Trust an issue as Garda fortress shut to 'outsiders'

OPINION:A change of mindset is required so the Garda ombudsman can discharge its most important function

FIVE YEARS ago this month, the Garda Síochána Ombudsman Commission (GSOC) opened its doors for business, holding out the promise of a new era in the accountability of the national police force.

The commission has broadly the same powers as the Garda Síochána. Its three commissioners are warranted at the highest level of authority with which the State can invest its office-holders. Nominated by government, approved by both Houses of the Oireachtas, they are appointed by the President of Ireland.

A High Court judge, the late Kevin Haugh, became the first chair.

The body was established at a time when the Garda Síochána’s reputation had been tarnished by problems in the Donegal division. The political establishment was unnerved. Gardaí were bruised and defensive.

Some initial interactions were tense. Gardaí were sometimes resentful of what they saw as intrusion into what had been their traditional preserves. There was particular disquiet at the commission having powers to investigate their off-duty conduct. Some GSOC officers, accustomed to working in other jurisdictions, found it difficult to get their bearings culturally and procedurally.

Members of the public were sceptical of the commission’s capacity to have errant gardaí prosecuted. Judges, lawyers, coroners and others had to adapt to working with this new element in the criminal justice system.

But things settled down. Local Garda management, to its considerable credit, adapted quickly to the reality of GSOC teams operating in their areas. Co-operation in simple but important matters, like the preservation of incident scenes, providing office space or even parking for commission vehicles was quickly forthcoming.

Some problems persisted. Many gardaí were willing to speak up where colleagues had engaged in misconduct. But others seemed to be afflicted by vision loss, deafness or amnesia. No surprise. This unhappy phenomenon may also occur where doctors, lawyers or even journalists are asked to take the stand in criticism of colleagues.

Similarly, although the representative associations were declared supportive of GSOC, some of their members on occasion displayed singular adroitness in delaying GSoc investigations. In one case it took 26 months for a member to furnish a voluntary statement in relation to a death in custody.

Five years on, however, the single most problematic aspect of relations between the Garda Síochána and GSOC is in the sharing of information on crime and intelligence and the organisational decision-making around these.

Because the Garda is both the national police force and the primary security service, it has always been able to cite “State security” to prevent light being shone into places where it would prefer there should be none. Invocations of “State security” facilitated malfeasance within the Donegal division, enabling certain officers to operate without effective scrutiny or supervision.

Where GSOC has sought what the gardaí consider sensitive information, (for example, regarding informants, who are now referred to using the acronym CHIS — Covert Human Intelligence Source) it has frequently found it impossible to get what its officers require in order to conclude investigations in a timely or complete fashion.

This occurs even in cases that manifestly have nothing whatever to do with “State security”. Gardaí will be invariably courteous and outwardly responsive. They will not make an outright refusal. Rather will there be protracted delay and repeated requests for clarification. GSOC will be asked to justify particular requests or to set out the rationale for its lines of inquiry. Protocols on information-sharing, drawn up as required under the Garda Síochána Act 2005, are thus rendered ineffective.

The fact that gardaí should feel it appropriate to put such challenges to the body which has been set up by the Oireachtas to supervise their conduct is in itself remarkable. A citizen being interviewed by gardaí would get a brusque response if he or she were to attempt to take a similar line.

Garda management will insist that it must preserve the integrity of the informant system. Only one officer at Garda headquarters is charged with the true identities of each CHIS. If senior members are not to be entrusted with this information, gardaí ask, how can it be shared with “outsiders” in GSOC? The fact is that the commission cannot do the most important part of its job unless the senior management of the Garda start to trust their counterparts at senior level in the ombudsman commission.

If they do not do so, GSOC’s effectiveness will be confined to cases of assault or low-level misconduct. The investigation of more complex and far-reaching issues of Garda conduct — such as occurred in Donegal – will not be possible.

GSoc is a busted flush if its effectiveness is to be limited to investigating street-fights and traffic accidents. It has to be no less effective when it goes into areas involving criminal intelligence, high-level decision-making and the implementation of policy.

The outgoing commission drew attention to this in its five-year report, referring to “outstanding issues” around the CHIS system and acknowledging that there were “sensitivities.” It looked hopefully to a review of protocols between GSOC and the Garda.

An issue of trust has not been resolved. For historical reasons and because of its strong internal culture, gardaí are reluctant to trust anybody but other gardaí. In certain ways, that has been one of the force’s strengths. But GSOC cannot fully discharge its responsibilities unless this inherited mindset can be constructively modified.

The Garda Síochána has been a fortress, shut against outsiders, for 90 years. The 2005 Act sought to alter that. But while the Garda establishment seem to be able to accept this in their heads they appear to have difficulty doing so in their hearts. Their sense of integrity and duty is grounded in realities that have been altered – or ought to have.

Unless this is recognised and until attitudes change in parallel, the State’s police oversight body, launched with such promise just five years ago, may remain spancelled in its most important function.

CONOR BRADYis a former editor of The Irish Times. He was a member of the Garda Ombudsman Commission from 2005 to 2011