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Gsoc is not here to put ‘gardaí on the rack’

Ombudsman reflects on her time with Gsoc, and on the force's need for truly independent oversight

Slapping an A3 sheet of paper, filled with a blizzard of diagrams and arrows, down on a table, Garda Síochána Ombudsman chairwoman Judge Mary Ellen Ring declares: "We could play snakes and ladders if I had some dice."

Headlined Complaints Process, the paper shows a bewildering collection of 50 or so colour-coded boxes linked by arrows, like a mathematical formula, which sets out the many steps required for the Garda Síochána Ombudsman Commission (Gsoc) to investigate a complaint.

The High Court judge, who steps down as chairwoman of Gsoc next week, is relieved the proposed new Policing, Security and Community Safety Bill will replace that model with "rational" and "streamlined" rules, while safeguarding rights.

Unless, however, the proposed new Garda ombudsman body replacing Gsoc is given adequate personnel and resources and timely co-operation by Garda and other bodies in its investigations, it will “end up with paper powers, not real powers”, she warns.

Gsoc broadly welcomes the Bill, but it has serious concerns about some of its elements which, Ring believes, raise questions about whether politicians – Government and the Opposition – are committed to meaningful independent oversight of the gardaí. “They can’t be half pregnant,” she declares.

In an exclusive interview, Ring, who steps down soon as Garda ombudsman before returning to the High Court bench, looks back over her six years in Gsoc, the challenges for policing, and sets out what she considers necessary for truly independent oversight of the force.

Set up in 2007, in the wake of scathing criticism by the Morris tribunal about the conduct of some gardaí in Co Donegal, Gsoc was given powers to investigate incidents where the conduct of a garda may have caused death or serious harm, complaints by the public and public interest investigations.

The purpose, Ring understood, was “to get away from gardaí investigating gardaí” so she was “shocked” when she arrived in Gsoc in 2015 to learn the 2005 Garda Síochána Act establishing Gsoc required it to send complaints made to it about gardaí back to An Garda Síochána.

That, as well as having allegations of corruption against gardaí investigated by the Garda’s relatively new Anti-Corruption Unit (ACU), established just over a year ago, run counter to the principle of independent oversight, she believes.

Handling complaints

Due to a lack of investigators and resources, Gsoc returned 42 per cent of complaints under investigation by it back to the Garda by the end of 2020. Most cover complaints of rudeness against gardaí and such matters, leaving Gsoc with the more serious complaints.

While the 42 per cent figure is a “shocking” one, Gsoc had no option, says Ring, adding she accepts that lower-level complaints should stay with the gardaí and believes both organisations can agree a cut-off point on which body should deal with what. The Garda Ombudsman is anxious to know the outcomes, so that it can go back to the members of the public who made the complaints in the first place and inform them about what happened, she adds.

Gsoc was meant to have 90 staff on establishment but, by 2015, had 77. After Ring and others made the case for more, Gsoc now has about 130 staff, including 42 investigators who carry 150-200 cases on a daily basis.

This has to be seen in the context of An Garda Síochána having nearly 15,000 members, not including more than 3,000 civilian staff. In all, an average of 2,000 complaints against gardaí are made annually to Gsoc, with some gardaí the subject of multiple complaints.

“There was a suggestion we should just add team members and focus on one serious investigation but we’re not gardaí, we don’t have a lot of people to call on,” Ring says. Investigators are dealing with other families who have lost relatives and with women who have alleged sexual assault and domestic violence by serving gardaí. “Do we tell them sorry, your rape allegation has to fall behind while we allocate everyone to one case?”

Contrasting Gsoc’s situation to the Garda ACU, which got 90 investigators on its establishment a year ago, Ring wonders what that says about how politicians see the ombudsman’s role.

While in favour of working with the Garda and building an anti-corruption ethos within it, she is adamant that allegations of corruption against gardaí should be dealt with by the Garda ombudsman, and not by gardaí.

The Garda has put much time and effort into building up the Garda ACU but, in the context of building a resilient police service, there must be a clear understanding of what a corrupt action is and that it’s not just about “the big things”.

Currently, Gsoc is dealing with an investigation where vouchers were given to gardaí by businesspeople in the course of their duties, raising questions about undue influence, but the response of one garda was he “didn’t use it”.

“That’s commendable but it’s more important that the voucher is not accepted and gardaí make clear they are not capable of being corrupted, even in that minor way.”

‘Matter of principle’

Not having gardaí investigate gardaí is a matter of "principle", not a reflection on individual Garda investigators, or on Garda Commissioner Drew Harris, she says. The problem with a Garda ACU is that the Garda is leaving itself open to challenge, judicial reviews, even tribunals of inquiry.

If the public or politicians raise concerns about such investigations, she warns, “Gardaí could say they did it right, but they would be on the back foot, with no independent oversight, and the Garda ombudsman cannot say anything”.

“If you believe oversight is there to protect the public and the gardaí, then an ACU investigating internal matters is not a good idea.”

Thought needs to be given to what happens if there are future personnel changes and future pressures.

Politicians, according to Ring, have “never given a full commitment” to the principle of not having gardaí investigate gardaí. While recognising many in society strongly support the gardaí, she insists that a commitment to independent oversight “is not a lessening of a commitment to the police service, it is adding to a police service in a democratic society” and politicians should not see those two things as “diametrically opposed”.

Gsoc “spends more time confirming the gardaí did it right than confirming they did it wrong” and its work is about establishing a “guaranteed Irish mark” for policing.

Difficult beginning

When she took up the helm at Gsoc, nine months after the previous chair had left, Ring had no management experience and got no guidance, training or support from the Department of Justice “because, in theory, we’re an independent organisation”.

"It was learning in the dark and it was also, for the organisation, a very difficult time." The year 2014 had been a "turbulent" one for policing generally and for Gsoc. Garda commissioner Martin Callanan retired earlier than expected in 2014 after various controversies, there were allegations Gsoc was bugged by an unknown group and "challenging publicity" around it.

There has been a change in policing and a change in the public who had begun to challenge gardaí “in the same way priests, doctors and judges have been challenged”. Gardaí are challenged in a way that is “sometimes appropriate, sometimes less so”.

It means gardaí have to work harder at community involvement and where they do that, they get great pay-off, she says. Gardaí moving off the beat into vehicles has also changed the face of policing, “making them more distant”. “More specialisation is demanded of them but they don’t even have work phones, their job is tougher, they live in the world and have personal and family stresses but are expected to be of good behaviour at all times.”

Abuse

Gsoc has found, in the main, gardaí do their job well and if some had been “more convivial” they might not have been subject to complaint, she says. They “put up with a lot of abuse”, some of which is also inflicted on Gsoc. Gardaí deal with many damaged people, drug addicts, homeless people, people in crisis and are “the first port of call” for people who come across emergencies. Many young gardaí are first on the scene of horrific road accidents and are the people “who find the person in the sleeping bag on the street is not asleep, but dead”.

“They do a very difficult job but we give them very serious powers, they can take a person’s liberty away, they can carry, and use, firearms lawfully. As long as we’re giving them such powers, and saying they can do things no other member of the public can do in that way, then, to protect them, there has to be some independent body saying they did it right, or they did it wrong.”

Gsoc is not afraid to say they did it wrong because Gsoc is not a member of the Garda, Ring says. “Our main constituency is the public and providing a service to the public and in that process being fair to everyone involved.

“Your expectation as a complainant is not necessarily going to be met. We don’t decide to prosecute, that’s for the DPP, we don’t decide to discipline, that’s for the Garda Commissioner, so we send off recommendations to both parties, whether for prosecutions or disciplinary procedures, but that may not happen so we are the bearers of unhappy news.”

Prosecutions

The DPP provides statistics for how many prosecutions arise from referrals by Gsoc but, while the commissioner is required to notify the outcome of referrals made by Gsoc to the Garda, the outcome of those “are less easy to quantify” and “is something we’re working on to try to get more consistency”.

Gsoc previously had to press the Garda about providing reasons for decisions on complaints referred, she notes. Former Garda commissioner Nóirín O’Sullivan was reminded that reasons for decisions “are commonplace” and, if those are not provided, that puts the Garda’s own process “in jeopardy”.

Gardaí complain they are subject to excessive oversight but Gsoc is the only body that deals with complaints in a formal way and the operational oversight of the Garda is separate, Ring points out.

There is “a lot of resistance” from gardaí to any oversight, including tribunals, “that is part of a cultural problem, but it is improving and it’s improving because it is 2021”.

Gsoc investigates all criminal allegations potentially concerning gardaí and prioritises matters that involve death or serious injury to a person. Gsoc should be speedily notified of a serious incident but Ring accepts delays can arise because it may not be clear from the outset a serving garda was involved. In many, if not most, such cases, Gsoc established that contact with gardaí had nothing to do with the cause of death, she says.

Delays

Addressing complaints of delays in completing investigations, Ring stresses some cases are more complex than others and Gsoc’s investigators experience similar problems to Garda investigators including in getting witnesses to come forward. Gsoc is concerned the policing Bill imposes obligations on the ombudsman to complete its investigations in a “timely” manner without imposing time limits on the Garda and others concerning co-operation and reviews. It wants the Bill amended to impose such obligations, and clarity on what is meant by “timely”.

Gsoc must notify the Garda of every investigation commenced, criminal or disciplinary, before it is clear whether the matter is criminal or disciplinary. All gardaí potentially involved in an incident must be notified before it can be established whether they are a genuine person of interest.

By contrast, the Garda does not have to put people on notice that they are subject of investigation prior to an arrest. While agreeing a person of interest should be told, Ring says having to tell everyone can impose unnecessary stress on those who turn out not to be persons of interest.

“In terms of investigating crime, we are under great constraint compared with gardaí. We have all the powers and privileges the gardaí have, but in practice we are forced to operate in a different way.”

This is “cumbersome”, hugely extends time for investigations and gardaí are “quite rightly” annoyed to be notified they are a suspect when they had nothing to do with the incident. Such rules affect how they feel about Gsoc, as shown by representative groups’ annual conferences, she says.

The Garda is a very large organisation with its own challenges in getting messages from management down to the garda on the beat, she accepts. “In my tenure, there has been an acceptance at the top level that we are here and that it is in everyone’s interest to work together but, having said that, we saw the commissioner’s response to the proposed changes.”

Powers

The Garda Commissioner has strongly criticised the Bill as conferring “disproportionate and unconstitutional” powers on the ombudsman and has complained of excessive oversight of the force.

Noting complaints at GRA and AGSI annual conferences about clauses in the legislation that allegedly give Gsoc new powers to search Garda stations, Ring says there is no “new” power. Instead, it has existed since the 2005 Act, has been used “sparingly” and on notice to senior Garda management and had not prompted complaint.

“What is new is that we now have to do it in consultation with the commissioner, which we never did,” she says, adding Gsoc wants that requirement deleted and is seeking extra powers to search Garda vehicles and the property where Garda stations are located.

Ring, a criminal law expert, is “surprised” about suggestions such searches may be unconstitutional, noting a Garda station is a workplace, not a home, and does not enjoy the same constitutional protection.

Gsoc will obviously follow the law and she would be “surprised” if the attorney general would be proposing anything that does not conform to the Constitution.

The ombudsman’s purpose is “not to put gardaí on the rack” but rather to establish if the day-to-day work of our police service is in accordance with democratic human rights.

Policing internationally has been under the microscope for the past two years, particularly in the US, she notes.

"Ireland is in a unique position of leading the way on oversight, of civilian oversight, to be able to say to countries around the world we are not only committed in theory, we have given the powers the resources and the personnel generally to an organisation that can adhere to all the human rights commitments on it, one that reports in a timely fashion and involves the prosecution service so there is further oversight."

There is still work to be done on the Bill and progress to be made, she believes, but she fears that the State will end up with legislation “which again commits to oversight which in practice can’t be delivered and it’s a waste of time, it doesn’t meet international requirements”.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times

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