Dáil Éireann debate -
Wednesday, 7 Nov 1984

Vol. 353 No. 7

Criminal Justice Bill, 1983: From the Seanad (Resumed).

The Dáil went into Committee to resume consideration of amendments from the Seanad.

Seanad Amendment No. 1:

In page 3, between lines 11 and 12, the following inserted:

"(2) An order shall not be made under subsection (1) in respect of any of the following sections namely, sections 4 to 6, 8 to 10, 15, 16, 18 and 19 until provisions relating to the investigation and adjudication of complaints by the public against members of the Garda Síochána not above the rank of chief superintendent have been enacted by the Oireachtas and have come into operation and until regulations under section 7 have been made."

Debate resumed on amendment No. 1 to Seanad amendment No. 1:

In the third line to delete all words after "provisions" and substitute the following:

"have been enacted by the Oireachtas for the investigation and adjudication of complaints from the public against members of the Garda Síochána by or under the direction of an independent Complaints Commission, and until regulations under section 7 have been approved by the Oireachtas".

—(Deputy Woods.)

Mr. Gregory-Independent

Last week I said that while I support the amendment put forward by Deputy Woods I do not believe that the Criminal Justice Bill, even if amended in this way, will achieve the objectives for which we are told the Bill was designed. It will not improve the detection rate or achieve a reduction in crime level. My fear is that it may well exacerbate relations between disadvantaged communities and the Garda and it is in that context that I support the view which Deputy Andrews expressed last week that the Bill even at this late stage should be scrapped. I listened attentively to Deputy Woods explaining his amendment. I agree with much of what he said. My only regret is that the concern expressed by Deputy Woods has not led him to the view held by his colleague, Deputy Andrews. Many of those Deputies who have spoken have linked the need for an independent complaints procedure to the provisions in the Bill relating to detention. My interest in this amendment is as much related to the experience of the past ten years as it is to what the future may hold if and when this Bill is brought into operation.

I will illustrate my point by referring to a specific case in respect of which I have spent a good deal of time pleading with the Minister with a view to having that case investigated. I am referring to the awful experience of Nicky Kelly and the others who were charged with the Sallins mail train robbery. To this day the Minister has refused to have an inquiry into the allegations of ill-treatment in that case, allegations that were brought also to the attention of previous Ministers. The failure of successive Ministers to respond in that instance has had at least two adverse effects. First, it has heightened public concern that there should be an effective and independent complaints body and, secondly, it has led some members, if not sections of the Garda to believe that the heavy-gang tactics used in the Sallins case investigation must have had some degree of official approval.

Many Members of the House who are concerned at recent events and who are supporting strongly Deputy Woods's amendment chose in the past to ignore what was happening. It is not simply a matter of the Nicky Kelly case. A few weeks ago the Sunday Tribune devoted an entire page to cases which in the past ten years clearly required investigation by a body independent of the Garda. Again, all of these cases were ignored by successive Ministers.

Yesterday I received a written reply from the Minister in relation to one of these cases, the case of Amanda McShane. In this case the defence solicitor acting for Amanda McShane produced in court a concocted typewritten statement which he had found at the Garda station prior to the defendant having made any statement. When this evidence was produced in court, the State withdrew the case. The matter was raised in the Dáil and an independent Garda inquiry was promised. The outcome of that inquiry is interesting and is relevant to the present debate. Part of the Minister's written reply was:

I am informed by the Garda authorities that following a full investigation a file, which of course included the statements made by the woman concerned and by her solicitor, was submitted to the Director of Public Prosecutions for directions as to whether criminal proceedings against any member of the force were warranted. I am further informed that, on receipt of directions from the DPP criminal proceedings were not warranted, the question whether proceedings were warranted under the Garda Síochána (Discipline) Regulations, 1971, was considered by the Commissioner and that the decision was similar to that which had been taken by the DPP in relation to criminal proceedings, namely that disciplinary proceedings were not warranted against any member.

That was despite the fact that it was warranted for the State to withdraw the case based on the evidence produced, the evidence of a concocted statement which very much fits into a pattern going back to the Nicky Kelly case when that individual stated that his statement had been concocted by the Garda and that he had been forced to sign it. Yet, he was sentenced to 12 years in prison on the sole basis of that type of statement and there is still no inquiry into the case.

Without even considering the new provisions of the Criminal Justice Bill, it is this sad record that makes it essential that there be an independent complaints body. It is in that sense that I support the emphasis placed by Deputy Woods on three aspects, first, that the procedure should be totally independent of the Garda, secondly, that all members of the force, from the garda on the beat to those at the highest levels, should be subject to that investigation procedure and, thirdly, that its function should not be simply to adjudicate but to investigate also. That is the aspect to which I wish to turn now because anyone who has ever brought complaints against members of the Garda to the attention of the Garda must agree that all too often the procedure whereby the Garda investigate complaints against themselves is a cosmetic exercise. I do not wish to make general remarks without referring to specific instances in my experience.

One of these cases relates to a Mr. Thomas Dolan who is a constituent of mine. Mr. Dolan was beaten up severely by a member or members of the Garda at Summerhill in Dublin. The following day, after he had approached me, I arranged for him to put his complaint in person to the superintendent at Store Street Garda Station. Though other individuals were charged in connection with the incident with which Mr. Dolan was alleged to have been associated no charges have been brought against him. The superintendent was courteous and took a detailed note of Mr. Dolan's complaints. He examined Mr. Dolan's very severe injuries, all of which were documented at the time by others, and, inevitably, an internal inquiry was promised.

Some weeks later Mr. Dolan was arrested at his home in the early hours of the morning and charged with obstructing the Garda, using abusive language and so on on the night about which he had complained in my presence to the superintendent of being beaten up by the same gardaí. When these charges were brought to court they were dismissed by the justice and Mr. Dolan brought a High Court action subsequently against the garda involved. He won that action. All of this is a matter of public record.

I am not suggesting that such instances occur every day of the week and, equally, I am not suggesting that Mr. Dolan's case was an isolated one. I am saying simply that this sort of thing happens, that people are concerned that it happens and that it is to protect innocent people such as Mr. Dolan that an independent complaints procedure is required. But for the assistance of various legal people it would have cost Mr. Dolan a great deal of money to pursue the course of action he took through the courts before he finally got justice. Many people might not have the resources or willpower to persevere in such a long procedure. It should not be necessary to do that in order to get justice.

It is equally inevitable that I will be accused of Garda bashing but that is not my intention. My intention is to highlight the widely held view across the country from Deputy Blaney's area in the rural north — we heard his account last week — to my area in the inner city of urban Dublin. Time and again there are cases which warrant investigation by an independent complaints body, completely independent of the Garda. That is not a criticism of the force but simply a statement of fact. There are numerous instances to support the view that such a body is required. The basis of my argument is that politicians who, over the last ten years, ignored so many cases which were subsequently brought to public attention by the media, are as much if not far more responsible for any criticism now being made of the Garda as are the actions of the force.

The Garda require resources and training to enable them to get the results the public desire. They do not need draconian powers. Such powers simply satisfy the whim of right wing politicians and individuals. A spokesman for the Garda is quoted in the newspapers as echoing the view that the Garda need a great deal more training and resources before any attempt is made to bring the Criminal Justice Bill into operation.

In her contribution, Deputy Barnes referred to the growing alienation of young people from the Garda. I see this in my own constituency. I greatly fear that this Bill, even with the amendment put down by Deputy Woods, will drastically increase that alienation. Without an effective independent complaints body we are heading for a major confrontation between young people and the Garda. I refer, as other Deputies have, to the existing powers available to the Garda which are draconian in themselves. Deputy De Rossa pointed out that approximately one in seven of all those detained and interrogated under section 30 of the Offences Against the State Act are actually brought before a court. Surely it would have been better to review the success or failure rate of that measure and repeal it if necessary rather than introducing, as is now proposed, an even more draconian measure.

I appeal to the Minister to accept the amendment put down by Deputy Woods. I suggest, although I suppose there is not much point at this stage, that he put the Criminal Justice Bill back on the shelf where the previous six Ministers for Justice left it.

Minister for Justice (Mr. Noonan, Limerick East)

As I understand what Deputy Woods has said there is not much difference between us. The Seanad, in their wisdom, asked for this amendment. The Dáil had previously asked for this kind of amendment and I said I do not think it was necessary because I was fully committed to bringing in a complaints procedure and statutory regulations governing the treatment of people in Garda custody. I thought I would have had a complaints Bill published by now.

To help the consensus emerging in the Seanad, I felt it would be helpful if the commitments I gave here and in the Seanad were written into the Bill. The essential aspect of the Seanad amendment is not the detail of it but the fact that until this House and the Seanad are happy with the complaints procedure, which I will propose and the Houses will pass, and with the statutory regulations, which will be brought in by motion, certain major sections of the Bill cannot be put into operation by order. That is the point of the amendment. It is to prevent the Minister from bringing in certain sections of the Bill by order.

The complaints procedure will not be brought in by order. It will be by way of a Bill which will go through all Stages here and in the Seanad. That is the time when we should have a detailed discussion on it. However, I am glad that such a detailed discussion took place here. The Bill is in the final stages of drafting. It has been drafted along the lines of decisions taken in Government but it will have to go back to the Government for final ratification. I am glad I have had the benefit of the opinions of so many Deputies. When the Government are making their final decisions on the Bill before it is published I will be able to communicate the views of Deputies to the Government.

There is agreement on all sides that we need a different mechanism for processing complaints from the public from what we have at present. We need a complaints procedure in the form of a statutory body which would be independent of the Garda Síochána and composed of people who would be independent of the Garda.

I moved an amendment to the Seanad amendment to strengthen it. The impression seems to be around that I was going to set up some kind of body in which the Garda would constitute the board. Some Deputies were talking about five members of the Garda being a board to investigate complaints. Nothing was further from my intention. As there was concern about that, I put down an amendment to the effect that there would be adjudication by a body other than the Garda Síochána.

Varying views have been expressed here about the degree to which the Garda should be involved in a complaints procedure. Deputy Andrews and Deputy Connolly were against any Garda involvement. Deputy Taylor envisaged the Garda playing a role in the adjudication process. Deputy Shatter referred to the possible secondment of gardaí to the complaints board. Deputy Woods's amendment, while it stresses the independent character of the complaints commission, also allows, by implication, investigation of complaints by the Garda acting under the direction of the Commissioner. The scheme proposed by Deputy Woods on Committee Stage is similar in many respects to the scheme in England. It provided for substantial Garda involvement in the handling of complaints by the commission.

Deputies are obviously concerned about the issues and are expressing personal, sincerely held views rather than party views. I accept that. This is a very important Bill and I should like to get the largest degree of consensus possible because the question of public confidence in the Garda Síochána is a matter which concerns every Deputy and Senator. I want a scheme that will be regarded as fair and reasonable and which will also have the support of the Garda Síochána. I will communicate the views of Deputies to the Government before they make a final decision. The House will have ample opportunties to analyse the Bill and the new complaints procedure.

The debate here, so far, has centred on relationship between the new complaints board and the force generally and I should add some comments to that. There can be a strong case made for having the Garda Commissioner or his representative on an independent board. The Garda Síochána are a disciplined body and control of discipline is an important part of the Commissioner's operational responsibility. The Commissioner is the chief disciplinary officer in the force and it is important that any changes in the relationship regarding existing procedures and the handling of complaints against members should not undermine his position. The Commissioner does not work under the Minister for Justice; he holds a statutory office set up by Act of Parliament. He has an independent role and rights and he is the chief disciplinary officer and we must be careful not to undermine his position in that regard. We should draw on the experience of people elsewhere but I do not think it is proper to exclude the Commissioner from the disciplinary process because that could undermine his authority within the force and could be very detrimental to Garda morale.

The involvement of a chief officer of police in the adjudication of complaints made by members of the public is not unusual. A survey of a number of procedures in operation abroad was carried out by officials of my Department in conjunction with the preparation of the Bill. There are many variations in approach in the systems examined but there was no case where the chief officer of the police was completely excluded from a role in the adjudication process. In England, for example, the new complaints authority will supervise the investigation of complaints in serious cases and there will be no police members on the board but the investigation will be carried out by the police. While the police will not be represented on the authority in Britain any investigations which reveal a breach of discipline will be adjudicated on by a disciplinary tribunal which will be presided over by the chief of police or his deputy in the district in which the incident occurred.

In the British system, minor complaints will be dealt with by the chief of police without any involvement by the complaints authority. In Washington there is a civilians complaint board which has civilian investigators. Two members of the seven-man board are nominated by the chief of police and the police association. It may not impose penalties and can only recommend actions to be taken by the chief of police. In Toronto, Canada, the investigation and adjudication of complaints is largely a police function subject to supervision and review by a police complaints board. Both the commissioner of police and the police association nominate a proportion of the board's membership. I am not being selective in these examples. There is a civil rights organisation in America and they have reviewed complaints procedure right across the United States. Their opinion is that the one which works best is that where the chief of a particular police force takes a strong interest in the complaints regardless of the mechanism set up to deal with them or regardless of the theoretical involvement. I know that Deputies are concerned about this and I will take their views into account.

Deputies have also got caught in the semantics of the situation. Deputy Barnes asked what did I mean by "adjudication". Adjudication involves specifying the particular breach or breaches of discipline alleged, having a hearing of the evidence and of witnesses, making a decision on whether a breach has occurred and, if so, what disciplinary sanctions should be applied. I will be bringing before the House a Bill which will set up an independent body to investigate complaints. For example, if there was a seven-man board, would the House insist that all the members should be non-gardaí or would they accept that it might be appropriate to have one representative of the commissioner on that board? It is obviously an issue which concerns the House. I see the board as having a full time staff which would be headed by a chief executive officer. It does not matter what he is called but he will be answerable to the board and be responsible for the day-to-day running of procedures. Investigations should be carried out by Garda officers in the normal course of events but under the supervision of the board and the board would have the power to prescribe general principles to be observed in the appointment of investigating officers. The board should also be able to give an investigating officer such directions as appear necessary in relation to any individual investigation. I have no argument with Deputy Woods when he says it is "by or under the board". It has to be under the control of the board.

I also think that there are occasions when it is in the public interest that people other than the Garda Síochána should investigate a complaint. I envisage a situation — and I hope the House accepts it — that the chief executive officer would have the power, on the direction of the board, to investigate a complaint himself or to cause it to be investigated by appointing an appropriate person, whether that person is a barrister, in the case of a particular complaint or perhaps an accountant in the case of another complaint. I am talking about a system where the Garda have to investigate as an investigating force any allegations of criminal activities. There also has to be provision in cases where the board are not happy with the Garda investigation or in cases where the board think it is in the public interest that somebody other than the Garda should investigate them. I will bring proposals to the House saying that the executive officer responsible to the board could investigate a complaint himself or could cause it to be investigated.

We will also have to have provision for minor complaints. Minor complaints with the consent of the complainant need not go through a long rigmarole if they can be informally sorted out. It is appropriate that that should be put in and there is a role for the Commissioner there, or his representative. Supposing there is a complaint and it is investigated either by the Garda or, as a matter of public interest, by the chief executive officer responsible to the board. It can go two ways. If, as a result of the investigation, whoever does it, it transpires that there is a basis for criminal charges, it has to go to the DPP, because he is the man who has to make the decision on whether or not it is a criminal charge.

We have to envisage complaints which lead to criminal charges on the one hand but, on the other hand, we have to envisage complaints which fall short of that but lead to disciplinary procedures. That is where the adjudication comes in. When the board receive a complaint and get it investigated by the Garda or by an executive officer, and get the result of the investigation back, if the file suggests criminal proceedings, well and good, it follows the normal course of any file that indicates crime, and goes to the DPP. If, on the other hand, there is no criminal charge which is sustainable but there is a disciplinary charge, there must be an adjudication process, and that adjudication process should be done by a body other than the Garda.

I maintain it is proper to have a representative of the Commissioner on that adjudication body because he is chief disciplinary officer. If we are talking about a position in which people can be reduced in rank or dismissed from the force, the man who is charged statutorily with control over the force and the discipline of the force should be involved there, not on his own, or anything like that, but responsible to the board. There must be an input at that point.

Deputy Taylor also made a very valid point. There has to be an appeal procedure. This can be dealt with appropriately, as Deputy Taylor said, by involving existing judges. I do not see a major difference between what I am saying and what Deputy Woods is saying. It is just a different formulation of words. There are a number of things I cannot accept in the way he has phrased the amendment. There is no reluctance on my part to have complaints investigated independently. By using the word "independent" there is a possibility of creating a clash between what we finally accept here as a complaints procedure and what we write into the amendment.

For example, if somebody is lodging a complaint under the new procedure when we agree on it, it is appropriate that he should have a choice of lodging it directly with the complaints board or, if he was happy with it, lodging it with the local Garda station or with the local superintendent. If we put in the word "independent" does that mean you cannot complain at the local Garda station? We do not know whether it does. We could end up in the Supreme Court arguing the case.

If, for example, the Garda, under the scheme we will agree at some future date, are investigating complaints, how does the definition of "independent" stand up? I gave other examples when I spoke here last week. This is not backing off from the kind of scheme I am outlining. It is a fear that using the word "independent" in this amendment will restrict this House from agreeing on a particular scheme on which they want to agree. It does not add anything to tying down the Minister and making sure he does not implement sections of the Bill by order. The essential thing is to prevent the Minister from bringing in sections of the Bill until the House is happy with the complaints procedure and regulations.

The other aspect of Deputy Woods's amendment with which I am in disagreement is that he has weakened the provision so far as the regulations are concerned. In the amendment coming back from the Seanad it is said that some sections cannot be brought in until the regulations are made. The phrase used by Deputy Woods is "approved by the Oireachtas" or words to that effect. It is possible for this House and the other House to approve regulations. This Minister or a subsequent one could bring in sections of the Bill which Deputies think should not be brought in until there are appropriate regulations. The two Houses could approve of them, and then the Minister could bring in the Bill and there is no obligation on him to make the regulations. That is the problem.

Dr. Woods

There is under section 7.

Mr. Noonan

(Limerick East): Not in the way the Deputy phrased it. He is diminishing it. I do not think it would be appropriate for me to go back to the Seanad with a form of words weaker and a commitment weaker than what the Seanad passed unanimously. In so far as I understand what Deputy Woods is saying, I do not think there is any difference in principle between us.

Deputy Woods and other Deputies have argued that it would be appropriate that every member of the Garda could be investigated right up to Commissioner level by the complaints board. I have said in the amendment coming from the Seanad that up to chief superintendent would be appropriate. We are talking about a commissioner, a couple of deputy commissioners and six or seven assistant commissioners. The difficulty is that there will be some Garda involvement in the adjudication process because the Commissioner is the chief disciplinary officer. He is unlikely to be there himself and the people he will appropriately nominate will be from that half dozen. I do not see, if you have an involvement like that, how that particular body would be appropriate to investigate that senior rank.

There is no question of exempting people of any rank from being at the receiving end of a complaint. I suggest to the House that it is a matter for the Government to investigate complaints against very senior officers in the Garda. We will have a very fruitful debate when the complaints procedure Bill is published. I have outlined in brief the position at the moment. It will go back to the Government for a final decision. I appreciate the views which have been expressed and I will be able to express those views to the Government when the final decisions are being taken.

Dr. Woods

I want to make it clear that we also want a complaints procedure which is workable and acceptable. I know these are two areas about which the Minister is concerned. The board must be clearly seen to be independent and to have control over both the investigation and adjudication of complaints by members of the public against members of the Garda from the lowest member to the most senior member of the force. A very clear difference is coming out in the discussion with the Minister. It is becoming quite clear that (1) he wants the Commissioner or a representative of the Commissioner on the board, and (2) he wants the top senior levels excluded from investigation by this board.

On the matter of the regulations, it is a simple matter of redrafting and that can be dealt with very quickly — that they be passed by the Oireachtas and made. Section 7 requires that the Minister shall make regulations providing for the treatment of persons in custody in the Garda station. The amendment would say that these sections will not come into being until regulations under section 7 have been approved by the Oireachtas. There would still remain an onus on the Minister to make the regulations under section 7.

Mr. Noonan

(Limerick East): It says “shall not be made”. That is the difficulty.

Dr. Woods

Until they have been approved by the Oireachtas.

Mr. Noonan

(Limerick East): There is no obligation to do this after approval, under the Deputy's amendment. The amendment does not say that they shall be made when approved.

Dr. Woods

Section 7 of the Bill says that the Minister shall make regulations. That is as far as we can go at this stage, unless the Minister thinks it necessary to tie himself down more in that respect.

Mr. Noonan

(Limerick East): Would the Deputy look at section 7(5)?

Dr. Woods

In any event, that is a needless argument. If the Minister feels that the amendment needs further elaboration, it is very simple to adjust that and I have no objection to such adjustment. That is not a problem and it is not fundamental to the question that we are discussing.

There are some fundamental issues. The Minister says on the one hand that there is very little between us. The Minister speaks about needing an independent body, independent of the Garda Síochána and of investigations being carried out by the Garda by and under the control of the board. If the Minister accepts that, it is one of the essential elements in the amendment which I have put down on behalf of our party — that the investigation and adjudication of complaints would be by or under the control of an independent complaints commission. I take it that the Minister is accepting that it should be by and under the direction of the complaints commission and his main concern is with the word "independent".

Deputy Andrews, I think, pointed out on the last occasion that "independent" is an important word, as I also said at the outset. He gave the Oxford dictionary definition as "not depending on authority of another; not in a position of subordination; not subject to external control; free from outside interference". We are talking about the commission or board being independent of political interference, a board which can inspire public confidence through their clearly seen independence. "Independent complaints commission" is a simple phrase. In its ordinary and natural meaning it means acting as a body independent of any other body such as the Garda Síochána, the Government or, indeed, the Oireachtas. We want the body clearly to be seen to be free from outside interference. This is at the nub of the whole question. The word "independent" is important in principle at this stage. The Minister says he will be happy later on to bring back a Bill until the House is happy with the new Bill. The new Bill will be constructed on the overall principles set down at this stage. It is these guiding principles with which we are concerned, as I understand it, in this amendment. Consequently the word "independent" is important — in fact, it is crucial.

The truth of the matter is that the phrase "independent complaints commission" simply means a commission who act independently and the phrase has no other meaning such as the Minister suggests. It was well established, both in law and in practice, that any body, public or private, who adjudicate on the conduct of other persons should have an independent element in the exercise of their function. It defies common sense to say that the description "independent" is open to be construed in any other context. I quote the Minister from Volume 353, No. 4 of Wednesday, 31 October:

I see a difficulty about using the word "independent" in the context of the amendment. The inclusion of such a reference would mean that we would be anticipating at this stage what the ultimate decision of the Oireachtas would be on the forthcoming legislative proposals relating to the investigation and adjudication of complaints.

I do not believe that. We would certainly be setting down the criteria and the principles which should apply in the Bill which is subsequently brought forward. It is to be hoped that it will be brought forward by the Minister but it might be at a later stage by another Minister, not wishing the Minister any ill-will but taking the vagaries of time and chance and whatever else into account. The Minister also said, in the same volume:

If we try to lock the detail of that complaints procedure into a short form of words here, the form of words we adopt may prove subsequently to be in conflict with what the House decides the complaints procedure should be.

He further says:

Would the Supreme Court see that as "independent"? Would the Supreme Court decide that "independent" means the kind of independence the Judiciary have, no diminution in status or remuneration? Is that what we are talking about?

The Judiciary derive their independence from the Constitution and this is not a relevant argument in relation to the use of the word "independent" in an Act, as we are planning that it would be used here. I have heard outside the House the statement that you cannot reduce the remuneration of members of the Judiciary, but that is specifically provided for in the Constitution. This is because of the whole concept of separating the Judiciary from the Legislature — the executive arm. A body which is independent has the power and authority given to it under the Act. The Minister is putting an artificial, strained interpretation on the word "independent". One would think it more a political exercise to block any provision which specifies that the commission will be independent — political in the sense that the Minister has other things in his mind. He mentioned today that he still wants to see the Commissioner or a representative of the Commissioner — there is very little difference — or someone at that level as a member of the board. Also he wants to see the people at the highest levels excluded. I do not think that the Minister's argument is a legal argument. It is more a political argument which he is presenting in legal language.

There is no reason why the complaints commission cannot be an independent body. While the Minister seems to accept this when he says that there is very little between us, he seems to have great reluctance about putting the word "independent" into the amendment. It is difficult to see how the Minister would now try to tell the House that there is no means whereby the independence can be referred to or described in the legislation. That is not a tenable argument. For instance, I could suggest a number of drafts if the Minister wanted to put in the word "independent" in a different way. For instance, he could say, "by or under the direction of a complaints commission" and drop the word "independent", "a complaints commission independent of the Garda Síochána" or "independent in the exercise of its functions". We want to see it clearly to be independent. Again it is back to a drafting matter. If the Minister wanted to do so he could come back with a redraft to meet the requirement of independence and so independence could be seen clearly to be present.

The Minister has been forthcoming generally in the course of this Bill in making amendments and in recognising the points raised here and being prepared to redraft. There is scope to have relatively minor redrafting which would overcome any of the difficulties which the Minister might see. I am advised legally that there is no difficulty in relation to the use of the word "independent" in this context, and therefore I must conclude that there is some other reason why the Minister does not want to use the word "independent". That worries me at this stage. The Minister would be wise to accept the amendment which we are proposing albeit with some minor drafting amendments to that if he felt that that was necessary. We do not feel that it is necessary. We feel that it is adequate as it is but if the Minister feels it is so close, we are open to coming to meet him in that regard.

A great deal has been said about the complaints and the kind of complaints, and the Minister has elaborated somewhat more. When the Minister says that he visualises the large number of complaints being investigated by members of the Garda Síochána themselves, once he accepts our proposal that this would be by or under the direction of the complaints commission whom we want to be independent, then that is very much along the lines we would envisage. We see as a practical proposition that many of these complaints could be solved informally, but again the Minister says clearly today that he would visualise these things being done informally and that where necessary the commission would have the power to go directly themselves and people could refer directly to the commission. As we saw in the draft we had earlier of a complaints commission, particular kinds of cases should in all instances be referred directly to the commission and in other cases they might be referred to the commission and the option would be there. The teasing out of that in detail can go with the Bill subsequently. I do not think that there is a great deal between us there.

We are down to the basic question of how independent the commission should be and be seen to be. Even since we sat here last week in the House there have been comments outside the House, and it is only fair to put these complaints in perspective. We, the Minister and other Members recognise that quite often when a prisoner is facing a clear and well-founded charge he or she may allege brutality or threats or inducements by investigating gardaí, and we must bear this in mind as a reality of the whole area of questioning people. Probably we are all fairly familiar with cases where an otherwise reasonable and perhaps even benign drunk who has to spend a night in jail will allege rough and brutal treatment from the Garda. Indeed, public representatives are often approached by parents alleging rough treatment of teenage children and other persons. Deputy Gregory mentioned a case; I am sure he could mention many other cases which have been resolved informally at superintendent level. I have had the same experience.

A sort of communication problem must be overcome there and we all have a function in trying to overcome these problems. The public representative may be and sometimes is placed in an invidious position in this respect in that he has his duty to his constituent on the one hand and his support for the Garda in the exercise of their duties on the other. This position of the public representative should be recognised by the Garda, and from some of the comments made about Members of the House and the position they find themselves in it seems that that is not always recognised. As public representatives we must take our constituents to be honest-to-God people innocent until proven guilty and we must look at their problem in an honest way and put it through whatever machinery is available to us. That machinery very often is the local superintendent. There is a need for an independent procedure for investigating the complaints and this procedure should be seen clearly to be independent.

Deputy Gregory alluded to the fact that in recent years there have been complaints and allegations of a serious nature. He referred to allegations in the mid-seventies of heavy gang operators and special heavy-handed interrogators being regarded as acceptable or even being encouraged and rewarded. We all know the extent to which those allegations went around at that time and in relation to that period they are still going around. These led to the O Briain report which was commissioned by the incoming Fianna Fáil Government in October 1977. The purpose of that report was twofold: it was to recommend safeguards for persons in custody and to recommend safeguards for members of the Garda Síochána. Therefore, its terms of reference and the brief it was given were twofold. The report was presented in April 1978 and that report has been very important in relation to this debate and these discussions. Further allegations, this time of political interference with the Garda, were made in 1982. In response to these the then Taoiseach, Deputy Haughey, approached the President of the High Court with a request for the release of a High Court judge to conduct a judicial inquiry covering the previous three years. As we all know, an election intervened and the incoming Government, the Fine Gael Party in the first instance and then the joint parties in Government, promised then a similar judicial inquiry.

Progress reported; Committee to sit again.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.