Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)

Gabhaim buíochas leis an mBreitheamh Morris, agus an foireann a bhí aige le cúpla bliain anuas, as ucht an tréan-iarracht a rinne siad chun teacht ar an fhírinne sa chás seo. D'fhiosraigh siad an méid a bhí ar bun ag an nGarda Síochána i dTír Chonaill sa tréimhse a phléadh. Tá léiriú géar déanta ag an mbreitheamh ina ocht tuairiscí ar an gcaimiléireacht a bhí ar bun ag baill den Gharda Síochána, ag gach leibhéal, i dTír Chonaill. D'fháiltigh mé roimh na tuairiscí eile ón mbreitheamh. Fáiltím arís roimh na tuairiscí is déanaí, atá á phlé againn inniu. Is oth liom an ráiteas sa tuairisc is déanaí — an ochtú tuairisc — i leith na slí a dhein an bheirt Theachta Dála déileáil leis na líomhaintí a tugadh dóibh sa chás seo — na líomhaintí a thosaigh an próiseas seo. Níl an cheart ag an mbreitheamh sa chás seo.

I believe the findings of the tribunal in respect of the channelling of allegations to the Minister by the two Dáil Deputies to be wrong. Serious allegations must be investigated by those with the power of investigation. While the Minister has the power to commence an investigation, Deputies do not. Shamefully, this aspect of the tribunal reports has to an extent eclipsed the long overdue vindication of the McBrearty family, who suffered greatly as a result of Garda abuse. Members must concentrate on this aspect, as well as on the other recommendations made by Mr. Justice Morris and his team regarding the Garda Síochána and the manner in which it carries out its investigations and duties.

Thankfully, some of the recommendations have been taken on board in recent times in various legislative items passed by this House. However, not all have been accepted and Members await some of them, which I intend to address in my contribution to this debate. Unfathomably, the language and tone of the Minister when he launched the two final reports earlier this month and in the Chamber today betrays the fact that he remains in denial as to the extent of corruption across the force. He stated, "some persons were treated ... badly by individual members of An Garda Síochána". He deemed it to be "[t]he disgraceful behaviour of a small number of Gardaí in Donegal during a period in the 1990s". He reduces, without support, what is a significant problem of systemic Garda abuse to that of a small number of individual gardaí in one location during a single time period. Together with other Members, I am on the record as highlighting cases of Garda frame-ups, beatings and — I believe — manslaughter, as well as a culture which has nurtured such abuse across the island and not merely in County Donegal. There must be an acknowledgement that there was wrongdoing in other areas outside of County Donegal. Mr. Justice Morris himself has stated explicitly the "issues are not peculiar to Donegal". This underlines the need for such an acknowledgement. Moreover, the wall of silence was not simply maintained by senior officers in County Donegal, as it went beyond that county. As long as successive Ministers remain in denial as to the true extent of the problem, the necessary reforms will never be realised. I acknowledge that some reforms have been introduced but many more are needed.

I want to focus on the systemic shortcomings identified by Mr. Justice Morris and his recommendations for legislative, cultural and practical reforms. I will begin by addressing the findings of the sixth Morris report in regard to covert surveillance and the recording of conversations. As serious organised crime appears to abound unchecked and television shows such as "The Wire" grow in popularity, public demand for the use of covert surveillance is understandable. I have long urged caution, however, because Garda abuse of such investigatory techniques is inevitable in the current legal vacuum. In the cases investigated by the Morris tribunal it was found that gardaí were secretly recording conversations with civilians and other Garda members whenever it took their fancy. Mr. Justice Morris was highly critical of the absence of legislation and guidelines governing the area. He found:

there is little or no, legal or ethical, guidance given to An Garda Síochána by statute or statutory instrument, or in the Garda Síochána Code, concerning covert surveillance whether by Gardaí in person or by means of audio or audio/visual electronic devices or recorders.

The reason for any decision to carry out surveillance should be clear and the level of intrusion . . . . . should be proportionate. . . . .

Mr. Justice Morris also argued that authorisation should be sought from a judge rather than a chief superintendent. I previously stated that judicial oversight is key to preventing opportunities for abuses from arising.

The Law Reform Commission is of the view that covert surveillance amounts to a breach of Article 8 of the European Convention on Human Rights because it is not based in law, and the recent European Court of Human Rights judgment in Liberty, ICCL and BIRW v. the UK affirms that view. The Minister for Justice, Equality and Law Reform and his predecessor made periodic announcements promising a covert surveillance Bill. I hope the promise in the legislative programme to bring in the covert surveillance Bill in 2009 will be kept. I look forward to debating that Bill and ensuring it meets the recommendations made by Mr. Justice Morris and others. The legislation must include clear provisions governing when it is permissible to engage in covert surveillance in the first instance and the forms of surveillance that are proportionate in specific scenarios. It must also vest the power of authorisation in the Judiciary rather than the Garda.

The issue of the member in charge was highlighted in the reports. The member in charge in a Garda station at any given time is responsible for ensuring full compliance with regulations governing the treatment of persons in Garda custody. In other words, he or she is responsible for ensuring that the rights of detainees are respected and vindicated. The sixth Morris report points to a need for cultural change in this regard. Mr. Justice Morris argues that the role is not vested with sufficient respect and authority and advises that a member in charge should be a garda of considerable experience, at least of sergeant rank. He recommends training and refresher courses for members in charge and senior officers with a view to ensuring that the independence, power and authority of the member in charge is recognised and re-established.

The more recent report of the Hartnett inquiry into the death following custody of 14 year old Brian Rossiter addresses the same issue. In that case, successive members in charge failed even in their most basic duty to keep accurate records of custody during Mr. Rossiter's unlawful detention. The first member in charge on that occasion had the additional responsibility of acting as public interface for the station. Mr. Hartnett stressed that the responsibilities of the member in charge to those held in custody must have higher priority than all other responsibilities.

In recent years, successive Bills amending criminal justice legislation extended the hours of detention. On this matter, Mr. Justice Morris argues that a proper and authoritative assessment should always be conducted to determine whether the extension is required and the senior officer involved must be open to the possibility that it may not be factually justified. The superintendent should acquaint himself or herself with all the facts necessary to make the decision. The decision, including the reasons for the application, the nature and extent of inquiries undertaken by the superintendent and his or her reasons for extending the period, should be recorded. Current records merely refer to the necessity for proper investigation of the offence. That is not good enough because it does not reveal proper procedure. Níl sé seo maith go leor agus caithfidh athrú teacht ar sin láithreach.

In regard to Garda statements responding to claims against the force, section 6.37(4) of the Garda code requires that allegations made in civil actions taken against the Garda Síochána are addressed and refuted where possible. The manner in which this is being interpreted causes huge problems and the section needs to be replaced. Gardaí should simply be required to give a full, truthful and frank account of incidents and the courts can then decide whether an allegation is refuted. Mr. Justice Morris found: "It is regrettable that such a basic proposition in relation to telling the truth should have to be spelt out in this way." That sums up much of what he had to endure because of the apparent lack of a culture of truthfulness among the gardaí with whom he dealt. He had to fight tooth and nail to arrive at the truth in his investigations.

Part II of the seventh report of the Morris tribunal highlights the absolute inadequacy of the Garda complaints board, which was found to be beset by conflicts of interest. Mr. Justice Morris found: "The system of Gardaí investigating Gardaí, particularly when faced by a 'blue wall' of denial from the gardaí under investigation, was never going to be capable of uncovering the corruption that was endemic in the Donegal division at that time." The ICCL noted in its comments on the report:

If the events uncovered by the Morris reports prove anything, it is that complaints against the Gardaí must be investigated independently. The answer to the Garda Ombudsman's funding and workload problems is not the erosion of its independence.

Even the chair of the Garda complaints board, Gordon Holmes, recognises that fact.

The Ombudsman Commission already falls short of the reforms arising from the Morris tribunal or of equivalence with the Police Ombudsman for Northern Ireland in terms of powers, independence and resources. Despite stressing these shortcomings, we gave its establishment a cautious welcome because we sincerely hoped that it would amount to an improvement on the Garda complaints board and serve to enhance accountability and public confidence in the Garda. Commissioners were appointed at the beginning of 2006 and the commission became operational at the end of 2006 and commenced receiving complaints from the public in May 2007. For the past two and a half years the jury has been out. It has been fully operational for 18 months and the jury is returning. Sadly, the verdict is less than satisfactory. The stated mission of GSOC is to provide independent and effective oversight of policing and to deal with the public's complaints concerning gardaí fairly and efficiently so everyone can have confidence in the complaints system. The GSOC is abjectly failing to deliver on this mission and it is not only the fault of the GSOC. Resources are constraining it but it is not sufficiently independent. It is almost entirely dependent on gardaí to conduct its investigations. A number of key staff were seconded from the Garda Síochána and a number were transferred from the old complaints board or retired from the Garda Síochána in order to immediately take up a position in the ombudsman commission.

The experience of complainants thus far has included huge delays, the expiry of the timeframe commitments of the GSOC, the failure to return calls, the failure to keep complainants updated on the progress of investigations despite expressly made commitments to do so, providing misinformation on the remit of the ombudsman, the wording of correspondence from GSOC being almost identical to that of the old Garda complaints board and failure to provide reasons for decisions. All of this eliminates any semblance of transparency or openness.

I have met the commissioners twice to express my concerns. They acknowledged these and said they are totally over-burdened. They confirmed they do not have the capacity to deal with the volume of complaints coming in, which hints at continuous abuse by members of the Garda Síochána of the position they hold and the laws that govern them. This must not be allowed to happen. Rather than cutting funding for the GSOC, it should be substantially increased so that, at the very least, complaints made by members of the public, which could if not addressed properly lead to tribunals similar to the Morris tribunal in the future, can be addressed by the ombudsman with sufficient powers, confidence and remit.

See this speech in context