Ms Justice Mary Ellen Ring:

I again thank the Chairman and committee members for giving me the opportunity to meet them. My fellow commissioner, Mr. Kieran FitzGerald, was to be present, but the weather has defeated him. We are to be joined in the future by a third commissioner as the recruiting process finished recently.

Representatives of the Garda Síochána Ombudsman Commission, GSOC, were last before the Joint Committee on Justice and Equality on 21 September 2016, at which stage a number of the issues raised by the commission were discussed. We were glad to see the committee include many of those matters, together with other recommendations, in the report on Garda oversight and accountability published in December 2016.

The Garda Síochána Ombudsman Commission can confirm that since late 2016 the statutory landscape has not changed for it. However, there have been intervening events, some of which were external and others internal to the commission. On 16 May 2017 he then Tánaiste and Minister for Justice and Equality, Deputy Frances Fitzgerald, announced the establishment of the Commission on the Future of Policing in Ireland. In its terms of reference the commission has been tasked with addressing, with other areas, “the appropriate structures for governance, oversight and accountability, to ensure ... that there are open, accessible and independent means of investigating and adjudicating fairly upon complaints against the police...”.

By May 2017 the Garda Síochána Ombudsman Commission had embarked on its own internal review of its structures as an organisation, while also commencing a review of the current legislative framework. In doing so all staff in the organisation participated in a business improvement process, leading to proposals for adoption by the commission. That was done having regard to the expertise that had grown among the staff, in some instances during the ten years plus of GSOC’s existence. GSOC has a staff who have operated the Garda Síochána Act 2005 with all of its challenges and failings and in so doing have had constant contact with the public. The commission considered it was extremely important to take all views into consideration in looking at how, as an organisation, it could serve the public better and also how it could move forward, with or without legislative change. As a result of the internal work done in 2017, the organisation has revised its working process, although the current statutory requirements dictate how that work is ultimately done. The commission was also conscious, as were staff, that in working better, should there be statutory change, the organisation did not want to have to restructure all over again. Therefore, internal changes were undertaken with a view to being able to adapt to any future legislative developments.

Alongside the internal work, the commission undertook to make a submission to the Department of Justice and Equality on legislative change. That was done in conjunction with the internal work in order that the proposals would not only make sense in terms of good governance and accountability but that they would also make sense in operational terms within the organisation.

Consideration was given to the process of taking back more work from An Garda Síochána under the current legislation which would add to the necessary experience and skills for legislative change in confirming such a change. Again, as part of the business improvement team's work and the legislative change proposals, consideration was given to strengthening the trained team of investigators who would be available and able to take on existing legislative developments and into the future. To that end, GSOC provided a business case proposal for the Minister for Justice and Equality earlier this month. It envisages both short-term and medium-term staffing demands, with a longer term business case, dependent on legislative change. The business case has been provided for members of the committee.

One of the main concerns of the commission is building an operational team of investigators that will be adaptable enough to allow GSOC to deal with the unexpected. Ten years of experience has shown that there is a relatively constant level of complaints in or around 2,000 per year. What cannot be planned for are incidents that occur unexpectedly – a road traffic incident involving a garda or gardaí, a serious criminal allegation against a garda or gardaí, and a decision to refer matters to the Garda ombudsman by the Minister or the Policing Authority. Let me give an example. In June 2017 the then Garda Commissioner unexpectedly sent the commission correspondence which included an audit report on EU funded training programmes-projects at the Garda College in Templemore. There was a clear public interest in an independent investigation into this matter, but the Garda ombudsman was not in a position to carry out such an investigation on its own. For the first time in its history the commission had to make use of the provisions in section 74 of the Garda Síochána Act 2005 and seek the “special assistance” of An Garda Síochána to move forward the investigation. Otherwise, it would have had to discontinue its involvement. The commission can confirm that five members of the Garda joined the GSOC investigation team, with the final member only joining in December 2017. The services of an accountant from Revenue have been also engaged to assist the investigation team, but that secondment will come to an end on Monday, 5 March. While the involvement of gardaí is not the most desirable way forward, in this instance, the commission has been impressed by the professionalism of the members of An Garda Síochána who volunteered to come to work in this investigation and the skills they have brought cannot be underestimated. The absence of ombudsman investigators in this instance directly illustrates the importance of building a resilient workforce.

The Garda Síochána Ombudsman Commission, GSOC, was not aware that the Garda Commissioner was sending the audit report for investigation or the scope of such an investigation when considering the demands on the organisation at the start of 2017. This is a prime example of the unexpected that can arise in Garda oversight.

The business case proposal seeks a total of 37 extra staff in the short to medium term. Twenty four of that additional staff would be for the investigations-operations side of the organisation with the remaining 13 being the necessary additional administrative staff to support the investigations side. It will be necessary for one of the administrative complement to take on the increasing data protection responsibilities that every organisation has to have regard to, particularly having regard to the implementation in May next of the general data protection regulation, GDPR, through the Data Protection Bill. The cost of employing the additional 37 people is estimated at in excess of €1.7 million per year. In our business case proposal we point to the amount of money spent on tribunals looking at the actions of gardaí over the years as an indication that GSOC’s proposals represent good financial value for the proposed investment of public moneys.

As part of the Garda Ombudsman legislative proposals we have sought to be independent from the Department of Justice and Equality. The current legislation provides that the Secretary General of the Department is the Accounting Officer for the organisation. The undoubted benefit of the current position is that the Secretary General oversees the organisation’s financial health allowing GSOC to deal with other issues. The organisation is still accountable to the Committee of Public Accounts but, in effect, the Secretary General of the Department minds our money.

After ten years, however, the organisation feels it is time to cut the umbilical cord. We no longer need the parent to decide our funding and our financial planning. GSOC is ready to take on the responsibility of seeking its own budgetary needs and planning and being accountable for its expenditure. It is ready to fight its own corner with other Departments and can answer to the Committee of Public Accounts if so required. We look to the fact that two recent statutory bodies, namely, the Irish Human Rights and Equality Commission and the Policing Authority, have had encompassed in their legislation their own Accounting Officers as part of their corporate structure. GSOC has built up the experience over ten years of accounting for public expenditure and we are ready to take on this role wholly separate from the Department.

Since our last appearance before this committee the Garda Ombudsman has seen significant development in its role under the Protected Disclosures Act 2014. During 2017 the organisation received 22 protected disclosures from Garda members across the country. We currently have 25 protected disclosures undergoing examination or investigation. Contact has continued in 2018. The commission decided that the kind of protections required for such cases and the other work being undertaken within the organisation meant that we needed a dedicated unit for this work. At this stage it is public knowledge that our proposals for the requirements of such a unit were not met in full and the inability to put our case to the Department of Public Expenditure and Reform directly is an example of the organisation’s desire for independence. GSOC became aware only through the freedom of information request made by RTÉ recently that a departmental view had been offered that our proposals were excessive. If we had been in the position of having our own Accounting Officer, GSOC would have been directly dealing with the Department of Public Expenditure and Reform and perhaps in a position to argue why the proposal was not excessive and merited consideration in full by that Department.

The protected disclosure legislation is a new area. Across private and public workplaces people are finding their way. Is a complaint a grievance or a protected disclosure? GSOC has taken legal advice to guide us and some of the people who come to us may find, as will GSOC, that what troubles them is not in law a protected disclosure. At this stage we have a low bar. GSOC feels it is important to build trust, and time will tell how this area of work develops. However, the feedback we have received from the protected disclosers has been positive. Contrary to the view that gardaí would not turn to the body which deals with complaints about gardaí, we have found members have come looking for help and support and when it has been provided it has been embraced. This very important work has been done by a full-time senior investigating officer and two part-time investigators who have other organisational responsibilities to date. Two full-time protected disclosures investigators will finally commence working with GSOC on Monday next, 5 March 2018, with two more in the pipeline.

On 12 October 2017 we provided GSOC’s submission to the review of the Protected Disclosures Act to the reform unit in the Department of Public Expenditure and Reform as part of its public consultation. It is clear from the Department’s website a number of submissions were received but to date there has been no further contact about the review.

On 17 January 2018 the Garda Ombudsman Commission provided its submission to the Commission on the Future of Policing in Ireland. This is available on the GSOC website and included our proposals for legislative change. Included in that proposal is reference to a new initiative undertaken in consultation with Pearse Street Garda station. I will quote directly from the submission. It states:

GSOC has commenced, in conjunction with the Chief Superintendent from Pearse Street Garda Station, a local intervention initiative from the 1st of January 2018. The objectives of this pilot programme are to reinstate the ability of local garda management to deal with inappropriate behaviour, encourage positive behaviour in gardaí, build and keep public confidence in the Garda Síochána in dealing with complaints, deal with appropriate "service delivery" complaints effectively and efficiently, provide immediate intervention at a local level which will not result in unnecessary, lengthy investigation, and strengthen relationships with GSOC. As part of the pilot, where practicable, all persons that attend at the Garda Stations in the DMR South Central wishing to make a complaint will be dealt with by a member of sergeant rank. The complainant will be given the opportunity to have their complaint dealt with by "local intervention".

Similarly a complainant from the DMR South Central division who contacts GSOC directly will be asked, if appropriate, whether they wish to have their complaint dealt with by way of "local intervention".

In each case if a complainant is willing to deal with their complaint in this fashion, the written complaint is forwarded to a nominated inspector who, having appraised himself/herself of the matter, will meet with the complainant. Contact is then made with the member concerned who is given an opportunity to provide an explanation and/or offer a solution to the complaint. A timeframe of six weeks is envisaged for the process to resolve matters with all parties’ agreement.

Failure to resolve the matter still allows the complainant to continue with the process through GSOC.

The business owner of the pilot programme is the Chief Superintendent. This initiative was agreed between GSOC and the DMR South Central as an effort to meet all the goals of the project and in particular to build confidence in both organisations in the process. There is clear leadership and management envisaged throughout the proposed structure. There is to be an evaluation in June 2018 to see how this pilot is working. Currently it is a project outside the legislative framework but one that leaves open to the member of the public all his/her rights under the legislation.

GSOC sees this as a valuable and worthwhile project to undertake. It is a way forward for both organisations and would be part of a legislative change as proposed by GSOC.

It is also a programme that should instil "ownership" of poor performance and response to the public’s needs where it belongs, and will also instil "ownership" in changing that performance and response.

The commission will be reviewing this project over the next few months to see whether it provides a way forward for the public, the Garda and GSOC.

Last year saw our ten-year anniversary. While there has been little Government action in that time, the organisation has used its time to build up its staff, review its practices and propose credible proposals for statutory improvements and the necessary financial consequences in a responsible fashion. A new website went live in 2017 and will be able to provide us with a more user-friendly platform of information for the general public. We have met the Commission on the Future of Policing in Ireland and forwarded to it our proposals for change. Building on ten years of experience, GSOC is in a good position to ensure that, whatever changes come to policing in the future, independent oversight will continue to be an integral part of policing and GSOC will play an important role in providing that oversight.