Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

On behalf of the committee I congratulate the outgoing Ombudsman, Ms Emily O'Reilly, who has been elected today as the European Ombudsman. It is a reflection of her professionalism, integrity and hard work in the role here in Ireland. We can be proud that the vote today is not only a endorsement of Ms Emily O'Reilly but an endorsement of the ombudsman system here. May it go from strength to strength.

I welcome the members of the Garda Síochána Ombudsman Commission, Commissioner Simon O'Brien, chairperson, Commissioner Kieran FitzGerald and Commissioner Carmel Foley who are accompanied by Mr. Graham Doyle, acting head of communications and research Garda Síochána Ombudsman Commission.

The purpose of the meeting is to discuss the special report by the Garda Síochána Ombudsman Commission to the Minister for Justice and Equality issued pursuant to section 80(5) of the Garda Síochána Act 2005 in respect of issues concerning informant handling and issues arising from the Garda Síochána Ombudsman Annual Report 2012.

I remind everyone to ensure their mobile telephones are switched off for the duration of the meeting as they interfere with the broadcasting equipment even when on silent mode.

Before commencing I remind witnesses of the position on privilege. Witnesses are protected by absolute privilege in respect of the evidence they are to give to the committee. However, if they are directed by the committee to cease giving evidence in respect of a particular matter and they continue to do so, they are entitled, thereafter, only to a qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and they are asked to respect the parliamentary practice to the effect that where possible they should not criticise or make charges against a person or persons or entity by name or in such a way as to make him, her or it identifiable.

I remind members of the long-standing parliamentary practice or long-standing rule of the Chair to the effect that they should not comment on, criticise or make charges against either a person outside the Houses or an official by name or in such a way as to make him or her identifiable. I invite Commissioner Simon O'Brien to make his opening statement.

Commissioner Simon O'Brien:

Good afternoon, Chairman and committee members. As the committee is aware we are a three member commission and propose that each of us in turn will present some of our thoughts to the committee.

We were appointed by the President on 12 December 2011, and last year we published our corporate strategy. Timeliness in completing fair, proportionate, independent and impartial inquiries was at the heart of our approach. We found that many of our investigations were open for far too long. We firmly believed that this situation was not satisfactory in giving redress to the people complaining to us, nor to the gardaí being complained about.

The main reason for delays has been the difficulties encountered in the collection of information and evidence. Requests to the Garda Síochána for information necessary to advance investigations were not being completed within the timeframe of 30 days agreed in protocols concluded under the Garda Síochána Act 2005. In one case we waited 542 days for a request to be completed and the vast majority were well over the agreed time limits, often by excessive periods. While some matters were complex, most were routine. We take some responsibility for this; we were conscious that independent oversight is a new experience for the Garda Síochána. We had sought to achieve negotiated co-operation and did not always trigger agreed escalation processes immediately.

There was also another very worrying trend in our interactions with the Garda Síochána. On many occasions, when requesting information, we were being asked to state why it was relevant to our inquiry. That one State body, investigating another, should be asked for the relevance of a request before materials pertinent to an investigation are released is a matter of considerable concern. I doubt that the Garda Síochána would readily accept such demands from parties under investigation by it. No such qualification was ever agreed in the protocols and these types of back and forward communications also added delay to an already unsatisfactory process. This commission addressed these matters, along with others, robustly and also made sure that overdue requests were correctly escalated. We also made representations at the very highest level of the Garda Síochána and we did begin to make some headway.

The current commission had been in place for 18 months and had been wrestling with these issues assertively but quietly over that whole period. We had hoped, however, that by the time of publishing our 2012 annual report this spring we could have put any comments on these issues in the past tense. Alas, when that date approached, there were still problems. In fact, just prior to publication, we were again being asked to justify the relevance of a request for evidence pertinent to a complex investigation. The commission was of a clear mind that many of the very important issues were unresolved and are still unresolved and as such we decided to make public comment on the issue in our annual report. This was in an attempt to unblock these fundamental matters and shed light onto what had been happening. We will, of course, be happy to take questions but I will hand over to my colleague, Commissioner Carmel Foley.

Commissioner Carmel Foley:

We would like to acknowledge that there has been improvement in some cases in the timeliness of response by the Garda Síochána to our requests. Routine requests are now channelled through an office set up specifically to deal with GSOC correspondence. More sensitive matters are dealt with in a separate manner. In relation to many of the more minor complaints, and in accordance with the Act, we request the Garda Síochána to investigate.

Commissioner Kieran FitzGerald:

On 9 May this year we sent a report in accordance with section 80(5) of the Act to the Minister. This section allows us to so do when we believe it is appropriate because of the gravity of the matters that have come to our notice. The Minister has since laid the report before the Houses of the Oireachtas. We submitted the report because our findings in an investigation conducted in the public interest led us to have serious concerns regarding the implementation and management of informant handling procedures, both historic and current.

For reasons largely to do with the safety of persons, as outlined in our report, we are not in a position to discuss the details of the particular investigation. However, we make recommendations in our report and would like to refer to some of those for the committee. Before doing so, we would like to make it clear that we accept that informants are an established part of policing. However, complex issues arise regarding informants' motivations and the provision of any advantages or credit to them. That said, we have no issues with the proper use of informants.

What we found led us to conclude that there were serious deficiencies in the Garda Síochána management procedures regarding informant handling practices. We found poor record keeping and non-adherence to procedures. We found deficiencies in the implementation and management of the old system, which was replaced, following strong words from the Morris tribunal, by the current system, known as covert human intelligence sources, CHIS. What we found led us to believe that not all the deficiencies identified by the Morris tribunal were remedied. Our concerns are not historical; they relate to the present day. The deficiencies point to a culture wherein the formal informant handling systems could be bypassed or ignored. We can have a credible system, but the problem is that if a person chooses to bypass that system and run an informant "off the books", so to speak, there may be no way of ever even knowing that is going on.

The oversight systems in Ireland do not seem to take account of this. This is not a problem with the CHIS system. The Honourable Mr. Justice Thomas Smyth, now retired, reports to the Minister regarding the operation of the CHIS system. His findings have been positive. We have no reason to question Mr. Justice Smyth's findings, nor do we. We are saying that the oversight operated by Mr. Justice Smyth is not designed to address the possibility that informants might be run outside of the formal system. We are unaware of oversight that might monitor this.

Another major concern relates to the use of informants who may be participating in the criminal activity about which they are providing information, particularly as an individual providing the information could also be charged in regard to the alleged criminal activity. Absence of formal procedures for the management and use of such informants creates significant risks, as it is not possible, in particular, to place parameters upon the extent to which such individuals may be authorised to participate in criminality. We recommend that formal procedures be put in place to govern and guide the deployment and management of such informants, the extent to which gardaí should interact with the Director of Public Prosecutions in regard to such informants, including what information gardaí should bring to the DPP's attention and, in light of our findings of poor record-keeping, how such interactions should be recorded and filed.

We are concerned that the matters we have raised with the committee are having a detrimental impact on effective independent oversight of policing.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Thank you. We will now open the discussion to members.

Charles Flanagan (Laois-Offaly, Fine Gael)
Link to this: Individually | In context | Oireachtas source

I join the Chairman in extending a welcome to the members of the Garda Síochána Ombudsman Commission, GSOC, to our meeting. What we have heard from Commissioners O'Brien, Foley and FitzGerald is disturbing. What has been outlined for us is a culture of frustration, delay and indifference on the part of gardaí towards the commission. That is unsatisfactory.

I will be brief and just put a few questions but I am sure we can come back to the details later. At this juncture, do the members of the commission require more powers and if so, the nature of such powers? Do they require more authority? In respect of the revised protocols mentioned by Commissioner FitzGerald, will he elaborate on the process? In other words, if there is a communication delay, how is the public to know the revised protocols can be carried out within a specific timeframe? What does the commission feel the Minister for Justice and Equality can do to help relieve the sense of dissatisfaction and frustration? What, if anything, can this committee, as one with responsibility for parliamentary oversight, do?

I acknowledge what Commissioner FitzGerald has said about not being in a position to debate or question the detail of the special report. However, is he of the general view that gardaí continue to operate or handle "off the book" informers? Mr Justice Smyth's report is above reproach, but it seems that it is what is not in his report that is the issue. Could the commissioners elaborate on whether they believe gardaí are engaging in this practice currently? If they are, this is a serious departure from the Morris tribunal report and its recommendations and is utterly unacceptable.

Commissioner Kieran FitzGerald:

I will take the last question first, because it is significant. As I said in our submission, our concerns are both historic and current. We believe not all of the deficiencies identified in the past by the Morris tribunal have been remedied by the introduction of new procedures.

Commissioner Simon O'Brien:

I will answer some of the other questions. We have a sufficient number of powers as it stands at the moment. We have all the powers that are gifted to the Garda Síochána when we are in an investigation stage. I certainly am looking forward to the commission signing a new set of protocols with the Garda Síochána. We will give a very firm commitment to this committee and to the people that we will work those protocols very hard. We have been negotiating and both sides have been respectful of each other's positions. Coming before this committee and making public comment about these matters would, I hope, indicate the serious place we are in.

The Minister has been very proactive with us since we put this into the public domain. We await with some interest our meeting with him and the Garda Commissioner to discuss both issues of the special report that is before committee members today, but we also interact with the Garda about every-day matters that affect members' constituents. This is not always about serious matters of secrecy or informant handling. This is basic work between our two organisations that will allow us to provide redress to members' constituents and to the Commissioner's members. The record so far has not been good and we expect it to improve considerably.

Michael Healy-Rae (Kerry South, Independent)
Link to this: Individually | In context | Oireachtas source

I welcome the witnesses here today. I respect the work that they are doing, but to say that there could be an improvement in the way they are being treated is an understatement.

I would like to paraphrase a few things here. In one case study the Garda Síochána was in possession of the information requested, but refused to supply it. The refusal took 48 days. It took 136 days from the request for this information to be provided. Another case study states that it took 84 days for an information request to be complied with. Despite writing to the Garda Síochána on ten separate occasions requesting updates as to the progress of the investigation, it has yet to be concluded. If I was being treated with this type of contempt, I would resign. It is ridiculous to think that one would have to write on ten occasions looking for an answer. As public representatives, we have a tough enough job getting information at times but if we had to write ten times on one case, we would never get anything done.

I do not know how the witnesses are managing to function at all. They are being treated with contempt. It is ridiculous to wait 136 days to get an answer on anything. I do not know how the Minister for Justice and Equality can stand over that and allow it to continue, nor why the witnesses are not in here today saying that they are outraged. They should be up in arms. They are very quiet, nice people. Nobody would treat me in that way if I was given a role and I had to keep writing week after week looking for the same answer from the same people who refuse in order to frustrate. Is there a policy somewhere that the commission should not be there and that it is not wanted?

This is a disgrace. I am shocked at this report. The Garda Síochána Ombudsman Commission is about independent and impartial inquiries, yet nobody is answering them. They are too big for answers. That is a bad situation and I do not know how the witnesses put up with it. I do not know how the media have not picked up on it. Is everybody asleep?

Commissioner Carmel Foley:

We are conscious that the Garda Síochána has been here since the foundation of the State and that a culture change is needed. Deputy Flanagan referred to the culture. There is no doubt that oversight by a body which is seven years in operation is a huge shock to the system. Until powers were granted to us under the Garda Síochána Act 2005, no body other than the Garda Síochána was likely to carry out a search under warrant. The first time we entered a Garda station with a search warrant, there was some shock to the system. The first time we arrested a garda, there was shock. We are still at a very early stage. That does not excuse the delays. The Deputy's question might implicitly ask why are we not using our powers. For example, if we are refused a file, then why do we not carry out a search for that file? However, do we then close down an entire Garda station and carry out a search?

Michael Healy-Rae (Kerry South, Independent)
Link to this: Individually | In context | Oireachtas source

No, because the Minister has closed enough of them already. Sorry for the interruption.

Commissioner Carmel Foley:

In the face of a refusal from somebody in Garda management, do we attempt to arrest that person, when in fact it is an overall management decision as distinct from one individual who may be acting under orders? Our approach has been to negotiate the changes that we need to negotiate, including the time limits for provision of information. By publishing our annual report and by being here today, we are going that step further.

Michael Healy-Rae (Kerry South, Independent)
Link to this: Individually | In context | Oireachtas source

I have huge respect for the Garda Síochána and the excellent work that the force carries out. However, the Garda Síochána Ombudsman Commission is there for oversight and to investigate matters. If I receive a letter from the Revenue Commissioners or any authority asking me a question, whether it is do with tax affairs or whatever, then I am duty bound to respond and give the information. We all have to abide by certain rules. The commission either has teeth or it does not. It has the power or it does not. If the commission has the power and chooses not to use it, it is not doing its job properly. It took 136 days to be provided with information that was requested. This is an outrage. Why is the Minister not doing something about this? How can he stand over the fact that the commission made 18 requests and still got no answer? The witnesses will be worn out from writing. It is an outrage and it is shocking.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

That is why we want to probe these issues. We have an abbreviated report and recommendations that are in the public domain for two months and that is what we want to examine today. I presume we will look to bring in more witnesses to answer these matters. We will assist that process to deal with these barriers, so that the commission can get on with its work. I call on Senator Ó Clochartaigh.

Trevor Ó Clochartaigh (Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Go raibh maith agat, a Chathaoirligh, agus bhur gcéad fáilte go dtí an coiste. Today is a very important for this committee. It is an important day for the witnesses as well that they have the mechanism to be able to come before a committee like this.

People need to have full confidence in the policing system. What is being highlighted is an appalling situation. I sense from the witnesses that patience is running out with An Garda Síochána. The message is being sent out to An Garda Síochána, via this committee, that the commission will not wait much longer and that unless it gets co-operation it will act and will use its powers. It would be right to do that, as has been outlined.

I have a few questions to ask, based on what has been presented to the committee.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Will you hold that thought when Senator Ó Clochartaigh has finished? We will break for approximately six or seven minutes to vote and then come back. My apologies for the inconvenience.

Trevor Ó Clochartaigh (Sinn Fein)
Link to this: Individually | In context | Oireachtas source

We have heard of the idea of using informants off the books, as it is put. Is that being done by rogue elements among the Garda or is it a practice sanctioned by the higher echelons within An Garda Síochána? Is it being done with their blessing? What problems are there with not getting evidence back from An Garda Síochána? Is this anything to do with the way the force is resourced? Is it anything to do with a lack of resources available to the Garda? Are there deficiencies in the Garda information technology systems which result in the force not having administrative back-up? The commission has said there is poor filing and management. Is that to do with a lack of resources in the Garda Síochána? Can the commission comment on that? They are the main points I wanted to raise.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

We are now back in public session. I invite the commissioners to respond to the questions put before the suspension of the sitting.

Commissioner Simon O'Brien:

Thank you, Chairman. I will pick up on and echo some of the comments made by committee members. We too as a commission have the utmost respect for the work of the men and women in the Garda Síochána. We operate in a spirit of co-operation at the senior levels and at ground level. At this point, however, we feel we must make our views public. If we get the co-operation we ask for today we believe that we will become more efficient. The time that is taken for superintendents up and down the country to complete complaints forms when things are getting old is a very inefficient use of their and our time. If we get the compliance that we so need from today's meeting we will be able to speak in the past tense about these issues. We hope that we can move past this because it is very important that we get our way on some of these issues. I will hand over to Commissioners Carmel Foley and Kieran Fitzgerald to deal with the last points in the last question.

Commissioner Carmel Foley:

Thank you. Following on Deputy Healy Rae's question, I would not like it to be thought that we have no outcomes or effects because, for instance, since we opened, over 150 files have gone to the DPP. In other words, where it seemed to us that there was a case to answer in respect of criminal allegations we have secured 24 convictions in that time, 18 of which related to gardaí and six to civilians. Where somebody has knowingly given false and misleading information we have the power to send a file to the DPP for a prosecution of someone who is not a garda. Sometimes the gardaí would say that we entertain a lot of malicious allegations against them but that figure contradicts that assertion. On occasion the court has decreed the Probation Act rather than the conviction of a garda. Similarly, the adult caution scheme has been applied in some cases.

Turning to discipline, the Garda Commissioner, who is the responsible authority for disciplining the Garda force, has applied well over 500 disciplinary sanctions. Therefore, there has been a positive effect. Many of our interactions, such as attending Templemore training college where we speak to gardaí of all grades, and the local meetings with senior Garda management, have had a useful outcome and exchange of views with learning on both sides.

Senator Ó Clochartaigh asked about our powers. We have proposed some legislative amendments to the Minister which the Department of Justice, Equality and Defence is examining. For example, we would like to see many minor allegations dealt with not as disciplinary matters but as proper service. In other words if the gardaí are holding somebody's property that person does not want an individual garda to be brought up on a discipline charge, he or she wants to get the property back. Our resources and those of the Garda force, not to mention court resources, could be better used on all fronts, rather than engage the whole cumbersome, disciplinary process - a process which existed long before we did, we were grafted on to the existing internal disciplinary process. This would enable us to deal with, for example, matters of poor service, as distinct from a hanging offence, to ensure, for instance, that the person would get his or her property back or the information they require or whatever minor allegation is involved. I do not mean to say that it is minor for the person involved but only in the sense that the garda is not being charged with some criminal neglect. It does come down to consent in that, rather than our having to impose the most draconian weapons or to act in a confrontational manner, we would like to see that just as the gardaí expect members of the public to interact positively and willingly with them, they would answer our questions and provide the information we require by consent. This would be in the interests of our joint overall objective of a force and a police service in which people have confidence.

Rather than having to use all of our legal powers we hope that, in the spirit in which the legislation is drafted, there would be an agreement to meet us half way and give an answer. There are always two sides to every story. It is only an allegation, let them tell us their stories. Instead, people come in with their lawyers and repeat "no comment". That is their legal right, if they want to take a very legalistic view. There is a provision in the Act for informal resolution and unfortunately we find that gardaí are unwilling to engage in that because they seem to think, wrongly, that by engaging we will automatically think that they have done something wrong. Very often a person simply wants an explanation as to why something was done, why the garda shouted at them in such a manner. I recall one very simple matter when the garda said, "I shouted because she would not have heard me over the traffic if I had not roared at her". We are proposing an amendment to the legislative scheme - the provision that is there at the moment for informal resolution - because if they engage in informal resolution they could sometimes explain the allegations of what a person perceives as discourtesy, bad manners or bad language.

Trevor Ó Clochartaigh (Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Is it possible to compare the number of files going to the DPP to international best practice? Is there a high or low level or is it somewhere in the middle? Is that a fair question?

Commissioner Kieran FitzGerald:

It is a fair question. In terms of the files to the DPP and criminal prosecutions I understand that the number is about average. In police oversight internationally it is termed the "substantiation rate". It would probably be below average in international terms. We are conscious of that and are examining it in respect of our own investigative practices, why we do not have peer review and so on. It is below average in international terms. It is always a difficult comparison because police forces differ across jurisdictions, their powers are very different.

The Senator also asked about informant handling practices and whether they are regime-generated or sanctioned from above. Without repeating ourselves I come back to the point that there is a lacuna in oversight so it is very difficult to examine these practices. We tend to examine one or two very individual cases. In terms of an overall approach to informant management the point we are making to this committee is that there is a lacuna in oversight so it is a difficult question to answer. We did, however, find in the few cases that we examined and are examining that, culturally, the approach to informant management gives us cause for concern and that is as far as we would be prepared to go at this point.

Trevor Ó Clochartaigh (Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I have a question related to that. I asked whether Commissioner FitzGerald saw that as related to resources or a lack of ICT, administrative backup, etc.

Commissioner Kieran FitzGerald:

As I said, it is a cultural approach rather than resource related. This is an important issue in informant management. In fairness, the Garda does not take it lightly. It does not fall between the cracks in that sense.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Before I call Deputy Daly, I wish to take the opportunity to ask a few questions because Senator Ó Clochartaigh and I have to attend another engagement at 5.40 p.m.

The background to the formation of GSOC was the Morris tribunal which caused huge concern throughout the State and cost it dear financially and in terms of public confidence in the workings of the Garda Síochána. Following that, the Garda Síochána Act was passed and the Garda Síochána Ombudsman Commission was established. All sorts of changes have taken place which have been very welcome.

The most worrying aspect of the report, which was published almost two months ago, was the comment made that the lessons of the Morris tribunal had not been learned in regard to the retention of contemporaneous notes and the informant handling process. That was the core of the Morris tribunal's concerns. The report referred to grave concern about that. A number of events took place in the following weeks, such as the penalty points issue and the issues which arose between the Minister for Justice and Equality, Deputy Shatter, and Deputy Wallace, who is present. Those issues dominated the media and possibly overtook the publication of the report. I am pleased we are discussing the report today because we want to be constructive and probe the issues involved. The delegation has put recommendations on the table.

Some two months have passed. The Opposition has raised the issue with the Minister, Deputy Shatter. He said he is awaiting the response of the Garda Commissioner and when he has had a chance to go through it, he will pull both sides together. I want to establish when that will happen. Is the delegation satisfied it will happen soon? I am not. It has taken two months which is far too long for something as serious as the issues raised by the report.

The delegation confirmed its concerns in regard to people being handled off the books are historic and current. We need to be very clear because CHIS is in place, as is accountability to a High Court judge. The issue is people being handled off the books, engaging in criminality and being given a cover to do so while co-operating with the Garda. These are matters of serious concern. The delegation cannot be specific, but I would like it to address the general concerns around that.

Immediately after the delegation published its report, unfortunately, a number of journalists ran stories quoting Garda sources. There were attempts to discredit its work. That is why I feel quite annoyed about the fact that two months later, there has been no definitive response from the Minister. When the committee has completed its deliberations on this matter, we will make recommendations to the Minister on what needs to be learned. I apologise for being long-winded.

Commissioner Simon O'Brien:

I will address the first question. We are very keen for a meeting to take place between the Minister, the Garda Commissioner and our organisation. In fairness, some might say we took four years to complete our report and perhaps someone in the Phoenix Park needs some time to ingest what it said. We are not just talking about the management of informants in terms of this meeting which will, it is to be hoped, deal not just with the section 80 special report but the issue of time limits and how we have co-operative engagement between us and the Garda Síochána.

I return to the point made by Commissioner Foley. We need accountability by consent. We need people to come around the table in a spirit of co-operation. Since the establishment of the new commission, we have spent 18 months having very positive dialogue with colleagues at the most senior level of the Garda Síochána. While we recognise time limits are a problem, we are also clear that in going public, we wanted to encourage debate.

If two months have passed and colleagues present from the press take up some of these issues, we do not want to be seen as those in the corner mithering and trying to make headlines. We want to make headway. If we have to wait a bit longer for such a meeting to come together and it is productive, informed and everyone around the table is completely on message about what we are trying to achieve, we as a commission will feel we have done a much better job than perhaps we have done in the past.

While two months may have passed, I am comfortable that the Minister is taking this matter seriously. He is in a position to be party to the committee and chair it, which we would welcome. We need to have a debate with members who look after their constituents. We need to have a proper debate in an open and transparent way. If we can get that right in the next three and half years of the commission, the committee will find us to be a commission that is willing to engage in a debate, take and receive criticism and, in an appropriate, fair and proportionate way, provide good criticism in order that the people can understand what is going on and understand not just the Garda position but also our position.

Commissioner Kieran FitzGerald:

I will augment that point. With regard to informant handling issues raised by the Chairman, it is important for us to make a distinction. There is a danger that we perceive the discussion and debate to be framed in the context of State security and all informant handing issues pertaining to those very sensitive issues, about which there are real and proper rules and cautions. We absolutely accept that.

The points we made do not necessarily relate to issues which touch on those matters. It is important to make that distinction and that sight of that is not lost in future deliberations of the committee. One also needs to distinguish between the fact that people provide information on an informant basis, which is sometimes registered in the CHIS system and which is a form of policing.

If something is off the books, we see no reason that should happen and we can find no justification for such an event to happen. It is of concern that it is not addressed until the point at which it becomes a problem, which is usually in court, in which case everyone has a mess on their hands. It is not good for public confidence in the entire system of justice.

I draw the attention of the committee to the fact that public spirited individuals occasionally provide a piece of information to the Garda. For example, someone may have seen someone with a set of tools going at the back door of a house. They are not informants in the normal sense. Rules need to be written to cover such cases in order that an ordinary garda, who is not involved in informant management at a senior or serious level, knows he she does not have to become bogged down in a bureaucratic rigmarole of paperwork overtaking such pieces of information.

There is a likelihood that confusion will arise and it is important we distinguish between such cases on paper for gardaí who should be properly trained. They are a few of the issues the committee should bear in mind during its deliberations, if indeed they address the issues it raised.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

I thank the delegation. It has made recommendations and I ask them to submit them to the secretariat for our deliberations.

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

I thank the delegation. We had a very productive meeting on Monday with some of these people. We are introducing a Private Members' Bill to improve how the policing system works and with regard to holding it to account. We asked for a meeting with GSOC.

I wish to rehearse some of the points discussed at the meeting in order to put them on the public record. The special report states that things could be better and that the commission could do with a bit more co-operation which would allow the Garda ombudsman to be a more effective force and increase its capacity to hold the police force to account, which is its remit, in my opinion. I would argue that it is not getting the support it requires to hold the police force to account and which would be to the benefit of the State.

On the question of admissibility, we are of the opinion that the period of six months should be extended to one year with a right of appeal in respect of GSOC decisions. We also raised the issue of introducing an independent police board to separate the commission, the force and the Minister for Justice and Equality, in the style of the system in place in Northern Ireland. We do not recommend an exact copy of that system because there were particular issues at play there which our State would not encounter. An extension of the period of admissibility from six months to one year would be very helpful.

In addition to breach of discipline and possible criminal offence, a new code of conduct should be drawn up to include breaches of human rights and service level complaints which would form a third ground of admissibility. Specific incidents of non-compliance by An Garda Síochána could be reported to the new police body. The commission report states that new protocols are being considered. That is all well and good but a policy on paper is one thing while making it work is another. The commission's work is often delayed by the Garda Síochána disputing whether information is relevant to an investigation. It is difficult to credit how the Garda Síochána would see fit to decide on that matter, given that the Garda ombudsman is the body responsible for the investigation. An independent police board acting as a mediator would allow the Garda ombudsman to report matters on non-compliance. The issue of non-compliance is not easy to deal with.

I refer to how complaints are currently handled. Statistics from the Minister for Justice and Equality show that fewer than 1% of complaints by the public reach the Director of Public Prosecutions. Half of these complaints are probably deemed inadmissible in the first place. The public perception is that the Garda ombudsman struggles to hold the Garda Síochána to account and the public complainants are frustrated that their complaints are not resulting in a desired response in many cases. One third of complaints to the Garda ombudsman are referred on to the Garda Síochána. If the Garda Síochána decides there has been no breach and there is no case to answer, no explanation is provided to the complainant. This is very disappointing. There needs to be more engagement with the complainant. Another third of complaints are investigated by the Garda Síochána under supervision by the Garda ombudsman, while a further third of complaints are dealt with by the Garda ombudsman. In my view, all complaints should be under some control of the Garda ombudsman. If the State is serious about the Garda ombudsman being an effective body, extra resources must be provided to deal with the one third of complaints which are not supervised by the Garda ombudsman. That one third of complaints are deemed to be the most minor offences, but the public perception is that it is unsatisfactory to have these complaints dealt with by the Garda Síochána outside of the control of the Garda ombudsman. The chances of complainants receiving serious answers about their complaints are difficult at that stage. Last November the UN rapporteur recommended that GSOC be permitted to initiate its own review of policies and procedures without being requested to do so by the Minister. I ask for the commission's opinion in this regard.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Do the commission members wish to respond to those questions at this point?

Commissioner Simon O'Brien:

We can deal with some of those questions at this point. I refer to Deputy Wallace's question about the police board. That is a matter of policy. If this Legislature brings legislation forward, we would be happy to work with any arrangement of that nature. It is not our place to comment on what any future policy may be. On the question of admissibility, the commission may extend admissibility decisions in certain circumstances. However, because of our case load, complaints are normally at a very low level - I use that word in the most appropriate way. These relate to basic service failures. Obviously, if a more serious matter arises some time later, the commissioners consider a decision independently of each other and come to an adjudicated position as to whether we would admit that complaint.

I refer to the Deputy's very good points about the Garda code of conduct and the issue of breaches of human rights. I agree there are some areas on which we, as a commission, will want to focus. Our five year strategy shows a focus on investigations around the death and serious injury of a person, which will be a real issue. We are bringing forward training for our staff to ensure the commission is a proper instrument of the State which will properly investigate the death or serious injury of a person.

The Deputy made some very interesting points about the number of complaints we refer to the Garda and the number we deal with ourselves. If we can reach the point where we are getting co-operation, it will make us more efficient. If it means a superintendent is not travelling from one district to another to investigate what is sometimes a very minor issue, if they could be picked up in some form of service issue and not be part of this very bureaucratic discipline process, then we, the commission, would not be sending so much back to the Garda Síochána in the first place. I wish to be very clear that section 94 of the legislation provides for a clear mechanism for both supervised and unsupervised investigations. Having been a police officer prior to this life, in my view it is not right for us to take away all the disciplinary functions of a police service of the size of the Garda Síochána. I am certainly very willing to talk in the next two and a half to three years about how much should be done by the commission and how much by the Garda Síochána.

We recognise the very stringent restrictions on the funding of resources. We will use every resource available to us to the best. If this public debate results in further co-operation, we may be able to take on more work in a more efficient way without the need to ask for more resources.

I refer to the UN human rights rapporteur and section 106. That individual will travel all over Europe to find out how other oversight bodies work. I suggest some small steps now, including the possibility of positive engagement from the Garda Síochána with regard to timeliness.

Commissioner Kieran FitzGerald:

I suppose I would sound a small note of caution in the context of extending the six month admissibility criterion, particularly as this might have a knock-on effect. There are rules in the Criminal Justice Acts with regard to summary offences and the speed and timeliness required in bringing them to the attention of the DPP in order that court proceedings might be pursued. As a result, there might be a knock-on effect which might simply be beyond the provisions of the Garda Síochána Act alone. As Mr. O'Brien stated, we extend the time in circumstances where we think it appropriate to do so. Section 106 is certainly dealt with in the UN rapporteur's judgment and it is also contained in the legislative suggestions we have put forward in some reports to the Minister. We have no issues at all to take up with regard to it.

Pádraig Mac Lochlainn (Donegal North East, Sinn Fein)
Link to this: Individually | In context | Oireachtas source

Before he poses his next question, I ask Deputy Wallace to take the Chair. I apologise for being obliged to leave early and I thank our guests for their contributions.

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

I do not know whether to throw the members of the press out of the meeting. What are the view of our guests from GSOC on adding to the definition of serious harm in order that it would mean injury that amounts to torture or inhuman or degrading treatment and would also refer to sexual assault?

On the repeal of sections 74(1)(a) and 74(4) and the amendment of section 74(3), which relate to the removal of a member of An Garda Síochána, gardaí serving in GSOC and no secondment for serving gardaí in GSOC, I understand that there are two superintendents working in GSOC and that their presence is required in order that it might access the PULSE system. The notion that GSOC does not have power to access that system is just outrageous. I imagine our guests are very much of the same mindset as I am in this regard. This seems strange because, from the point of view of the public, the idea of gardaí working within the commission does not really add up. Perhaps our guests do not agree but that is the impression we obtain from many of the complaints we have received in respect of this matter.

On the question of section 87(4)(b) of the principal Act being amended via the substitution of the phrase "at any time before or after" for that of "at any time after", this obviously relates to a situation where a case might be brought against a garda who retires before he can answer the charges. Our guests will state that if such a person is no longer a member of the force, then there is only so much it can do in respect of charging him. If the matter involved is criminal, I know there are ways of dealing with it. If the garda in question is accused of causing serious harm of any sort to a complainant, does the commission have the power to hold him to account?

What are our guests views regarding amending section 87, which relates to the admissibility of complaints, to cater for the inclusion of the Garda Commissioner and thereby making him answerable to GSOC if a complaint is made against him?

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.

Michael Healy-Rae (Kerry South, Independent)
Link to this: Individually | In context | Oireachtas source

I apologise for interrupting but another vote has been called in the Dáil. We are going to be obliged to suspend again and return or to postpone the remainder of the proceedings. Before we do so, I wish to make a proposal because I will not be able to return if we do suspend. I very much appreciate the work the commission is doing and I thank them for coming before us today. I propose that the Garda Commissioner should come before the committee to provide direct answers to questions arising from the publication of the commission's report and from what our guests have stated at this meeting in response to answers from members. The next person I want to see sitting opposite members and answering their questions is our good friend, the Commissioner. I very much look forward to asking him a number of questions. I had the pleasure of meeting the Garda Commissioner here before and he had the pleasure of meeting me.

Clare Daly (Dublin North, Socialist Party)
Link to this: Individually | In context | Oireachtas source

The Garda Commissioner will be coming before us to discuss a number of issues. What is the timescale in respect of this meeting? I am really conscious of the time our guests spent with us earlier in the week and the fact that they are here now. I suggest that we suspend and return for a further brief session.

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

I do not mind what happens. Do members wish to stay and not go to the House for the vote? Would it be the end of the world if we were not present for it?

Clare Daly (Dublin North, Socialist Party)
Link to this: Individually | In context | Oireachtas source

No.

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

It would be unfair if we asked our guests to wait for us again while we suspend proceedings.

Commissioner Carmel Foley:

We are not going anywhere.

Clare Daly (Dublin North, Socialist Party)
Link to this: Individually | In context | Oireachtas source

We do not intend to keep them long. There are, however, a few matters which members wish to get on record, particularly as this is the first occasion on which our guests have been invited to come before us.

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

I am asking whether members want to go to the Dáil to vote or whether they want to stay here and continue these proceedings.

Clare Daly (Dublin North, Socialist Party)
Link to this: Individually | In context | Oireachtas source

I do not mind, particularly if, as the Acting Chairman seems to be implying, our presence in the Chamber will not make any difference to the outcome of the vote.

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

I have an awful feeling we are going to lose that vote.

Clare Daly (Dublin North, Socialist Party)
Link to this: Individually | In context | Oireachtas source

Yes. I am happy enough to remain here.

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

Okay. We will stay put and keep going.

Commissioner Kieran FitzGerald:

In the context of our on-loan superintendents and access to PULSE, in our special report we have made a very clear recommendation to the effect that we should gain access to that system and that we would have a terminal in our building. For the record, I wish to say that the two superintendents who work with us and their four predecessors have been very good, productive and honest members of GSOC staff for their periods of service. We have no issues with them at all and, in fact, we are very grateful to them.

Commissioner Carmel Foley:

I would add for the record that the Garda superintendents who worked with us in the past and the two superintendents who are currently with us all had to volunteer to do that work under the Act. The Commissioner was not able to designate people; they had to present themselves as volunteers to work with the GSOC. In terms of the reference to cultural change, it was a big step for them to volunteer. In some police forces outside the Irish jurisdiction, before a member of a force can be considered for the senior ranks, he or she must have worked on dealing with complaints, which is a good practice. Dealing with complaints from the public should be viewed as being as important as some of the other skills, training and experience a police officer would have gained before being considered for promotion.

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

I thank the witnesses for that.

Clare Daly (Dublin North, Socialist Party)
Link to this: Individually | In context | Oireachtas source

It is important, as this is the witnesses first time to formally come before this committee, to put some of the issues on the record. It is unfortunate that this meeting has taken place at a messy time of year where we are in the middle of much ado about nothing in the committee room next door and in terms of many other votes and all the rest of it.

I am conscious of what Deputy Healy Rae said in terms of why the witnesses are not giving out more. I am conscious of the fact that the steps they have taken already have put this issue very much centre stage. In some ways they have been involved in a quiet revolution in putting the message into the public domain that all is not well. That is hugely important and they would have been negligent if they had not done that. I appreciate it is very much an usual step for a public body to have to take, which indicates the seriousness of the issue. I understand why they have done that and I very much compliment them on it. It is quite a radical step.

I agree with the witnesses that it is difficult to change culture. I do not know what has been their experience but I presume nobody would go to the ombudsman commission with a complaint first off. Presumably it is the case that in respect of the majority of complaints the first step is that the person would go to the local Garda station to try to resolve the problem and it is only when people encounter a problem there and do not perceive that the complaint is being taken seriously or consider there is a cover up that many of this complaints end up at the commission's door. That is a cultural practice. The approach taken in a station may be that the complainant is an irritant or a crank, rather than taking on the responsibility to get back to the person about the matter.

Part of the problem is probably that the blue wall of silence is still there and that is a systemic problem. In our experience, and this is linked to the point that was made about the penalty points issue, internal systems to address issues raised by gardaí who have problems with what is happening and in terms of whistleblowing are not in place; a vehicle in not in place for gardaí to do that. My understanding is that when the complaint in regard to that issue originally landed on the commission's desk, it did not come from the garda concerned but from another quarter; somebody else brought that to the witnesses' attention in October. Let us just say, somebody else or some other organisation told me that they did that, but I have been curious about whether it was the case that the witnesses thought that because the information was solely based on an internal Garda matter, they decided it was more appropriate elsewhere. There is a belief that gardaí can do what they like and that investigating themselves is a problem.

At a conference held in DCU at which the Garda Síochána Ombudsman Commission and the GRA were represented, I understand the GRA said that its members would prefer an external investigation rather than what they call a lease-back case where something ends up with the witnesses and is kicked back to them. I assume what they meant is that there would be no link or no lease-back to the gardaí. From our experience we have found that people consider the idea of gardaí investigating themselves not to be a good thing. If the GRA and Garda members also believe that is not in their best interests, that is good thing which we should unleash and push from our point of view, but I wonder what the witnesses would think of that?

Why are the levels of criminal conviction so low? Is it the case that if people have a criminal offence and it is a clear-cut case of criminality, they go to a solicitor and take the matter to court. It strikes me that the level of conviction rates on foot of complaints and having regard to all the resources is too low. Have the witnesses any more information on that?

Given that the commission is set up to investigate individual complaints, I do not know what sort of data the witnesses keep. I know they cannot draw trends and that these are individual complaints but do they have access to information that would indicate, say, if there was a high percentage of complaints in Wexford that it related to particular Garda stations or is this a cultural issue throughout the organisation? Is there a culture that complainants are perceived as being interfering busybodies with whom the gardaí will not co-operate or is it that the issue of concern is that if the conduct of a garda is called into question, it would invoke employment rights issues and disciplinary rights which could have an impact on someone's career and all that big quagmire? Is it that the procedures that are in place in that sense unleash a system which makes it cumbersome to get the matter sorted out and makes it difficult whereas if the procedures in place were different, it might be a little bit easier? I know this is a little bit woolly but there is a contradiction, on the one hand, with the witnesses saying that they have all the powers they need and yet, on the other, there is this very big problem. It is something they only want to contribute to a discussion on and they have usefully done that. We believe the legislation Deputy Wallace will move later will assist in that process and in moving this forward into the public domain. I very much accept that it is new territory. I would like the witnesses to explore the culture a little more and the types of problems there are in that respect.

Commissioner Simon O'Brien:

I will respond first to the Deputy's first points. We are very happy to come to this committee or other Oireachtas committees. We believe that police accountability and oversight is a very important issue for the wider Irish public and others in which to engage. The Deputy need not worry about the time we have available today or however busy it has been; we are quite happy to come back to the committee.

In terms of the culture that is in place, and picking up on some of the Deputy's later points, there are two issues involved. The Garda Síochána Act is both facilitative and obstructive. The Deputy made the point that many people go to a Garda station to make a complaint. In terms of the culture that is in place, and I was around many Garda stations in my last job when I was with the inspectorate, many gardaí working at the hatch would say that if a person comes to the station to make a complaint, he or she would hand the person a GSOC 1, which is a form on which one records a complaint. The garda would do so because the Act provides that as soon as someone complains, a garda must record that matter. Unfortunately, once a complaint is recorded, it brings us into a whole bureaucratic discipline-run process, whereby as soon as a member is mentioned in a complaint that member must be told about the complaint and then we go through a whole bureaucratic process. Coming back to our legislative amendments, it would be helpful if we could divide that first interaction whereby the first thing that would happen is that rather than a garda handing out a complaint form out, he or she would have a conversation with the person. The garda would ask the person exactly what he or she wants to talk to us about. We find that the vast majority of these issues are about matters such as the person concerned needs his or her car back, or the person's property is in the police station and it has been there too long, or someone was rude to the person the other day and he or she wants us to have a chat with that person. These are the types of issues we find land on our desk time after time because the form has been completed. As Commissioner Foley said, disciplinary relations have been there a very long time. They are complex and, quite rightly, a garda, once a complaint is made against him or her, has all the rights he or she would want for protection under those disciplinary relations and under the Act. We are up against some long-standing issues in terms of discipline and now in terms of the Act. The Garda Síochána Act is great in many ways but it is rather pragmatic in the way it was put together and it brings us into that legalise position with which we are stuck in terms of this process.

If and when legislative amendments come forward from Members of these Houses, and there is a proper and sensible debate about them, I believe that could provide some solutions both for gardaí and the members' constituents who complain about them.

On the whistleblowing issues, we examined that, as Commissioner Foley said earlier in her submission, and made a decision based upon what was before us at that time. We were faced at that time with a serving Garda member making a complaint, and we were not amenable in that regard. I would say to the members, and we have made it quite open-ended, that there are many things happening in that particular inquiry at the moment. We just reserve our position, and I believe that is the place to be.

In terms of criminal convictions in regard to complaints, we never see that as either a positive or negative performance indicator for us as an oversight body. I would much rather ask whether we are getting satisfaction in terms of confidence from the Irish people in what we are and, thus far, we have found that many people do have some confidence in us as an independent body. We hope that these sort of engagements, and the fact that we are putting this discussion in the public domain to allow other people to comment on it, would increase the levels of confidence people have in us as an organisation and, by definition, in the Garda Síochána in that they are seen to be accountable.

We are first dealing with what are often quite minor issues of service failure. Members will note that when we have got serious matters of complaint we have taken those forward, albeit we have reported to the members about delays. We have had gardaí going to prison, the issue of gardaí being sanctioned by their own Commissioner, and gardaí who have put money in a poor box because they have been found wanting in a court of this land. However, we do not take any succour from that. What we, as a commission, look for is whether we are providing a valuable service using our resources to the best of their ability, and gaining the confidence of people who want to come forward and make a complaint to us.

In many ways we will be fighting a battle in relation to a culture. As I said to the Deputy earlier, in a previous life I was in a police service in another country in which there was no oversight when I first joined in 1978. I was prouder of the police force I left 32 years later where we had bodies such as police authorities, an independent police oversight body and where we were called to account regarding the way our informants were used. There was legislation over-arching that entire area. Frankly, as far as I was concerned, the police force I joined was a closed, white, male dominated force of men and women that was outside the public. The force I left in London was much more inclusive. We had greater confidence but in that time we had gone through a great deal of bad blood in terms of being found wanting on a number of occasions. That is very painful for a police service but it is a very valuable process through which every free democracy must go through.

If we can in some way facilitate open debate on this and other issues and if we can come before this committee or other committees and have a useful discussion with colleagues from the press, and others, when we leave this commission in three and a half or five years time we will be in a much better position. Bringing this to the committee's light today has been our sole issue. We do not want headlines; we want headway.

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

Does any other member want to contribute? I do not think we are allowed invite the press to make comment.

Clare Daly (Dublin North, Socialist Party)
Link to this: Individually | In context | Oireachtas source

On the protocols and the commission's report, the time delays, which were outrageous, shocked the public and members of this committee. Has that situation improved? Most of this information is routine stuff. Have the witnesses stopped getting letters back saying the information is not relevant? Presumably, it is out of order, in terms of any request for information the commission makes to the Garda, for it to write back saying it is not relevant. That is not its job. Has that stopped? Have the delays improved and, if not, can any practical measure be taken that can unlock that?

Commissioner Carmel Foley:

First, under the protocols now being negotiated, and we would hope they are nearly completed, officials from both sides are deciding on the knots we can iron out. Until now there has been a 12 weeks, three months, period for them to complete the disciplinary investigations. They have made the case that given the cumbersome nature of the disciplinary regulations that that is too short and that they would prefer it to extend to four months or 16 weeks. We will agree to operate a 16 weeks interval. However, many of the outstanding files awaiting reply go back longer than 16 weeks. We are suspending judgment, therefore, until we see how the 16 week suggestion will operate but many of them are already over the 16 weeks. That is on the disciplinary side.

Regarding these blockages and communications coming back stating something is not relevant and we are not being given it, that is still happening. We are escalating these queries more quickly than we used to previously. Normally, a senior investigator in our office, when investigating a criminal allegation, has all the powers, privileges, immunities and duties of a garda. I would have thought it sufficient that if a senior investigator is looking for an item, that ought to be enough. As the Chairman said earlier, I cannot see garda detectives accepting someone telling them that they cannot have something and that it is not relevant. However, we have a process of escalation whereby our acting director of investigation goes to a more senior level in the Garda and, if necessary, one of us will go to a very senior level. We are being more robust in operating that system and keeping a very close eye on it. That is the current position on the protocols. As we entered the negotiations in good faith, we would want to give the new system a chance to operate.

There is another issue regarding the way we are delayed in our work. When we opened, one of the regular feeds of information to us from the gardaí came through a copy of each Garda directive as it was made. This is very important because a Garda directive instructs the Garda member on the ground, and the entire Garda force, on what they are and are not entitled to do. The Garda directive gives them their standards of behaviour. If an allegation is made against gardaí, we need to know if that is within their powers, within the directive they have been told to operate under or if it is it something outside their directives. However, we no longer receive the directives automatically. We are told if we want a directive we have to ask for it. We asked them how we will know the directives that have been signed by the Garda Commissioner if they do not at least give us the list of directives that come out, say, every month signed by the Commissioner or disseminated throughout the Garda force nationwide, but we have been told we will not get the list. We are in this Kafkaesque world whereby we are trying to dream up the directives that might have been passed.

Clare Daly (Dublin North, Socialist Party)
Link to this: Individually | In context | Oireachtas source

When did that change?

Commissioner Carmel Foley:

This year.

Clare Daly (Dublin North, Socialist Party)
Link to this: Individually | In context | Oireachtas source

We have seen some very interesting Garda directives which came out around the time the whistleblowing gardaí went, as they are lawfully entitled to do, to talk to a Member of the Oireachtas. None of those whistleblowers talked to the press or engaged in any breaches like that but they are entitled to talk to a Member of the Oireachtas. When they did so, and it became public, Garda directives were issued basically instructing them on data protection, not giving information to third parties, how they handle PULSE information and so on, which created in our opinion a type of chilling effect. Presumably, it could also impact on the information those gardaí would give to people such as the witnesses. It was a great deal of content that would have a cross-over with the witnesses, and that is a very serious deviation.

Commissioner Carmel Foley:

Certainly, we have built up a body of directives since we began operating and if we know enough to ask for a particular directive, we have not been refused it. However, one would simply consider it to be normal communication that we would get the directives automatically as they are issued.

In addition, prior to directives is the more basic document of the Garda code. That document is not readily available and in the interests of openness and transparency, we believe this document should be both in our domain and in the public domain. It is the basic bible used by gardaí, which would help the public understand the powers gardaí have. Indeed, it may cut down on complaints when people realise that Garda powers do allow them to carry out some of the activities and behaviour about which people complain.

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

Has GSOC ever requested the code of discipline from the Garda Síochána?

Commissioner Carmel Foley:

The Garda code is wider than discipline and is the entire bible. We have the disciplinary regulations, which are regulations that are negotiated by Garda management with the Garda unions and the Department of Justice and Equality. That is the genesis of the disciplinary regulations and while they are available, the code, that is, the entire corpus of material under which they operate, is a secret document.

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

Has GSOC requested access to its precise contents?

Commissioner Carmel Foley:

We have it because we need it. I apologise if I was unclear in this regard. We have the Garda code because we need it to measure individual garda behaviour against what is there.

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

However, GSOC must find it to be highly frustrating if it is dealing with the public but cannot make public such information.

Commissioner Carmel Foley:

Certainly, were the Garda code on the Garda website, I believe it would be a step forward for any member of the public or organisation to see what was there.

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

Is there any thing else the witnesses wish to add?

Commissioner Simon O'Brien:

We greatly welcome the joint committee's invitation to appear today. Obviously, while we recognise the legislative burden on these Houses and elsewhere is very heavy given the economic times we are in, we would greatly welcome a debate about some of the issues we have put forward regarding legislative amendment. Clearly, when we took the action of laying before these Houses a report about informant handling under section 80, we took that decision very carefully. All I would say is we certainly will make sure we can summarise or highlight those issues and recommendations we consider to be highly pertinent to a free, open and democratic society, such as that the methods of covert policing must have oversight. Methods of covert policing are absolutely vital in the fight against crime and terrorism but some openness and transparency in those areas should be given to a certain group of individuals who can look at those particular issues. Thereafter, if we, as an oversight body received a complaint from a member of the public, we could go to that group of individuals and ask it to examine the relevant records and that would satisfy us. That is absent at present and as a professional police officer in a former life, I believe it is really important that the issues we have put forward under section 80 are not lost in the overall debate. While this would involve a great deal of careful negotiation - I completely understand how that must go forward carefully - not to be lost is that the exchange between us, an oversight body and the body with which we are in most contact, the Garda Síochána, generally is about routine requests for information. In Scotland, a new organisation that is about the same size as the Garda Síochána, has just been set up, namely, Police Scotland. I had a conversation with colleagues there and found that after five days of not getting information, they were on the telephone to Stephen House, the chief constable, who made sure this request was adhered to

Mick Wallace (Wexford, Independent)
Link to this: Individually | In context | Oireachtas source

Before wrapping up, I thank the witnesses for their attendance. The fact there has been a debate about these issues within the past nine months will be really positive for everyone and not just the public. I also believe it will be very positive for the police force, as greater transparency and more accountability is in everyone's interests, including the police force itself. I believe it is positive that matters have entered the public domain that were not there heretofore. At the outset, the commissioners stated their preference for making progress rather than headlines and while they may believe it or not, the joint committee is of the same mindset. I acknowledge that politicians are accused of the opposite but we think we can contribute something positive by challenging the status quo. I am convinced things will function better for everyone in the long term through open discussion and calling a spade a spade.

I again thank Commissioner Carmel Foley, Mr. Simon O'Brien, Mr. Kieran Fitzgerald and Mr. Graham Doyle for their attendance. The joint committee will adjourn until 4 p.m. on Wednesday, 10 July, when it will consider public petitions.