Commissioner Kieran FitzGerald:

The Acting Chairman has raised quite a list of issues. He referred to serious harm and the inclusion of degrading or inhuman treatment in custody in the definition of that. Again, this derives from human rights, and the human rights provisions to which he referred at the outset would, by definition, almost include this if there were greater clarity around that matter. The consideration of sexual assault in the context of what constitutes serious harm is a very interesting idea. The definition is taken from section 4 of the Criminal Justice Act. It is not our definition but reconsidering it to include sexual assault is an extremely interesting concept.

In the context of section 87 and retiring gardaí, if I understand the Acting Chairman correctly, I believe he is referring to circumstances where there is an allegation of a breach of discipline against a serving member and where he or she retires, meaning that he or she would no longer be amenable to investigation unless, as he pointed out, there is a crime involved. This matter presents real issues and difficulties because the discipline regulations largely relate to an employer-employee relationship. I am not quite sure how it would work if we were in a position to pursue such individuals into retirement. Other issues might come into play in this regard and we are not sure how what the Acting Chairman refers to might operate in the context of employment law. There might be an impact in that regard. I understand the Acting Chairman's concern, namely, that retirement should not be used as a means to evade investigation. I can see exactly where he is coming from in that regard.

The Legislature was very clear in its own statement to the effect that the Garda Commissioner is outside the remit of the commission. Again, it is an interesting idea that the Garda Commissioner would not so be. However, his or her management role in respect of the Garda Síochána and his or her other responsibilities with regard to State security would probably be very pertinent considerations in any discussion on the matter.