Lorcan Roche Kelly: Why the Garda complaints process needs to change

For my children and me everything changed on a night in early December 2007 when Sylvia Roche Kelly, their mother and my wife, was murdered.

In the grief-addled weeks and months that followed I discovered the perpetrator of this evil to be someone known to the Garda Síochána: he had been arrested and had appeared in court several times in the months leading up to the murder.

The more details I discovered, the more I came to suspect astonishing Garda misconduct and incompetence.

In March 2008, I contacted the Garda Síochána through my solicitor with my concerns. A year later, I had still not received a response so I then made a complaint to the Garda Síochána Ombudsman Commission (Gsoc). The over three years of toing and froing with Gsoc that followed led me to conclude that Ireland suffers a police accountability mechanism that by design cannot achieve accountability. If a member of the public feels wronged by a garda, Gsoc will listen to the complaint and then, in the vast majority of cases – including mine – hand the complaint back to the Garda Síochána for investigation.

Evidence suggests a remarkably high attrition rate: for example, 5,918 allegations against members of the Garda Síochána were made in 2012. Only 67 of those complaints led to any sort of action against a member.

Commission’s hands

I eventually persuaded Gsoc to undertake its own investigation only to find the commission’s hands were tightly bound. It is prevented from investigating the actions of retired gardaí­.

Secondly – and flowing against the direction of public confidence in a transparent force – the Garda commissioner has final say over whether or not to pursue a breach of discipline, even if Gsoc finds one has occurred. In 2012, 1,001 complaints were closed when the commissioner “identified no breach of the discipline regulations”. My case was one of those dealt with in this way.

Gsoc is trapped within the inadequate legislation that governs it. As currently calibrated Gsoc provides the veneer of police oversight. To those for whom victim-centred, transparent and efficient policing is somehow threatening, its underpinning legislation has proven to be a particularly effective buffer.

Having had so much experience of the system of policing oversight in this country, I fear it is comparable to the regulatory regime that watched over Irish banks in 2006. With Gsoc malfunctioning I resorted to the High Court where I took a case against the Garda Síochána. My reason for taking the case was simple. If the Garda Síochána had done its job with competence, Sylvia would still be alive. This is indisputable. Nevertheless, my case was doomed on a point of law – something I knew from the start. Essentially, the Irish courts rely on a judgment of the House of Lords handed down in 1988.

In that case a survivor of one of the victims of the Yorkshire Ripper tried and failed to sue West Yorkshire Police due to the many and varied failings in a long investigation during which the murderer, Peter Sutcliffe, continued to kill.

In his judgment, Lord Keith agreed with the court of appeal judge who said police were immune from this kind of action. In his view, “in some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded”.

So, effectively, the police could not be sued lest that impeded police officers from taking risky actions. On the face of it such a conclusion may seem reasonable.Unfortunately, it carries the perverse risk of police acting with impunity. Some may hear, as I do, echoes of the police approach during the 27-year campaign for justice fought by the relatives of the Hillsborough 96.

For me it meant the civil system of justice would not lay a hand on the Garda Síochána. Why then did I take the case? Best policing practice towards victims of crime is surely a transparent, helpful and honest approach by those we charge to impose the law without fear or favour.

Stonewalled for years

Instead I was stonewalled for years both by the Garda Síochána and the Department of Justice. So I took a court case not to win but to kick at the door of a criminal justice institution seemingly more interested in its own reputation than learning lessons. Why should this matter to every member of the public? The Garda Síochána is a unique institution within the State.

One may disagree with the actions of the Catholic Church, and, if so, leave the church with total freedom. But with the Garda Síochána, one has no option, short of leaving the State, of removing the powers it holds over each of us. Due to this unique position Garda actions have to be beyond reproach. Gardaí­ have to be accountable when they make errors.

The rot in the Garda and its oversight may be addressed if the Government redraws the Garda Síochána Ombudsman Commission and this time provides it with real teeth. And I use the word rot with all the firmness and certainty I can muster.

In the nine years since the murder of my wife, I believe nothing has changed.

Lorcan Roche Kelly is a journalist and farmer in Co Clare