Evidence does not support 'proposition' of GSOC surveillanceTuesday 10 June 2014 23.55
Minister for Justice Frances Fitzgerald has said she has confidence in the Garda Síochána Ombudsman Commission and the Cooke Report found the agency acted in good faith in investigating suspected covert surveillance.
In his report Mr Justice John Cooke concluded that "it is impossible on the basis of the technical opinions and available information, categorically to rule out all possibility of covert surveillance in the three threats identified by Verrimus" relating to bugging at GSOC.
The Cooke Report examining allegations of bugging at the offices of GSOC published tonight says "it is clear that the evidence does not support the proposition that actual surveillance of the kind asserted in the Sunday Times article took place and much less that it was carried out by members of the Garda Síochána."
He continues: "having regard to the technical limitations of gaining access to the device over the internet by an external third party ... it seems implausible that such a mechanism would have been used and that steps had been taken to "wipe" all traces of the connection and to circumvent the statutory data retention records of the database of the network in question."
The judge adds that the "possibly sinister characterisation" attributed to the abnormal behaviour of a wireless AV remote device for audio and video equipment in GSOC (known as device 4B) "appears now to warrant reconsideration" in view of the fact that it was not microphone enabled as had been assumed and its original default password was publicly available and had not been changed.
Mobile phone network testing in area at the time
Furthermore the judge found that a mobile phone network was testing 4G/LTE equipment in the area at the time and he says it is clearly more probable that the iPhone scan detection of the country/network code was not caused by the presence in the vicinity of the offices of an IMSI catcher.
The report found that the fact that the communication with the test bed of the mobile phone company in the UK may provide an explanation for the detection of the UK code in question "does not, of course, rule out the possibility that there was also an IMSI catcher being deployed in the area at the time."
"But if that were so, why would the third party engaged in covert surveillance make use of the “obscure” test bed code to create a fake base station rather than the code allocated to the network used by the subscribers intended to be targeted?", the report asks.
'Ring back' remains unexplained - Cooke
The "ring-back" reaction to the alert test of the Polycom unit "remains unexplained as a technical or scientific anomaly", the judge concludes.
He says there appear to be some technical factors that "cast doubt upon the explanation that there had been mistaken human intervention in the monitoring of a tap upon the phone line outside the GSOC offices although [redacted name] has maintained that the use of the correct digital codec would have enabled the eavesdropper to have heard the digital signal as music."
Judge Cooke says that whatever the explanation may be there is "no evidence that the ring-back reaction was necessarily attributable to an offence or misbehaviour on the part of a member of the Garda Síochána."
Investigation at the time 'possibly a premature recourse'
The judge says that in view of the additional information that has come to light in his inquiry, it is possible "in retrospect" to see that an investigation in the public interest "was not immediately necessary and was possibly a premature recourse."
The judge says "the information available did not indicate that an offence had been committed or that disciplinary misbehaviour had occurred.
"Nor did it indicate that if the anomalies were to be attributable to third party surveillance or intervention on those GSOC devices, that a member of the Garda Síochána might be responsible."
The report finds that GSOC acted in good faith in taking the steps in question once presented with the security consultancy firms report.
The judge says it is understandable that, presented with the existence of two apparently serious threats to its security, its primary concern was to move quickly to take the steps necessary to investigate and, if necessary, counter those threats.
GSOC was possibly unduly alarmed by the language used and perfunctory exposé of the findings presented in that report, he says.
It is unfortunate that further elucidation and advice from Verrimus or a second opinion was not sought before the private investigation was begun.
Internal enquiry into breach that led to Sunday Times article
Judge Cooke said the information “revealed” in the Sunday Times article on 9 February is “evidence of a serious breach of security of GSOC’s confidential information because, although seriously inaccurate, it appears to have its source in information known only to those who were privy to the conduct and outcome of the PI investigation.
He said that breach is unrelated to the supposed threats that were the subject of the PI investigation and outside the remit of the terms of reference of his inquiry.
That breach is the subject of an internal enquiry by GSOC, according to Judge Cooke.
Minister welcomes publication of Cooke Report
Minister for Justice Frances Fitzgerald welcomed the publication of the report and said the findings will inform legislative changes relating to GSOC.
In light of the report the minister has called for a new "culture of co-operation" between gardaí and GSOC.
GSOC suspected its offices in Dublin had been under surveillance after a British security firm, commissioned to conduct a security sweep, identified "three technical and electronic anomalies" that could not be "conclusively explained".
GSOC began an investigation after it suspected gardaí were involved but subsequently admitted it found no evidence of garda misconduct.
Retired High Court Judge John Cooke was asked to examine the sequence of events that led to the bugging claim and to assess whether there was any evidence of a security breach or an attempted security breach at GSOC.
FF calls on Cooke to present findings at Oireachtas Committee
Fianna Fáil Spokesperson on Justice Niall Collins has written to the Clerk of the Oireachtas Justice Committee requesting that Mr Justice Cooke be invited before the committee to present the findings of his investigation into the GSOC bugging controversy at the earliest opportunity.
Mr Collins said the report "exposed the serious problems in the relationship between GSOC, An Garda Síochána and the Department of Justice."
"The response of Government, which sought to attack GSOC rather than get to the truth, was also a source of major concern for many people", he said.
Core findings not a great surprise - Mac Lochlainn
Sinn Féin Spokesperson on Justice, Pádraig Mac Lochlainn, said the core findings are not a great surprise.
"In the shadowy world of modern surveillance, it is extremely difficult to find definitive evidence", he said in a statement.
"Justice Cooke states that he cannot categorically rule out the possibility that some form of unlawful surveillance took place and ... he acknowledges that further investigation may be necessary", he said.
"What is clear however is that the environment that led to GSOC's concerns around their security was one of profound distrust between GSOC and the senior management of An Garda Síochána".
"Public confidence in the administration of Justice has been rocked by all of these recent scandals and it must be restored", Mr Mac Lochlainn said.
'Exercise in Smoke amd mirrors' - ICCL
The Irish Council for Civil Liberties has described the 65-page report as "an exercise in smoke and mirrors".
ICCL Director Mark Kelly said: "Constrained by the terms of reference accorded to him by Government, Judge Cooke has found precisely what it seems to have been preordained that he would find: that it is impossible to rule out categorically all possibility of covert surveillance."
"What is striking, however, is that the Judge appears to have made absolutely no independent investigative attempt to establish objectively whether or not surveillance of GSOC by An Garda Síochána had been sought or authorised.
Mr Kelly was critical of the inquiry as not "a single member of An Garda Síochána or the Defence Forces" was interviewed. Mr Kelly also noted that no examination of the records kept of the use of surveillance equipment by police or military intelligence services took place, nor were the "oversight" activities of the "designated judges" under the relevant legislation subject to any form of review".
"A report that merely revisits a range of more or less plausible explanations for communications anomalies, without even attempting to compare them with information readily available to the police and military intelligence services, can only be qualified as an exercise in smoke and mirrors", Mr Kelly concluded.
Dáil to debate report next week
The report was delivered to the Taoiseach's Office on Friday evening.
The Government announced in February that the inquiry was to be set up following allegations of bugging at the offices of the GSOC on Abbey Street in Dublin.
The retired judge was also able to review and assess any evidence of a security breach or alleged security breach, including oral evidence as deemed relevant and to make recommendations.
Mr Kenny told the Dáil today that the Cooke Report will be discussed in the chamber next week.
He said: "I think that it is appropriate that we give all of the deputies an opportunity to read this and absorb it and make Government time available for statements on it next week and that is my intention".