Oireachtas Joint and Select Committees
Thursday, 1 June 2023
Committee on Public Petitions
An Garda Síochána Ombudsman Commission Annual Report 2021: Discussion
I welcome everyone to the meeting. Apologies have been received from Deputies Martin Browne and Cormac Devlin. I do not see any other apologies here. The minutes of the private and public meetings held on 3 May and 4 May 2023 have been circulated. Are they agreed? Agreed.
I remind members of the constitutional requirements that they must be physically present within the confines of the place which Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. I will not permit a member to participate where they are not adhering to this constitutional requirement. Therefore, any member who attempts to participate from outside the precincts will be asked to leave the meeting.
The purpose of this meeting is our engagement with An Garda Síochána Ombudsman Commission, GSOC, to discuss the annual report for 2021 and related matters. Before we start, I wish to explain some limitations to parliamentary privilege, and the practice of the Houses as regards reference witnesses may make to other persons in their evidence. The evidence of witnesses physically present or who give evidence from within the parliamentary precincts is protected, pursuant to both the Constitution and statute, by absolute privilege. Witnesses are again reminded of the long-standing parliamentary practice that they should not criticise or make charges against any person or entity, by name or in such a way as to make him, her or it identifiable, or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if witnesses' statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks. It is imperative that witnesses comply with any such direction. I propose to publish the opening statements on the committee’s website. Is that agreed? Agreed.
On behalf of the joint committee, I extend a warm welcome to Mr. Justice Rory MacCabe, chairperson, Commissioner Hugh Hume and Mr. Peter Whelan, director of investigations and operations. Also in attendance is Ms Valerie Woods, deputy director of administration at GSOC. Mr. Justice Rory MacCabe will read out the opening statement, for ten minutes, and we will then have questions and comments from members. Each member will have ten minutes. Members may speak more than once. I now invite Mr. Justice Rory MacCabe to make his opening statement.
Mr. Justice Rory MacCabe:
I thank the Acting Chairman. We submitted this opening statement a couple of days ago. I am sure the committee members had an opportunity to look at it. It would be helpful to put it on the record for the people who will be watching.
I thank the committee for inviting us here today. We had a very fruitful engagement last year. I am joined here today by Mr. Hume, my fellow commissioner, Mr. Whelan, our director of operations, and Ms Woods, our deputy director of administration. We are appearing before the committee having just recently submitted our 2022 annual report to the Minister. That report will shortly be laid before the Houses. While the formal focus of today’s meeting is our annual report of 2021, which we published last summer, we have also included some detail from our 2022 report in the supplementary briefing material provided. We thought it would be a good idea to relate some of this fresher information to the committee, not least because, as members are aware, this time next year GSOC will no longer exist. Indeed, it is in the context of the significant institutional reforms facing GSOC that we meet with the committee today.
Since our last meeting the Policing, Security and Community Safety Bill has been published and has recently completed Committee Stage in the Dáil. We expect the Bill to be enacted in the coming months, and its core provisions – including the replacement of GSOC with a new office of the police ombudsman – are expected to be commenced early in 2024. It will be a major change in policing oversight, and this commission and our executive team have been given a specific objective of transitioning GSOC to the new office of the police ombudsman. We look forward today to speaking to the committee about this task, which is well under way at present.
GSOC was established in 2007 under the Garda Síochána Act 2005. Our primary job is to independently investigate complaints from the public concerning the conduct of members of An Garda Síochána. We also conduct investigations into matters referred to us by An Garda Síochána, the Minister for Justice and the Policing Authority, as well as matters we judge to be in the public interest to investigate. In addition, we are one of the designated bodies to which members of An Garda Síochána can make protected disclosures. Our headquarters are located in Dublin. We have regional offices in Cork and Longford. We operate in 26 counties, seven days a week, 24 hours a day. The work is challenging and complex, and results depend on our staff, whose skill and dedication deserve the highest respect and recognition.
We receive a significant volume of complaints from members of the public, usually in the region of 2,000 per annum. In 2022, for example, we received a total of 1,826 complaints containing 2,234 separate allegations. Complaints range from low-level issues to matters of the utmost seriousness. In 2022, the top three circumstances underpinning complaints were matters arising during arrest, poor customer service or complaints relating to the conduct of investigations.
The top three allegations arising from complaints in 2022 were: neglect of duty, which amounted to 33%; non-fatal offences such as assault at 21%; and abuse of authority at 20%. Admissibility rates for complaints range between 50% and 60%. Many complaints and allegations, while made in good faith, arise from circumstances that come hand in hand with gardaí carrying out their duties. Others clearly relate to circumstances where members have breached professional standards or the law. It is our job to sort through these and to contribute to a more accountable policing infrastructure in Ireland. Where we identify systemic issues in our investigative work, we make recommendations to An Garda Síochána, to advise it as to the need to review policing policy and practice. We have recently decided to publish these recommendations in full on a periodic basis, including any relevant responses from An Garda Síochána. Since 2018, we have also operated a local intervention initiative. This can facilitate the speedy resolution of some complaints without the need for formal investigation and this innovation that has been extremely successful over the past few years with the addition of considerable potential value in allocation of scarce resources where they are most needed.
It is also important to be clear about where our role ends. We do not prosecute gardaí. We do not suspend or discipline them. If our investigations lead us to conclude that an offence may have been committed, we are obliged to send a file to the Director of Public Prosecutions, DPP. It is then for the DPP, as the State’s independent prosecuting authority, to decide whether a prosecution is warranted. If our conclusion is that misconduct has occurred, we pass the file to the Garda Commissioner, whose responsibility it is to consider whether a disciplinary sanction should apply.
By their very nature, some investigations are straightforward and some are not. Some can be dealt with quickly and some require a more significant commitment in terms of staff, resources and time. The duration of investigations can cause frustration. This is understandable. However, we, as with all investigative agencies, are duty-bound by the principle of due process and the need to respect human rights principles. We cannot and will not prioritise speed at the expense of rigour in completing our investigations. GSOC has no interest in keeping any investigation open any longer than is strictly necessary.
Last year, I said that organisational transition was the commission’s primary strategic focus in the context of the drafting and eventual publication and passage of the Bill currently making its way through the Oireachtas. We and our colleagues across GSOC’s executive staff have worked with the Department of Justice on the Bill. In the course of that process, we gave reasoned observations on gaps and many practical issues of concern we identified in the draft legislation. The Bill represents a significant step forward in addressing a clearly defined and long-signalled gap in Ireland’s policing accountability infrastructure. That said, it is our view that in a number of significant ways the legislation falls short of the vision of independent civilian oversight laid out by the Commission on the Future of Policing in 2018. The Bill maintains an undue degree of ministerial involvement in the governance and operations of the new police ombudsman. The Bill curtails the new agency’s powers in crucial areas, including search powers and fails to require An Garda Síochána to cooperate fully and promptly with the agency’s investigations. As the Bill continues its passage through the Oireachtas in the coming weeks and months, we will continue to articulate these concerns.
In parallel to our engagement on the legislation, GSOC is involved in cross-agency and cross-departmental implementation programmes. These aim to put all the practical governance and inter-agency systems in place to ensure that the new office of the police ombudsman will be ready to fulfil its new statutory remit. This involves sustained engagement by GSOC administrative and operational staff with counterparts in the Department of Justice, An Garda Síochána and in the National Shared Services Office. This work is ongoing. A core aspect of this has been to prepare our institutional and governance structures for our relaunch as an agency with, for the first time: its own independent Oireachtas Vote; a CEO who will be the Accounting Officer answerable directly to these Houses instead of the Secretary General of the Department of Justice, who is the current Accounting Officer; and an ombudsman and deputy ombudsman replacing the current three-person commission. Work on a new and multifunctional case management system that is fundamental to the ability of the new office of the police ombudsman to fulfil its enhanced mandate, is also a priority in our organisational transition. It is a complex project for which we are drawing on a well of external expertise and guidance. Once complete, it will equip the new office of the police ombudsman to enhance performance management, track the progress and timeliness of investigations and crucially, to produce robust data on trends and patterns on which we can base research.
Following some welcome increases in our staffing and resourcing in recent years, our current staff complement as of today is approximately 170. Our most recent budget allocation in 2023 was €16.67 million. Unfortunately, this remains some way off the minimum necessary to meet our current needs and does not come close to meeting the requirements that the expanded statutory functions proposed in the new legislation will require. GSOC has repeatedly and publicly flagged that in order for the new office of the police ombudsman to succeed, significant additional support in the shape of resources and expertise will be needed.
In order to better identify the new ombudsman’s needs, we commissioned an external organisational review of GSOC. This has recently been completed and will assist us and the Department of Justice in making a business case to the Department of Public Expenditure, National Development Plan Delivery and Reform. It will also provide us with a prism through which we can view existing strengths and weaknesses in our present operation. It was placed on our website in the past few days. The review demonstrates what a transformed and expanded office of the police ombudsman will require in terms of staffing, resourcing and expertise. Our aim is to paint a clear picture of what will be necessary to ensure that our successors, the new police ombudsman, deputy police ombudsman and chief executive officer, can fulfil their new remit. In broad terms, a minimum of a doubling of our current staff complement, including a considerable increase in our complement of investigative staff, will be required. We are not talking about a Rolls Royce, but a vehicle that can carry all the complement needed to investigate all the complaints we receive from start to finish, professionally, fairly, rigorously and in a timely fashion.
Recruiting, training and embedding such a large number of staff will also be a significant challenge for the new organisation. To that extent, I welcome the consideration An Garda Síochána is giving by facilitating our investigators in their training system. It is a sophisticated, comprehensive training system that is fully funded by the State. It is situated in Templemore. Whether the new office of the police ombudsman will succeed will depend on the combination of many different ingredients. The core of these, in the shape of a motivated, competent and dedicated staff, is already present. More responsibilities will, however, require more resources. Effective investigation in the digital age has become a fast-moving and increasingly complex undertaking. Failure to prepare for this will inevitably be preparation for failure. Keeping ahead of this is the aim, but keeping pace alone will take considerable effort. Recognising these immutable facts when it comes to resourcing will determine whether the aims and objectives of the new legislative regime will be met. It is our clear aim as a commission and executive staff to do everything we can to ensure that the new office of the police ombudsman is equipped to provide the service the public expects. That is efficient, effective, human-rights-based policing oversight that promotes accountability and the enhancement of trust in policing in Ireland.
I will conclude my opening remarks there. I look forward to the discussion to come. Last year, I invited the committee to consider coming to visit us at our Dublin headquarters and taking the opportunity to meet our staff. I repeat that invitation today for the committee to meet the staff, listen to them and see the work they do. It is my belief members will be impressed. I thank them again for affording us the opportunity to discuss our work today.
It is an in-depth report. I stated previously that I like the fact that it is no holds barred. The last time Mr. Justice MacCabe was here, he spoke about the staffing levels and stated that he was hoping recruit approximately 30 additional people. He also stated that he wanted to at least double GSOC's complement with a large increase in the number of investigative staff. He also mentioned that the budget is not high enough, even though it is 22% above what was allocated. I was thinking as he was talking that a currant cake cannot be baked without currants. If GSOC does not have the full complement, it will not function. What would be a realistic figure for what is needed to staff GSOC fully?
A passion of mine relates to protected disclosures and how the process has changed, whereby the onus of responsibility has been reversed. What is the process for a member of An Garda Síochána to make a protected disclosure? Do we have an idea of how many have been made? Mr. Justice MacCabe stated that the duration of some of the commission's investigations can cause frustration. Is that frustration on the part of the commission or the complainant?
Mr. Justice Rory MacCabe:
I can probably answer the final question in one sentence. Everybody involved is frustrated. The complainants can be frustrated, as can be the members who are the subject matter of the investigation, and we can be frustrated in seeking the timely co-operation of people involved in the investigation. It is a general frustration, and I am sure members of the public are frustrated when they regularly turn on the radio or television and hear complaints from people, often justified, about the delays that exist.
In respect of the other questions, I will ask Mr. Hume to come in and perhaps then my director of operations and my deputy director of administrations to deal with the staffing questions and the protected disclosure matters.
Mr. Hugh Hume:
I might start on the question about protected disclosures. Prior to the new legislation coming in, GSOC was a nominated body and commissioners were prescribed persons under the legislation for workers within An Garda Síochána. Workers within An Garda Síochána could come to us and make protected disclosures. That has not, largely, changed with the new legislation. In practical terms, it is still the same.
We receive on average about 20 protected disclosures a year. Last year, we received 18, but it can vary from year to year. On 1 January of this year, we had 53 ongoing investigations arising from protected disclosures, and they relate to a broad range of matters from allegations of corruption or sexual impropriety to low-level theft and bad behaviour within the workplace. We have a dedicated protected disclosure unit that manages, on our behalf, all receipts of protected disclosure, protecting at all costs the identity of the person making the disclosure and carrying out investigations to a high standard and in a way that ensures the integrity of the process. As I said, that has been largely unchanged by the new Act. Whereas previously the Minister for Justice could send us a protected disclosure, that is now routed through the new protected disclosure commissioner rather than the Minister. Nevertheless, this is a resilient and active end of our business that produces a lot of investigations and much of the work we do.
On the staff questions, I will hand over to Mr. Whelan in a moment. We are still some way off our full complement. Mr. Justice MacCabe referred to the Grant Thornton review, which conducted international benchmarking of similar agencies to ours and looked at the comparable caseload and work carried by organisations. Our equivalent in England and Wales carries between two and five cases per investigator. We are a long way off that lower level of demand being placed on our investigators. I will let Mr. Whelan talk in detail about it, but we are significantly above that level. Based on the figures produced in the Grant Thornton report and our own internal assessment, as of today we are significantly under-resourced to benchmark against international best practice.
Mr. Peter Whelan:
To add to what Mr. Hume said, the Grant Thornton review undertook a comprehensive benchmarking exercise and provided us with a model on which we could base our figures, which was very helpful. At any one time in GSOC, we might have between 900 and 1,200 investigations ongoing and at different stages of the investigative process. At the moment, we have 30 investigators and ten assistant investigators, or 40 in total. If we have a minimum of 900 investigations and we want each person to carry ten cases, we are talking about a figure such as 90, which leaves the figure 40 a long way short of where we need to be. That adds to the stress and pressures that Mr. Justice MacCabe spoke about for everyone in the internal staff, who are not able to carry out very timely investigations but do comprehensive and thorough investigations and respect processes and all the legal procedures that need to be in place. We are finding that the investigations, although lengthy, are becoming more complex in nature and the volume is extremely high.
The Garda Representative Association's general secretary stated that he understood each GSOC investigator had 50 to 60 files. Is that accurate? To follow on from Mr. Hume’s previous point, the international norm might be closer to 15 cases per investigator. Is that an accurate representation of the current numbers?
Mr. Peter Whelan:
Between 40 and 50 was the reality about two years ago. The case numbers now are closer to 25 or 30. Again, one case might be very complex. Two of our investigating officers deal solely with major investigations, so people such as that have to be taken out of the equation. The numbers are still far in excess of the ten that was recommended by Grant Thornton.
According to the documents that were submitted to the committee, there was a marked decrease, approximately 30%, in the number of referrals made to GSOC in 2022 on the preceding 12 months. Why do the witnesses think the number of referrals is down by such a significant degree? Is there any indication of what has driven the decline?
Mr. Hugh Hume:
If I am correct, the Senator is referring to the fact that in 2021, there were 55 referrals and in 2022, there were 41. It might be useful to unpick what a referral is. When we talk about referrals, we are talking about referrals under section 102 of the Act, where a death or serious harm has occurred. These are some of the most tragic and challenging investigations that GSOC is called to encounter. Lives have been changed forever and loved ones have been taken from people. Those cases come to us when the Garda Commissioner, which in practice means a superintendent, makes a decision that the death or serious harm of an individual may have been as a result of the conduct of a member of An Garda Síochána. That is where referrals come about. They follow a death in custody, a suicide following a period in custody or any case where a superintendent says the actions of a Garda member may have led to that. There is nothing we can see, looking at the types and causes of referrals, to indicate that any systemic, organisational or environmental factors have caused this change over the two years. Last year was an especially busy year. We cannot see any underlying factors for the change at this time.
In regard to the Policing, Security and Community Safety Bill, will the witnesses expand on the issues relating to potential amendments and the points Mr. Justice MacCabe touched on, including search powers and ministerial oversight?
Mr. Hugh Hume:
There are pros and cons to the Bill, and we have been clear, open and honest about that. We welcome the increased independence the Bill will provide to the new office. We will have our own Vote and access to money. Money is a significant determinant of independence and will allow us to make important decisions, so that is positive. The Bill will require the automatic referral of all complaints to the new office, whereas at the moment, they do not all automatically come to us. They can be processed within An Garda Síochána and decisions can be made whereby they do not come to us.
That automatic referral is an important point so we can understand the level of potential wrongdoing that is ongoing within An Garda Síochána and whether any policy or procedures need to change. It also means there is true independence around investigation. Those are important aspects of the new Bill.
I should also have said that we also welcome the streamlining. The new Bill allows for a complete streamlining of complaints. At the moment, if a complaint comes in, we have to deal with it as a criminal investigation. When we finish that, we have to start again and deal with it as a discipline investigation, which adds to the timelines. The new Bill allows us to just deal with it as a single issue.
On the negative table, we have some concerns about the independence. The Senator is quite right. The new Bill places a triple lock on searches of Garda stations. We advocate for some of that. We believe there should be judicial oversight of our searches of Garda stations. We have advocated for that, and it is good. It also requires that the head of the office of the police ombudsman authorise the search, and it is appropriate that the senior person within the new body makes that determination. We have some challenge, however, in that the current Bill requires that the Garda Commissioner give concurrence to a search of Garda stations. We feel that is a hindrance to our investigative independence. In practice, we will frequently inform members of An Garda Síochána so that they can facilitate that search. However, that is an operational decision to be made by the investigators. Searching Garda stations should not be subject to Garda permission. That is a challenge around the independence.
The other issue of independence that we are concerned about is the requirement that we submit our report via the Minister for Justice and that it be laid with the Minister’s approval. We would look closer to what the defence ombudsman and others do and ask that we lay the report directly before the Oireachtas to demonstrate that independence. That is one of the areas we have concerns about.
We have concerns about timeliness in that the Bill places a requirement on the new body to act in a timely manner. That is fine and we accept that. However, it places no equivalent requirement on An Garda Síochána to respond and support our investigation in a timely manner. That we could be held to account for delays from An Garda Síochána is unfair and could reflect on us.
The biggest issue, which will affect timeliness and independence and is a bit of a stuck record, is resources. This new Bill will place potentially a significant number of additional investigations - 1,400 - with us and a significant addition of processes with us, so we need to be resourced to deliver that. We need to be resourced to deliver those additional investigations, which will also bring additional complexity because some of them will come from within An Garda Síochána if there are incidents of concern. We need to be effectively resourced so our independence and timeliness are not hindered by lack of resource.
Those are the pros and cons of the Bill as we see them at the moment.
I welcome the witnesses and thank them for their in-depth contribution. Will they give an indication of the number of open files GSOC has at the moment and provide a timeline for the opening and closing of these files? In other words, do we have files that are open two, three or four years? What is the profile of the files that are with GSOC at the moment?
Mr. Peter Whelan:
We have files that have been open up to 15 years. The majority of our files are open for up to three years. In a point-in-time survey done last March, we had 350 files in year one, 168 in year two and around 80 in year three. The numbers are much lower for the longer periods but there are still files that would be open because we may waiting for a report from an inquiry that the Garda has to implement or a coroner’s inquest or court case to finalise. In addition, we do not have the resources to progress certain cases in a timely fashion. There is normally a reason behind a case going beyond three years. The median length of time for a criminal investigation is 366 days. They can take much longer than that, depending on the case, or they can be shorter because they are very different. Every case brings a whole different set of requirements regarding how we investigate.
In addition, there are many other factors. Sometimes we get good engagement from the complainant and sometimes we do not. We depend on good engagement from the member and sometimes we do not get that. If the member appoints a solicitor, that can introduce delays. If there is a coroner’s inquest, if the DPP has a file and we are awaiting a decision or if court dates are awaited, those can all create delays. If we have to gather a large amount of evidence and take a large number of statements, that can create delays. We take statements under caution. If we are gathering CCTV and digital forensic evidence, it can be quite timely to download and analyse that. Not every investigation will be subject to all of those factors but some will. It varies greatly.
Regarding the long-term cases, is there a process in place in GSOC to deal with them? For example, is there a review mechanism or a cold case mechanism? What mechanisms does GSOC have to deal with a case that has been open for, say, three years?
Mr. Peter Whelan:
Every quarter we take a look at the spreadsheet to find out why cases continue to be ongoing. If it is within our gift to finalise them, we do so. We have a small group of cases that have been ongoing for between six and 15 years, which are not be within our gift to close. We would be waiting for another party.
Regarding Covid and how it affected GSOC operations, in particular with regard to the report, how did Covid hamper or become in an issue in putting together GSOC's workload and in advancing complaints? Was there a peak or trough in the Covid period? How did Covid affect GSOC's ability to operate and deal with complaints?
Mr. Hugh Hume:
In respect of our ability to operate, Covid affected us, as it affected a large number of organisations, but we did not stop. I only joined the office laterally at the end of Covid. Those who went before me had a robust plan in place to continue to deliver the service, from complaints and administration to investigations, so we continued to deliver our service throughout that period. However, there were delays with witnesses not wishing to come and be interviewed, Garda members concerned about interviews and our staff’s health and well-being. Covid affected GSOC as it did other organisations but a considerable amount of work went on. On-call remained and staff continued to attend calls and respond to referrals in spite of the pandemic.
For a while, we kept records of Covid-related complaints arising from An Garda Síochána but, like much of the data on our current case management system, it was not hard data because it is hard to establish if an individual member of the public complained at a Covid checkpoint whether it was Covid-related or was simply because of the Garda presence.
That is an interesting point. Our interaction with the Garda community through that period of time was something that the State had never seen previously. I refer to the data regarding people's right to move and people's ability to be stopped in the street to ask them where they were going. Did Mr. Hume see an increase in activity coming to GSOC regarding those issues?
Mr. Hugh Hume:
We definitely saw an increase in complaints arising from checkpoints because of the increased Garda contact with members of the public but our information probably would not be mature enough to establish that was directly a result of Covid or the Covid regulations. Certainly, there was more Garda contact with individual members of the public and that generated additional complaints.
Regarding GSOC's ability to recruit, there is 3.8% unemployment at present in the State. It was announced yesterday as the lowest rate in the history of the State. GSOC has a very unusual recruitment profile, to be honest. We are looking at a certain cohort of individuals who are required to fit the skill set to do this work. Will the witnesses give the committee an indication of the personnel GSOC is chasing? They mentioned investigators. Would those investigators have been involved in other police organisations, either in the State or outside the State? They might give me an indication of what GSOC is looking for when it is looking to recruit the numbers that are being proposed and the challenges, whether budgetary or even personnel, in reaching that target.
Mr. Peter Whelan:
We are looking at a very large-scale recruitment exercise. The Senator is correct. We are fishing in a very small pool. The profile we have at the moment of investigating officers would be former Defence Force military police, former people from regulatory authorities, former international police services and some former gardaí. That is the type of pool. It is anyone with investigative experience because we are a civilian oversight body. We are looking for civilians who have any experience in doing investigations.
Under the investigating officers, we have assisting investigating officers who we over time bring to the level of investigating officer. Then they have the opportunity, if they want, to progress into that grade. They would have less experience coming in but they would be upskilled while on the job.
It will be a very difficult recruitment exercise. There are some people out there. We have a panel at the moment of investigating officers. We use the Public Appointments Service, PAS, to do all of our recruitment. With vetting and clearance, it takes quite a while to get someone from interview stage into the organisation.
Mr. Hugh Hume:
As Mr. Justice Rory MacCabe mentioned in his coverage, people come and leave. They acquire skills in GSOC that are invaluable to organisations and they move on. That turnover of staff, particularly on the investigation side but also in the wider Civil Service, is a constant drain for us. Ms Woods might talk to this. Thankfully, we have recently secured sanction for a training course that will allow us to provide external training to members who maybe do not always have that investigative experience to bring them up to standard. Does Ms Woods want to say something about that?
Ms Valerie Woods:
As Mr. Hume mentioned, we received sanction recently to go to the market to scope the development of a dedicated training course with regard to on-board specialist skills for our investigative staff.
The Senator mentioned the challenging market. That is an issue for every Civil Service organisation across the board but there are particular issues relating to-----
Ms Valerie Woods:
It is. There are different challenges for us, I suppose, be it a reference or the length of time the clearance process takes, and the size of the pool that we have access to. Those kinds of issues are ongoing for us all the time. Certainly, the strength of the labour market is also another factor that frustrates our efforts to recruit.
Mr. Justice Rory MacCabe:
It might ask, if it gives us permission, where will we get them. No doubt that is a problem because there is no course. The only course that is available for investigations at present is basically the course that is run for trainee gardaí in Templemore and there has been a reluctance, I suppose, to get us involved in that. I see a change at the moment. I would have some hope.
In many ways, with the deepest respect to the members of An Garda Síochána, they could benefit from such a course that would have graduates going through who then could become a part of the Garda profile or part of another body such as the military police or GSOC. Is that an avenue we should be discussing?
Mr. Justice Rory MacCabe:
Yes. We have been discussing where we could penetrate the education system to see if we could get the University of Limerick or one of the other higher education institutes interested in putting on a dedicated course. With educational institutes, as the committee members are probably all aware, it is a matter of money.
I welcome the GSOC representatives here today. None of us underestimate the challenge of their job, which involves being seen to try to be fair to everybody. This will be a really good exchange. It is something we need to do as public representatives. For starters, and apologies if some of the questions have already been asked, how many people make up the staff of GSOC? I do not need the exact figures.
Mr. Hugh Hume:
That would depend. For example, in a protected disclosure, clearly they would not be informed who made the complaint because the identity of the protected disclosure is protected at all costs and they would not receive that.
If the person who is making the complaint is a witness to or a victim of actions, at some stage they clearly would be aware of the person if the matter moves to investigation. Not all complaints move to investigation and they would be informed if there is an investigation at some stage.
We can hold back on providing some information if we are at a stage of gathering information and we do not want any information or any evidence to be lost. We can hold back on telling people certain facts but, by and large, when we are in a criminal investigation that is outside protected disclosures or investigation, they will be aware at some point that a person has made a complaint against them in line with the Constitution and fair process.
I thank Mr. Hume for being upfront in his answers. I will take the example of a recent case. We woke up to the news one morning that a garda is going to be prosecuted over a very serious incident that happened where, unfortunately, three people were killed. It appears to me that this garda was doing his job in the line of duty. It would appear that this garda did not know anything until that came out in the media. Is that true?
I understand that and I respect the Chair. How does a situation arise where we wake up to the 7 a.m. news and at the top of it is a story that a garda is going to be prosecuted? Where does that come from? My understanding is that the garda or his family did not know.
Mr. Peter Whelan:
When a death or serious harm occurs and the Commissioner makes the decision that it may have resulted from the conduct of a garda, he refers it to GSOC. When it comes to us, it is a case of we shall investigate so we must then carry out an investigation. Because such cases are so serious, we would carry out a very comprehensive investigation. It is usually very long and very detailed. There is a lot of evidence to be gathered and assessed. When that is finished, we write up a report and send it to the commission. The commission within GSOC will then consider it and if it thinks there was conduct that may constitute an offence, it will decide to send it to the DPP. The DPP then considers the file and decides whether it does or does not warrant prosecution. At that stage, if it decided it does warrant prosecution, it goes to a judge to issue the summons and at that stage, it goes into the court system for a court date. That is the process. If it involves a death, there may be a coroner's inquiry. That is where some information will come out. Nobody will have seen the evidence at this stage other than GSOC and the DPP so nobody commenting on any case will have viewed any evidence at that stage.
I admire Mr. Justice MacCabe's honesty. I understand that GSOC has a very difficult job to do and I am sure the witnesses are all very honourable people who want to see that fair play is given to everybody but it is as well to be honest here. The perception among the public is that once it hears on the news that GSOC is involved, the Garda is guilty. I am sorry to say that this is the perception so we need to improve the message.
If a member of the force feels he or she was treated unfairly or has a concern that an investigation was not conducted in a fair manner, does he or she have any comeback? Is there any procedure that allows him or her to come back?
Mr. Justice Rory MacCabe:
He or she has access to the courts. The courts then have a duty to review the case and decide whether GSOC acted within or outside its mandate or, in any event, came up with a decision that was irrational. That is effectively judicial oversight of the oversight body, which is correct.
Mr. Hugh Hume:
Last year, we finalised 48 investigations arising from death or serious harm relating to a member of An Garda Síochána so in 48 cases, we have completed our investigation. In two of those cases, we sent a file to the DPP so our response is proportionate and only where the evidence says there may be an offence. In two cases out of 48 last year, a file was sent to the DPP so I think that provides clarity around our decision making.
There has been much talk in recent weeks about body cameras and facial recognition technology.
The ICCL and other human rights organisations note that such systems can often identify faces incorrectly, particularly those of women and people of colour. The ICCL also stated that in its opinion the use of such technology is neither necessary nor proportionate. Does GSOC have any comment to make about whether the use of such technology would be good, bad or effective for the organisation in carrying out its own work? Having consideration for those concerns, would its use be proportionate?
Mr. Hugh Hume:
It is a matter for Oireachtas to decide if body-worn video and facial recognition software should exist in the State. From GSOC's point of view, the equipment may be useful. Our comparator in Northern Ireland published reports on the use of body-worn video and how that allows it to assess complaints and make a determination around what has happened at an incident. No technology is infallible and the technology can be used for both good and bad. From GSOC's point of view, any introduction of technology must have robust policies and robust procedures for the protection of data and images to ensure they are not shared disproportionately. It would also mean an additional resourcing demand for GSOC. As opposed to the 3,000 allegations we receive yearly now, each one of those potentially could have a body-worn video image attached that we would have to receive, manage, store, keep safe and review. That could be much more resource intensive, both at the technical and human level, for us going forward. It is a matter for the Oireachtas. Whatever is brought in needs to be accompanied by proper, robust procedures that we and others can check to make sure there is no misconduct going on. There would be implications for GSOC. The wider issue for GSOC is around culture and practice within An Garda Síochána rather than the technology. Any technology can be abused and it is very important it is treated with respect.
Mr. Justice Rory MacCabe:
If I may add to that, from 15 years on the Bench dealing largely with criminal trials, one of the most powerful tools that has appeared has been real evidence in the sense of CCTV coverage. The camera does not generally lie. It has been a powerful weapon in protecting people as well because it seems to me that the use of body-worn camera technology has a double effect. It can be used to detect and assist in detecting crime but it can also be used as protection for the Garda member wearing the camera. I know the Garda Commissioner is very keen on it but, as Mr. Hume said, it is ultimately a matter for the Oireachtas.
Mr. Justice Rory MacCabe:
To give an example of it, in a previous incarnation, I spent some time dealing with our colleagues in Northern Ireland during the peace talks. One thing that was very frustrating as far as colleagues in Northern Ireland were concerned was that while they were all members of the EU at that stage, they did not have direct access to it and had to go through Whitehall. They always felt as if they were going with their begging bowls to Whitehall which then processed the application for funding to Europe. They resented that. The situation with GSOC is that it does not have its own Vote. That means GSOC has to apply to the Department of Justice which passes the application on, having applied whatever filter it thinks is appropriate, to the Department of Public Expenditure, National Development Plan Delivery and Reform or the Department of Finance. Having one's own Vote means one simply has direct access and control of one's own Vote.
GSOC could potentially become a significantly larger organisation. That would bring benefits but also, obviously, more work. The question was asked, "Who regulates the regulator?", which is a very significant statement. What process would fall into place to make sure the regulator is doing an appropriate job regarding its own staff or situation?
If I had to make a disclosure, who could GSOC then make a disclosure to regarding the investigative powers of an officer? Let us say, hypothetically obviously, that a protected disclosure was required in a scenario, to whom would the person make a protected disclosure?
I find this engagement to be very important. I acknowledge the openness shown by Ms Woods and the other witnesses. I am sorry if some of the questions were a little hairy but that is the nature of the beast, as they say. I asked a question about gardaí who have been suspended and whether they had been suspended for minor issues. What would be the most minor cases? To revert to what my colleagues said about what GSOC needs now in terms of resources and staff, how many more staff does GSOC need now to do its job properly? I thank the witnesses again for their engagement.
Mr. Hugh Hume:
To reiterate around the suspensions, An Garda Síochána does not tell GSOC all the rationales for suspending members so we do not know. While GSOC carries out significant investigations into gardaí, the Garda investigates matters that arise from within its own knowledge and ability and it suspends members based on information it has or complaints it is dealing with where the complainant has chosen not to complain to GSOC. It would be impossible for GSOC to know what cases attract suspension level because that is internal governance in which we do not take any part. Mr. Whelan will address numbers.
Mr. Peter Whelan:
We said earlier that the Grant Thornton review gave us a model to estimate numbers. It looked at the Independent Office for Police Conduct, IOPC,which is our sister agency in the UK. It also looked at Northern Ireland and Scotland and found that each investigator might have between two and five cases. Grant Thornton came up with a figure of ten cases per investigator. At the moment, we have 40 investigating officers, IOs, and assisting investigating officers, AIOs, so at any one time we can cope with maybe 400 investigations. That does not take into account many other factors, for example, where we have a major investigation coming in. GSOC has between 900 and 1,200 cases on hand at any one time, so would need significantly more than the 40 staff.
On cases of suspensions, GSOC does two types of investigation. One is a disciplinary investigation, while the other is a criminal investigation. It is probably fair to say, although this is not definite information, that our criminal investigations attract more suspensions than disciplinary investigations. Again, we do not have full access to that information.
I thank Mr. Justice Rory MacCabe, chairperson of GSOC, Mr. Hugh Hume, commissioner, Mr. Peter Whelan, director of operations and investigations, and Ms Valerie Woods, deputy director of administration, for coming to speak to the committee. This session was very beneficial. I thank them for their honesty. I will suspend the meeting to allow the witnesses to leave.