Blog: Why do we need 'proof' of GSOC bugging before we investigate?
In this part of the world there are two types of court cases - criminal and civil - with the key difference being something called the 'standard of proof'.
If you've ever watched a TV courtroom drama you'll know that in a criminal case, a jury must be sure that a person committed a crime beyond reasonable doubt. A gut feeling isn't enough: you need to be able to determine that any lingering doubts are unreasonable. If it's not watertight, it's not enough.
But then there are civil cases, which are often a consolation, or secondary, prize for the victims of crime. In a civil case, a jury need only be convinced of the probability that someone committed an act which resulted in harm to another. If there's an 80% chance that someone did the deed, a jury in a criminal case shouldn't convict - but a jury in a civil case should be prepared to find fault and award damages.
The reason I draw this distinction is because the way in which the public and the media approach public scandals shows similar distinctions. Given the construction of defamation laws in this country - as has been notably illustrated in recent weeks - a broadcaster or publisher cannot say 'Someone did X' or 'Someone is a Y' simply because it's probably true. In practical terms, the burden of proof in these cases is on the publisher: if you make an allegation, you have to be able to definitely prove it yourself, or else the person at the centre of the allegation will be quickly dragging you down to the Four Courts and asking a judge to make you sign a cheque.
But that's not the way in which the public mind works. Generally speaking, the average punter does not need to be convinced of how watertight a case is before they are willing to believe that someone IS guilty of a certain act. If Joe Bloggs thinks something probably happened and someone was probably involved, that's usually enough to convince them of its truth.
A week after the allegations of surveillance at the Garda Ombudsman Commission first came to light, perhaps the most unsettling aspect of the government's response has been its demands to see definitive proof that GSOC's offices were bugged. It seems that while Alan Shatter might be concerned at the idea that someone is spying on GSOC, he's not willing to do very much to investigate until he's presented with proof that it definitely happened.
Unfortunately, that's a standard of proof that the general punter probably doesn't need. If the point of having a Garda Ombudsman is so the public are confident in the regulation of the Gardaí, then surely it is the public who must be assured that the office can go about its duty without the fear of outsiders covertly listening in.
And certainly, the 'threats' outlined in the GSOC briefing note given to Alan Shatter last Monday (and now, via the Oireachtas committee, making its way into the public domain) outlines what many people would consider sufficient evidence to warrant an urgent response. A mysterious device found in the boardroom, accessible only by a WiFi network that GSOC doesn't own or run? An untraceable phone call being received at 1am - coincidentally, just moments after an 'alerting test' carried out by security experts trying to trace eavesdroppers on the line? A team of visiting British security experts discovering, in the centre of Dublin, that someone is broadcasting what appears to be the signal of a British mobile phone network with the possible effect of intercepting the communications of people using that network?
I suspect the average punter will think they've heard enough: they can make their own minds up.
It is understandable, given the gravity of the allegations being made, that Alan Shatter may seek definitive proof of surveillance before looking to act. After all, he can't haul the Garda Commissioner or some foreign ambassador into his office and start dressing them down unless he's absolutely sure of what's been going on. But at the same time, neither can he wait until he sees the unquestionable proof - a transcript of a phone call, perhaps, or a copy of a file sent electronically and intercepted along the way - before he acts. The work of GSOC, and the nature of its sensitivity, demand a more affirmative response than simply saying, 'Well, if we don't know there were spying, there's nothing we can do about it.'
GSOC has investigated off its own back, but has come up against a brick wall. If the government is ruling out any independent or external inquiries, it's effectively drawing a line and saying we will never know any more than we already do - and none of us should feel comfortable with that.
Perhaps Martin Callinan's assurances of no Garda involvement in any possible surveillance will be enough to convince GSOC itself. One hopes that GSOC's chairman Simon O'Brien might take this assurance and then go back to square one - and ask the Gardaí to investigate a possible (and probable?) criminal act. If he does not, and the government continues to rule out a further inquiry, the public's confidence in the integrity of GSOC's communications will be forever questioned.
There is, separately, one other GSOC issue about which Alan Shatter seems curiously silent.
The third threat mentioned in the GSOC briefing note (page 2, about halfway down) was the presence of a UK 3G mobile phone network in the middle of Dublin. This, according to the British firm Verrimus which investigated the GSOC case, was probably created by a device which transmits a falsified mobile phone network, usually with the intent of encourage mobile phones to use its facilities so that the resulting communications can be intercepted.
GSOC's briefing to Minister Shatter bluntly explained to him that the means required to attempt such surveillance are "only available to government agencies" [emphasis mine]. The only reason Verrimus couldn't conclude that it was being used for GSOC surveillance is because it could, possibly, have been used for legitimate reasons in a nearby area.
Alan Shatter, as both the Minister for Justice and the Minister for Defence, does not have such limitations. He has the state's policing and military forces at his executive disposal. Shouldn't he be able to find out who was operating a bogus mobile phone network in the urban centre of Ireland's capital city - and whether it was legal for them to do so?
Gavan Reilly is Today FM's Political Correspondent. Follow him on Twitter at @gavreilly.