Michael Kingston has written to Garda Commissioner Drew Harris with a request for the force to investigate Serious Misconduct in MCIB
Michael Kingston has written to Garda Commissioner Drew Harris with a request for the force to investigate Serious Misconduct in Public Office.
The letter sent to the Garda Commissioner is co-signed by Ciaran McCarthy BL and Captain Neil Forde of Marine Hazard Ltd who supports the issue raised by Mr Kingston.
Mr Kingston has been campaigning for the criminal investigation of the Marine Casualty Investigation Board (MCIB) in relation to Misconduct in Public Office and other statutory offences.
Mr Kingston has again called for the Garda Commissioner to investigate the MCIB despite being told in June by the National Bureau of Criminal Investigation (NBCI) that there was “no evidence of criminality” despite a judgement from the European Courts of Justice on 09 July 2020 that Ireland had failed “to provide for an investigative body which is independent in its organisation, legal structure and decision-making of any party whose interests could conflict with the task entrusted to that investigative body.”
The judgement found, “Ireland has failed to comply with its obligations under Article 8(1) of Directive 2009/18/EC of the European Parliament and of the Council of 23 April 2009 establishing the fundamental principles governing the investigation of accidents in the maritime transport sector and amending Council Directive 1999/35/EC and Directive 2002/59/EC of the European Parliament and of the Council (OJ 2009 L 131, p. 114).”
The judgement relates a situation where the Chief Surveyor from the Marine Survey Office (MSO) at the Department of Transport sits on the board of investigation at the MCIB, which according to legislation surrounding the MCIB, is a conflict of interest.
Mr Kingston along with Capt. Neil Forde have carried out extensive research into marine incidents where they claim the MSO was at fault but was cleared by the MCIB. In the letter Mr Kingston writes:
“The allegations have been provided in great detail to the NBCI by way of the attached Master Document on 13th October 2020, and further correspondence, painstakingly put together by me and others to make your investigation easier.
However, to emphasise the incorrect decision I will highlight, for the simplicity of your understanding, one case in particular, that of the death of 3 Irish citizens on 12th June 2013, in Tramore Bay, Co Waterford. Paul, Shane, and Kenny Bolger, three brothers, died from drowning induced by hyperthermia, because the Emergency Position Indicating Radio Beacon (EPIRB) on their fishing vessel, FV Dean Leanne, did not go off, and their boat foundered because it had not been surveyed correctly, both critical issues known to the Marine Survey Office (MSO) of the Transport Department prior to the tragedy.”
“I was told in Fermoy (in June) that it was An Garda Síochaná’s lawyers’ advice that because the Chief Surveyor was put on the Board in the 2000 Merchant Shipping (Investigation of Marine Casualties) Act (the Act), that he was exempt from any form of sanction whatsoever.
There appeared at the meeting to be no understanding of Section 17 of the Act that clearly states:
17.—(1) Where the Chairperson or other member of the Board, the secretary of the Board, or a consultant, adviser or investigator engaged by the Board, has a pecuniary or other beneficial interest in, or material to, any vessel or the cargo of a vessel involved in a marine casualty, or to any other matter to be considered by the Board, he or she shall disclose to the Board the nature of the interest in advance of any consideration by the Board as to whether the marine casualty should be investigated, or any other matter relating to the marine casualty, and—
(a) neither influence nor seek to influence a decision in relation to the investigation or matter,
(b) take no part in any consideration of the investigation or matter, and
(c) withdraw from the meeting of the Board for so long as the investigation is being considered or matter discussed by the Board and, in the case of the Chairperson or other member of the Board, shall not be counted towards a quorum at the meeting during that time. …..
(6) A person who fails to comply with subsection (1) or, when purporting to comply with that subsection, gives particulars which are false or which, to his or her knowledge, are misleading in a material respect, shall be guilty of an offence. 3 Or of Section 26 which states as follows: (4) A person who obstructs, impedes or improperly influences, or attempts to obstruct, or impede or improperly to influence, an investigation shall be guilty of an offence.
I was taken aback at the meeting at your team’s failure to understand the Chief Surveyor’s conflict of interest in the Bolger case and had to explain it. Put simply, if he knew the EPIRB was faulty and the boat had not been surveyed correctly he had information relating to the marine casualty that seriously conflicted with his role as a member of the MCIB Board, evidenced by his failure to disclose it. This extends to the Secretary General’s Nominee on the Board to whom the Chief Surveyor is responsible within the Transport Department, but how much the Secretary General knew about the EPIRB and survey issue is not fully apparent, without further investigation, one that clearly needs to be carried out.
The FV Dean Leanne tragedy in itself, given the failure to disclose the information, with multiple witnesses, is a clear breach of Section 17, and is a clear breach of Section 26, in addition to further offences, including Misconduct in Public Office.
Additionally, there is clear evidence that the parallel Statutory MSO investigation was interfered with, constituting further multiple indictable offences, starting with Misconduct in Public Office.”
This also brings into question the role of the Secretary General of the MCIB in these investigations.
Mr Kingston says that during the investigation by the NBCI not one of the witnesses that had come forward to him had been contacted and he himself was not contacted for further information. Since the NBCI decision not to investigate, he has been in contact with the Bolger families who he says are deeply concerned by the developments.