Today’s newspapers are covering the fact that two serving gardaí have been suspended from duty and arrested on foot of an allegation that they stole €1500 from ATMs. More details are available in both the Irish Times and the Independent. We can be pleased that the gardaí have taken action in this case. Some commentators may remark that in times of recession, particularly when police witness falls in their pay packets, corruption or theft are inevitable (three sums of money have already been reported missing from garda stations this year). But tucked away at the end of the Irish Times report, and absent entirely from the Independent, is a comment on the role of the Garda Síochána Ombudsman Commission’s (GSOC) in this investigation. GSOC, according to the Irish Times, is not investigating this alleged offence.
Without any complaint being made GSOC has the power to investigate any matter where it appears a garda has committed a criminal offence (s.102(4)). When investigating what appears to be a criminal offence, GSOC investigators then have their greatest range of powers. Under s. 98 of the Garda Síochána Act 2005 they have powers of entry, search, seizure, charge, summons, arrest, detention, interrogation, taking of samples, fingerprints, photographs and obstructing the exercise of these powers is a criminal offence meriting up to 12 months in prison. The effect of this provision is to give a GSOC investigator all the powers of an investigating garda. The one controversial aspect of their powers is their ability to search a garda station. This can be done if it is felt that relevant evidence is in the station, but the Commission is required to inform both the Garda Commissioner and the Minister for Justice of this intention and give the Commissioner an opportunity to object.
On paper at least GSOC is perfectly empowered to conduct an independent, thorough investigation into the current allegations. Indeed, I have effectively complained elsewhere that GSOC appears to only conduct independent investigations when there is an allegation of criminal conduct. The figures show that over 40% of all complaints received by GSOC are investigated by Gardaí and 80% of independent GSOC investigations have involved criminal offences. While I feel it is problematic that so many complaints are not independently investigated, if GSOC feel that do not have the capacity to investigate all complaints independently it does certainly make some sense to focus resources on what might be viewed as the most serious allegations, those involving criminality. Bearing this in mind it seems strange that serious criminal offences* are alleged and GSOC is not, as yet, investigating.
The first concern this creates is for the process of this investigation. It may of course be that the investigating gardaí in this will conduct an excellent, professional investigation into this allegation, which leads, if appropriate, to a prosecution and conviction. But it is not unfair to question whether that is what will happen, whether there will be an unbiased investigation. Even if just for the semblance of justice, even if it makes no difference to the outcome, we, the public, are entitled to demand that this investigating be conducting fairly and impartially. We have a system that can give us an independent investigation. Why don’t we use it? This question points us to the second concern: what this means for the system more broadly.
GSOC have revealed this year the difficulties which they have encountered in working with gardaí. In 2011 three gardaí were convicted of assault and attempting to pervert the course of justice on the back of a GSOC investigation. This was the first time that a GSOC investigation lead to custodial sentences. This investigation has not entirely been classified as a success by GSOC, however, who recently released a statement expressing concern at the cooperation of gardaí with their investigation in that case. Most worrying is the following statement: “It is a cause of concern to the Ombudsman Commission that documentation it sought from the Garda Síochána and which was not supplied, was then produced in the course of the trial by the Defence for certain accused.” Defence counsel in the case was able to secure information that the investigating authorities could not.
In its 2012 annual report GSOC took the unusual step of discussing serious delays in the complaints process. Of all unresolved cases at the end of 2012, 73% were overtime. Twenty-one were over two years old. GSOC attributed part of this delay to gardaí consistently not meeting protocol agreed time-frames for exchanging information. On one occasion GSOC waited 542 days for a request for sensitive information to be fulfilled. GSOC has also been denied data which it considers routine and non-sensitive but which an Garda Síochána determines is sensitive. Even efforts to meet, discuss and resolve these issues have taken ‘far too long’. It is evident that cooperation between an Garda Síochána and GSOC is poor in certain respects. One has to wonder if the fact that GSOC is not investigating this latest allegation is connected to the problems which GSOC has already drawn attention to. If so what does this mean for the operational capacity of GSOC? And what does it mean for the accountability of our police service?
*It is difficult to predict how these would be charged but theft can merit up to 10 years imprisonment and making a gain by deception (fraud) up to five years under the Theft and Fraud Act 2001.