One thing we learned in 2018 is that the Garda should not investigate themselves
The independent investigation of all allegations would engender confidence in the force
There have been many Garda whistleblowers, who publicly and privately have taken the brave steps of challenging a system that didn’t want to be challenged. Photograph: Clodagh Kilcoyne/Reuters
This has been a year in which we have seen and appreciated exceptional courage and commitment to the betterment of our society from numerous individuals, from Vicky Phelan to Maurice McCabe. Their bravery must mean something. It must lead to a lasting change in what they exposed.
As we reflect on and digest Mr McCabe’s experiences and bravery, one of the issues we must examine is how allegations of wrongdoing that arise internally are investigated. We are now deeply alive to the fact that there are a variety of ways in which Garda wrongdoing can be discovered: the public can complain to the Garda Síochána Ombudsman Commission (Gsoc); the courts or coroners can draw our attention to it; the Inspectorate or the Authority can raise questions; a journalist can uncover something; a supervisor or colleague might witness or uncover something.
There have been many Garda whistleblowers, who publicly and privately have taken the brave steps of challenging a system that didn’t want to be challenged. Protections have been put in place through the Protected Disclosures legislation and time, oversight and research will be needed to reassure us that this is working as intended.
But it would be perverse if we created a system whereby every supervisor or colleague who sees wrongdoing has to adopt the extreme response of making a protected disclosure. If that is the only mechanism, then certain issues will be missed, as not everyone will want to adopt that approach. It should be one option in a well-developed system.
The current alternative open to members of the force is to report it internally. Over the last number of decades there have been thousands of cases in which the Garda has investigated itself, concerning issues it has become aware of internally. Garda figures show that every year some 140 cases are subject to internal discipline. It is reassuring that the Garda continually responds to internal allegations. But this is done with little transparency: details about these cases, how they are investigated, what powers are used and what sanctions are imposed are not published in any detail. It’s also clearly contentious, as many investigations end up before the courts, with outcomes being challenged.
When we think about this, something of a perversity arises. It is largely accepted that complaints from members of the public about the Garda should be investigated independently. There are lots of reasons for this.
Some people are not confident that gardaí will investigate complaints objectively; biases, however well-intended, may inhibit a thorough investigation. The Morris Tribunal heard how an internal investigation failed because a superintendent simply did not believe that gardaí would do what had been alleged.
There are also human rights arguments for the independent investigation of complaints against police. And there’s a practical point that investigating these cases is not the best use of garda time.
At present, where the Garda becomes aware of an allegation of serious injury or death, it must... refer this to Gsoc for investigation
Gsoc currently sends more than half of cases brought to its attention back to the Garda to investigate. For a variety of reasons, only cases involving allegations of criminal conduct are independently investigated. To take an example from Gsoc reports, a complaint that gardaí inappropriately entered and searched your house will be returned to gardaí. Thus in the majority of instances the guards are still investigating the guards.
If we accept the case for independent investigation, we should accept that these apply no matter who is the “witness” to the wrongdoing. Whether it’s a member of the public who sees a Garda using what they believe to be excessive force while effecting an arrest, or a supervisor who is concerned that a member of the force has been accessing a database for inappropriate reasons and in breach of a citizen’s privacy. The resulting investigation should be conducted independently.
This is the recommendation of the Commission on the Future of Policing, which reported this year. At present, where the Garda becomes aware of an allegation of serious injury or death, it must, irrespective of whether there is a complaint from the public, refer this to Gsoc for investigation. The Commission recommended the expansion of this to all cases, save for those which might be considered human resource management issues, which a supervisor should appropriately respond to. So breaching someone’s privacy via a database, allegations of working with local criminals, or of taking evidence would all be investigated independently by Gsoc.
The Commission has simultaneously called for Gsoc to be resourced sufficiently to investigate all allegations independently and to investigate incidents rather than people. This should not be about attaching blame to an individual but understanding all of the circumstances which contributed to the wrong occurring (lack of supervision, training, technology, stretched resources, and so on).
This proposal would effectively end the operation of internal discipline. This would be transformational. Cases would either be handled as human resources management issues internally, or investigated by Gsoc. This is a radical change that moves far beyond any previous recommendations concerning Gsoc. It should engender greater transparency and confidence in how wrongdoing is investigated, and bring fewer challenges before the courts.
Vicky Conway was a member of the Commission on the Future of Policing and is associate professor at the school of law and government at DCU