The Socio-Legal Research Centre, DCU, held the fourth in its annual “Law on…” seminar series on Wednesday of last week. Following previous explorations of the Law on… Film, Celebrity, and Risk, this year’s seminar focused on the Law on… Police Accountability. There were three speakers: Damien McCarthy, Chairman of the Legal Assistance Scheme and former President of the Garda Representative Association (GRA), Kieran Fitzgerald, Commissioner of the Garda Síóchána Ombudsman Commission (GSOC), and Dr Barry Vaughan, National Economic and Social Council (NESC).
What follows is a brief outline of the presentations delivered by each speaker.
Damien McCarthy, Garda Representative Association
Mr McCarthy began proceedings by giving an overview of the Garda Síochána Act 2005 and the manner in which the complaints process works thereunder. He spoke about a number of provisions of the Act, including s.88. In relation to that particular provision, Mr McCarthy explained that where a complaint is deemed inadmissible a Garda will be informed that there was a complaint made but will not be given the name of the complainant or told the content of the complaint. This, he said, is believed by many members of the Garda Síochána to be unfair. He suggested that the continuance of s.88 in this manner creates suspicion and interferes with trust.
Mr McCarthy also spoke about what he called the “lease-back” of certain investigations from GSOC to the Garda Síochána. He noted that the ICCL has criticised the high levels of such “lease-back” as disappointing.
Mr McCarthy noted that gardaí have co-operated with GSOC investigations and powers provided under the 2005 Act to arrest a garda and bring him/her to a designated Garda station have not had to be invoked since 2007. He further noted that the vast majority of complaints made to GSOC do not allege criminality.
Mr McCarthy then considered whether or not GSOC is effective as a dispute resolution mechanism. He considered that its effectiveness could be improved by restoring trust in the body within the garda ranks. Inclusiveness, Mr McCarthy said, is a key ingredient in ensuring that GSOC represents an effective resolution process. He further suggested that gardaí are more amenable to external investigation, rather than the “lease-back” procedure, which is reminiscent of the former Garda Complaints Board.
Mr McCarthy noted that conflict is an occupational hazard of policing and that policing is confrontational by nature. In other professions, conflict is sought to be avoided, whereas in the Garda Síochána there is no option but to encounter conflict, often in the context of violence, drugs and alcohol. In this regard it was observed that a more effective garda, patrolling out on the street, might generate more complaints than one who perhaps does not engage so much. This presents something of a challenge.
Mr McCarthy noted the existence of s.110, which allows for the prosecution of persons giving false or misleading information to GSOC as part of a complaint or investigation, but he lamented the lack of prosecutions under this section. He was concerned about abuse of the complaints system, which might particularly arise where an individual was themselves facing prosecution.
Mr McCarthy also made mention of s.109 which allows for a judicial inquiry into conduct of designated officers of GSOC. He suggested that this provision provides for a very high-level inquiry and is akin to using a sledgehammer to crack a nut. He further noted that there was an unsuccessful attempt to invoke the section last year, and that no further appeal is possible against the decision of the Minister for Justice to refuse to request the Chief Justice to appoint a superior court judge to conduct an inquiry.
Mr McCarthy concluded by stating that gardaí, in general, have welcomed the concept of external investigation and have embraced GSOC, but there are some outstanding issues which continue to cause concern.
Kieran Fitzgerald – GSOC Commissioner
Mr Fitzgerald began by acknowledging that GSOC was initially embraced by the GRA and that the GRA have actively participated and engaged with GSOC. He went on to state that independence is the most important attribute of GSOC; it is independent of government, and not answerable to the Minister for Justice. Although the budget of GSOC does officially fall under the Department of Justice, once the overall budget has been allocated it is up to GSOC to decide how to operate it.
Mr McCarthy explained that the work of GSOC in terms of complaints can be largely separated in to two categories: disciplinary matters and criminal matters. On the basis of this distinction, the relevant legislation leads to different paths. The remit of GSOC begins largely when a complaint is received or referred to them. If it is found that the Disciplinary Regulations of the Garda Síochána have been breached, then the matter is forwarded to the Garda Commissioner, as provided for under the Act. The internal disciplinary procedures of the Garda Síochána then take effect and a sanction may be applied. GSOC can make recommendations, but does not have the power to sanction in this scenario. This is true, according to Mr Fitzgerald, of most other ombudsman bodies in other jurisdictions.
If GSOC find that a criminal offence has been committed, a file is forwarded to the Director of Public Prosecutions, and the DPP takes the matter from there.
Mr Fitzgerald stated that, since opening, GSOC has received an average of between 2000 and 2500 complaints per year. Each complaint might include a number of allegations, so the yearly number of allegations is closer to 5000. He noted that complaints can be submitted by any person, except a member of the Garda Síochána, and that complaints can be submitted by children, so long as GSOC are of the opinion that the child can give an intelligible account. In most circumstances involving a child or a vulnerable adult, a guardian or other appropriate third party may be required to be present. One can also make a complaint on behalf of another, in certain circumstances. A proximity rule applies, e.g. a person viewing something on the television or online which they have not actually witnessed themselves would most likely not be able to lodge a complaint even though those matters may have disturbed them. Someone present and witnessing the matter, without directly being involved, might be eligible to complain however.
Mr Fitzgerald stated that GSOC does not exonerate individuals, though gardaí sometimes claim that that is what has occurred when a complaint is not proceeded with. He stated that GSOC either substantiates a complaint or it does not; it does not exonerate. Most often, he stated, a complaint will not be substantiated due to a lack of evidence. In a “he said/she said” scenario, it is difficult to progress the complaint.
In relation to what Mr McCarthy had described as “lease-back”, Mr Fitzgerald stated that this occurs with less serious complaints. In relation to any suggestion that GSOC should investigate all complaints themselves, Mr Fitzgerald contended that complaints of the lowest level often involve “service” issues, or “public service” issues rather than a crime or more serious breach. In cases of “neglect of duty” Mr Fitzgerald suggested that complainants usually want action, rather than necessarily wanting disciplinary or other sanctions; the complainant wants to be heard and to get a reaction. Mr Fitzgerald did suggest, however, that responsibility for matters such as this, from a managerial perspective, should devolve closer to the frontline, to sergeants, for example, rather than to superintendents.
In terms of allegations of criminal behaviour, Mr Fitzgerald agreed that many of these do not result in prosecutions. However, the fact that prosecution does not occur does not necessarily mean that the allegation was maliciously made or false or misleading. In relation so s.110, Mr Fitzgerald pointed out that there have been prosecutions for providing false or misleading information knowingly. Sometimes, however, it is not that the person has knowingly given false or misleading information, but that their perception of the event is different from the actuality. Section 110, he said, is used sparingly, and carefully, with evidence of a breach of its terms.
Mr Fitzgerald went on to characterise GSOC as a cog in the machine of Ireland’s response to Art 2 of the European Convention on Human Rights (the right to life). He said that this imposes a negative obligation, such that the Garda Síochána will not take life unless absolutely necessary, but also a positive obligation such that an effective investigation will take place if a member of the Garda Síochána is involved in a fatal incident. To date, GSOC has investigated 99 deaths, many of which relate to road traffic incidents rather than all stemming from deaths in custody. Mr Fitzgerald noted that the Act makes no distinction between whether or not a garda is on duty, in terms of GSOC’s obligation to investigate. He stated that Art 2 allows, enables and in fact pressurises GSOC, from its case-law, to look at systemic issues, not just the individual incident itself.
Mr Fitzgerald then spoke to the fact that there was one Commission in place from the start of GSOC and this was replaced in December 2011 by Mr Fitzgerald and his colleagues. He considered that while the first Commission was tasked with establishing GSOC and getting it off the ground, the new Commission has a different mission which will involve looking very hard at how GSOC can try to effect cultural change (with the Gardaí becoming public servants and providing public service), address systemic issues and systemic improvement, and work collaboratively with the Garda Síóchána and other relevant bodies.
Dr Barry Vaughan, NESC
Dr Vaughan began by admitting that he does not really believe in the notion of law and accountability! He then went on to discuss issues of regulation and oversight, broadening the discussion to a certain extent and drawing on comparative bodies in other areas of public life and public service, such as the regulation of nursing homes and hospitals. He queried where regulation should be located, considering the options of top-down regulation, as opposed to bottom-up regulation.
Dr Vaughan noted the need for oversight of garda activities and referred to the past, in particular referencing issues such as the “heavy gang” in the 1970s and the Kerry Babies case. He noted, however, the need for balance. He spoke about the regulatory pyramid concept, put forward by John Braithwaite which provides for a combination of persuasion and punishment: if one does not co-operate, one is moved up along the pyramid. In Braithwaite’s parlance, Dr Vaughan referred to speaking softly but carrying a big stick of sanctions.
Dr Vaughan considered that a formal state body should not be relied upon to do all of the regulatory work or investigate every incident. He suggested that “service complaints” are not amenable to judicial-like intervention. He spoke about the need for meta-regulation and noted the various bodies created by the 2005 Act. Dr Vaughan suggested that we should engage in smart regulation, with a system of accountability where different bodies work within a structure in a linked-up fashion. These bodies include GSOC, the Garda Inspectorate, any internal standards body and joint policing committees.
Dr Vaughan drew on the work of Samuel Walker in the U.S. which suggests that a focus on individual behaviour and discipline does little to produce better institutional behaviour because the institution tends to go into the “few bad apples” defensive mode and fails to address general policy/practice failings.
In relation to the suggestion that more active or effective gardaí are likely to attract more complaints, Dr Vaughan suggested that they ought to be compared on a peer basis.
Dr Vaughan, who had earlier referred to GSOC as a quasi-independent body noted that the Minister for Justice can refuse to allow a public policy investigation proposed by GSOC and that this impedes the ability of that body to address systemic issues. Broader issues do need probing. One example given by Dr Vaughan, picking up on the statistics on garda involvement in fatal road traffic incidents which had been referenced by Mr Fitzgerald, was that we need to know whether or not the gardaí are involved in an unusually high number of such incidents, and if so, why?
Dr Vaughan considered that the 2005 Act provides all of the parts necessary for a valuable oversight/regulation of the Garda Síóchána, but a greater level of liaison is needed between the differing bodies created thereunder, and indeed the Department of Justice and Equality.
He concluded by stating “We have the tools, the job is still to be done.”