Death of Brian Rossiter in a Garda cell

Brian Rossiter, then aged 14, was found in a coma in a Clonmel Garda cell, having been held there overnight on 11 September 2002. He died a few days later. A limited investigation has failed to determine how he died and who was responsible

BY Philip Boucher Hayes 

Pat Rossiter only ever once regretted taking on the state for what he believes is the wrongful death of his son. It was at two o'clock in the morning as he was being locked up in the very cell in Clonmel Garda barracks where Brian had fallen into a coma. But it is a mark of the man that even that regret was only fleeting.

For what felt like several hours in cell number three, Pat was left to contemplate Brian. Left to stare at the naked concrete bed his son had been found sprawled face down on. Had he been in pain as he slipped into unconsciousness? Had he called for his mother? Was he aware that his father had been just yards away at the front desk where Gardaí were persuading him to leave Brian in custody overnight?

Pat also reflected on the unanswered questions about what had happened in the cell after Brian had been removed by paramedics. The failure to preserve the scene for forensic examination. How come Brian's fingerprints had been found in the cell? All the more intriguing when Gardaí had claimed that he had been hammering on the door demanding to be released. Where was the sweatshirt that Brian had been wearing that day? Gardaí were unable to locate it and to this day it hasn't been found. An oversight which took on a different tone when it was established that his underclothes had traces of blood on them.

Pat and Siobhan Rossiter had spent many sleepless nights contemplating these and the litany of other troubling questions surrounding Brian's death. Why Pat was now going without sleep in Cell 3 was no mystery to him but he was troubled that the courts wouldn't see it that way.

The Rossiter's Solicitor had recently started lobbying the Department of Justice. The Minister had been informed the family believed that Gardaí in Clonmel were responsible for the death of their son. On the second Saturday in May 2005 Pat was out in Clonmel with members of his extended family. Just like his son he was arrested on suspicion of a Public Order offence and just like his son he was put in Cell 3.

Gardaí claim that they didn't recognise Pat Rossiter as Brian Rossiter's father. Pat felt differently and worried that an arrest and conviction might undermine his campaign to find out what had happened to Brian. Walking into Judge Terence Finn's court in May 2006 Pat remarked to his solicitor, Cian O'Carroll, “Jesus, I'm snookered here, aren't I?” O'Carroll couldn't disagree.

At no point since their son's death in September 2002 has the State or any of its agencies extended Pat and Siobhan any of the simple courtesies that most would feel any grieving parent was due. Their quest for information, let alone justice, has been frustrated at every turn. When he was ensconced in the Department of Justice Michael McDowell appears to have been only too happy to ignore eighteen months of correspondence from the Rossiter's. It was only when the Rossiter's approached Village magazine and the RTÉ Radio Investigative Unit with their story that McDowell was spurred to action.

And such cynical action! An arcane piece of legislation was dusted down and employed to set up an Inquiry. The Metropolitan Police Act 1924 may never before have been used to investigate the circumstances of a death in custody. And it was certainly never used again because a few months later McDowell had it struck from the statute books and replaced. Why would you set up an inquiry governed by a statute in which you had so little confidence, particularly when it offered the Department of Justice no protection from defamation? This was pointed out to the former Attorney General and now Senior Counsel, but he rejected the advice as irrelevant. It was anything but. Unlike any of the reports from Flood, Mahon, Moriarty, Barr et al the Department found that it wasn't able to publish Hartnett without first undertaking a massive editing job.

This reporter has seen both the 492 page original submitted by Hugh Hartnett SC to the Department of Justice and the 69 page summary of it that the Department has released. The main conclusions are unchanged but there is a wealth of detail that we cannot refer to, which the Irish tax payer has paid for, and which tells a more complete story.

McDowell's actions didn't just stop at curtailing how much of the report would be published. He also limited the Inquiry's ability to pose whatever questions it wanted. The terms of reference McDowell gave Hugh Hartnett SC asked six questions all of which pussy footed around the central issue. Hartnett was specifically not told to find an answer to how Brian Rossiter died and who, if anybody, killed him? McDowell dismissed these concerns with a patrician wave of the hand. Had he not asked Hugh Hartnett to establish was Brian assaulted in custody? Yes he had, but if there was an assault there was in all probability only two witnesses to it. One of them was now dead, leaving only the testimony of the alleged assailant. Under the circumstances it would have been very difficult for Hugh Hartnett to arrive at any conclusion other than there being no evidence of an assault. Michael McDowell might have just allowed Hugh Hartnett an open ended brief to investigate all the circumstances of Brian Rossiter's death that he deemed relevant. But he  didn't.

However complicit Michael McDowell may have been in ensuring there was no sting in Hugh Hartnett's report he was, in fairness, nowhere near Clonmel on 10 September 2002. Law and Order was to the front of everybody's mind in the town that summer. Two gangs from estates at either end of the town were running rampage. Drugs of all classes and strengths were widely available, the effects of which were obvious on the town's nightlife. There had been some implied criticism that Gardaí were not doing enough.

Brian Rossiter had started to move in circles where drink and drugs were being openly consumed. Gradually his attention was turning from soccer, about which he was passionate, down a path that led to a place that scared his parents. Siobhan Rossiter was moving out of Clonmel to Wexford. It was agreed that Brian would go and live with her, a fresh start. The early signs were that it was working. But then Brian had returned to Clonmel on the week of his death to see his father and to say goodbye to friends.

On Sunday 9 September Brian was assaulted by Noel Hannigan, a 23 year old local man who believed that Brian had insulted a family member. That assault left Brian with two black eyes and a cut lip. He had been due to get the bus back to Wexford that Monday. He rang his mother and told her there was no way the Bus Driver was going to let him on the bus looking like he did. They decided he should stay in Clonmel for another day or two.

Two days later, on Tuesday evening, he was drinking from a shared flagon of cider at a friend's flat when a fight broke out. Brian left in the company of his good friend Anthony O'Sullivan. Others followed and not long after one of their number kicked in the window of a shoe shop. As the Gardaí were making an arrest Brian and Anthony shouted abuse at the Gardaí. They ran and the guards gave chase. There is no disputing that under the circumstances the boys' behaviour warranted their arrest. It was their subsequent detention overnight that Gardaí should have known was unlawful, and would not be made legal with parental consent.

The following morning Brian Rossiter was unconscious, he had turned blue and he wasn't breathing. Paramedics use the Glasgow Coma Scale to determine a patient's responsiveness. Although the life support machine wasn't to be turned off for another two days Brian's score on that scale meant that he was to all intents and purposes brain dead when he was removed from the cell.

Gardaí were quick to offer the suggestion that Brian's coma had been caused by a drugs overdose. The figure of 16 tablets soon gained traction but was disproved when the toxicology came back negative for drink and drugs. Theory number two presented itself at Clonmel station that afternoon in the form of Noel Hannigan. He had heard Brian had been taken to hospital and turned up at the barracks offering himself for interview. From that moment on the Garda investigation into Brian's death was directed solely towards establishing Noel Hannigan's culpability. One or two friendly journalists were told by “garda sources” that they had got their man. The rest of the media duly followed suit. Case closed. Hannigan would face an uphill battle to establish his innocence, which he eventually did four years later.
In fairness the Hannigan assault was a logical line of enquiry for the Gardaí. There was, however, a third theory that they had completely neglected as a line of enquiry. At the same time that Noel Hannigan was putting himself in the frame (for a crime that two courts and the DPP are now satisfied he had no involvement in) Anthony O'Sullivan was telling the Gardaí that he had been assaulted during the course of his arrest by a guard.

“I don't believe that now” was the response from the interviewing  garda. “I have witnesses”, claimed O'Sullivan, his own blood splattered all over his clothes “And I can get them”. This allegation was ignored as it wasn't entered on to his custody sheet. Anthony went on to make an official complaint in the course of which he said that Brian Rossiter had also made a claim of assault against the gardaí. Brian, he says, had claimed from a neighbouring cell “Yeah, they killed me too”. Youthful bravado? Perhaps. But that wasn't up to the gardaí to decide without proper investigation, and there was “no real investigation” of the possibility of Guards assaulting Brian according to Hugh Hartnett. They had their man in the form of Noel Hannigan and the book was thrown at him. Quite how he came to be charged with manslaughter without the knowledge of the DPP is something that still hasn't been answered. But then Pat Rossiter still hasn't found out how he came to be charged with a public order offence and incarcerated in the cell his son died in either.

The glut of TV dramas set in crime labs has encouraged the view that forensic pathology is absolute and decisive. It rarely is, but two out of three pathologists who have examined the Rossiter case feel that Brian sustained his fatal injury in or around the time of his arrest and detention. Only Marie Cassidy feels that Noel Hannigan's assault could have resulted in a slow bleed over 56 hours leading to Brian's death. But she gives equal weight to the possibility that Brian received the injury during the custody period. Asked to balance the evidence Marie Cassidy's caveat pushed Hugh Hartnett in the direction of concluding he wasn't satisfied that there was an assault in custody. Crucially though he says there was a “statistical” probability that this is when the fatal injury was sustained.

For the seven Gardaí named in the terms of reference, this “statistical probability” issue is a terrible burden to bear. If there was an assault it cannot have been by all seven. If there was a failure of care it is a failure that doesn't extend to all seven. The failure to investigate the allegation of assault by Gardaí cannot also rest with all seven. But all seven must now continue their jobs under the cloud of “statistical” likelihood of involvement in Brian Rossiter's death. Were the Department of Justice able to publish the original report the public could make up their own minds about who among the seven shouldn't be on the list.

There is any number of ways in which Brian might have received that blow to his left cheek pushing the skull in at a very thin point resulting in a nick to an artery. Many of those explanations are entirely innocent and could have occurred during the arrest and detention period. Unfortunately it is An Garda Siochana's own actions in the wake of Brian's death that has brought suspicion on themselves. The allegation that Brian had consumed 16 ecstasy tablets was a clumsy piece of misdirection. The failure to preserve the scene or Brian's clothing could equally be as amateur as it appears sinister. The ramping up of charges against Noel Hannigan to just one degree short of outright murder was inexcusable.

To these add the graffiti of Brian's nickname, Krusty, in Cell 3. When the drugs overdose and Hannigan assault theories fell apart the Gardaí advanced the possibility that Brian might have fallen in his cell. They pointed to the word Krusty which had been burned with a cigarette lighter into the ceiling of the cell. Could Brian have fallen while leaving his mark on the cell, they proposed. Yes he could, but how would he have had a lighter in the cell with him if he had been searched on arrest? And would he have been able to reach that high? Brian was a small boy for a 14 year old. A fully grown Barrister tried to see if he could scorch a mark on the ceiling with a cigarette lighter. He was unable to reach that high without the use of chair. So how did that Graffiti get there? It seems highly improbable, if not physically impossible, for the diminutive Brian Rossiter to have authored it. So if not Brian, who?

The Gardaí have consistently and strenuously denied there was any assault on Brian or the other boys held in custody that night. The denials are without qualification and leave no room for backtracking. They cannot have been made without careful consideration. Had Minister McDowell not established an inquiry to be held behind closed doors the public would have had the opportunity to make up their own minds about the quality of their evidence and the credibility of those denials. Because of the veil of secrecy draped over this whole affair the reputation of the force has suffered and individual, possibly blameless Gardaí have had their good names muddied.

In May 2006, one year after he had been left by Gardaí in Cell 3 to contemplate his son's fate Pat stood before Judge Terence Finn in Clonmel District Court. He had little or no idea how to convince the judge that the Garda case against him was without merit. He had convinced himself, though, that were he convicted it would destroy his public credibility and ruin any chance of securing justice for Brian. Fortunately for him it was the first day since September 2002 that the Rossiter's enjoyed a bit of good fortune. Pat didn't even have to get to his feet as Judge Finn spotted problems with the gardaí's case from the outset. He threw the case out and confiscated the notebooks of the Gardaí who had arrested Pat. He was concerned that “The evidence of the Garda witnesses bore a marked similarity”.

He was also of the view that Gardaí had approached Pat Rossiter “with an end game in sight and that was the arrest of Mr Rossiter”
This apparent petty harassment draws to mind the experiences of another family at the other end of the country. Perhaps it shouldn't have been a surprise then when Pat got a call from Frank McBrearty Jr. in Donegal. He told Pat that the Inquiry would not give him the justice that he was seeking for Brian and the state would throw obstacles in his way at every turn. Pat listened politely but declined Frank's invitation to join forces and speak together at public events. He thought Frank's experiences had embittered him and made him overly cynical. Anyway Pat said he had no axe to grind with the An Garda Síochána as an institution or with the Department of Justice, just with some individuals within them. This week I reminded Pat of that assessment. He had been “naïve”, he admitted, in thinking that everything would just fall into place once an Inquiry was established. Though it pained him to admit it he now thought McBrearty had a point.

Village and Brian Rossiter

Village was the first to highlight the case of Brian Rossiter in its edition of 1-7 July 2005 (Issue 40). The then Minister for Justice, Equality and Law Reform, Michael McDowell, had ignored representations on the case for a period of over a year until Village published its account of what had occurred. Then amid a flurry of responses, an official enquiry was announced, which, even at the outset, was clear could not get to the case of the death and what had happened in the Garda station in the 12 or so hours that Brian Rossiter was held there.

Another person detained in the Garda station that night, Tony Burke, said, in an interview, that he saw Brian Rossiter being brought into the station, saw his arms being twisted behind his back as he was taken to a cell beyond his cell and then heard the boy being beaten. Mr Burke has had a history of conflict with the Gardaí, in part arising from the conviction of his son for murder.

In another issue of Village, 16-22 September 2005 (Issue 51), the movements of Brian Rossiter on the day of his arrest were recorded in detail. This showed there was no evidence of any ill effects from the beating he had received three nights previously and suggested that the coma in which he was found on the morning of Wednesday 11 September 2002 and his subsequent death arose from other factors.