The making of another cover-up

The terms of reference for the Rossiter enquiry fail to address the central point: was Brian Rossiter murdered? They also fail to address how Michael McDowell handled the case.

Brian Rossiter was found in a coma in a Garda cell in Clonmel on the morning of 11 September 2002. A life support system was turned off in Cork University Hospital on 15 September 2002 and he was declared dead. The discovery of a 14 year old boy in a coma while in Garda custody and the boy's subsequent death got press attention at the time. Michael McDowell had been Minister for Justice, Equality and Law Reform when Brian Rossiter was found in a coma in Garda custody and subsequently died. Michael McDowell made no inquiries then about the circumstances that led to this, he evinced no concern for what had happened and issued no statement of condolences to the family of Brian Rossiter on the boy's death.

Sixteen months later, on 16 January 2004, a solicitor, Cian O Carroll, acting for the parents of Brian Rossiter, wrote to Michael McDowell, drawing to his attention serious issues that had emerged concerning the circumstances that led to the death of Brian Rossiter. The letter was addressed personally to Michael McDowell and was received in his personal office. A formal reply was dispatched on 19 January 2004, stating the matter was "receiving attention".

More than two months later, on 29 March 2004, Cian O Carroll wrote again, 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". This elicited another formal acknowledgment on 31 March 2004, stating the matter was "receiving attention".

Three weeks later Cian O Carroll wrote again to Michael McDowell, this time stating: "It is now over three months since I wrote to you regarding Brian Rossiter… I have yet to receive a response". For weeks later, an acknowledgment stating the mater was "receiving attention".

On 20 May 2004 there was a further letter from the Minister's Private Secretary, stating: "On receipt of your letter drafted 16 January 2004, the Minister requested the Garda authorities prepare a report on the matter. He will communicate with you further 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. This expressed "regret" for the delay in replying. It stated: "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." The letter stated a report on the case had come to hand from An Garda Síochána.

On 5 January 2005 Cian O Carroll wrote a further letter on behalf of Brian Rossiter's mother, a preliminary to the institution of legal proceedings against the Minister and the Gardaí. It 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 make adequate proposals for compensation in the matter". The standard reply "receiving attention" was issued on 13 January.

Following publicity about the case in June of this year, Michael McDowell issued a statement saying he was unable to comment on the case until he had received a report from An Garda Síochána (the letter of almost a year previously had stated the report had been received by then and an FOI application had disclosed that in fact two Garda reports had been received, one of 15 June 2004 and another on 10 August 2004).

Finally on 29 June 2005 Michael McDowell personally addressed the issues that had been raised with him by Cian O Carroll on 16 January 2004 eighteen and a half months previously, nearly three years after the death of Brian Rossiter.

The enquiry announced now by Michael McDowell is precluded by its terms of reference from examining how he, as Minister for Justice, Equality and Law Reform with responsibility for "oversight and political accountability in relation to the policing of the Irish State and in particularly in relation to the treatment and welfare of persons in Garda custody" (as his letter to Cian O Carroll of 29 June 2005 acknowledged), failed in the execution of these duties. (see panel on other questions that arise).

Cian O Carroll was given to understand he and the Rossiter family would be consulted on the terms of reference of an inquiry. This has not happened.

The terms of reference also fail to address why the Garda authorities themselves failed to have this matter fully investigated.

Brian Rossiter had been arrested on the evening of 10 September 2002. He had been assaulted by an adult two nights previously and had suffered black eyes as a result but whatever injuries he received then did not inhibit him going around Clonmel on Monday 9 September and Tuesday 10 September and, according to his friend, who was with him throughout the latter date, Anthony O Sullivan, he was in good form and in fine spirits throughout the day.

He was arrested, along with Anthony O Sullivan around 9.30pm on the evening of 10 September. Anthony O Sullivan claims he was seriously assaulted by arresting Gardaí at the time of his arrest and that he was seriously assaulted again by a named Garda when brought to the Garda station in Clonmel.

The treatment of Anthony O Sullivan is relevant to the inquiry into the death of Brian Rossiter for, Anthony O Sullivan has alleged, that Brian Rossiter was treated in a manner similar to how he was treated and it might be implausible for Gardaí to claim that while Anthony O Sullivan was mistreated, the boy who was later found in a coma was not mistreated. Yet the terms of reference make no reference to Anthony O Sullivan, although the investigating barrister, Hugh Hartnett SC, might think it was incumbent on him to investigate this also.

A further issue arises. Another of the key witnesses, who was never interviewed by gardaí in connection with this matter, is an adult from Clonmel, Tony Buck. He happened to have been arrested and placed in a Garda cell on the night of Tuesday 10 September. While there, he says, he witnessed one of the boys being assaulted by a Garda and heard commotion which he assumed arose from further assaults.

Tony Buck's home was raided by several gardaí in early September. He says the gardaí said they were looking for a gun and that they "wrecked" his home and terrified his wife and himself. He say he believes the action was part of a campaign to intimidate him against evidence in connection with the Brian Rossiter case.

At least two of Tony Buck's sons have criminal records and one of them is serving a life sentence for murder.

But the main problem with the terms of reference is that they do not address the central point centrally (they may do by implication but is this sufficient?) and the central point is: What caused the death of Brian Rossiter? Or, was he murdered?