wishes somebody from the Department to attend.
Deputy John Deasy: It might be useful. I do not know who drafted the regulations or legislation followed by the Revenue Commissioners at that time. Was it the Department of Finance?
Chairman: It might be useful to complete the investigation.
Deputy John Deasy: It might be useful to delve into the area of constraints under which the Revenue Commissioners operated.
Clerk to the Committee: One of the constraints would probably be the tax amnesty.
Deputy John Deasy: That is really what I am getting at.
Clerk to the Committee: That is fine. I can ask the Department to send somebody. It is not a problem.
Chairman: We can have somebody here to explain it. After we hear from the Revenue Commissioners, we can decide on our next step...
Nov 27, 2014
Re: Legal opinion on the protection afforded a would-be whistleblower on Revenue matters under the protected disclosures legislation.
Clerk to the Committee: We discussed this issue last week. There are two conflicting opinions, but both are simply opinions. We will not get a definitive answer until the issue is tested in the courts. One of the key concerns last week was the scope of the protection. It was decided a risk analysis, covering both the committee and [a whistleblower], would be carried out before any decision was made on bringing [the whistleblower] before the committee. This was the decision taken last week and it still obtains.
We will hear from Revenue next week and we have the letter from the Minister on the information Mr. Ryan gleaned from the Companies Acts, which has all gone to Revenue. Therefore, Revenue should have all the information. It is for the committee to decide if it wants to or not. In looking at the risks, which is what the committee decided to do last week, we will have to see what the Protected Disclosures Act 2014 protects this individual from. This is especially so in the context of the Companies Acts because they have specific penalties in terms of giving information to anyone other than designated people.
This is my understanding of the situation. I have had just a preliminary discussion with those in the Office of the Parliamentary Legal Adviser. When the Parliamentary Legal Adviser was here, we asked if we could forward the dossier to Revenue. We were told we could not. The Chairman then wrote to the Minister about this. It is information gathered under an investigation under section 19. The Act offers very limited scope on where it can be sent. All of this will have to be thrashed out with our legal people. Whether the Protected Disclosures Act 2014 applies and whether it protects the individual will have to be examined again.
Deputy John Deasy: Sometimes I feel like it is groundhog day in here. We made decisions as a committee last week. It seems that when a decision is made, we come back the following week and question that decision and find ourselves on a completely different course. Some of us raised the point that, regardless of how the legislation is written, there will always be different opinions on different laws. We received one opinion. The senior counsel acting on behalf of the whistleblower gave a completely different take on the legislation. There might be two other completely different takes on both those legal opinions if a person tried hard enough to find them.
We should wait and see what the Revenue Commissioners have to say on this issue before spending taxpayers' money on getting a second opinion. Ultimately, it will come down to the interpretation of the Act. I thought we had made a decision last week; we cannot continue coming back and redrawing decisions that have already been made. My understanding of what happened last week was that the legal advisers were to be here today to reiterate their advice on the specific issue of the whistleblower's attendance and the implications for him personally.
We did it that way because the Comptroller and Auditor General made the point that if we had the whistleblower before the committee it might compound things negatively. For that reason, we wanted clarification from our legal advisers and the parliamentary legal advisers. It is like Groundhog Day here. I am experiencing a bit of déjà vu and I do not know why we are turning back on decisions we made last week.
Chairman: We are not turning back on decisions. We are just trying to clarify the position on this legislation by requesting an opinion from the Attorney General.
Deputy John Deasy: My point is that we are never going to get definitive opinions on a piece of legislation that is entirely up to someone's subjective interpretation.
Chairman: We have to try and get the best advice on this because it is the first case. The person in question has made what appears to be a significant disclosure and his position is now in difficulty. There is no harm in asking the Attorney General if we do not want to ask the legal advisers.
Deputy John Deasy: That is fine, but I do not think our job here is to interpret legislation. Our primary role is to deal with entities such as the Revenue Commissioners and question them on this issue and their investigation of it. We should make decisions after the Revenue Commissioners have been at this committee and let members decide then.
PAC Meeting | Nov 20, 2014
Deputy John Deasy: That is fair enough. May I ask Mr. Ryan about Waterford courthouse?
Mr. Brendan Ryan (CEO, Courts Service): Yes, of course.
Deputy John Deasy: My understanding is that the tender process is to be completed by March 2015.
Mr. Brendan Ryan: We are down to four companies that have bid for the bundle of seven
courthouses. By May 2015 we will be down to a single company and anticipate that contracts will be signed by October 2015 approximately, with site work to begin straight away. As the Deputy is aware, we are getting the site in Waterford and will have six courtrooms. I have the details to hand-----
Deputy John Deasy: Will Mr. Ryan give me an idea of the date of completion?
Mr. Brendan Ryan: Everything will be completed. All seven projects will start at the same time. To let the Deputy know what they are, they include the courthouses in Drogheda, Waterford, Wexford, Cork, Limerick, Letterkenny and Mullingar. We expect work on all of them to be finished by the start of 2017 approximately.
Deputy John Deasy: In 2017.
Mr. Brendan Ryan: Yes, it is in the interests of the public private partnership, PPP, developer to get things finished earlier. It is like the Newlands Cross project, on which work finished three months early. The developers started to be paid three months earlier; consequently, it is in the interests of the people concerned to finish early.
Deputy John Deasy: Mr. Ryan believes the work will be completed at the start of 2017.
Mr. Brendan Ryan: Yes, in the first few months of 2017.
Deputy John Deasy: It has just changed from the start of 2017 to some time in 2017.
Mr. Brendan Ryan: Yes, it depends on the particular project involved; some of them are small enough. For example, in Drogheda it is a greenfield site as such and the courthouse is small and will go up easily. The Deputy will appreciate that in Waterford there is a lot of conservation work involved. Moreover, it is an extension to an existing building in respect of which there are preservation issues; consequently, it will take a little longer to complete.
I was delighted when the courts bundle was included in the stimulus package announced by the Government couple of years ago. We have 12 projects outstanding. While we have carried out numerous building projects, 12 county towns remain and once these seven projects are completed, only five county town venues will remain to be dealt with. They will all be significant and efficient buildings; consequently, I was delighted when they were included in the stimulus package. I am also delighted that the work has proceeded to this extent. We have handed over the procurement process to the National Development Finance Agency which is working on it.
PAC Meeting | November 20, 2014
Brendan Ryan [CEO, Courts Service]; Joyce Duffy [Principal Officer, Courts Policy Division] called and examined.
Deputy John Deasy: I have some brief questions, the first of which has to do with Circuit Court sittings leading to civil Circuit Court sittings. I understand in the past 24 hours nominations have been made for seven vacancies on the Circuit Court.
Mr. Brendan Ryan: Yes.
Deputy John Deasy: If we take my constituency as an example, this month's proposed sitting of the civil Circuit Court was abandoned at the last minute. As far as Waterford generally is concerned, the last civil Circuit Court sitting was in May and the next one will be March. Can Mr. Ryan tell me how many sittings of the civil Circuit Court have been postponed around the country because of the vacancies that have occurred in the past six weeks? I checked with the Garda, and when it comes to criminal Circuit Court sittings, the opinion of one fairly senior garda was that they had not been disrupted, but can Mr. Ryan tell me how many sittings have been disrupted?
Mr. Brendan Ryan: I do not have that information. I know the Waterford position because I got correspondence from one of the legal practitioners in Waterford about it. The Deputy is correct that the eight vacancies in the Circuit Court have had an impact. The president of the court decides on the sittings and who should sit where and the cases.
Deputy John Deasy: I understand that. I am asking about the sittings nationally.
Mr. Brendan Ryan: I will have to get back to the Deputy.
Deputy John Deasy: Mr. Ryan must have some idea. This is what he deals with every day. Were there other sittings-----
Mr. Brendan Ryan: The Deputy can take it that if there are seven vacancies at the moment there could be-----
Deputy John Deasy: There are 40 Circuit Court judges-----
Mr. Brendan Ryan: No. There are 38 Circuit Court judges.
Deputy John Deasy: -----there or thereabouts.
Mr. Brendan Ryan: One of them is on long-term sick leave. We are working off 30 judges at the moment. The president prioritises criminal matters, and after criminal matters it is family law matters.
Deputy John Deasy: I understand all that. I understand the process. Does Mr. Ryan have no idea of the number of sittings that have been postponed because of the vacancies?
Mr. Brendan Ryan: The representations I have got are about Waterford. I have no doubt there have been other cancellations, but I do not have those figures. It depends on the scheduling of cases in any Circuit Court in Ireland. They are scheduled a year in advance. They are scheduled either for criminal court, the civil court or the family court. If most of those scheduled sittings this month were criminal court, the impact on the civil court would be minimal because the judges are still dealing with criminal matters. If the scheduled sittings were for the civil court, as was the case in Waterford, unfortunately, the president has directed that criminal matters have to take priority because, as the Deputy will appreciate, people may be in custody.
Deputy John Deasy: Mr. Ryan cannot answer that question.
Mr. Brendan Ryan: No, unfortunately, but if the Deputy wishes I can come back to him on it.
Deputy John Deasy: No. I believe the issue will be dealt with now that the nominations have been made. I am trying to find out how this occurred procedurally and make the point to the Department that it should not occur again. We are in an unusual situation with the creation of an entirely different court, but at the same time, these things happen on occasion because of retirements, deaths, promotions and elevations of a kind, and always have done. In this particular case, seven vacancies were created as a result of one retirement, one elevation to the Court of Appeal and the elevation to the High Court of five individuals. The Government promoted judges from the High Court to the Court of Appeal and it promoted judges from the Circuit Court to the High Court, but what it did not do was make new appointments to the Circuit Court or the District Court in their places. That occurred in the past 24 hours, but there was a gap.
Mr. Brendan Ryan: There is a gap.
Deputy John Deasy: There is a gap.
Mr. Brendan Ryan: There was a gap, yes. I am not trying to defend the Department of Justice and Equality or the Government, but this was unprecedented. I have worked in the courts since 1981. This was unprecedented.
Deputy John Deasy: That is fine. I know that; I just said that. Even when it comes to civil Circuit Court issues, they are fairly serious.
Mr. Brendan Ryan: Yes.
Deputy John Deasy: When we talk about criminal Circuit Court issues we are talking about very serious crimes.
Mr. Brendan Ryan: Yes.
Deputy John Deasy: When we talk about civil Circuit Court sittings, those are serious issues.
Mr. Brendan Ryan: Yes.
"If seven principals of primary schools were being promoted from the ranks there would not be vacancies for the positions they left because teachers would be in place..."
Deputy John Deasy: If seven principals of primary schools were being promoted from the ranks there would not be vacancies for the positions they left because teachers would be in place. Yet when it comes to this area, it appears to be acceptable. It is a political process. I know it should not be, and it is something this Government probably has fallen down on when it comes to judicial appointments. In our programme for Government we promised that we would look at this, and I believe it is a failing. People such as Mrs. Justice Susan Denham have commented that it is a miracle our Judiciary has maintained its independence so well considering it is so political.
That aside, what we can do at the very least - I understand this is not Mr. Ryan's role - is to have a reasonable transition when something like this occurs to ensure there are no gaps and that sittings are not postponed.
I know Ms Duffy does not set policy, but she deals with it within the Department of Justice and Equality. I can raise this with the Minister, but it is a simple question. The suggestion I am making and that I will make to the Minister - I am raising it with Mr. Ryan now because he is the person dealing with policy in the Department when it comes to the courts - is that when this occurs, the appointments to the Circuit Court and the District Court should happen at the same time. They should happen in tandem or, at the very least, within a specified period. That is a simple suggestion.
Mr. Ryan makes a good case about the Courts Service's efficiency and talked about a 16% reduction in its staff. Some would state it is too efficient, while plenty of communities nationwide would suggest it has stripped down courthouses and so on. The service has done a good job in cutting costs and, at the very least, it is possible to have sittings take place. While one part of the Government system may be working well, another is not and has failed in providing judges to preside over sittings in the Circuit Court.
This is something that could be rectified easily. I do not know whether the witnesses have a comment to make on this. I again acknowledge to Ms Duffy that I am aware departmental officials do not set policy. I do not know whether this issue has been raised in the past, but it appears to be a reasonable suggestion that when something like this occurs - retirements and deaths take place all the time - this could happen in tandem.
Ms Joyce Duffy: I am certainly happy to take back the Deputy's comments to the Minister who probably will make the point that she has moved speedily to appoint judges and assist in the process of appointing them. In the past four to six weeks she has brought a series of memorandums to the Government on appointing ten judges to the Court of Appeal, the subsequent replacements to the High Court and, this week, on appointments to the Circuit Court. As Mr. Ryan stated, this has been unprecedented.
This is the first new court jurisdiction established since 1961. It has been a long time since we went through such a major change to the system. As for the nominations to the Circuit Court announced by the Government yesterday, the process was completed in as speedy a manner as possible. As the Deputy is aware, names are submitted via the Judicial Appointments Advisory Board which conducts its process. The Government then has its part to play in evaluating the names and considering serving judges for the position. However, I appreciate that there has been a consequence, of which the Minister will certainly be made aware.
Deputy John Deasy: I take Ms Duffy's point. The situation was unusual. I received a reply to a parliamentary question on this matter a few days ago and what has happened in the past couple of days is miraculous, considering that the last line of the reply indicated that the Government would be dealing with the matter in the coming weeks.
What role does Mr. Ryan play when something like this occurs? Obviously, the presidents of the different courts have a major role to play in this regard, but as far as rostering is concerned, the issue about court sittings taking place on Monday afternoons or Fridays has come up repeatedly. Is this something in which the Courts Service gets involved in any way, shape or form?
Mr. Brendan Ryan: No, it is entirely a matter for the presidents of the courts. The Deputy will appreciate that we support sittings as they occur.
Deputy John Deasy: It may be an old jurisprudential cliche, but justice delayed is justice denied. Perhaps Ms Duffy might take the suggestion back to the Minister. While I can raise it directly with her, it is reasonable to avoid such delays because, as Mr. Ryan is aware, practitioners could not believe people had not thought about the gaps that there would be as a result of these appointments or elevations.
Ms Joyce Duffy: Absolutely.
PAC Meeting | Thursday, 10 July 2014
An Garda Síochána: Road Traffic
Deputy John Deasy: I welcome the acting Garda Commissioner. My first question relates to notices issued for speeding offences which arrive in the post. In many of the cases that come before the courts, the reason for the summons is that no payment was received for the fine. In many cases, however, people state that they have not received the notice. Would it not be better for everyone involved if notices were sent by registered post, given that people take notice of registered post? This is a common sense measure which would save court time and has been suggested to me by serving gardaí several times in the past year.
Acting Garda Commissioner, Noirín O'Sullivan: This is one of the areas we are very conscious of. We mentioned it earlier when talking about the non-delivery of fixed charge notices. The criminal justice working group has been established to look at the recommendations from the fixed charge processing system inspectorate report, and that is a matter that has been prioritised by the working group in terms of the registered delivery of fixed charge notices. The change would be the introduction of a presumption of delivery via enactment of Part 3 of the 2010 Act. This would help address the issue and enable a speedier service.
John Deasy: Ms O'Sullivan expects that people will receive notices by registered post in the medium term.
Noirín O'Sullivan: Yes, I think so. Mr. O'Sullivan from the Department of Justice and Equality co-chairs the working group, so he could update the Deputy on the position in that regard.
Doncha O'Sullivan: The working group is looking at a provision in the 2010 Road Traffic Act which changes the presumption with regard to delivery. This would mean that if there was a certificate of delivery, the presumption in court would be that a person received it. He or she would then have to be able to provide active, positive evidence that he or she did not get it. The context is that at the moment the Garda must essentially prove that a person received the notice, which is impossible.
John Deasy: The working group is changing the burden of proof.
Doncha O'Sullivan: Yes; essentially, we are changing the burden of proof. The road tax office tells us that very few people contact it to say they did not receive a road tax disc in the post. It uses the same address that is used for serving fixed charge notices. The hope is that the burden will shift. The working group is looking at other reforms aimed at trying to address and improve this matter. The registered post issue can be considered in that context, but it is one of a number of issues that are being looked at.
John Deasy: What is the timeline for making this change?
Doncha O'Sullivan: The main timeline is linked to the introduction of what is known as the third payment option, an issue that will also be helped here. We hope we will be able to agree a plan to roll out the information technology required to implement the third payment option. While we might reach agreement on that this year - I hope it will be soon - there is a long lead time to deliver this IT plan. It would take at least a year to do that.
John Deasy: My next question relates to the number of road deaths, which are the main reason the witnesses are before the committee. The number of road deaths has increased in the past couple of years.
I want to bring the witnesses back a few weeks to when the Secretary General of the Department of the Transport, Tourism and Sport and representatives of the Road Safety Authority appeared before the committee. Perhaps this a question for the assistant Commissioner Mr. Twomey also. I asked a question about analysing causation and the reasons for road deaths. The example I used was the lowering of the maximum allowed blood alcohol level a couple of years ago in legislation. I was surprised that no analysis had been done by an organisation such as the Road Safety Authority when it comes to road fatalities. In the meantime, the committee has contacted the Road Safety Authority a few times. Given the increased number of checkpoints, more random breathalysing, more GoSafe cameras and the lowering of the blood alcohol limit, it seems obvious that one would analyse these measures and link them with road fatalities so that we can know what works and what does not. I am amazed that an organisation such as the Road Safety Authority does not conduct that kind of analysis on an ongoing basis. We pass legislation all the time, but in some cases I do not believe the evidence is behind it completely. I think the witnesses know where I am coming from. I wonder what kind of analysis the Garda Síochána conducts when it comes to an issue as serious as this.
Noirín O'Sullivan: Absolutely. There are a lot of complexities involved in the whole area of serious or fatal injuries in road collisions. If it would be helpful, I will invite Superintendent Con O'Donohue, who deals with the RSA on a regular basis in respect of this matter, to explain some of the issues I am raising.
Con O'Donohue: From 1 January 2014 we improved the data that is provided to the Road Safety Authority. A number of changes to the data that it had requested were rolled out as part of a project on 1 January 2014. This also means the RSA is getting the data in a more timely fashion than previously. Allied to that, on a regular basis, about every three or four years, the Road Safety Authority and its predecessors have come to look at a sample of Garda files. They get down and dirty in terms of the actual investigation files to see what they can elicit from those files in terms of the causation factors. Recently I met the RSA's research manager. There is a proposal to start another research project within the next couple of months. Our files are open at all times to the Road Safety Authority to come in and analyse them. It will be going to tender, as the RSA does not have the resources to carry out this significant job, which is exactly what the Deputy is saying - getting down and dirty into the files to see exactly what were the causation factors for particular accidents, whether it was a combination of sleep deprivation and alcohol or drugs, speed, or the condition of vehicles. Currently, the RSA gets data from our PULSE system; essentially, the PULSE system records that a collision occurred and gives the headline issues. It always has that.
John Deasy: Let me break it down somewhat. Let us say there were 200 fatalities - I think the number was 190 in 2013. How many of those fatalities related to excessive blood alcohol? Is that information tracked by the organisation? It is fairly basic. I appreciate Mr. O'Donohue's response and what is being done. Of those 190 fatalities, how many of those were related to alcohol?
Con O'Donohue: Off-hand, I cannot tell the Deputy about the alcohol-----
John Deasy: Do you track that?
Con O'Donohue: It is recorded. In regard to seatbelts, I am aware that in 20% of the fatalities people were not wearing seatbelts.
Deputy John Deasy: Does Mr. O'Donohue know where I am coming from with this? This is basic stuff. I have been around here for 12 years, and I always think that some people legislate blindly because they do not have a clue. If the Garda Síochána and the Road Safety Authority do not know, how do legislators know what legislation to pass if it is not evidence-based in terms of what works and what does not work?
Con O'Donohue: I understand.
John Deasy: There is a big gap here.
Con O'Donohue: We certainly-----
John Deasy: It is clear from the number of road deaths ten years ago compared to the number today that there has been a massive drop, so some things definitely work and improvements have been made across the board. I still do not get why more analysis is not done when it comes to causation.
Noirín O'Sullivan: In terms of blood alcohol count, as I said at the outset, sometimes it can be difficult, particularly if people have been fatally injured in road collisions or require medical intervention very early on. That is a priority. Research is done by the Medical Research Bureau, also which has responsibility for analysing the blood alcohol content of samples. As Mr. O'Donohue has said, we see that speed is cause of many fatal road collisions and serious injury collisions; also, non-wearing of seat belts and the use of mobile phones. Coming into the autumn period, there is a lack of awareness by pedestrians in terms of dark clothing and stepping off footpaths. Sometimes cyclists wear earphones and iPods. There are many causation effects other than blood alcohol content, but that is being monitored.
John Deasy: I thank the acting Garda Commissioner for her response. Maybe I could ask Superintendent O'Donohue another obvious question. The number of road deaths increased from 162 in 2012 to 190 in 2013. What is the reason for the increase, given that we have made all these improvements? We are here to discuss the GoSafe system. More checkpoints have been put in place, as mentioned by the Road Safety Authority. What is the reason road deaths have increased by almost 30 in the year?
Con O'Donohue: There are a variety of contributing factors to most collisions, as alluded to by the acting Garda Commissioner. Some of them are very unusual. The Deputy mentioned that legislation was passed. The reduced blood alcohol limits, mandatory alcohol testing, the safety camera project and all the various initiatives taken in recent years have reduced the very high level of road deaths that obtained ten years ago.
John Deasy: I accept that.
Con O'Donohue: We are now at a stage at which the number of fatalities will bottom out. The best countries in the world, unfortunately, still have road fatalities. At some point the number will bottom out.
John Deasy: Fair enough.
Con O'Donohue: There will always be a blip. Sometimes they cannot be explained in terms of an overall trend. We were surprised that in 20% of the fatalities last year people were not wearing seatbelts. That is one that jumped off the page, with everyone asking, in this day and age, why 20% of people were not wearing seatbelts. Speed is still a factor. With the change in the economy, as things start to improve we are getting more vehicles on the road. I spoke to Road Safety Authority about that issue and asked if it is an issue we need to research. Would fuel sales indicate that we are getting more vehicles on the road and more mileage travelled? As a consequence, there is likely to be an increase in the number of deaths and serious injuries. The Road Safety Authority, which has a research function, has not come back to us on that yet, but it will. Certainly, we are working with the Road Safety Authority and the National Roads Authority on the engineering issues. All the time we are sharing and trying to get information. As to 2013, whether it was a blip or whether the number of fatalities is beginning to level out, we still have to keep striving the reduce the number. We are aware of the tragedy for families with one fatality, so we will never be satisfied. At the same time, we all know we will never reach zero, although that should be the ultimate aim.
John Deasy: I thank the superintendent.
The last set of crime figures showed that homicides had risen by 22.5%. The acting Garda Commissioner made a comment at the time in which she said the increase was not attributable to organised crime. Can she explain? To what does she attribute the increase?
Noirín O'Sullivan: Unfortunately, no more than for road deaths, any death is a death too many, no matter how it is caused. The increase in the homicides is not attributable to organised crime.
It is certainly attributable to a greater propensity to violence and "familial" interactions - I do not like using the term "domestic" - as opposed to other types of interactions such as organised crime. There is something to be done here in regard to responsible behaviour and awareness.
While the homicide rate is up this year, there is a detection rate of 67%, which I see as positive. I do not like to talk of homicide in these terms, because even one death is a death too many. We want to prevent deaths rather than detect them.
John Deasy: The acting Commissioner is basically making the case that society is becoming more violent.
Noirín O'Sullivan: Certainly there is more of a rush to violence not just in terms of deaths, but in terms of serious injury and people acting without thinking.
PAC Meeting | June 19, 2014
Department of Transport, Tourism and Sport
Mr. Tom O'Mahony (Secretary General) and Ms Moyagh Murdock, right (CEO, Road Safety Authority) called and examined.
Deputy John Deasy: I have an issue which is not directly related to the discussion but it is pertinent to the Department. A couple of years ago legislation was passed to reduce blood alcohol limits for drivers from 80 mg to 50 mg. Has any analysis been carried out on the effectiveness of that measure? Has anyone in the Department looked at causation or levels of effectiveness in the reduction of blood alcohol limits from 80 mg to 50 mg?
Tom O'Mahony: The RSA carries out the research but it might be a bit soon.
Moyagh Murdock: Is the Deputy is referring to the effectiveness of the ability to drive with a lower alcohol level?
John Deasy: No, I am talking about prevention of death.
Moyagh Murdock: I will need to revert to the Deputy with more specific analysis. Over the past 12 months, mobile checkpoints and detections for breath tests have shown a significant reduction in the level of detections with the new levels in operation. Lowering the levels has raised awareness and there are fewer people taking chances. The figures over the past 12 months have demonstrated a 3% reduction in the number of detections, even though the number of mobile checkpoints has increased.
John Deasy: The number of checkpoints has increased.
Moyagh Murdock: Yes, by 9%.
John Deasy: There has been a 3% reduction. It is not possible to say because the RSA has not done an analysis.
Moyagh Murdock: There has not been any major analysis but I can give the Deputy some of the top line figures for the number of detections and the number of checkpoints-----
John Deasy: No, that is okay.
Moyagh Murdock: There has been an increase of 9% in mobile checkpoints over the 12 months and a reduction of detections on alcohol issues by 3%, so a combination of the two would indicate that there has been a reduction in risk-taking. However, there are still too many getting caught, having taken the chance.
John Deasy: What kind of analysis is carried out by the RSA as a matter of course to determine whether legislation is effective or ineffective? Surely this is pretty landmark legislation when it comes to road safety. An appreciable period of time has passed since the enactment of that legislation. Is there a set period of time for the RSA and the Garda Síochána to determine its effectiveness?
Moyagh Murdock: Over recent months we have been working with the Garda Síochána and interfacing with the PULSE system to collect the statistics. There was much work done and significant investment by the RSA to get that information in order that our own research section can now utilise it. The system is now working. We receive excellent information on a daily basis. It will take some time to build up some statistical analysis but we are happy to come back with information on the effectiveness of the legislation. A raft of new legislation is being rolled out in the coming months and points are being increased from two to three over a number of offences.
John Deasy: In short, Ms Murdock is saying there has been no analysis as such.
Moyagh Murdock: The analysis we have done in the past would be more of a manual analysis. We did not have the capability until more recently to do the type of database interrogation about which the Deputy is talking. There certainly was analysis done in the past, but we will have a much more interrogative analysis in future that will allow us to produce information on a more scientific basis.
John Deasy: When will that analysis be available?
Moyagh Murdock: We are using the information as we go along. It is a question of setting the parameters of the investigation and deciding what information we want to find out. That process is under way and we have the capacity to come back with specific results on specific queries and set out an analysis of them. The Garda Síochána issues monthly statistics on fatalities, collisions, checkpoints, and the number of detections of speeding, driving while intoxicated and other offences under the road traffic legislation. There is a whole raft of queries on which we will be able to work with the Garda.
John Deasy: I have a related question in regard to drug driving. Given that the number of checkpoints is up by 8% or 9%, has there been a corresponding increase in the rate of detection of drug driving?
Moyagh Murdock: I do not have that information to hand. Our research and education section is working very closely with the Garda on this issue.
John Deasy: Does Ms Murdock have any idea of the numbers? This issue has been knocking around for some years now.
Moyagh Murdock: It is a work in progress. I will come back to the Deputy with information.
John Deasy: Does Ms Murdock not have any sense as to the effectiveness of the current regime?
Moyagh Murdock: I do not have that information to hand. We are working with the Garda on the effectiveness of detection and, in particular, the challenges in terms of on-the-spot detection. There is a working group engaging with the Garda on that issue. I will get back to the Deputy with more details.
John Deasy: I am not sure whether the Comptroller and Auditor General's office has done any work on this. I would like some type of analysis to be done with regard to blood alcohol levels, drug driving, increased checkpoints and the effectiveness of measures that are taken legislatively and by the Garda. It is important that such an analysis be done.
Moyagh Murdock: Absolutely.
John Deasy: We are all striving to improve road safety, but if we do not know what is effective, we are shooting in the dark. The weakness in the system for years has been that some of the measures that were taken were introduced by legislators who were not tuned in to what really needs to happen. The only way of finding out what is required is by doing the type of indepth analysis to which I referred. I am surprised it has not been done given the time that has passed since the enactment of the legislation. The issue of drug driving has been spoken about endlessly.
Moyagh Murdock: The technological advances we have implemented, with the PULSE system now interfacing with our own systems, will facilitate what the Deputy is talking about. I agree 100% that we should be able to produce that type of information, not just in regard to drink driving but also drug driving. I am optimistic that we will be able to get information for the Deputy in the near future. That project has just come to fruition. It involved a significant amount of development work and an investment of more than €400,000 in developing the IT interface.