Ms Maura Butler:

The Association for Criminal Justice Research and Development, ACJRD, wishes to thank the Chairman and the Oireachtas Joint Committee on Justice, Defence and Equality for the invitation to address aspects of our submission on the effectiveness of the legislation related to the oversight of An Garda Síochána including, in particular, the powers and remit of the Garda Síochána Ombudsman Commission, GSOC. This presentation will give a broad overview by focusing on an abbreviation of extracts from the association’s submission.

The views expressed in this submission are those of the ACJRD in its independent capacity and are not those of ACJRD members' organisations or their employers. We have structured our report in four parts outlining the organisation, an executive summary, reference and analysis of current legislation for ease of reference and our proposals.

Conducting research towards the advancement of community welfare and the integration of those who are disadvantaged is a key goal of the ACJRD. This community focus is a critical issue in policing and consequently its incorporation, as public confidence, into police oversight is synonymous with rule of law principles. Another ACJRD focus is the interaction of children and young people with the criminal justice system, which is generally regarded as an important matter, as demonstrated by the Children Act 2001 and policy of the Department of Children and Youth Affairs. The ACJRD accordingly proposes consideration of some amendments to reflect the heightened importance of ensuring the protection of young people as a distinct cohort in these circumstances.

One of the ACJRD’s stated objectives is the promotion of the highest standards of practice among professionals who work in the criminal justice system. The ACJRD’s proposals are proffered with a desire to suggest possible improvements towards best practice and effective policing, while noting that it is important to strike a balance to ensure any oversight system does not frustrate members of An Garda Síochána in carrying out their duties. The ACJRD aims to promote innovation in justice and supports the development of new approaches to criminal justice challenges. It is hoped that by suggesting innovative approaches, the governmental goal of achieving optimal oversight of An Garda Síochána will be assisted.

The ACJRD supports the Government’s commitment to the establishment of an independent policing authority to exercise executive control over An Garda Síochána. We respectfully submit that lay involvement in any such authority should be more extensive than was envisaged in respect of the proposed Garda Síochána executive management board, included in 2007 legislation which has not been enacted, and suggest that any model adopted might draw extensively on the experience of the Northern Ireland Policing Board.

This submission confines itself to the powers and remit of GSOC and the processing of public complaints regarding the behaviour of members of An Garda Síochána. At present, GSOC’s independence of action is limited on a practical level by its resource dependency, and on a theoretical level by the statutory restrictions on its capacity to communicate. The current model can be perceived as facilitating the existence of a systemic accountability and communication gap, although as GSOC comes within the remit of the Minister for Justice and Equality it is not subjected to extensive oversight by the Minister due to an appropriate respect for its autonomy.

The ACJRD proposes that measures should be adopted to bolster the independence of GSOC by having a system of Oireachtas committee oversight to facilitate accountability and reporting, a legislative restatement of the independence of GSOC and the removal of current restrictions on GSOC discussing matters of policy. Consideration should be given to facilitate sharing between GSOC and the Garda Inspectorate of appropriate information, applying appropriate safeguards and confidentiality measures. The ACJRD further submits that the current system imperfectly balances individual and collective responsibility with respect to public complaints. GSOC should be empowered to recognise and deal with systemic problems which cause complaints to be made. Certain duties in respect of complaints could be imposed on members of An Garda Síochána in an individual capacity, rather than in a collective or representative manner. Mandatory reporting requirements in respect of serious incidents could apply in a discretionary manner to all members of An Garda Síochána individually with an appropriate mechanism to prevent multiple reporting. Individual gardaí could bear a similar duty regarding the preservation of evidence, as occurs in the ordinary course of the prevention of crime. There should be a broad duty on individual gardaí, GSOC and members of staff of GSOC not to discuss ongoing complaints outside of the complaints investigation process. The nature of a complaint determines the manner in which GSOC investigates it.

With regard to informal resolution, referral to the Garda Commissioner, an Ombudsman hearing or a section 98 investigation, the ACJRD proposes the adoption of a broader definition of serious harm. Cases involving death or serious harm might be extended to include non-minor incidents of misbehaviour which relate to persons under the age of 18. The existing six-month time limit which regulates the admissibility of complaints should not be applied where serious matters such as these are in issue. Amended legislation could review section 94 of the 2005 Act to provide GSOC with a method of identifying minor or routine complaints utilising an accelerated complaints procedure. The duty to inform a Garda member of the existence of a complaint, and the discretion to delay that notification could be transferred from the Garda Commissioner to GSOC, as could any matter which requires investigation under Part 4.

To facilitate the speedy processing of complaints, it is suggested that where matters of State security are in issue they should be resolved by way of direct application to court. GSOC might be empowered to authorise its officers to access electronic information systems operated by An Garda Síochána within the parameters of an ongoing investigation. Complaints against off-duty Garda members could give rise to a discretion to discontinue an investigation where appropriate, rather than disentitling GSOC from considering the complaint. However complainants should be required to disclose any personal interactions or grievances which they may have with the member complained.

It is submitted that the scope of a breach of discipline which may come within the remit of GSOC could be regarded as restrictive and that Schedule 5 of the 2005 Act ought to be revised accordingly. Provision could be made for a disciplinary register wherein the Garda Commissioner records the outcome of all complaints procedures which are then made available to GSOC on request, while taking into account the confidentiality of information and personal data protection provisions. Where a complaint is upheld, consideration could be given to granting GSOC the power to impose minor sanctions equivalent to those available under internal Garda disciplinary procedures, subject to an appeals procedure.

Members should be entitled to legal aid once they are informed they are being investigated for serious misbehaviour and have complaints overturned or alternatively have any public record of the complaint expunged once a predetermined amount of time has passed. Complaints could be published, as occurs with regard to the solicitors' disciplinary tribunal process. Provision should be made for a system whereby the Garda Inspectorate may request statistical information and data from GSOC and that appropriate safeguards are designed to allow such a request to be processed. The ACJRD’s submission details some thoughts on possible amendments to sections 90 to 98, inclusive, of the Act.

In short, they are as follows. GSOC identification of routine or minor breaches of duty could be resolved by an informal procedure with a unified set of investigatory powers vested in GSOC officers. Mediation should only take place on a voluntary basis in accordance with the International Mediation Institute and the Mediators' Institute of Ireland guidelines, as opposed to the present situation in which there is almost an imposition on gardaí to become involved in mediation. Obliging members of An Garda Síochána to apologise for behaviour that they do not accept occurred is unlikely to enhance the integrity of the complaints resolution process. Section 91 could be extended to include any complaint of significant misbehaviour affecting a person under the age of 18 years. Section 94 has the potential to lead to an extremely prolonged disciplinary process. It should be considered whether GSOC might be given the power to impose limited sanctions equivalent to those available for minor breaches of the Garda regulations. I am referring to section 95. GSOC's power to make a finding that a complaint was a result of a systemic error and to suggest that an apology be made on behalf of An Garda Síochána generally should be considered. Where GSOC makes a finding that a serious breach of discipline has occurred, it could have the power to instigate disciplinary proceedings under the regulations.

It is submitted that the investigatory powers of GSOC officers should be extended to include access to the relevant files, records and electronic information systems of An Garda Síochána, subject to authorisation by the Commission. I am referring to section 98. Regarding section 99, the power of the ombudsman to authorise a search of a Garda station could also incorporate less serious instances. However, it should be noted that the current provisions have been shown to be adequate and extension of the powers has not been sought by the ombudsman commission.