Ms Justice Mary Ellen Ring:

The concept of Chinese walls in any situation has always been a curious one.

I cannot speak about the walls within An Garda Síochána; somebody else will have to deal with that. There should be confidence not only among the public but among the members of An Garda Síochána that our investigations are proper, proportionate and fair. If, in a supervised investigation we have reached a decision, that should be good enough. Therefore, in terms of looking at it again, why would the Garda have to do that? We are conscious that when talking about building up public confidence we need to confirm with the Garda our expertise, independence and fairness. If we do an investigation, particularly in co-operation with the Garda, we would like to see that investigation reaching its conclusions having gone through the proper procedures and there would be no need for a review at that stage.

With respect to section 102, in terms of cases coming before us, particularly by way of referrals, part of the problem is that, for instance, as we speak, there may be an incident that would be referred to us and would be of such importance in terms of the criminal allegation involved, that suddenly all the work of the commission would have to adjust to take that into consideration, and that would be proper. Clearly, serious complaints coming to us should be able to be absorbed and dealt with at the time. In terms of the functioning generally of section 102, we should not be afraid to examine it in terms of how better it can work for the gardaí and the public involved and for our own personnel. On the issue of resources and when we are talking about looking at what the Garda should be handling, that also involves examining how best to use resources. The Deputy's colleague, Deputy Brophy, is concerned about matters getting out and public confidence. If we can come up with a mutually agreeable form for dealing with certain matters, it would allow for resources to be used to best effect, in the event of them not being increased. That is not to say we would not welcome an increase, but irrespective of our resources, using our resources to best effect should always be our objective.

Under section 106, when we look into practices and procedures within the force, and we are conscious the inspectorate may have also looked at areas and we do not want to duplicate work, we will look at it from a different point of view. We have been slow in the past to do that but we have started to do it and with better adjustment of the work we are doing in the complaints department, so to speak, we would have more time to give to that kind of investigation.

For example, in the case of public order arrests, gardaí are often put in a very difficult position when it comes to dealing with a person who may be under the influence of an intoxicant and who may be a child, being a person under the age of 18, or with a person who has health difficulties and none of the appropriate agencies is available. At 3 a.m. Tusla is not available to do deal with the child; there is nobody in the community available to deal with the person with mental health difficulties; and, we do have drunk tanks where people can literally dry out. Often the Garda is the only agency available at that time in the morning. Public order provisions do not give gardaí the right to detain people yet they are damned if they do and damned if they do not. If they let a child, the person who is in the throes of a mental health crisis or the person who is intoxicated back onto the streets and they cause violent injury to somebody, fall into a river, or something happens to them, it will be the garda's fault. However, under the current legislation, if a garda detains the person until an agency's office opens at 8 a.m., 9 a.m. or 10 a.m., they will be in trouble because, legally, they have no right to detain them. That is an area where, in common with the Garda, we recognise the problem. We are investigating it so we can deal with some of the problems that arise but also we would see it as being something the Garda will join us on because that is legislation that is clearly defective. At 3 a.m. none of us wants to pick up that telephone, so the Garda is, often unfairly, left to deal with deficiencies in services.

With respect to fines, this detail is to be found under the 2007 discipline regulations, it is not in the Act. That is all part of the discipline process. If the Chairman and members of the committee are looking at, for instance the 2005 Act and our role under it, the discipline regulations will also be ten years old next year. Therefore, if the committee is going to look at our work, and the extension of our work often leads into the discipline area, perhaps it is time to look at the 2007 regulations. That is a matter for the Garda Commissioner and I am sure she and her members will have much to say on that area.

The retirement issue is a difficult one. We are looking at how best we can bring an investigation to an end, so that we do not just end it necessarily. We have limited ability. If a person retires and says he or she will not co-operate with our investigation, that is a practical problem. To get around that, we may have to say that we should have more teeth to bring that person in or to make that person amenable in some way, but it is not an easy answer. In fairness, gardaí who retire have certain rights and they will be anxious to air those rights to the committee in that regard. We have to look at how we can get around it, how best to send reports to the Commissioner. We are looking at overhauling our website. We should get the information out despite the retirement. They may be no sanction but that does not mean we cannot get information out to the public.