Baroness Nuala O'Loan:

I thank the Chairman and express my appreciation for the invitation to appear before the committee.

The Garda Síochána Ombudsman Commission has been in existence for some nine years now and has done some very good work. However, following recent events, there is an opportunity to enhance and refine the law to make it a more effective and more independent organisation. It is for the Irish State to determine how it legislates for police accountability and my observations, which are the product of my personal experience as Police Ombudsman and my work with policing and police accountability organisations across the world, are offered simply to assist in the reform processes.

International experience would suggest that real independence and impartiality are key factors for the success of an independent investigative organisation. The Garda Síochána Act does not mention either independence or impartiality in the objectives which it sets for GSOC. It would seem to me that the term "fairness" is a weaker, less specific term. For example, it would be possible to deliver an equally bad service to everyone. That would be fair but it would not be acceptable or effective. I urge the inclusion of a duty on GSOC to act with impartiality and independently. I also suggest that GSOC should be resourced to investigate every complaint rather than referring matters back to An Garda Síochána for investigation. This is necessary to demonstrate de facto the real independence of GSOC. It should have the power to investigate policy and practice matters of its own volition. These are the issues that enabled me as Police Ombudsman in Northern Ireland to deliver a service.

GSOC cannot currently investigate complaints or allegations against the Commissioner. The committee has heard evidence of this. I do not know of any other similar organisation where this is the case and it is not sustainable if GSOC is to be perceived as effective. There will always be a suspicion that accountability is okay for junior officers but the chief has to be protected. GSOC needs a complete entitlement to material to be able to do its job. Currently the Commissioner can withhold material and advise the Minister to withhold material. That could lead to a perception of cover-up.

The appearance of independence is important. GSOC was required to take as staff former civil servants and its current staff are civil servants - part of the apparatus of the administration of the State. There has to be a complete separation between GSOC and the State. The current arrangements whereby serving gardaí are based in the GSOC office is not conducive to any perception of independence, and perception is profoundly important. I cannot conceive of anything which serving gardaí could bring to the office now in terms of explanation of Garda practices which GSOC could not acquire through retired or former gardaí. GSOC needs an uninterrupted, immediate right of access to search police premises. I dealt with that issue at some length in my initial submission. This does not exist and is necessary. The Garda Commissioner should be under a stated obligation to secure, preserve and provide evidence in every case.

Current law enables officers subject to complaint to veto attempts at an informal resolution process. There is a very low level of informal resolution here. It is in the interests of everyone that simple, less complex complaints be dealt with more effectively.

The provision which causes me considerable concern is the provision which enables prosecution of a person who makes a false or misleading complaint. I consider that provision to be disproportionate, since it could well deter genuine complainants. From my experience, it is not easy for most people to make a complaint against the police. Many states contemplated introducing a provision like this at the request of the police and police representative organisations but decided against it. Were I making change, I would repeal the section. Although a person can defend themselves, the mere fact of the possibility of prosecution and the risk of a heavy fine and a prison sentence is a disproportionate disincentive to making a complaint which may be perfectly well justified.

The legislation does not provide a right to GSOC to make recommendation for change in policy or practice following a conduct or criminal investigation. I am aware that some such recommendations are made. Such a provision would enable a better outcome for the people of Ireland from the investment currently made in police accountability.

I would like to say more but think it is better that I give the committee the opportunity to ask me questions.