Child dies in Garda custody, McDowell takes seven months to respond, then says he has 'no function'

14-year-old Brian Rossiter died having been found in a coma in Garda custody. Questions arise in connection with his detention and what happened him after arrest. Michael McDowell fails to respond to queries and then denies family access to autopsy report. By Vincent Browne

A 14-year-old boy was found in a coma in Garda custody in Clonmel and died two days later on 13 September 2002. While there is evidence that the cause of death was an assault that occurred two days before he was taken into Garda custody, there is also evidence he died as a result of an assault while in Garda custody. Initially, a man was charged with manslaughter in connection with that assault, but the manslaughter charge is being dropped and the person concerned is now facing assault charges.

The death of Brian Rossiter

Brian Rossiter was seriously assaulted on the evening of Sunday 8 September 2002. On the following day there were marks around his eyes and he complained of headaches. On the early evening of Tuesday, 10 September he, along with a companion, "John" (not his real name), went to the home of another friend. A serious row broke out there, not involving either of these, and they left. Some time later, while in the centre of Clonmel, according to a statement subsequently made by "John", they heard a shop window being broken. Shortly afterwards they came across one of their friends, near the broken window, being restrained by his father.

Gardaí arrived on the scene and the father handed over his son to them. The Gardaí, according to "John's" statement, then pursued Brian Rossiter and "John", although they had had nothing to do with the incident of window-breaking. The Gardaí apprehended them both and, in the course of doing so, according to the statement made by "John", used extreme violence, involving the breaking of a flashlight over "John's" head. There is some independent evidence verifying this account of what occurred.

They were brought to the Garda station, where, according to "John's" statement, a further violent assault on him by a named Garda took place. There is a corroborating statement by another person then also held in Garda custody in the Clonmel Garda station, which alleges that this other person witnessed Garda assaults on the two boys. However, this other person may prove to be an unreliable witness because of his subsequent conduct. Nevertheless, this person made these claims repeatedly to social workers, not intending originally to make a complaint about Garda misconduct.

The boys were placed in cells. "John" called out to Brian Rossiter, "Did they kill you?" Brian Rossiter replied "Yeah, they killed me", suggesting gardaí had assaulted him too. An official complaint was made on behalf of "John" concerning the Garda behaviour. This complaint is not now being pursued for personal reasons, but "John's" solicitor has confirmed to gardaí that "John" still stands over his version of what occurred.

Brian Rossiter's father, Pat Rossiter, was called to the Garda station. He gave his consent to Brian Rossiter being kept in Garda custody for the night, on condition that he (the father) be present if Brian Rossiter was asked to make a statement. The custody form states Brian Rossiter had been detained under the Public Order Act.

The custody form also records that every half hour he was found to be asleep until 9.30am the following morning when gardaí tried unsuccessfully to waken him. He was found to be in a coma and was rushed to St Joseph's Hospital, Clonmel.

There is evidence the Gardaí told the ambulance crew Brian Rossiter had been in a fight a few days previously and had been on a drink and drugs binge for four to five days. This was recorded in the notes of a doctor that saw Brian Rossiter shortly after he entered the hospital.

The medical notes related to his admission to St Joseph's made no reference to bruising or a mark on the side of his head. However, over the following few days, while he remained in a coma, family and friends noticed an emerging bruise or mark, suggesting that he had occasioned a blow to the side of his head shortly before being admitted to hospital.

Toxicology tests on Brian showed no detectable traces of alcohol or "recreational". These tests discount the claim that Brian Rossiter had been on a drink and drugs binge for days previously.

There was additional medical evidence which lends support to the contention that he was assaulted in Garda custody, but Village has been asked not to refer specifically to this evidence at present.

Brian Rossiter clinically died in Cork University Hospital on 13 September 2002, having failed to come out of the coma. In fact he was brain-dead from the Tuesday morning when he was in a Garda cell.

The State Pathologist, Dr Marie Cassidy, examined Brian Rossiter's body after the life support machine was turned off on 13 September. She had been informed of the serious assault on the previous Sunday night and was also told that Brian Rossiter had taken part in a three- to four-day drink-and-drugs binge. She was not then made aware of the toxicology test that discounted the binge claims and it seems her autopsy report was influenced by the information she had received about the previous assault and the possibly mistaken information about the binge.

According to the family solicitor who has had sight of the autopsy report, she made reference to the evidence of injury he had displayed on the Monday following the assault on the Sunday, his complaints of headaches, his alleged binge drinking and drug consumption over several days. She concluded he had died following "head trauma". She said bleeding inside the skull was slow and "appears to have taken place over a few days". She said that because of the apparent "minor external injuries", the significance of the headaches would not have been appreciated. Furthermore his drink and drugs "intoxication" could have masked the extent of the damage done to him on the Sunday evening.

It is not clear she would have come to the same conclusions had she been aware that no alcohol or drugs were detected in his system when he was admitted to St Joseph's Hospital, Clonmel.

Representations to Michael McDowell

A solicitor, Cian O'Carroll of Lynch and Partners, Clonmel, acting for parents of the dead boy, Pat and Siobhan Rossiter, wrote to Michael McDowell on 16 January 2004 requesting his "earliest attention" to "this very serious matter". Accompanying the letter was an outline of the events that led to the death of Brian Rossiter and a copy of a letter sent to the DPP complaining at the refusal of the DPP to release a copy of the autopsy report into Brian Rossiter's death 16 months previously.

The letter to Michael McDowell received a formal acknowledgement, dated 19 January 2004. It stated the letter was "receiving attention". More than two months later, Cian O'Carroll, on 29 March 2004, again wrote to Michael McDowell, stating: "I had hoped that the matter would have received more urgent attention particularly since it relates to the loss of such a young life". It continued: "I must therefore repeat my request for the release of Brian Rossiter's autopsy report and await a reply from your office without delay".

This was followed by another formal response on 31 March, stating the matter was "receiving attention". Three weeks later Cian O'Carroll wrote again to Michael McDowell. He stated: "It is now over three months since I wrote to you regarding Brian Rossiter... I have yet to receive a response".

Nearly four weeks later there again was a formal reply, stating the matter was "receiving attention".

On 20 May, four months after Cian O'Carroll's initial letter to Michael McDowell, a reply was received from the Minister's Private Secretary. This stated: "On receipt of your letter dated 16 January 2004, the Minister requested that the Garda authorities prepare a report on the matter. He will communicate further with you when it comes to hand".

On 31 August, 2004, seven months after the original letter, there was a further reply from the Minister's private secretary. It expressed "regret" for the "delay" in replying and went on: "I wish to point out that the investigation of a criminal complaint is an operational matter for An Garda Síochána and as such the Minister has no role or function therein". It further continued: "The Minister has however been informed by the Garda authorities that it is not possible to grant possession of the files you are requesting until the case comes for hearing before the Courts. Following from this, the Minister understands that you will be in a position to access all the available medical evidence when it is presented to the Coroners Inquest". Concluding, it stated: "The Minister regrets that he cannot be of any more assistance to you."

Cian O'Carroll, acting now for the mother, Siobhan Rossiter, as her son's "next friend", wrote again to Michael McDowell on 5 January this year. In this letter he stated: "Our client holds you responsible for the loss suffered by her and the other statutory dependants…. And cause you to admit responsibility on behalf of your servants and agents and made adequate proposals for compensation in the matter". It continued: "We are shortly making an application to the Personal Injuries Assessment Board in order that we might obtain a certificate for the issuing of High Court proceedings in the matter". The standard "receiving attention" reply was delivered the following day and on 13 January the reply reproduced here was issued.p