Limerick East): I move: “That the Bill be now read a Second Time.”
This Bill marks another step in the implementation of the programme which the Government adopted on taking office. That programme stated that an effective independent complaints procedure would be established to safeguard both the public and the Garda, who are often the subject of false allegations. It also stated that, linked to that reform, legislation would be introduced to strengthen the criminal law. The Criminal Justice Act is now on the Statute Book and I am pleased today to deliver on the second part of the undertaking.
When introducing the Criminal Justice Bill the Government gave a commitment that the provisions giving increased powers to the Garda would not be brought into operation until new procedures for the handling of complaints against gardaí were in operation. That commitment was later written into the Bill. The Government thought it proper that there should be no question of new powers being given to the Garda without the added safeguard — both for the public and the Garda themselves — of a proper complaints procedure. While therefore this Bill brings important reforms in its own right, it also has a significant secondary effect which is to fulfil one of the two requirements necessary before bringing into force the remaining provisions of the Criminal Justice Act. The other requirement is to make comprehensive regulations for the treatment of persons in custody in Garda stations.
Before dealing with the provisions of the Bill. I should like to make some general points. The main objective of any legislation establishing a procedure for dealing with complaints against police is to secure that the handling of complaints should be just, and be seen to be just, both to the complainant and to the police.
It must be a system in which the public have confidence — confidence in the integrity and impartiality of the investigation of complaints and of the subsequent adjudication on them. The Garda themselves are conscious of the need to have public confidence in this aspect of their operations and of the importance it has in fostering good relations between themselves and the community in general.
The fact is that gardaí, unlike the great majority of other public servants, are frequently brought into serious confrontation with members of the public in the course of their normal duties. In the case of arrests or detention, complainants have an interest in making exaggerated or unfounded complaints with the object of having incriminating statements made by them declared inadmissible. Inevitably, gardaí are regularly exposed to criticisms and complaints. Some of the complaints may be justified. Others may be unjustified, irresponsible or malicious, As far as possible a complaints procedure should ensure that all complaints, whether justified or not, are dealt with properly and in a manner fair to all concerned.
There is a further and fundamental consideration which cannot be lost sight of in any alternation of the present system of dealing with complaints from the public. That is that any new system, while ensuring an effective outside scrutiny of complaints, must not undermine the responsibility of the Commissioner as chief officer of a disciplined force for maintaining discipline and morale among its members. Any system that would separate the Commissioner from involvement in the investigation and adjudication of complaints against members of his force would seriously undermine his authority and have adverse effects on the maintenance of discipline and morale. Of course the introduction of any independent element into a complaints procedure must imply some weakening of the Commissioner's role in this respect but the objective must be to try to strike the right balance between the need for an effective independent input and the need to safeguard to the greatest possible extent the Commissioner's position as head of a disciplined force.
Another feature of any effective complaints procedure must be its capacity to distinguish at a very early stage between serious complaints and those that are minor or trivial. Otherwise a disproportionate amount of time and energy will be devoted to dealing with complaints that ought to be disposed of promptly by a simple explanation or apology or some other informal means.
The fact is that traditionally complaints against police are investigated in a detailed formal fashion, always with the prospect that the matter, even if relatively trivial, could become the subject of an inquiry or perhaps of proceedings before the appeal board. Some degree of formality cannot be avoided if the procedure is to be seen as fair to those concerned, especially when a garda's prospects or, in a serious case, his job may be at risk. But the aim must be to reserve the full formalities for serious complaints while providing less formal or informal procedures for the others.
It needs to be said also that quite apart from any formal complaints procedure the conduct of gardaí is subject to the operation both of the general civil and criminal law enforced by the courts and also of the internal discipline code of the force.
First of all, a garda, like anyone else, is amenable to the criminal law. Where he commits a criminal offence, such as an unjustified assault, he can — and must be — charged with that offence whether it arises out of his official duty or whether it relates to something done while he is off duty. The conduct for which he is convicted is also a breach of discipline. A garda's conduct may also affect the outcome of criminal proceedings taken against accused persons. For example, if a garda has not made a lawful arrest, a charge of assaulting him in the execution of his duty will not succeed. And there are many other examples where the conduct of the Garda is subject to detailed scrutiny by the criminal courts as being relevant to the outcome of the proceedings. Frequently, allegations are made by a suspect who has made a confession and later regretted it and who alleges at the trial that pressures were put on him by the Garda or that they are telling lies or have fabricated evidence against him. In such cases the verdict at the trial may imply that the evidence given by the Garda has not been accepted or that there has been some misconduct or impropriety by individual gardaí. Sometimes the court may criticise gardaí expressly.
There is also the control exercised by the civil law. Anyone who is aggrieved by some action of the Garda may bring civil proceedings for damages for assault, false imprisonment, where it is alleged that an arrest was unlawful, or malicious prosecution. The legality of a police search of premises or of the detention of property can be challenged.
These external sanctions on police misconduct are not mere "paper tigers" as has been demonstrated on many occasions in recent years and they will of course continue to operate in the normal way.
In addition, apart from the sanctions of the criminal law and civil law there is the existing disciplinary code embodied in the discipline regulations of 1971. These cover not only internal breaches of discipline but also those breaches which come to light as a result of complaints by members of the public. Seventeen breaches of discipline are listed. Most of them relate to matters of internal discipline, such as disobedience of orders, misconduct towards a member of the force and so on. Some are specifically related to situations involving members of the public. For example, the breach described as abuse of authority is defined as making an arrest without good and sufficient cause; using unnecessary violence toward a prisoner or any other person with whom the garda is brought into contact in the execution of his duty; or failing to behave with due courtesy towards a member of the public.
Finally, it should perhaps be emphasised that gardaí are not a group of people separate and distinct from the rest of the community but persons who remain part of the community while exercising, when necessary, powers conferred by the community and to be used on its behalf. It follows that gardaí should enjoy the same rights and privileges as other members of the community. If a complaint against them alleges a criminal offence, then they are entitled to the same rights and safeguards as any other suspects. If the complaint concerns a purely disciplinary matter, they are entitled to have it handled properly and fairly.
These are some of the general considerations which arise in connection with any system of handling complaints against the police. They have been taken into account in the preparation of the Bill and account has also been taken of the complaints systems in operation in other jurisdictions.
Before finalising the text I brought to the Government's attention the views that had been expressed in this House and the Seanad about complaints procedures during the concluding stages of the Criminal Justice Bill. Much stress was laid on the need for the complaints board to be independent. Some speakers envisaged the board as having no connection whatsoever with the Garda Síochána, whether in relation to the investigation or the adjudication of complaints. I believe that investigation by a fully independent body is unrealistic.
For one thing, it would be necessary to appoint a large number of independent investigators — in effect a second, though naturally very much smaller, police force to handle the work — and it is by no means clear where persons with the requisite skills and experience for this could be found, bearing in mind that it would often involve investigating complaints alleging criminal offences — assaults and the like. Former or retired gardaí would, presumably, be unacceptable as not being manifestly independent. Moreover, even if there were no recruitment difficulties, neither the scale nor seriousness of the problem in this country could be said to warrant such an extreme solution which would be far more costly than the solution proposed.
Even if independent investigation were free of the difficulties mentioned, there is the fact that many occurrences giving rise to complaints are seldom witnessed by independent third parties and, consequently, there is frequently a conflict of evidence between the complainant on the one hand and the garda on the other without any corroboration of the complainant's allegations. In these cases supervision of the investigation by an independent board is likely to be just as effective as investigation by a fully independent person. The credibility of the parties is what has to determine the outcome and, if in the end there is a doubt, the deciding authority — whether it be a board, tribunal or court — must give the benefit of it to the garda as the person being accused.
The main Opposition spokesman, while advocating an independent complaints commission, envisaged — in line with the proposals in the Bill — substantial Garda involvement in the handling of complaints. He advocated a scheme under which, in general, complaints would be investigated by the Garda Síochána who would operate under the supervision or direction of a complaints commission. However, he disagreed in regard to two aspects of the scheme then being proposed: the presence of the Commissioner or his representative on the complaints board and the exclusion of ranks above chief superintendent from the arrangements proposed for the investigation and adjudication of complaints.
As regards the second point, the Bill now proposes to include all ranks in the Garda Síochána other than the Commissioner himself. However, the Government remain of the view that the Commissioner or his representative must be a member of the complaints board and participate in the adjudication of complaints and in the determination of any disciplinary action to be taken. As I have said, maintenance of discipline is an important part of the Commissioner's operational responsibility. He is chief disciplinary officer of the force and it is essential that any changes in the existing procedures for handling complaints should not undermine his position in this respect and weaken his command of the force. To exclude him entirely from the disciplinary process would be bound to undermine his authority and be detrimental to the force's morale. In my view, it would also tend to give rise to unnecessary friction between Garda management and complaints board. By giving the Commissioner representation on the board and the adjudication tribunal his position is being preserved to the maximum extent consistent with introducing a decisive independent voice into the complaints procedure.
The Bill proposes to set up a board, which will be independent in the exercise of their functions, to supervise the investigation by the Garda of complaints from members of the public. An important feature is that the board are being authorised to give directions to Garda investigating officers, subject to the prior consent of the Director of Public Prosecutions in criminal cases, and these officers will be under a duty to comply with any directions given to them by the board. The board may also prescribe general principles to be observed in appointing investigating officers. These officers are being required to send an interim report in writing to the chief executive of the board if unable to complete an investigation within 30 days and, after completion of the investigation, to furnish, if requested, a supplementary report in writing to the chief executive.
The chief executive is required to submit written comments on each report and a recommendation as to what action, if any, the board might appropriately take in relation to the complaint concerned. All these provisions should ensure that there is no avoidable delay in investigating complaints and that the investigation is properly carried out. But if the board consider that the public interest so requires or that the Garda investigation has not been or is not being properly carried out, they may have a complaint investigated by their chief executive or another person.
There will be seven members on the complaints board and they will be appointed by the Government for a five year term. The chairman and at least two of the ordinary members must be practising barristers or solicitors of at least ten years' standing and one of them will be the Garda Commissioner or a deputy or assistant commissioner nominated by him.
Membership of the board will be part time, but the board will have their own full time staff and an office in Dublin. Complaints which a member of the public wishes to have considered by the board may be made either in person or by letter to their office and there is provision also for such complaints to be made to the Garda themselves, either at a Garda station or, elsewhere, to a member above the rank of chief superintendent. The latter provision is mainly to cover letters addressed to the Commissioner at Garda Headquarters. In the case of complaints made directly to the Garda, I propose to make it clear that all complaints will go to the board unless the complainant requests in writing that the complaint be dealt with by the Garda themselves. Each of the complaints must be recorded forthwith and an acknowledgment in writing given to the complainant. Where a complaint is made to the Garda, the chief executive of the board must be notified of it as soon as may be after it has been received. He must be sent a copy of the complaint or, where it was made orally, a copy of the record of it.
The chief executive will then decide whether the complaint is, on the face of it, admissible. To be admissible the following conditions must be satisfied. The complainant must be a member of the public, that is, not a member of the Garda Síochána. Any complaint by a member about another member is a matter for the Garda discipline regulations. The complainant must have been directly affected by or have witnessed the conduct alleged in the complaint. The conduct must constitute either a criminal offence or a breach of discipline. A "breach of discipline" is defined as one of the breaches specified for the time being in the discipline regulations. These include, for example, conduct likely to bring discredit on the force or failing to behave with due courtesy towards a member of the public. It also includes non-compliance by a member of the force with a requirement of an investigating officer under section 7 (9) (b) of the Bill to answer a question, furnish information or produce a document or thing. Moreover, the conduct complained of must have occurred on or after the date on which the complaints procedure comes into operation and within six months before the date on which the complaint was made. Also the application of the Bill to the conduct must not be excluded under section 14 by reason of the fact that at the time the complaint was made a person had already been appointed to hold an inquiry into the conduct under the 1971 discipline regulations or section 12 of the Dublin Police Act, 1924. Finally, the complaint must not be frivolous or vexatious.
This screening process, to be carried out by the chief executive, is intended to ensure that clearly inadmissible complaints are detected at the earliest possible stage and that no further time is spent by the board in dealing with them. The chief executive is required to tell the complainant the reasons for not admitting the complaint and there is provision for a review of the chief executive's decision. This is the effect of paragraph (c) of section 4 (3), which makes it clear that the board may subsequently decide to admit a complaint that the chief executive had found to be inadmissible.
Once the Commissioner has been notified that a complaint is admissible he must tell the member concerned the nature of the complaint and who made it but he may delay doing so, in an appropriate case, if it appears to him to be necessary or expedient to take measures for obtaining or preserving evidence about the subject matter of the complaint. Indeed any member who becomes aware of a complaint may take any of those protective measures. Incidentally, this provision does not, as has been suggested, give the Commissioner carte blanche in the kind of protective measures he may take. It does not authorise him to break the existing law. He would be doing only what the Garda must often do when they get a report of a suspected offence, that is, delay approaching a suspect if they think that by doing so some evidence may be interfered with or destroyed. But in case the draft is not sufficiently clear on this point I shall have it looked at again. Subsection (6) of section 4 makes it clear that, once a complaint has been made under the Bill against a garda, he may not be charged with an offence relating to the complaint except by or with the consent of the Director of Public Prosecutions.
Even after the chief executive has filtered out frivolous or vexatious or other inadmissible complaints, there will be inevitably a category of minor complaints which it would be in everyone's interest not to have subjected to the full investigation and adjudication machinery. There will, for example, be cases where a garda's actions were both lawful and reasonable and a full explanation is all that is called for. In other cases an explanation or apology will be sufficient to dispose of the matter satisfactorily.
Clearly, it is important to ensure that both the complainant and the member complained of would have genuinely agreed to have the complaint dealt with informally. Accordingly, section 5, which sets out the procedure for informally resolving complaints, gives the board power to prescribe procedures to be observed in this connection and also power to reopen a complaint and have it formally investigated if they are of opinion that the complaint is or was not suitable for informal resolution. As a corollary, it is provided that any statements made by the complaint or by the member concerned in connection with or for the purpose of informally resolving a complaint is not to be admissible in evidence in any proceedings whatsoever.
These provisions about informal resolution of complaints are key elements in the Bill. Ideally, they should enable most minor complaints to be disposed of reasonably quickly and in a manner that satisfies the parties concerned, while leaving the serious complaints to the formal procedures provided for in subsequent sections. Obviously, the board will give close attention to the extent to which the informal procedure is operated and I would expect them to make particular reference to this aspect in their annual reports and, in particular, in the triennial report they are obliged to make to the Minister for Justice under section 12.
Section 6 details the procedure for the formal investigation of complaints that have been declared by the chief executive to be admissible. As I have said, complaints will normally be investigated by investigating officers appointed by the Commissioner but the investigation will be subject to close supervision by the board, acting through their chief executive, and the investigating officers must comply with any directions given by the board in relation to a particular investigation. Even after the investigating officer has submitted a final report, the chief executive may request him to furnish a supplementary report and he would do this if there were any aspects of the investigation that were not satisfactory.
The chief executive is also required to submit written comments on each report and a recommendation as to what action, if any, the board might appropriately take in relation to the complaint concerned. He may also be requested to investigate a complaint, or cause it to be investigated, if the board consider that the public interest requires that the complaint should be so investigated or that the investigation of the complaint has not been, or is not being, properly carried out.
Subsection (8) of section 6 deals with a problem that can arise in relation to the investigation of some complaints, that is, the protection of information affecting State security or of information that would be liable to constitute a serious and unjustifiable infringement of the rights of third parties. For example, disclosure of the identity of an informant could place him or her at risk — in some cases the mere disclosure that there was an informant could have equally serious consequences.
I appreciate that any kind of blanket exemption of such information from the scope of the complaints procedure could be criticised as being too easily open to abuse. Accordingly, the subsection envisages that in such cases the investigating officer would refer the matter to the Commissioner who, having made any necessary inquiries, would, if he agreed with the investigating officer, report the matter to the Minister for Justice. It would be a matter for the Minister, if and in so far as he agreed that the matter came within the category mentioned, to direct that the information should not be included in the investigating officer's report to the board. Non-disclosure would be permitted therefore only where, and to the extent that, the investigating officer, the Commissioner and the Minister were all of opinion that disclosure would affect State security or seriously and unjustifiably infringe the rights of third parties.
Provision is made for the possibility that the Minister, having given a direction, could authorise additional information to be given to the board about the matter to assist them in considering the complaint. The subsection also envisages that other arrangements could be made between the board and the Commissioner whereby, in a particular case or more generally, a matter of this kind could be dealt with by some other procedure. For example, it might be possible in a particular case for the Commissioner to give confidential information to the chairman of the board on a personal basis.
Section 7 sets out the functions of the board on the completion of the investigation. If the board are of opinion that the complaint may constitute an offence committed by the member concerned, they must refer the matter to the DPP. If the conduct has no criminal aspect, the board will deal with it in one of three ways: by taking no further action, by referring it to the Commissioner to deal with informally by way of advice, admonition or warning to the member concerned, or by referring the matter to a tribunal for adjudication. They would take no further action where they thought that neither an offence nor a breach of discipline had been disclosed or that the complaint was otherwise not admissible. They would refer it to the Commissioner where they thought that there had been a breach of discipline by the member but that it was of a minor nature and could be appropriately dealt with informally by the Commissioner by way of advice, admonition or warning. In such a case the member concerned would be given an opportunity to make representations to the board before the reference to the Commissioner was made. The third option — that of referring the matter to a tribunal — would arise where the board were of opinion that a breach of discipline on the part of the member concerned — other than a minor breach just referred to — might be disclosed.
Subsection (7) of section 7 sets out the rule against double jeopardy, that is, that a member of the force who has been convicted or acquitted of an offence is not to be liable to disciplinary proceedings if the board consider that the breach of discipline is in substance the same as the offence of which he has been convicted or acquitted. This does not apply to a breach of discipline which consists of conduct constituting an offence in respect of which there has been a conviction by a court. This provision gives statutory recognition to an existing concept. However, the concept does not extend to a case where the DPP has decided that proceedings for a criminal offence should not be instituted in respect of a complaint. Subsection (8) of the section gives the board discretion in such a case either to refer it to the Commissioner to be dealt with informally or to refer it to a tribunal or to take no further action.
Subsection (9) of section 7 has come in for criticism by the Garda representative associations. It deals with a case where, in the course of the investigation, the member concerned has refused to answer a question put by the investigating officer or to furnish information or produce a document or thing relevant to the investigation and where the conduct complained of either does not constitute a criminal offence or it does and the DPP has decided that proceedings should not be instituted.
In such a case, the board are being authorised to give a direction to an investigating officer to investigate the complaint further. Where this happens, the investigating officer may, in the course of the further investigation, require a member to furnish any relevant information and it will be the duty of the member to comply with the requirement. If he does, the information furnished will not be admissible in evidence against the member or his spouse in any proceedings whatsoever other than any disciplinary proceedings against the member concerned. If he does Lot, his non-compliance will constitute a breach of discipline, provided that the investigating officer has told the member that he is acting in accordance with a direction under subsection (9) and has brought the substance of the relevant provisions to the member's notice. Similar provisions are being incorporated in the 1971 Regulations. That is being done by paragraph (h) of subsection (9). A further — consequential — amendment is being made in the regulations by deleting the requirement that an officer investigating a complaint of non-criminal conduct must caution the member concerned that he is not required to make any statement relating to the matter. That is the effect of section 14 (6).
These provisions do no more than place the gardaí in the same position as those in other occupations. If, for example, a member of the public complains about the conduct of a public servant employed at, say, an inquiry desk, that person's superior will ask him or her for an explanation. There is no obligation to give an explanation but any refusal to do so would leave the person concerned open to disciplinary action, probably immediate suspension. Normally, of course, an explanation is given and the employer decides whether or not to accept the explanation and what, if any, action should be taken. It would be the same with employees in the private sector.
Contrast this with the position of gardaí who, as I have said, must be specifically informed in writing that they are not required to say anything when a complaint against them is being investigated, even where the complaint concerns a minor breach of discipline. Of course, if the conduct complained of constitutes an offence, the usual caution must be given. But it is surely not right that members of a disciplined force should be under no obligation to give an explanation of their conduct when such an obligation is the norm in every other employment. The Bill makes it clear that any information given in reply to a requirement under this provision may not be used in any proceedings other than disciplinary proceedings so that there is no question of any member having to incriminate himself or herself.
When I met representatives of the Garda associations before the Bill was published I made it clear that, in the discussions that were to take place on this and other matters connected with the Bill and also in relation to a review of the 1971 Discipline Regulations, I would be prepared to look at any alternative formula that might be proposed and, if necessary, to table a suitable amendment on Committee Stage, so long as the principle of the provision was not affected. Discussions have taken place and are continuing between my officials and the associations representing chief superintendent, superintendent and Garda ranks on the Bill and also in relation to a review of the discipline regulations. The Association of Garda Sergeants and Inspectors withdrew from the discussions at an early stage. As a result of the discussions, I announced on 18 November my intention to confine the requirement to furnish information under section 7 (9) to matters arising out of a member's performance of his official duties and to move an amendment to this effect on Committee Stage. The amendment will meet a major concern expressed by the associations, that a requirement to furnish information arising from a complaint could result in an intrusion into a Garda's private and family life.
This brings me to sections 8 and 9 and the Second Schedule. These provisions deal with the operation of the disciplinary tribunals that may be established by the board to inquire into complaints where, in the opinion of the board, a breach of discipline may be disclosed. Each tribunal will consist of three members of the board. One of the members at least must be a practising barrister or solicitor of not less than ten years standing. One must be the Commissioner or his representative on the board. It will be the function of a tribunal to adjudicate on the complaint, that is to say, to decide that the member has, or has not, been in breach of discipline, either the breach alleged or some other less serious breach. It will have power to determine what disciplinary action should be taken, ranging from a simple caution at one extreme to dismissal from the force at the other. Decisions of a tribunal must be implemented by the Commissioner or, in the case of dismissals of members above the rank of inspector, by the Government.
The procedure of a tribunal will be determined by rules made by the complaints board with the consent of the Minister for Justice. The kind of matters to be provided for in the rules are indicated in paragraph 12 of the Second Schedule. In particular the rules must provide for enabling the member concerned to present his case to the tribunal in person or through another member or a legal representative. This is the existing position under the discipline regulations.
In practice, most gardaí appearing before disciplinary inquiries either are not represented or are represented by another member of the force, usually one who is skilled in such matters. I accept that there will be cases under the procedure where, in the particular circumstances including the seriousness of the alleged breach of discipline, it would be unreasonable to expect the member to conduct the case by himself or through another member and where it would be appropriate to pay the costs of legal representation from public funds.
I have agreed to set up a group consisting of official side and Garda side representatives under a neutral chairman to decide on applications for legal assistance in advance of a hearing before a tribunal or the appeal board. Details of this arrangement have not been fully worked out and discussions about it are continuing. Here I should emphasise that a tribunal is concerned with purely disciplinary matters. Its decisions can have only disciplinary consequences. True, these consequences can be serious in so far as they may involve dismissal or an impairment of career prospects; but in other occupations there are fewer safeguards, or less obvious safeguards, against unfair treatment than in the existing or proposed complaints procedure.
The final plank in the structure of the new complaints procedure is the appeal board which will consider appeals by members of the Garda Síochána from decisions of tribunals. The appeal board will consist of three members, appointed by the Government for a term of three years. The chairman will be a judge of the Circuit Court and at least one of the ordinary members will be a practising barrister or a practising solicitor of at least ten years' standing. The appeal board will have power to affirm, vary or set aside decisions of tribunals — both findings of breaches of discipline and decisions that disciplinary action should be taken. Appeals will be based on the record of the tribunal's proceedings, on such other evidence as the appeal board think fit and on any observations of the tribunal which the appeal board may request the tribunal to furnish in relation to any matter arising on that record. As in the case of tribunals, there is power to require withnesses to attend and also power to make procedural rules with the consent of the Minister for Justice. These provisions are in sections 10 and 11 and the Third Schedule.
Section 12 is an important provision in that it requires the board to make an annual report to the Minister for Justice and authorises them to include in the report information and comment in relation to any matters coming to their notice to which they consider that his attention should be drawn. The board are also obliged to keep under review the working of the system of investigation and adjudication of complaints and to make a report to the Minister not later than three years after the new procedure comes into operation and at least once in every subsequent three-year period. The Minister may also require the board to report to him on such general matters relating to their functions as the Minister may specify and a copy of every report received by the Minister under the section must be laid before each House of the Oireachtas.
Section 13 is a standard provision applicable to State boards, disqualifying Deputies, Senators and MEPs from becoming, or being, members of the complaints board or the appeal board.
Section 14 contains a number of technical provisions which are designed to avoid any overlapping between the Bill and the existing enactments for dealing with complaints against the gardaí, that is, the 1971 Discipline Regulations and section 12 of the Dublin Police Act, 1924. Subsection (1) provides that the Bill will not apply in relation to conduct alleged in a complaint if, before the date on which the complaint is received, either the Commissioner had appointed a member or members of the Garda Síochána to hold an inquiry under the 1971 regulations into the conduct or a person had been nominated by the Minister for Justice under section 12 of the 1924 Act to hold an inquiry into the matter. If, however, by the time a complaint is made under the Bill an investigation is proceeding under the regulations but the stage of holding an inquiry has not been reached, then the complaint will be investigated under the Bill and provision is made in subsection (2) to deem the investigation and any statements made in connection with it to have been made under and for the purposes of the Bill. Subsection (1) (b) preserves the power the Commissioner has to dismiss a member not above the rank of inspector and his power to suspend from duty, notwithstanding that an admissible complaint has been made. There is also a saver for the powers of the Government in relation to removal from office — in the case of a deputy or assistant commissioner — and dismissal or reduction in rank in the case of chief superintendents and superintendents.
Section 15 is a technical amendment of the Criminal Justice Act, 1984. It is consequential on the inclusion in the complaints procedure of all members of the Garda Síochána other than the Commissioner. When the Bill of that Act was being debated the intention was that the procedure would apply only to ranks up to and including chief superintendent.
I have already referred in passing to the discussions which are taking place with the Garda associations — other than the Association of Garda Sergeants and Inspectors — on the Bill. The discussions are proving to be very useful in identifying areas where the Bill can be improved in ways which, I believe, will find general acceptance. I should like to mention some of the points that have come up in the discussions, that is, in addition to the matters I have already referred to.
The associations suggested that the Bill should provide that the making of a malicious or vindictive complaint would be an offence. I am not persuaded that it would be right to create a specific offence for complaints of this kind against the gardaí. I do appreciate that gardaí, in common with members of police forces the world over, are peculiarly vulnerable to having false complaints made against them. The reason for doing so may be a desire for revenge arising from a successful prosecution or an attempt to have a confession declared inadmissible. However, the arguments against creating a special offence are in my view more compelling. The effect of such an offence might well be to discourage persons who have genuine complaints from going to the board because of a fear — unjustified though it would be — that they might be prosecuted if they were mistaken or if the complaint could not be substantiated for lack of evidence. There is also the fact that existing civil and criminal remedies may be available to a member who is the subject of a false or malicious complaint and that in the majority of cases such complaints would be made without publicity and disproved without damage to the member concerned.
These considerations have led me to come down against the inclusion of a special offence in the Bill. I do not believe that the association's fears in this regard will prove to be justified. However, in deference to their views I have agreed to use the procedure under section 12 (2) and request the complaints board to report to me on the question of creating a special offence on the lines suggested in the light of their experience of such complaints. I will be asking the board also to consider including a reference in the complaint form to a complainant's possible liability under the civil and criminal law in the event of his having made a false complaint.
In the discussions the associations also adverted to the fact that members of a disciplinary tribunal of the board who will adjudicate on a complaint may have been involved already in the decision to refer that complaint to the tribunal. They suggested that this could be unfair to the garda concerned and would be contrary to the principles of natural justice.
As a tribunal would be dealing only with purely disciplinary matters there is no analogy with the conduct of criminal proceedings and so no breach of the recognised rules of natural justice is involved. Moreover, the board merely decide whether a breach of discipline may be disclosed whereas a tribunal, after hearing the oral evidence, decide whether breach has, in fact, occurred.
Nevertheless, I have been impressed by the case put forward by the associations and, subject to any views the House may have on the matter, I would be disposed to consider whether their concern should be met by a suitable amendment on Committee Stage. One possibility would be to provide that the membership of the tribunals would be drawn from a panel completely independent of the board. Another would be to enlarge the board's membership to enable the two functions of supervising investigations and adjudicating complaints to be performed by different persons. The acceptance of either option would tend to complicate further a structure which is arguably already elaborate enough for what is essentially a disciplinary procedure.
Another matter discussed with the associations was the period within which a complaint must be made. The associations have suggested that the six months period provided by section 4(3) is too long. I would welcome also the views of the House about this. It may be that it would be better to have a period of three months with the possibility of an extension to six months in exceptional circumstances.
Arising from the discussions, I have agreed to propose that the breaches of discipline which the public can complain about should be spelt out in a schedule to the Bill rather than be specified, as the text now stands, only by reference to the breaches designated in the 1971 regulations. This will make for ease of reference and will allow the exclusion of some breaches, such as disobedience of orders, which are appropriate only to internal discipline within the force.
As I have said earlier, discussions are also taking place with the Garda associations — other than the Association of Garda Sergeants and Inspectors — on the 1971 regulations. My intention is to replace these regulations with a new updated version. This will enable sections 14 (6) and 7 (9) (h) to be deleted and the matters to which they refer to be dealt with in the new regulations.
I should like now to mention the two remaining steps being taken for the improvement of our criminal law and procedure. These are the draft regulations for the treatment of persons in Garda custody and the provision of facilities for the electronic recording of Garda questioning. The regulations will come before the Government for approval in principle within the next few weeks. Details will then be published so as to enable interested parties to submit comments before the regulations are made in draft form, as required by the Criminal Justice Act, and submitted to the Dáil and Seanad for approval. The commencement of field trials of electronic recording equipment is dependent on the coming into operation of the detention provisions of the Act, and that in turn depends on the enactment of the present Bill and the making of the treatment regulations. I can assure the House that as soon as this Bill has been passed there will be no delay in setting up the complaints board. The necessary preparatory work in relation to the acquisition of premises and so on is proceeding to the maximum extent possible so as to avoid delay not only in establishing the complaints machinery but also in bringing into operation the provisions which the Garda need to help them in the investigation of serious crime.
Apart from the underlying principles, there is a lot of detail involved in the Bill because I considered it was better to spell out the detailed procedure for making complaints and for dealing with them in the Bill itself rather than in regulations made subsequently so that the House would have an opportunity of seeing the whole picture now. There will be an opportunity for detailed examination of these provisions when we are in Committee but if Deputies have any questions about them I shall try to answer them when replying and, in any case, I shall give consideration to them between now and the Committee Stage.
I believe there is a general consensus in the House on the need for an independent complaints procedure which will have the confidence of the public, preserve to the greatest possible extent the responsibility and accountability of the Commissioner as head of a disciplined force, be sufficiently flexible to ensure that disproportionate effort is not devoted to trivial or minor complaints and ensure that justice is done, and is seen to be done, to both complainants and gardaí without unnecessary delays. I am confident that the Bill will be approached on that basis and I look forward to a constructive debate.
