Tim O'Malley (Limerick East, Progressive Democrats)

The Minister is opposed to these amendments as the intention behind them is to remove the provisions in the Bill providing for the referral of complaints to the Garda Commissioner for investigation, even in circumstances where they might be supervised by the ombudsman commission.

This brings us back to the point about gardaí investigating gardaí. Senators may have some misunderstanding here. The provisions of the Bill follow very closely the relevant provisions, sections 56 and 57, of the Northern Ireland Act 1998, which established the Police Ombudsman for Northern Ireland. Those provisions in turn were developed from the recommendations in the 1997 report by Senator Maurice Hayes.

Senator Maurice Hayes concentrated on three main models for investigation of complaints against the police following his comprehensive study of the various systems in operation in other jurisdictions around the world. These were investigation by the police with external oversight, complete handling and investigation of police misconduct by a body external to the police service and a combination of police investigation with external oversight for more minor matters with more serious ones being investigated by the external body. The first of these more or less corresponded with the then system in place in Northern Ireland, England and Wales with some variations of it being found in the Garda Síochána Complaints Board here as provided for in the 1986 Act, and in New Zealand and Ontario.

Very significantly for the purposes of this debate, Senator Maurice Hayes reported he saw no example of the second option of complete investigation by an external body investigating all cases and recommending action, whether civil or disciplinary. A quote from the relevant paragraph 13.31 in the report is illuminating. Senator Maurice Hayes noted that such a system:

. . . would remove the responsibility completely from the police (even for the most minor cases). It would do this at a time when there is a need and a drive, not least from within the police, for greater management responsibility in the police service. It would also present difficulties in terms of finding sufficient investigating officers to manage the workload. There would also be problems in breaking into the police culture. Such a body is unlikely to gain police confidence easily and this in turn is bound to affect its credibility.

The final option is the mix of police investigation with independent oversight and investigation by an independent complaints body, usually in the most serious cases. Informal resolution may also be employed by the police for minor matters. Senator Maurice Hayes concluded that a variant of this latter system would be the ideal towards which the police complaints service in Northern Ireland should develop. However, he also said that in view of the lack of confidence in the system in that jurisdiction, the ombudsman should probably investigate all but those complaints considered suitable for informal resolution.

In his scheme he recommended that complaints would be categorised under the following three headings: serious complaints possibly involving criminal action, such as death in custody, serious injury, etc., which the complaints body would have a statutory duty to investigate; less serious, but still substantial complaints which might, at the discretion of the complaints body, be remitted to the police for investigation and report, either supervised or unsupervised; and quality of service type complaints which would be remitted to the police for informal resolution.

It is strange, therefore, that having been exhorted to follow as far as possible the situation which obtains in Northern Ireland, calls are being made to depart from that system in a way which is radically different from the approach adopted there. Sections 82 to 90 in the Bill deal with the ways in which complaints against the Garda Síochána are to be investigated by the independent ombudsman commission. In essence in cases of death or serious harm to a person, the ombudsman commission alone must investigate the matter and this applies even where no complaint has been made. In other cases, the commission can require the Garda Commissioner to investigate the matter. Such an investigation is subject to certain conditions as to the nomination of the investigating officer and the procedural safeguards as set out in sections 86(8) to 86(11), inclusive, which are built in throughout the process.

Alternatively the commission can directly supervise the Garda investigation, again with the power to attach conditions. In those cases where the ombudsman commission decides to use members of the Garda Síochána it can require that they be used under direct supervision or it can grant wide latitude to the investigators to do the job in a quasi-autonomous way subject to the power of revocation.

In no way does the Minister accept that the Bill provides for the Garda to investigate itself. No matter what route is chosen by the ombudsman commission to investigate complaints, ranging from the most serious allegations, including those relating to the commission of possible criminal offences, to those at the lower end of the scale which may involve breaches of discipline, the commission retains absolute control and direction over the whole proceedings. It would be completely unworkable for the commission to have to investigate every matter relating to a breach of discipline, no matter how small. It is entirely appropriate for such matters to be dealt with by the commissioner who is, as I have said before, responsible for the quality of service provided by his or her organisation.

The point remains that the ombudsman commission is in overall control. In this House last Friday, during the course of his contribution to the debate on amendments Nos. 96 and 97, the Minister made it abundantly clear that nothing is wrong with gardaí investigating other gardaí. They do so every day of the week and we would all be aware of the cases they have pursued forensically across a wide spectrum of illegal activities by a few rotten apples, who unfortunately have betrayed their oath and the trust placed in them.