Joint Committee on Justice, Defence and Equality debate

Garda Oversight: Discussion

Chairman

The purpose of the meeting is to have a discussion with a number of the individuals and organisations which made a written submission on the review of the effectiveness of the legislation relating to the oversight of An Garda Síochána. On behalf of the joint committee I am pleased to welcome from the Irish Human Rights Commission, Mr. David Joyce, acting chairman, and Dr. Des Hogan, acting chief executive; from the Irish Council for Civil Liberties, Mr. Mark Kelly, director, and Mr. Walter Jayawardene, campaigns and communications officer; from Transparency International Ireland, Mr. John Devitt, chief executive, and Ms Susheela Math, legal counsellor; from the Irish Traveller Movement, Ms Brigid Quilligan, director, and Mr. Damien Walshe, membership development worker; from Amnesty International Ireland, Ms Fiona Crowley, research and legal manager; and from the Garda Síochána Ombudsman Commission, Mr. Simon O'Brien, chairman, Mr. Kieran Fitzgerald, commissioner, and Ms Carmel Foley, commissioner. I thank the witnesses for their attendance.

The format of the meeting is that we will invite spokespersons of each of the organisations represented to make an opening statement of approximately five minutes outlining the salient points in the written submissions circulated to the joint committee. We will then proceed to a question and answer session with members.

I ask all members, witnesses and persons present in the Gallery to switch off all mobile telephones or switch them to aeroplane, safe or flight mode, depending on the device. Unfortunately, switching to silent mode is not acceptable as telephones in this mode may interfere with and impact negatively on the broadcasting system. If, in the course of proceedings, interference takes place, I will ask people to switch off their mobile telephones completely or withdraw from the room.

I draw attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person, persons or an entity by name or in such a way as to make him, her or it identifiable. I remind members that under the salient rules of the Chair, they should not comment on, criticise or make charges against a person outside the House or an official by name or in such a way as to make him or her identifiable. I ask members to take note of this rule when commenting or asking questions.

I invite Mr David Joyce to make his opening remarks.

Mr. David Joyce

I thank the Chairman and members for inviting the Irish human rights and equality commission designate to speak on our submission on the review of the Garda Síochána Act 2005 initiated by the joint committee. I am joined by Dr. Des Hogan, acting chief executive of the commission. Following my short introductory remarks, we will be pleased to answer questions from members.

It is very welcome that the joint committee has taken the initiative on this issue. Our appearance at this meeting is evidence of the ongoing strengthening of co-operation between the national human rights institution and the Oireachtas in addressing human rights and equality issues. As our submission sets out, accountability in the policing structure of the State has been a significant theme in the work of the Irish Human Rights Commission since its inception, and a number of policy statements and legislative observations have been published which underline the importance of a human rights compliant police service in the State. This is unsurprising given the commission's genesis in the Good Friday Agreement and the influence of the Patten report and attendant policing reforms introduced in Northern Ireland. Equivalence of rights, North and South, is a key principle in the Good Friday Agreement.

Effective oversight bodies, coupled with transparency and engagement with the community, are core mechanisms of human rights accountability. While the establishment of the Garda Síochána Ombudsman Commission, GSOC, under the 2005 Act was a significant step forward, there are deficits in the legislative underpinnings to this complaints mechanism. In this matter, we welcome the initiative announced yesterday to strengthen the powers of GSOC. The IHRC considers that, on its own, a mechanism such as this is not necessarily sufficient to provide a comprehensive structure to ensure human rights and equality and accountability in policing.

Added to the five aspects of accountability identified in the Patten report, namely, democratic accountability, transparency, legal accountability, financial accountability and internal accountability, we identified in our submission a sixth aspect of accountability that has become increasingly evident in the years since the Patten report was published, namely, the responsibility of the state parties to the European Convention on Human Rights to ensure proper accountability structures exist in their police forces to ensure effective investigations following suspicious deaths, in line with Article 2 of the convention; proper planning and oversight of police operations to address foreseeable risks of human rights violations, in line with Articles 2, 8 and 13; and proper complaints mechanisms following any human rights violations that can occur at the hands of police, in line with Article 13 when read in conjunction with Articles 2, 3, 8 and 14.

We have identified a number of elements which will be essential in the new policing authority in our submission and which we are happy to elaborate on in questions. The main benefit of a new authority is to depoliticise policing or the perception of its politicisation by decoupling the Commissioner’s office from that of the Minister for Justice and Equality.

In relation to complaints, we see these as addressing not just issues of breach of discipline or criminality per se, but also issues of disrespect for human rights and dignity, which, although not a breach of discipline, diminishes the public’s confidence in the service on the one hand and serious violations of equality and human rights on the other. As to who should receive and consider those complaints, we argue this should be the Garda Síochána Ombudsman Commission, GSOC, with reconfigured resources and a strengthened statutory mandate. We believe all complaints, including those relating to the Commissioner’s office and national security issues, should be capable of being investigated, allowing for sufficient safeguards where national security is concerned. No police station should be out of bounds for investigators as is currently the case under sections 93(3) and 126 of the Act.

GSOC’s formal independence should be strengthened to insulate it from ministerial control. GSOC should be properly mandated and resourced if we are to avoid the need for future commissions of investigation. There will need to be continued linkage with Garda disciplinary procedures to allow violations of rights to be addressed quickly in order that systemic issues of low level disrespect of individuals can be acted upon.

The proposed policing authority offers the opportunity to capture a number of these elements, with the caveat that the independence of GSOC and the national preventative mechanism yet to be established under the UN optional protocol to the torture convention, allowing for inspection of all places of detention, would not be compromised through reporting requirements at odds with the discharge of functions by independent bodies. We also consider the new authority should prioritise equality and human rights training throughout An Garda Síochána, including for its middle and senior management.

We are happy to take any questions the committee may have.

Chairman

I thank Mr. David Joyce for his presentation and also keeping within the time limit. I invite Mr. Mark Kelly to make his presentation.

Mr. Mark Kelly

Thank you, Chairman. I am accompanied by my colleague, Mr. Walter Jayawardene, communications manager at the Irish Council for Civil Liberties. We are appearing before the committee with a certain sense of déjà vu. The committee will have seen in the submission forwarded that we both provided our submission of April 2014 but we also did something we would not usually do for an Oireachtas committee, that is, we resubmitted an old document from November 2006, entitled Implementing Morris [the Morris being the Morris tribunal]: An Agenda for Change: Placing Human Rights at the Core of Policing in Ireland. A central thrust of that document eight years ago was to look at what we saw as gaps in the 2005 Garda Síochána Act, the subject being dealt with today. It is clear to us that we are in a situation, as my colleague, Mr. David Joyce, has outlined, where human rights had not been placed at the core of policing in Ireland and that in our submission now needs to happen.

I want to touch briefly on four major points in our April submission and I would be happy to come back to it if the committee has further questions. On the powers of GSOC, again my colleague, Mr. David Joyce, has touched on the issue. So far as the Irish Council for Civil Liberties is concerned, there is a need to increase the inadequate powers that GSOC currently enjoys under the 2005 Act. Our view is that should be done subject to the overarching principle that GSOC should be responsible for the investigation of every complaint against a member of the Garda Síochána. It would be nice to hear from GSOC today as some form of categorical reassurance that that is also its own approach. More specifically, there are four additional things we would like to see GSOC empowered to do. It should have the power to investigate the Garda Commissioner, which it does not have; it should have access to the PULSE system directly and not through the intermediary of serving members of the Garda Síochána; it should have the power to receive complaints from serving officers, and we have seen vividly in recent days the consequence of it not having that power; and specifically under section 106 of the 2005 Act, there is a need for GSOC to have the power to conduct a review of practices, policies and procedures on its own initiative in order that it can look at and extract systemic factors that arise from patterns of complaints. Currently, it needs the consent of the Minister for Justice and Equality to do that and that should change.

Second, in regard to the Garda authority, I refer to our submission of November 2006 when we said, and it remains true, that civic oversight is the missing piece in the Garda accountability jigsaw. There is a wide consensus that this should happen. We welcome the fact that the Government has said it will happen and in a relatively short timeframe. In my opening statement I will not go into detail on the substance of what we think a Garda authority should do. Not long ago an interesting paper was prepared by Deputy Anne Ferris and Senator Ivana Bacik on this subject and we have had regard to that. We will make a detailed submission to the Cabinet committee on justice reform with a deadline of the end of this month. I am happy also to forward a copy of that submission to the committee if it considers it would be of interest to it in its work.

Third, the Garda Inspectorate is created by Part 5 of the 2005 Act. In our April submission we reflected on whether, given the other changes in the architecture of Garda accountability that we are anticipating, there would still be a need in future for the Garda Inspectorate because the cardinal point we would like to convey about the inspectorate, arising from section 117(2) of the 2005 Act, is that despite misapprehensions to the contrary, the Garda Inspectorate is not an independent body. We have set out section 117(2) in full on page six of our submission. In a statutory sense, it is a creature of the Minister. That is the way in which it is set up under the 2005 Act. I have to confess that it was with some measure of astonishment yesterday afternoon that we learned from the new Minister for Justice and Equality and the Taoiseach that it is the inspectorate that is to be asked to carry out a comprehensive inquiry into serious crime investigation, management, operational and procedural issues in the light of the Seán Guerin report. This was presented as being part of a package of measures in response to the Guerin report whereas in our understanding, and this is something the committee might come back to with the representative associations later in the day, more than a year ago, under appendix 3 to the Haddington Road agreement, it was agreed that the inspectorate would conduct a limited review into structure, organisation and staffing of the Garda Síochána and into the deployment of members and civilian staff to relevant and appropriate roles. This was referenced just a fortnight ago by then Minister for Justice and Equality, Deputy Alan Shatter, in the Dáil. This review, essentially, is a review of a human resources dimension arising from the Haddington Road agreement. If it is now being proposed that the terms of reference given to the Garda Inspectorate under appendix 3 to the Haddington Road agreement should be expanded to look at the investigation of crime, then we should have some clarity on that. Even if that is the Government's proposal, in the view of the ICCL it does not constitute a robust and independent inquiry into Garda malpractice identified in the Guerin report.

Lastly, I endorse the comments made by my colleague, the acting chairman of the Irish human rights and equality commission. It is now seven years since Ireland signed - it has yet to ratify it - the optional protocol to the UN convention against torture and we do not yet have the independent, national preventive mechanism required under the treaty, one of the functions of which would be to carry out independent inspections in Garda stations. This is another significant lacuna. If the committee is looking at the 2005 Act in the whole, this missing piece should be included.

Chairman

I thank Mr. Kelly and invite Mr. Devitt to make his submission.

Mr. John Devitt

I thank the Chairman and the committee for their invitation to address them. I am joined by Susheela Math who is Transparency International Ireland’s legal counsellor and manages our Speak Up helpline. We have been operating a free telephone helpline for whistleblowers since 2011. It is part funded by the European Commission. So far, we have worked with approximately 400 clients, including Garda John Wilson and Sergeant Maurice McCabe who used the helpline in 2012. We offer advice, referral and information to whistleblowers and witnesses of economic crime and other forms of abuse of authority. Our submission is largely informed by our engagement with the two whistleblowers mentioned and other whistleblowers who have approached us for advice. We have also undertaken systematic reviews, with the support of the Department of Justice and Equality in 2009, of the governance of public bodies. They included a national integrity system study and an addendum study in 2012 which I will be happy to share with committee members after the meeting.

In summary, Transparency International Ireland welcomes the Government’s intention to establish an independent Garda authority. We also welcome its promise to reform Garda oversight measures and recommend that the Minister’s current powers under the 2005 Act be transferred to the new Garda authority, particularly in respect of the appointment of senior members of An Garda Síochána and investigation and oversight of the Garda Commissioner. This change would go some way towards placing some distance between the Garda and the Department of Justice and Equality and address the risk of political interference in policing.

We also believe members of An Garda Síochána should be able to make reports, under section 62(4) of the Garda Síochána Act, directly to the Garda ombudsman, without fear of disciplinary action. In my notes to the committee I failed to mention, as we did in our submission, that under the Garda Act and the regulations, specific offences and penalties should be specified in the regulations for intimidation or harassment of gardaí who reported concerns in compliance with the Garda Act and the protected disclosures legislation which is due to be taken in the House later today.

We believe the Garda Síochána Ombudsman Commission should be able to access the PULSE database and investigate reports made under Regulation 7(2) of the Garda Síochána (Confidential Reporting of Corruption or Malpractice) Regulations 2007 against the Garda Commissioner. If the Garda Inspectorate is to be retained, it should be able to commission its own inspections and inquiries where it believes it is in the public interest to do so.

We recommend that the post of confidential recipient be retained and enhanced, with an open recruitment process, and that consideration be given to the establishment of an office of confidential recipient, with adequate civilian support, to enable professional advice and support to be given to Garda whistleblowers before and after disclosing concerns.

We are happy to answer questions and to go into further detail on matters raised in our submission.

Chairman

I thank Mr. Devitt and appreciate that he stayed within the time allocated.

Ms Brigid Quilligan

I am delighted to be here, on foot of our submission, to talk about oversight of An Garda Síochána. I am joined by my colleague, Mr. Damien Walshe, membership development worker with the Irish Traveller Movement.

I welcome the opportunity for our organisation to feed into a vital process to ensure the police force has an independent process to oversee policing. I stress from the outset that the Irish Traveller Movement recognises the difficult job the women and men of An Garda Síochána face in their work, facing not only dangerous and potentially life-threatening situations on a daily basis but also the impact of cutbacks to their services, which places additional pressures on members of the Garda in carrying out their functions. The Irish Traveller Movement has a strong relationship with the racial, intercultural and diversity office of An Garda Síochána and our organisation has been regularly invited to talk to trainees in Templemore on the issues Travellers face and the work we do as a movement.

As committee members will have seen in our submission, our members, local Traveller organisations, have stressed the positive relationships that have been built between Travellers, Traveller organisations and An Garda Síochána at a local level through initiatives such as the local Traveller inter-agency committees. This work is to be applauded as it has had a substantial influence in building trust between members of my community and members of the Garda. Trust in the policing service, given the pivotal role An Garda Síochána plays, is vital for every member of Irish society, regardless of ethnicity. However, as noted in our submission, trust in the police force among Travellers is not as strong as it is among the general population. Our submission to the committee stressed and our presentation will stress the need for an independent policing board and suggest Traveller representation on the board will be vital to build on this trust into the future.

In comparison with a Garda public attitudes survey, PAS, a Traveller-ethnic minority communities attitudes survey, TEMCAS, conducted by An Garda Síochána in 2007 showed significant levels of dissatisfaction with the force among Travellers. While 14% of the general population surveyed were “very satisfied” with the service of An Garda Síochána, only 5% of Travellers were. More worrying, while 16% of the general population were “dissatisfied”, 26% of Travellers were and while only 3% of the general population were “extremely dissatisfied” with the service of An Garda Síochána, 22% of Travellers were. Therefore, we can see from a survey carried out by the force that there is cause for concern in terms of the relationship between Travellers and An Garda Síochána. We note that this survey, which has not been replicated since, was carried out before the establishment of local Traveller inter-agency committees, whereby relationships have developed between Traveller organisations and An Garda Síochána.

The Traveller-ethnic minority communities attitudes survey suggested attitudes towards the Garda were related negatively to personal experience of the Garda. In both surveys with the general public and minority groups those who had no contact were more likely to express higher levels of overall satisfaction with the Garda than those who had contact. This is borne out by concerns raised by our members in preparing our submission to the committee. Many Travellers do not believe the Garda offers protection to them as Travellers when they are the victims of crime - for example, there is a slow response time to calls about incidents on Traveller halting sites. Travellers believe gardaí see them only as criminals, never as victims, and cite the practice of frequently stopping and searching or questioning Travellers, especially van drivers and young Traveller men, which further erodes trust between the force and the community. Some Travellers report frequent Garda car patrols on halting sites or group housing schemes, up to three times a day in some cases. Travellers believe this is merely to keep them under surveillance, as during these patrols there is no interaction between gardaí and the community. The surveillance, or perceived surveillance, of the entire community by gardaí further alienates Travellers from An Garda Síochána. Installation of CCTV cameras beside existing or planned Traveller accommodation, without notification or public consultation, erodes trust further.

On direct contact between Travellers and An Garda Síochána, while many Travellers have positive relationships not only in reporting crime and making inquiries, members of An Garda Síochána have been tasked with carrying out evictions of Traveller families, which strains relationships. Travellers often believe the use of armed response units and large numbers of gardaí when other State officials are visiting halting sites creates a conflictual stance whereby the Garda is no longer their police force.

On Travellers using the Garda, some Travellers do not believe they are treated with respect when they need to use Garda stations, for example, there is a lack of eye contact and an unfriendly manner, while gardaí casually drop into an unrelated conversation the fact that they know other family members who have criminal records, which makes innocent people feel criminalised and that they have been racially profiled.

This negative relationship is not only noted by our members, it is borne out by research carried out by An Garda Síochána which was alluded to earlier.

The work that has been undertaken and the relationships that have been built up through the hard work of An Garda Síochána and local Traveller organisations has been severely damaged recently by the allegations by Garda whistleblowers of ethnic profiling of Travellers, including Traveller infants, on the Garda PULSE system.

The Irish Traveller Movement has been inundated with calls and e-mails from Travellers who fear their details and those of their children have been entered onto the PULSE system simply because of their identity. These few allegations have caused such widespread distress among the community and have seriously impacted on relationships between the Garda Síochána and Travellers in Ireland. I wrote to the then Minister for Justice and Equality asking for Seán Guerin's investigation to be broadened specifically to investigate these claims. Unfortunately, this did not materialise and an opportunity to restore Travellers' confidence in our police force was lost.

Chairman

I must ask you to conclude.

Ms Brigid Quilligan

I will wrap it up. Thank you, Chairman. Given the concerns outlined by our members, it appears that not enough has been done to overcome potential institutional bias. Indeed, the allegations of ethnically profiling Traveller infants have confirmed for many Travellers the existence of institutional anti-Traveller racism within the force. On this basis, the Irish Traveller Movement believes, based on best international practice, that a policing board should be formed to oversee the practice of An Garda Síochána. Legislation should be developed and enacted-----

Chairman

In fairness to everyone else I must ask you to stop there, please. We can pick up the rest of that later on, perhaps.

Ms Fiona Crowley

Amnesty International welcomes the consultation process undertaken by the committee on the legislation relating to oversight of An Garda Síochána. We are grateful for the invitation to address the committee today to raise some of the points in our submission.

Recent events have undermined public confidence in An Garda Síochána and in the structures to provide external oversight of the service. The Guerin inquiry has shone an important light on how one Garda whistleblower and his complaints were treated and we welcome the commitment of the Minister for Justice and Equality to establish a commission of investigation as the inquiry has recommended. I note and echo what Mr. Mark Kelly has set out regarding the role of the inspectorate in the process as proposed by the Minister.

While we welcome the committee reviewing the legislation on Garda oversight we urge that the internal accountability and human rights promotion mechanisms within the police service not be overlooked in the debate. Amnesty International participated in the Garda human rights working group, established in 1999, and has been a member of its strategic human rights advisory committee along with others, such as the Irish Council for Civil Liberties, since it was established in 2005. We have thus seen several high-level projects undertaken internally to further the service's human rights compliance, including the 2005 human rights audit and its implementation of the action plan for the implementation of that audit. Gardaí need to be supported and resourced to move these initiatives forward and they must be prioritised within the service.

I will highlight our main areas of priority and refer the committee to our submission for further explanation on each. The Garda Síochána Act 2995 adopts too narrow a definition of cases under the automatic and mandatory jurisdiction of the Garda Síochána. Where complaints are related to acts not resulting in death or serious harm, GSOC may refer such complaints to the Garda Commissioner for investigation. GSOC may decide to supervise such investigations but it is under no legal obligation to do so.

We have suggested that the Act should provide an explicit presumption in favour of investigation by GSOC of all complaints with any referred for investigation by the Garda expressly confined to minor complaints. However, I note the interventions by the ICCL and the Irish Human Rights Commission today suggesting that all complains be mandatorily investigated by GSOC and, therefore, we concur. The involvement of GSOC in a supervisory function should be mandatory rather than discretionary in all cases and the exclusion of the Garda Commissioner and complaints of serving members from GSOC's jurisdiction should be removed.

Under section 102 of the Act the Garda Commissioner is obliged to refer to GSOC any matter that appears to indicate the conduct of a Garda member may have resulted death or serious harm. Again, this is too narrow a range to be automatically referred to GSOC.

GSOC should be empowered to conduction an inquiry under sections 62(2)(f) and 106 into any practice, policy or procedure of the Garda of its own volition rather than at the request or consent of the Minister.

International human rights law demands that police accountability mechanisms be institutionally completely independent of government and free from political influence. GSOC needs far more functional independence from the Department of Justice and Equality, especially in terms of its budget. Ideally, the Act should also provide an independent selection and appointment process for members of GSOC involving representatives of civil society, especially those representing the interests of marginalised groups. This is no aspersion on the current members of GSOC, rather a generic recommendation Amnesty International makes in all jurisdictions. Should the Government process its commitment to establish an independent policing authority, that body should be given a key role in this regard.

Another matter is the live issue of whistleblowers and the flawed confidential recipient process. The confidence of gardaí to report concerns confidentially and to have those concerns addressed is of critical importance to ensure that individual or systemic weaknesses in the service can be revealed. Whistleblowers serve a significant public interest function and should be encouraged rather than dissuaded from disclosing information.

The degree of ministerial influence over An Garda Síochána committed to under the Act undermines its actual or perceived independence. Amnesty International wholeheartedly supports the establishment of an independent and representative agency with responsibility for Garda oversight and appointment. We recommended this measure in 2004 and we look forward to seeing the details of what is proposed.

The Act or other relevant legislation must provide robust oversight of Garda covert surveillance functions and operations as well as its national security and intelligence functions. We echo what Mr. Kelly said with regard to urging the committee to press for Ireland finally to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the expeditious establishment of a national preventive mechanism required thereunder.

The manner in which police reform and accountability happens can be as important as the content of the reforms. The Government must be pressed to thoroughly consult with the Irish Human Rights Commission, NGOs and other members of civil society in deciding and implementing its reforms. It is especially important that members of An Garda Síochána of all ranks are engaged. They must feel that accountable policing based on human rights is in their interests too and that they are being supported to fulfil their duties accordingly.

Mr. Simon O'Brien

I am joined by the other commissioners, Ms Foley and Mr. FitzGerald. I thank the committee for the invitation to assist with its work on improving the effectiveness of legislation relating to oversight of the Garda Síochána. The 12 proposals in our submission received by the committee represent the 12 ways that amendments to the Garda Síochána Act 2005 would most affect our ability to do our job effectively. The proposals in the submission focus on improving the capacity of GSOC to effectively achieve resolution of issues on strengthening GSOC's independence - a crucial characteristic of any oversight agency - which has been perceived as compromised under current legislation, not least by the United Nations. I will set out the key recommendations made in the submission.

We recommend new approaches to dealing with minor complaints to facilitate effective resolution. Many complaints to GSOC do not allege serious misconduct or criminal behaviour but breaches of discipline, for example, discourtesy or the poor response of a garda to an incident. The current system favours these being dealt with via a lengthy, bureaucratic, disciplinary investigation. In addition to the cost to the taxpayer, this approach does not necessarily always address the fundamental issue of complaint. GSOC has proposed new approaches to dealing with these kinds of relatively minor complaints to decrease cost and increase efficiency and satisfaction. These include removing legislative barriers to informal resolution in order that more than the current 1% of complaints can be resolved informally, i.e. allowing GSOC to decide when it is appropriate for this route to be taken. It also includes creating new protocols for dealing with issues relating to customer service.

We have also proposed new approaches to dealing with more serious complaints. Currently, for serious disciplinary issues, the Garda Síochána may undertake investigations into complaints following referral from GSOC. GSOC believes that the concept of gardaí conducting investigations on our behalf is questionable in terms of independence and effectiveness and the commission proposes the discontinuation of this arrangement. By the way, undertaking all investigations by itself would have considerable resource implications for GSOC and these would have to be taken into account were this recommendation seen favourably by the committee. In the event the practice is retained we recommend that all investigation reports should come back to GSOC for decision on appropriate next steps. Furthermore, we are asking for adherence to protocols around investigations to be put on a statutory footing.

We would like to see the Garda Commissioner becoming subject to oversight. Currently the Act states that a member of the Garda Síochána does not include the Garda Commissioner. Therefore, that officeholder is outside the remit of GSOC. GSOC believes that effective oversight of policing, and public confidence therein, favours the Garda Commissioner being subject to independent oversight and that legislation should be changed to allow for that.

We believe the definition of serious harm should be expanded. The Act provides for investigation by GSOC, following referral by the Garda Commissioner, of any matter appearing to indicate that the conduct of a member of the Garda Síochána may have resulted in the death of, or serious harm to, a person.

The definition of "serious harm" does not encompass, for example, sexual offences of a serious nature; therefore, such offences allegedly committed by members of An Garda Síochána do not merit referral to GSOC for independent investigation and can be investigated internally, which we do not believe is fair to any party involved. GSOC believes there should be flexibility introduced by the Legislature in order that, as society’s definition of "serious harm" evolves, the definition and thus the types of offence which merit independent investigation may be expanded.

We recommend removing limitations on GSOC in conducting and publishing examinations of policy, practice and procedures within An Garda Síochána. The Act provides for such examinations, but, in reality, the defined circumstances are so narrow that this has only been done once to date.

While there are several other matters covered in our submission, the last specific proposal to which I will refer concerns the nomination of GSOC as confidential recipient. Recent events have suggested the existing system for the raising of issues by Garda members requires significant overhaul. While provisions would need to be made to ensure GSOC would not become a mediator in HR disputes within the organisation, it could be nominated as an external confidential recipient, with the capacity to receive complaints from serving Garda members about serious corruption, malpractice or systemic issues.

It is important to highlight again that an overarching recommendation is that the objectives of GSOC, as set down by the Act, be fundamentally reset in order that, rather than favouring a system of seeking to apportion blame on gardaí for specific actions, the legislation will enable us to actively seek a resolution of issues and provide feedback for An Garda Síochána to help to bring about long-term change.

GSOC looks forward to having an opportunity to work with the committee, the Legislature, An Garda Síochána and other parties in the next few months to assist in the practical application of these and other recommendations. We want to build a robust, effective, workable system of oversight in Ireland.

Chairman

I thank Mr. O'Brien for his opening statement and keeping within the time limit. The committee has received a request from the media to publish the opening statements. Is that agreed? Agreed. Senator Katherine Zappone has indicated that she would like to engage with the ICCL, Irish Council for Civil Liberties.

Senator Katherine Zappone

I thank Mr. Kelly for his presentation and submission. I refer to his comments on his proposal for a Garda inspectorate. In his view would the establishment of an independent policing authority mean that we could maintain a Garda inspectorate and provide for some form of complementary role between the two bodies?

Mr. Mark Kelly

I thank the Senator for her question and giving me the opportunity to clarify that we have high regard for the expertise of those working in the Garda Inspectorate. They are doing the job they were given to do under the 2005 Act. The implementation of the suggestion made in our submission will depend a little on the eventual redesign of the architecture of accountability systems. The fundamental question that we think needs to be addressed in the new architecture is whether the oversight function needs to sit in a completely independent body. The suggestion made in our submission that has been echoed by colleagues that section 106 be amended in order that GSOC can look at policies, practices and procedures would, in itself, scoop up quite a bit of what the inspectorate does. We have had a good look at its reports - it makes one substantive report per year and has done so since 2006 - which are very good and technical in nature. They benchmark operational policing against best practice. There is a place for that role to be continued, but we question whether, once the Garda authority has assumed the oversight functions of the inspectorate, it particularly would make sense to have this happening as an adjunct to the Department of Justice and Equality.

There has been much talk in recent days about a change of culture in policing. If that change is to happen, it has to happen within the police service. We would like to see the police service assume responsibility for benchmarking against best international practice. The 2005 Act also created the Garda professional standards unit, GPSU, which works closely with the inspectorate. Our view at this stage, without having seen the new accountability architecture, is that quite a bit of what the inspectorate does on a routine basis could be done by the Garda professional standards unit, with oversight by a combination of GSOC under a revised section 106 and the new Garda authority. To give a direct answer to the Senator's question, what the inspectorate does still needs to happen, but we think the operational functions could be vested in An Garda Síochána and the oversight functions in independent bodies.

Senator Katherine Zappone

That is very helpful. My next question follows on from some of Mr. Kelly's comments and could be asked of anyone present. Should establishment of the independent Garda authority be undertaken without consideration of the entire structure of police accountability and oversight, including GSOC and the confidential recipient mechanism, in order to ensure harmonisation and compatibility as the new structure is put in place?

Mr. Mark Kelly

Clearly not is the answer to that question. We have looked at and counted the number of reviews, inquiries and investigations under way and counted ten or eleven as being active in various ways, including the Haddington Road review by the inspectorate to which I referred. The real problem is twofold. First, we are facing into a period of weeks and months when from week to week, month to month, there will be new revelations and findings, starting perhaps with the Cooke report, followed by the Fennelly review. If it is done in a piecemeal fashion, public confidence in the integrity of Garda accountability and An Garda Síochána will continue to be affected. Second, the effect of having this series of reviews which are partially overlapping but with different mandates and terms of reference is that we will not get the whole picture. The Irish Council for Civil Liberties stated previously that in its view one of the single most important reviews being undertaken was the review this committee was undertaking because it was at least focusing on the legislation as a nexus. If the committee makes recommendations about how the Garda Síochána Act 2005 should be amended, these recommendations will need to include the full panoply of accountability changes. It is not clear to us that the existing inquiries and reviews will be sufficient to do this in a comprehensive way.

Chairman

If other delegates wish to contribute a reply to a question asked, I ask them to indicate first and I will then call them. Does Senator Katherine Zappone have a further question?

Senator Katherine Zappone

I have one more question. The Irish Human Rights and Equality Commission referred to this issue in its submission. Is the conflation of State security and policing functions in Ireland an issue?

Mr. Mark Kelly

Yes, it is an issue on which the Human Rights and Equality Commission may wish to comment. It is quite unusual to have this absolute conflation. From the beginning of the current spate of Garda-related controversies, it first arose in connection with the allegations of bugging of our colleagues in the ombudsman commission. One of the points we have been highlighting is that the legislative framework under the 1993 and 2009 legislation for the oversight of surveillance and intelligence activities is inadequate, that it is not subject to appropriate supervision or surveillance. We fully appreciate that there are sensitivities, but GSOC stated in its submission that even if the Garda Commissioner were to become subject to its authority, there might have to be a space carved out related to State security. To be honest, I am not sure the Irish Council for Civil Liberties agrees with this. Later this year representatives of a treaty body, the European committee for the prevention of torture, CPT, are again coming to Ireland.

That body has never accepted that there are aspects of policing that fall within its mandate which it should not be able to look at simply because they are classified as issues of state security. The top-level message we have taken from Mr. Guerin's report is that we cannot have a situation where a Garda Commissioner defines what is and is not to be looked at by independent bodies. Unless we tackle that issue head on, it will continue to be a very contentious area. There is a need to strengthen independent oversight of intelligence activities and seriously consider decoupling the conflation of the two roles.

Ms Fiona Crowley

It is interesting that the Human Rights Commission's submission raises this point of whether policing and national security functions should be severed. It is Amnesty International's general position that national security and intelligence functions should never be vested in a police or military service but should instead be constituted entirely separately. This is because of the difficulties in providing the different forms of oversight that are needed and also the risk of mission creep, or one function infecting the other.

Dr. Des Hogan

I echo the point colleagues are making. We state in our submission that no police station should be out of bounds for independent oversight and investigation. We do not in the future want to be faced with a situation where there are allegations of wrongdoing and no independent authority is able to investigate that alleged wrongdoing. In that scenario we would be back to commissions of investigations.

In other jurisdictions, national security is separate from policing for a particular reason and there are additional safeguards attached to independent oversight. I would not say that any state has a perfect system, but we are moving towards a more transparent society and an important aspect of the forthcoming review on the policing authority will be the question of how national security is captured. If it is not captured, we could be back here in a year or two discussing some other allegation about a particular police office in a particular part of the country that has been designated as being part of a national security defence, so to speak, for a GSOC or other investigation.

Mr. John Devitt

I am not aware of any police force anywhere in the world that does not have an intelligence function. The PSNI and the London Metropolitan Police Service, to give two examples, have an intelligence function. All forces run covert human intelligence sources, CHIS, programmes, and all have a function in deterring or investigating terrorism. The two concepts are inseparable, just as they are for the military.

That said, it is important not to use the security function of any police service as an excuse not to expose that service to adequate democratic oversight and accountability. Most parliaments, including those in New Zealand, the United Kingdom and the United States, have democratic oversight, inadequate as it might be, of their intelligence services. The coupling of national security with policing has been used by this and previous Administrations to exempt An Garda Síochána from adequate oversight and investigation by oversight bodies such as GSOC.

Deputy Niall Collins

I thank the delegates for their engagement with the committee. Picking up on the last point, are the various witnesses suggesting that we need a new oversight body for national security? Are they all in agreement on that?

Dr. Des Hogan

Our position is that it does not necessarily have to be a new body, but it does need to be an independent body. The question is how one would structure and design it. As long as the body overseeing complaints relating to that function is structurally independent and has the ability and mandate to investigate, subject to national security safeguards, we would consider it acceptable.

Mr. Mark Kelly

If that function remains as it currently does within An Garda Síochána, then it needs to be subject to independent oversight. Without prejudice to Mr. Devitt’s comments, of course there will be certain intelligence-related functions, CHIS being a classic example, that remain with the police. In this State, however, major questions of State security are also vested in the police, which is very unusual. Our preference would be for an independent intelligence service, itself subject to independent oversight.

Mr. John Devitt

Many parliaments have an oversight function in respect of their intelligence services. There is a committee on intelligence services in the United States Congress, for instance, and similar bodies in Westminster and in New Zealand. This committee could serve that function to some degree, with adequate safeguards implemented, as could GSOC. I see no reason that GSOC could not also undertake reviews and monitor any shortcomings in safeguards to prevent abuse in intelligence services.

I disagree with my colleagues' views on establishing a separate intelligence service. I have spoken with former MI5 and MI6 whistleblowers who have pointed to the risk of the expansion of the intelligence services beyond the protection of national security. As I mentioned, the police in the UK and other jurisdictions have a state security function. The intelligence function is inseparable from that state security function, but it should be restricted to a large degree to the prevention of terrorism and other direct threats to the physical safety of citizens.

Chairman

One of the greatest threats at this time is in regard to cyber security.

Ms Fiona Crowley

To clarify, when I was referring to Amnesty's general position vis-à-vis national security and intelligence services, I was not talking about the normal and legitimate use of intelligence in the course of normal policing work, that is, crime prevention and detection. I was referring to what we might call secret services, and it remains our position that they should be separate. Whether or not Ireland's secret services function remains within An Garda Síochána is a matter for others to decide. One way or the other, however, it needs to be subject to independent oversight. That type of oversight and accountability is a well-established principle of international law and is a requirement under the European Convention on Human Rights.

Deputy Niall Collins

Will the delegates from GSOC give their view on this issue?

Mr. Simon O'Brien

It would be very helpful if some attention were given to the regulations under 126 of the existing Act. This issue has come up in the past in the course of investigations. It is important not to mix up what would be seen as covert human intelligence-type functions and the normal practice of using intelligence techniques in policing and State security. It is for the Oireachtas to decide how those functions should be split.

Deputy Niall Collins

The delegates from GSOC have previously outlined to this committee and in several media appearances instances of high-level non-co-operation and low-level non-co-operation from An Garda Síochána when GSOC is processing and investigating complaints. Will Mr. O'Brien indicate what progress has been made in this regard and whether the situation has improved to GSOC's satisfaction?

Mr. Simon O'Brien

We now have re-signed and renegotiated protocols that do not look too much different from the previous protocols. The indications this year are that we are getting a better level of service from the Garda Síochána in terms of the timeliness of the provision of information. We will look at that hawkishly through this year to ensure it continues. In regard to the timeliness of investigations undertaken by the Garda Síochána, there has been less success in those times coming down.

Deputy Niall Collins

My next question is to all the delegates. For any new policing authority to be independent, it will have to have an independent board.

Do our guests have views on the number of people who should sit on such a board and by whom they should be appointed? Should members of civil society be involved or should public representatives be appointed?

Chairman

Excellent questions. Who would like to respond to them?

Mr. Mark Kelly

There might be a few of us who might wish to reply to them. I do not know if Deputy Anne Ferris was present earlier when I stated one of the things we had examined was the very interesting paper which she, Senator Ivana Bacik and others had drawn up a short time ago. The ICCL has not reached a settled view on the matter, but our preliminary opinion is that we need to consider a model which would not be a carbon copy of the Northern Ireland Policing Board but which would be inspired by the same general principles. We will be examining this matter in greater depth in the coming weeks in order to identify exactly how we might establish democratic accountability in such a body. That type of accountability would imply a measure of political participation but without over-politicising the board. The cardinal point for us is that appointments to such a board should be made in an independent and transparent manner. Any form of political participation should be organised in such a fashion that the independence of the new authority would be crystal clear.

I did some work with the Northern Ireland Policing Board immediately on its establishment and for several years thereafter. I found it quite remarkable how a professionally run and administered and well chaired policing board could result in people from very different political perspectives actually acting in a very coherent way in the interests of good policing. The former Minister for Justice, Equality and Law Reform, Mr. Michael McDowell, when this proposal was first mooted in the context of the 2005 Act, is on record as stating he thought the Houses of the Oireachtas could take the place of a Garda authority and that, therefore, one was not needed. Recent events have shown that that is not really the model we want. At the same time, however, the ICCL is not at this stage ruling out some measure of political accountability being built into the mechanism. However, we need to give further consideration to how this might be done in practice.

Mr. David Joyce

The culture of collegiality has been highlighted as a potential problem in creating group think within any organisation, and it is important to examine the strategies that can be adopted to address disproportionate degrees of collegiality within An Garda Síochána.

Chairman

That mirrors what happens in the Defence Forces where there is an officer corps.

Deputy Pádraig Mac Lochlainn

Obviously, there is consensus among the presenters today and our members on an independent policing authority, strengthened powers for the Garda Síochána Ombudsman Commission, GSOC, and so on but I want to focus on areas on which there does not appear to be consensus.

My first questions are for the GSOC representatives. They make the point about efficiencies and that there are many minor complaints that could be dealt with. I welcome the fact that they are looking to change the legislation to ensure that investigations of a more serious matter in particular are always investigated by GSOC only and not by serving members of An Garda Síochána, which has created a real difficulty in terms of perception. However, in terms of the minor complaints, is there an appeal mechanism for somebody who is not happy with the outcome of the dispute resolution process within An Garda Síochána?

Mr. Kieran FitzGerald

I thank Deputy Mac Lochlainn. One of the biggest drags on our organisation at present is the lowest level of complaints. I know people focus rightly on the very serious ones when they occur but in terms of resources and day to day work, one of the biggest issues we face is that the informal resolution process provided for in the Garda Síochána Act 2005 does not work because we do not have the capacity to decide when it is appropriate to apply. In effect, there exists a veto and the result is that less than 1% of the complaint load is dealt with in this manner. I would have thought it would have a huge attraction for members of An Garda Síochána in the sense that through the informal resolution process we can write guidelines, and those guidelines may include a non-recording of a sanction. For the complainant, whoever they may be, it includes the real advantage that they may get their issue resolved. Currently, the entire focus of the Garda Síochána Act is about apportioning blame and at that entry level of complaints, so to speak, very often the complainants who speak to us are not necessarily looking to have blame or a sanction apportioned on a member of the Garda; they are looking to have their problem resolved. We would like to see that changed, and we see our organisation having oversight of that and any solution being signed off by us. Echoing the question Deputy Collins asked, we see front-line management having a serious role in achieving that resolution but we see our organisation as the oversight body being the logical people to sign off on it. We believe that barrier to informal resolution is unfriendly towards members of the Garda Síochána and towards the complainants, and we draw the committee's attention to it.

Deputy Pádraig Mac Lochlainn

I have a second question for GSOC. We will have a presentation this afternoon from Dr. Richard O'Flaherty from Limerick. Are there any lessons to be learned in that regard? He has brought matters to the attention of GSOC. They have dragged on for three years. He will present based on his experiences. Does GSOC have any reflections on the issues he has brought to its attention?

Ms Carmel Foley

We do not have sight of that submission but in any event it would not be our practice to talk about open complaints here. We can examine what has been mentioned when we return to the office and if it is appropriate to revert to the Deputy, we will do so.

Deputy Pádraig Mac Lochlainn

I invite the GSOC commissioners to examine Dr. O'Flaherty's presentation, which will be in public view today. I will leave it with them to deal with the issues.

Ms Carmel Foley

We will be delighted to do that.

Deputy Pádraig Mac Lochlainn

The next question is for Transparency International Ireland. It has been suggested that the confidential recipient process should remain in place as a support structure for members of An Garda Síochána in terms of the options available to them and supporting them through any complaints they might have but at the same time it also supports the idea that GSOC would deal with more serious complaints. Can the representatives take us through that in more detail?

Mr. John Devitt

Some large companies, and Siemens, which was embroiled in controversy not too long ago, comes to mind-----

(Interruptions).

Mr. John Devitt

These are public records, Chairman.

I will start by encouraging people to reflect on what is the purpose of an intelligence service. In the United Kingdom, the services are separated into MI5 and MI6. There is also GCHQ, which is responsible for data monitoring, and then police forces have responsibility for terrorist intelligence and other criminal intelligence. I am unsure whether Ireland needs a foreign intelligence service. We do not need spies in our embassies overseas. In general, we get whatever information we need from friendly police forces and intelligence services anyway. I am unsure what purpose would be served by establishing a separate intelligence agency here. What would it monitor that G2 in the Defence Forces or the crime and security branch in the Phoenix Park are not already doing? To my mind, the purpose of an intelligence service, particularly in a country as small as this with few foreign commercial and economic interests, is to prevent crime and physical threats to the State. I do not wish to have, nor would I support the establishment of, an intelligence body that would scrutinise the private affairs of Members of the Oireachtas or members of the media or civil society, as have other intelligence agencies, which gather details on every aspect of the private lives of such individuals.

Ms Fiona Crowley

Amnesty International would not point to any one state as a model of excellent practice. However, there are lots of examples of really poor practice, and the states that are engaging with their national populations on disclosures regarding the levels of personal data that are being captured have shown quite a lot of weaknesses. At a minimum, there should be both judicial oversight and parliamentary engagement. It would be optimal to have some sort of parliamentary committee that engages with the national intelligence and security service functions. However, whenever I hear the term "national security", the phrase "happy hunting ground" springs to mind. The Dick Marty inquiry into secret detentions and conditions in 2005 referred to Europe as a happy hunting ground for foreign secret services. It was reported that no state has any idea of what other states are doing in its territory and consequently, I do not believe that anybody really knows what is the best practice in this regard.

Mr. Mark Kelly

As the Irish Council for Civil Liberties is currently suing GCHQ in the British courts and the National Security Agency in the New York federal court, we probably are not in a position to give members a model of best practice. However, the serious point I wish to make is this is happening anyway. In reality, in respect of crime and security, we have Special Branch activities within An Garda Síochána and Mr. John Devitt mentioned G2 within the Defence Forces. Our understanding is that they work hand in glove and between them effectively constitute Ireland's spying service. The point is that it is not subject to any effective oversight, and one point that is very clear in better models of practice is that one has effective oversight. One has tribunals and the possibility of challenging the activities or at least knowing who is doing which parts of the job. That is not currently the situation here.

Mr. David Joyce

Mr. Kelly has just said precisely what I was about to say. It is not that the Irish Human Rights Commission has a position on the structure or role of an intelligence service. The reality is there are elements of intelligence being done. It exists already and is part of what the Garda does. Our concern is that it gets used partly as a reason for not allowing full oversight or full investigation of complaints against the Garda. This is the point at which we have concern, as I believe we set out in our submission. It is not that we are suggesting there should not be an intelligence service of sorts, and we are not going to set out the criteria as to what or where it carries out its role.

There is clearly a need for some form of intelligence gathering of that nature but what is important is oversight. Again, we come back to the core principle that without oversight from an independent body or Oireachtas committee in a formal manner, we would have concerns, including human rights concerns. Our position is identical to what Mr. Kelly just set out.

Deputy Marcella Corcoran Kennedy

I thank the witnesses for coming in this morning to help us with our deliberations. Could the Irish Human Rights Commission give me some more information on the national preventative mechanism to which reference was made in the presentation and the importance of it being established? Should the body be a stand-alone one or part of another existing agency?

Mr. David Joyce

I will hand over to Mr. Hogan.

Dr. Des Hogan

In 2007, the Irish Human Rights Commission convened a meeting with other statutory bodies and NGOs. GSOC, for example, attended the meeting. At the time we were looking at the fact that Ireland was soon to ratify the optional protocol to the UN Convention Against Torture and all Forms of Cruel, Inhuman or Degrading Treatment or Punishment. That has not happened and there has been a very worrying lag. In fact, with hindsight, if we had the independent mechanism, some of the issues that arise today might have come up in independent reports. The whole idea of the optional protocol and the UN disability convention is to bring in third dimension protection where one has national bodies that do what the UN Committee for the Prevention of Torture, CPT, or the international bodies do routinely. One has a national body that is designated in statute to go into any place of detention in the State. One is talking about Garda stations, prisons, psychiatric institutions and in some cases nursing homes when de facto detention happens. We could also be talking about airports and parts of airports where the possibility of de facto detention might occur.

That is what the mechanism is. It is either a single body, which is the model in some states, or it is a number of bodies that are designated to carry out the function itself. There are advantages for single bodies over multiples ones. For example, in the United Kingdom there are multiple bodies but then one does not have a lot of coming together of the different bodies because of mandates overlapping and people not wanting to step on others’ toes and the duplication of issues.

The requirement is not as clear as the disability convention but there are also moves to say that the body that is set up must be independent as well. For example, internationally, we would have a situation in Europe where a lot of national human rights institutions are designated as the national preventative mechanism. A lot of them are ombudsman-type bodies which already go into prisons and such places so they already have those powers. We in the commission have said we would be very reluctant to take on that role unless we were given adequate resources because the last thing one wants to do is not to be able to discharge the very important mission properly because one is trying to do that and other things as well.

As Mr. Kelly has said, it is probably another element missing from the current picture when we are looking at the Garda Síochána Act. One could ask whether it is something that needs to happen anyway. If one has the GSOC body which is receiving complaints, adjudicating and acting on them, this is the other part where a body does on-the-spot inspections and looks at the systems and practices underlying that.

The opposite is the case in the prison system. We have an Inspector of Prisons and Places of Detention but we do not have a prison ombudsman. The Mental Health Commission has different roles as well. That is the idea. It is a case of the CPT doing spot checks but the visits are made by the national body so one does not have to go to the international body with complaints.

Deputy Marcella Corcoran Kennedy

My next question is for the ICCL. How would it view a merger of the Garda Inspectorate and GSOC working?

Mr. Mark Kelly

Again, I have the disadvantage of not having seen the inspectorate’s submission. I do not see it so much as a merger of the Garda Inspectorate and GSOC. I would see it more as an assumption by GSOC of some of the powers and functions that are currently vested in the Garda Inspectorate, but the question then immediately arises as to whether there are other powers and functions currently vested in the inspectorate that ought to sit with the new Garda authority. There is a tripartite question for me. I would not look at it in terms of merger; I would be looking at it in terms of two independent bodies – GSOC on the one hand and the new Garda authority on the other – asking themselves whether they have within their existing capacity the expertise to do this new role and, if not, what they need to do to address that. International experts of the character and calibre of Bob Olson and others who work for the Garda Inspectorate might well be people who would work on a consultancy basis, for example, either for GSOC or for the Garda authority if independent bodies felt that was necessary.

Deputy Marcella Corcoran Kennedy

Could I ask GSOC for its opinion on that and if it has had occasion to have any dealings with the inspectorate? If so, what were the occasions for contact to date?

Mr. Simon O'Brien

First of all, I was in that agency before I came into GSOC. We certainly have a good working relationship between the two agencies and meet regularly. If one looks at our contention that we should be able to launch inquiries under section 106, we would like that power. It is right as well that having worked within the auspices of the inspectorate, it having more ability to investigate the things it thinks need to be investigated would be helpful.

If one looks at the recommendations we have made out of investigations that have taken place in recent years, it is very useful to pick up on trends so as to stop complaints happening in the future. There is room for both agencies to have their powers increased but it is right to say that we have a very good working relationship as it stands.

Deputy Marcella Corcoran Kennedy

Does Mr. O’Brien think it would work better if both organisations were merged?

Mr. Simon O'Brien

If one looks at models elsewhere, certainly in the UK, there are two separate entities. Her Majesty’s Inspectorate of Constabulary does significant work, has a high degree of independence and its voice is listened to by police, government and other stakeholders. There is another oversight body that looks at complaints. They can exist separately. If one is looking to bring them together, that will be a matter for the Houses and others. We will work with whatever system is chosen.

Deputy Marcella Corcoran Kennedy

Could I ask Transparency International its views on GSOC’s suggestion that it would take on the role of confidential recipient?

Mr. John Devitt

I would make a distinction again between the functions of investigation and advice. My view is that those investigating concerns should not be the ones advising people on whether they should report their concern. Those two functions should be separated whether one retains the office of confidential recipient or affords gardaí the opportunity to seek advice from an external body. One might seek advice from GSOC on whether one’s complaint is valid or the process one should follow, but the advice that is sought in the first instance by a member of An Garda Síochána should be sought from someone other than the one who is investigating the complaint.

I should also make it clear we want to see the retention of the current rights enjoyed by gardaí under section 62 to report to Members of the Oireachtas. We do not suggest that members of An Garda Síochána should have to report through the confidential recipient or even GSOC before they go to a Member of the Oireachtas, rather that guidance be given on the type of concerns that could be brought to each of those bodies, when they should be brought and what to expect when they bring their concerns forward to either a Member of the Oireachtas, GSOC or through internal channels.

Ms Susheela Math

I wish to make clear that we want strong protection in the legislation so that where members of the Garda are going through any of those channels, they are protected against any threat of penalisation, which does not exist at the moment in section 62 of the 2005 Act.

Deputy Marcella Corcoran Kennedy

Just one more.

Chairman

One more question.

Deputy Marcella Corcoran Kennedy

What level of access has GSOC to the PULSE system at present? Does it have total or occasional access?

Mr. Simon O'Brien

As the Deputy may be aware, we were given access to PULSE by the former Minister, Deputy Shatter. We have now got the hardware in our office and we will have unfettered access to PULSE for the purpose of our inquiries.

Deputy Marcella Corcoran Kennedy

I have one last question for Amnesty International, if that is okay.

Chairman

Finally.

Deputy Marcella Corcoran Kennedy

Earlier we heard comments on the type of training that the Garda Síochána receives on how to deal with minorities and other vulnerable persons. Has Amnesty International or any of the agencies here examined the training that the recruits receive in Templemore to see whether it has been updated? What is happening and can it be improved?

Ms Fiona Crowley

Amnesty International does not train directly.

Deputy Marcella Corcoran Kennedy

The organisation might examine the training to see whether there are deficiencies in it.

Ms Fiona Crowley

That used to be quite a significant programme of work for our then human rights education officer. In the early 2000s, he worked quite closely with the Garda directly, including through the Garda working group that I mentioned earlier, in looking at the sort of training practices that were used. It was mainly about trying to make human rights and diversity training into a mainstream aspect of training rather than having them seen them as adjuncts and not really as core constituent parts of recruit and in-service training. That was quite successful.

That then moved on to what was mapped out in the Garda audit, what Dr. Hogan referred to as the Ionann report, which also looked at Garda training. That became part of the remit of the members of the Garda strategic human rights advisory committee. That is an ongoing programme of work within the committee on an ongoing basis, reviewing the nature of the embedding and mainstreaming of human rights and diversity training within the service. My colleagues might want to come in on that.

Dr. Des Hogan

We do not conduct comprehensive training with An Garda Síochána but we conduct training with them. We have asked for sight of the Garda's curriculum and to discuss that with the force so that we can look at whether we can have the capacity to engage further and deepen that. I would have to say there is a bit of a gap there and that is something that needs to be looked at. I said so in responding to Deputy Niall Collins's comment earlier.

Ms Brigid Quilligan

I would concur with what my colleague Dr. Hogan has said. Certainly we would see that there is a gap in training. The call-outs for us to provide training have decreased. I cannot say whether that is resource-driven. There is a huge need for it because we find that there is an attitude to minorities within the Garda, not among the majority but among certain gardaí, that is really unhealthy at times. Good, consistent training can overcome that. We would be fully in support of more training for the gardaí.

Deputy Finian McGrath

First, I thank and commend all of the groups on both their written and oral submissions on this process. It has made a major contribution to many of the new ideas. We all want to reform, make changes and do things right. Personally, I really appreciate all of the submissions made today, because they constitute a major and valuable contribution.

I will start with Ms Quilligan from the Irish Traveller Movement, because she raises an important issue on which we should focus - that is, the issue of trust between the Traveller community and the Garda. In her submission, Ms Quilligan mentioned that 53% of Travellers were not satisfied with the Garda and 22% were extremely dissatisfied. Obviously there is a significant disconnect, and we as Members of the Oireachtas, those representing Travellers and the Garda must deal with this issue, because it is significant.

Ms Quilligan also mentioned in her submission the local Traveller inter-agency committees. Are these having an impact and has Ms Quilligan any ideas about how we can improve on that trust as part of this process of reform of the Garda?

Ms Brigid Quilligan

As the figures show, there is a very high level of mistrust between Travellers and the Garda. This is evident in dealings with the Garda.

Chairman

How can we move on from there? That was the question at the end.

Ms Brigid Quilligan

How we can move on from there is, I suppose, first, by gathering more data and conducting more research into it. That research was carried out in 2007. We need more fact-based data to accurately reflect the current relationships in terms of the attitudes of Travellers towards the gardaí and vice versa. We need to be able to back that up.

If one looks at some of the incidents that have happened lately with regard to allegations of racial profiling in the PULSE system, where Traveller children as young as a few months old were allegedly recorded on the PULSE system under intelligence, that does a huge disservice to any kind of relationship between gardaí and Travellers. That has rolled things back significantly. If we did not think they could be rolled back, they have been. We would recommend an immediate full and independent inquiry on the PULSE system and allegations of racial profiling. We would suggest that the Garda sit down with Travellers and Traveller representative groups to look at the issues and to map out research on the current situation and how to progress from it, and look at best practice internationally and how other countries deal with and support minority groups so that minority groups are not afraid to report crime and to approach the Garda and that a relationship develops. Travellers are afraid to report crimes - for instance, if a woman is experiencing domestic violence on a site. We have heard of cases in which gardaí would come out to a site and, rather than investigating an incident of domestic violence, look for tax and insurance and pick up Travellers for petty fines. There would be that kind of behaviour. If gardaí are called out to a reported crime, they should deal with that crime. There is an attitude that Travellers are criminals and that is what we as a people feel. How we would roll on from that is by sitting down in consultation and trying to build relationships.

Mr. Damien Walshe

Most have alluded to the Ionann management report in 2004. As part of that human rights audit, the researchers stated: "Officers and members expressed negative views about some communities, in particular Travellers, and the Nigerian community," and "allegations about levels of criminality among the Traveller and the Nigerian communities were made at every level of those taking part in this survey, with very little ... evidence provided to substantiate them". The chapter on human rights and operational policing concluded that "on the basis of this audit it seems clear that there is institutional racism within An Garda Síochána in its dealings with certain groups in the community and in the absence of organisational structures which would identify and deal with what is a very fundamental abuse of human rights." What we were trying to bring to this is that, if there is to be an independent Garda authority, it requires some input from Travellers to restore that confidence. The report was published in 2004. There is a need for an ongoing audit of human rights practices within An Garda Síochána and it needs that independent oversight.

There has been significant work since then at a local level and it has restored a considerable amount of trust. That has been eroded again through the allegations around PULSE and potential institutional racism. That needs to be independently addressed as a matter of urgency.

In the future, the Garda authority, given the historical lack of a relationship between the Garda and Travellers and other minority ethnic groups, will require representation from communities such as the Traveller or Roma communities to direct any future human rights audits of the police force.

Mr. David Joyce

Deputy Finian McGrath's question is not directly pointed at the Irish Human Rights Commission. The commission will be taking over the functions of the Equality Authority, and Travellers and other minorities are covered by the equality legislation. It is a role for the Irish Human Rights and Equality Commission in the future.

As to the question of what can change about the interaction of the Garda with minorities, particularly Travellers, mention was made of data. Given the statistics presented by the Irish Traveller Movement this morning about the lack of trust among the Traveller community towards the Garda, it would be interesting to know - it came up earlier in some of the other presentations - the complaints made against the Garda. I am not sure how GSOC collates those in terms of the background of the complainants as opposed to the nature of the complaint.

Determining whether Travellers or other minorities even have access to a complaints procedure would be interesting, as would determining whether there are ethnic data disclosed within the complaints made to and investigated by the GSOC. Obviously, it would not be a matter of presenting details of the complaint but some indication of the background of the complainants. Knowing this would give concrete evidence on the interaction with and treatment of minorities by An Garda.

I am speaking on behalf of the commission but my experience professionally and personally with the Garda over the years indicates clearly difficulties with how the Garda sees people from certain minorities. While the majority of gardaí do a professional, capable job, there is clearly a core who bring certain attitudes to service provision, as opposed to their policing requirements, that give major cause for concern.

Ms Fiona Crowley

With regard to what my colleague from the Irish Traveller Movement said, the information revealed by the report on the attitudes within the service was very useful. The study should be repeated regularly. However, it actually points to the need not to lose focus on the internal systems of the Garda itself and the initiatives it needs to drive forward. It is arguable that those attitudes were adduced and presented because it was an audit conducted by the Garda itself. It was externally commissioned but not imposed on the Garda, which is novel. It undertook to do the audit and, therefore, its membership felt engaged and confident that it should and could reveal the very negative attitudes.

When Ireland was being subjected to its universal periodic review by the UN Human Rights Council in 2011, a number of states made a recommendation, flowing from the Committee on the Elimination of Racial Discrimination’s report on Ireland, that the Garda examine the allegations of racial profiling. The then Minister rejected out of hand any suggestion that the Garda could engage in racial profiling and declined to accept any of the recommendations. It needs to be an assumption or almost a default position that there will be racial profiling unless it is identified and rooted out.

Mr. Walter Jayawardene

Chairman

Does Mr. Kelly want to respond to that?

Mr. Mark Kelly

Yes. The ICCL has been approached from time to time by people with allegations, saying that they are whistleblowers. In the past, we have referred them to bodies which we felt had the capacity to deal effectively with their complaints. However, that has become much more difficult in recent times because confidence in the existing structures has been completely undermined.

I have one footnote point to make concerning the retention of the confidential recipient role. It is fair to acknowledge that there will be a trust issue vis-à-vis GSOC in the immediate future on the part of certain Garda members concerning bringing forward allegations that go to GSOC. In our view, it is appropriate that the protected disclosures legislation should be amended. It is appropriate that this function should be vested in GSOC, but we can see merit in having some form of confidential recipient structure that is the first point of contact for disaffected officers.

It struck us, looking at the famous transcript of the previous incumbent of the confidential recipient role, that one of the major things that went wrong was that there was nowhere meaningful for the allegations to go at the time. If there was genuinely somewhere meaningful for them to go, and GSOC assumed that role in a meaningful way, that would, over time, change the trust issue that may be there at the moment.

Senator Ivana Bacik

To clarify, individual complaints can give rise to findings or conclusions by GSOC that there have been systemic issues of neglect of supervision or poor supervision and that can apply at more junior ranks as well as at senior level. Currently, given the questioning we have had over the morning, does GSOC have a problem in dealing with those systemic issues because of the existence of a separate entity in the Inspectorate? When it was established, the Inspectorate was intended to look at efficiency, effectiveness and best practice in policing and therefore it takes on some of the remit that could be more appropriately be taken on by GSOC. That was a question many people had asked.

Mr. Kieran Fitzgerald

There is an obvious break in our ability to do that and there is an obvious barrier in the fact that we cannot initiate examinations of practices, policies and procedures on our own initiative and motion. We need ministerial approval.

Deputy Alan Farrell

I thank all of our guests for their contributions. Without spending too much time on it, we are at a critical juncture for the administration of justice. Certainly, the joint committee will be of critical importance in changing how justice is delivered and in the alteration of the Garda Síochána Act 2005 and any other amendments to legislation that might be put forward over the next number of months.

Rebuilding the trust that has been lost in the Garda over the last number of months is extremely important. That leads in nicely to where we should start, which is at the beginning when gardaí receive their training. The joint committee will visit Templemore very soon. Having listened to Ms Quilligan and Mr. Fitzgerald as to the importance of basic customer service training, it seems to be something that was lost along the way. I am not au fait with the precise training methods used in Templemore. I am aware it is a significant degree that the recruits go through. It is a level 8 FETAC qualification. I wonder if the importance of customer service is lost during the years of training. Ms Quilligan mentioned the importance of professionalism and politeness in the carrying out of duties. That reduces the number of questions and queries that are referred on through complaints and procedures which reduces the workload for everybody here and will improve the trust that is there. Bolstering that level of training is of critical importance. We should as a committee get our teeth into that. It is extremely important.

I have a number of questions, some of which will be for specific witnesses and others of which will be general. It would be very welcome for witnesses to contribute even where I do not address them specifically. Mr. Fitzgerald mentioned systemic issues of customer service and service delivery. I appreciate what he said in terms of his role as an ombudsman. Is the implementation of best practice in that particular area something he feels GSOC can make a contribution to? Mr. Fitzgerald mentioned the forthcoming annual report of GSOC. Is it going to be part of that or is it something that could be added as an addendum?

Mr. Kieran Fitzgerald

Recognition of service issues as a category of issue - I will not call it a category of complaint - by the Legislature and in legislation demonstrates that it is something the Oireachtas values. That will immediately focus Garda Síochána attention. The manner in which we have tried to set out dealing with those would actually lead gardaí into a line of thinking around service as part of their normal day-to-day function and improve that. I do not know if that addresses the Deputy's question. In terms of our little piece of the cake, driving it from that end and seeking resolution of it as a service issue rather than as misconduct would help to inform the culture at that level. We have engaged at the training college in Templemore over the years and are happy to continue to do so.

Ms Fiona Crowley

It might seem that it was a little cosmetic at the time, but the Garda Síochána Act referred to the police service as a service deliberately rather than to refer to it as a police force. This was intended to follow the Patten model for the Police Service of Northern Ireland. It was intended to get over the idea that policing is simply about control, coercive policing and crime prevention, detection and investigation. That is what Amnesty encounters throughout the world. It is trying to overcome the idea that policing only matters if you are locking people up. It is about helping the community, maintaining order and maintaining security for everyone. It is a pity that some of that appears to have got lost. Therefore, it is about looking again at the internal processes within the Garda to see if it recognises that service delivery is a critical part of modern policing.

Mr. Damien Walshe

To echo that on the internal process, we pointed out in our submission that, even with good intentions, policies developed to serve a dominant notion of society can have a disproportionate impact on minority ethnic groups. That follows on from the Macpherson report which looked at the London Metropolitan Police Service investigation into the murder of Stephen Lawrence. The report pointed out that within a large institution where there are policies in place, racism can be unconscious and unintended and have disproportionate impacts on minority groups. There were instances recently around allegations about PULSE and Traveller infants and also the incident last year where Roma children were taken into care. The report is due on that. Potentially, there needs to be an ongoing investigation into practices within the Garda Síochána and a requirement for an ongoing audit to see what is happening. Are there instances of organisational or intended institutional racism within the force? Given the allegations around PULSE, concerns raised by committee members and the Ionann report in 2004, there is serious concern about a potential within the force for institutional racism.

Dr. Des Hogan

To go back to the previous question on neglect and how that fits into service delivery, we raised in our submission the fact that the State has an obligation to engage in proper planning and oversight of police investigations. If something goes wrong, a person is shot unlawfully or ill treated and there is an absence of proper command and control, the State is responsible. In those circumstances, Ireland will be found to be in breach of the European Convention on Human Rights. There needs to be a link when we define service to include middle management staff and to ensure that their service is also to the people who report to them. When they are setting up the proper policing activity and responding to what might be a request from the public, that should be seen as part of their brief as well. They are not just providing a service outward, they are also providing a service inward. Lower level gardaí should be able to expect that from middle and senior management. It would reinforce the culture of respect for service and the question of service. If we can get a definition for that when reviewing the Act, it would be useful.

Deputy Alan Farrell

Edward Snowden, in a contract for the NSA, could not avail of rights to report to Members of Congress. Members of NSA or CIA who have reported to Members of Congress have been subject to disciplinary action. This will not be solved by establishing an intelligence oversight committee but will require a panoply of reforms and the introduction of rights for whistleblowers to report outside those committees, as is planned under the protected disclosures legislation, to allow members of the intelligence services to report to a Minister. It is important that members of the intelligence services, whether they work for the Defence Forces or the Garda Síochána, would be able to report their concerns, even when they relate to national security, to more than one body.

Senator Katherine Zappone

GSOC's written submission states that it "rightly" has a reporting requirement to the Department of Justice and Equality. How does GSOC wish to see its relationship with the Department in the future and how would it envisage its accountability and oversight arrangements?

Mr. Simon O'Brien

We realise we will have a parent Department with which we will have to have a reporting mechanism. We have not had many problems with the existing reporting mechanisms with the Department of Justice and Equality. We would like to mark our independence further around our resources and whether we have an independent Vote. Given how it looks to the community and others for us to be too tied to the financial strings, we would like to break from that dependence. There are some interesting issues around who people can go to with complaints around us. In the structure so far, the commission will pick up complaints about its own staff members and we have systems and processes in place. In this review there might be some formal mechanism by which the commission would need to be held to account. We are accountable to the Houses of the Oireachtas and have come before the Oireachtas Joint Committee on Public Service Oversight and Petitions. We are here before the committee, and would be willing to do so annually to justify our existence and explain any such issues.

Senator Katherine Zappone

Would Mr. O'Brien have any reason to believe issues of serious Garda misconduct have not been referred to him as a result of the operation of the Act or how the Garda Síochána has interpreted the Act? If so, has that influenced any of his recommendations to us for legislative change?

Mr. Simon O'Brien

In our expanded definition of "serious harm", there are some issues. A serious offence such as rape would not necessarily come to us because it does not fall within the definition of serious harm. The Houses here, possibly by Schedule, would be able to add offences over time. We have already thought about how aspects of information technology which would not have been known to our Legislature in 2007, such as trolling, may become issues in the future. In expanding our definition of serious harm, that would be a good way to go. While I do not have specific examples of issues that have not come to us, investigations into matters in which we might have been interested have happened within the Garda Síochána which we have first heard of when there is a trial and somebody is convicted. Therefore this new legislation should expand the matters which come to us by referral.

Chairman

I thank everybody for attending. I apologise for the length of the session. The witnesses can see how engaged members are on this. We value the witnesses' experience, time and effort. I invite them to feel free to continue the engagement with the committee through the clerk if other issues arise of which they feel we should be aware. We are on a journey to produce a body of work for the Oireachtas, hopefully before the summer recess, with recommendations on how all this menagerie, for want of a better word, will be put together. It is complex. A web of interrelationships and interactions must be examined and we want to get it right as best we can. I thank everybody for attending.

Sitting suspended at 12.35 p.m. and resumed at 2.05 p.m.

Chairman

We will resume our discussion with a number of those groups that made a written submission on the review of the effectiveness of the legislation governing oversight of the Garda. We will try to confine our discussion to this. We will not discuss individual, specific cases that may arise, as they are for other fora. Our job is to examine the legislation. I ask witnesses to bear that in mind as it will make my job much easier.

On behalf of the committee, I am pleased to welcome Mr. Tim Galvin and Mr. John Redmond, Association of Garda Sergeants and Inspectors, AGSI, whom I thank for giving of their time; Mr. Tony McGillicuddy, Bar Council of Ireland - an old visitor to the committee whom it is nice to see again; Mr. Robert Olson, Mr. Mark Toland and Ms Debra Kirby, the Garda Inspectorate, about whom we have a heard a great deal and with whom we look forward to engaging; Ms Maura Butler, Association for Criminal Justice Research and Development, ACJRD - another frequent visitor to the committee whom it is nice to see again; and Dr. Richard O'Flaherty.

Witnesses will be invited to make a five-minute opening statement, which will be followed by a question and answer session. We had a three and a half hour engagement with other individuals and groups earlier on this matter. We are pretty punch drunk from this but we look forward to engaging with them this afternoon. It is intense and interesting but also important.

These proceedings are being carried on UPC channel 207. I ask members, witnesses and visitors in the public gallery to switch their mobile telephones to airplane, safe or flight mode, depending on the device. It is not enough to put them in silent mode, as this will maintain interference in the room and negatively impact on broadcasts. We have had a number of communications from broadcasters who say that telephones active in the vicinity of microphones interfere with the broadcast and they cannot pick up what people are saying. We want people to know what witnesses and members are saying and, therefore, I ask them to switch the mode.

Witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if they are directed by it to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person, persons or an entity by name or in such a way as to make him, her or it identifiable. I remind members that under the salient rules of the Chair, they should not comment on, criticise or make charges against a person outside the House or an official by name in such a way as to make him or her identifiable.

I asked members whether they wished to lead and I received requests from Senators Zappone and Bacik. I invite Mr. John Redmond to make his opening remarks.

Mr. John Redmond

The AGSI has the best interests of An Garda Síochána and the public at heart. The men and women at sergeant and inspector rank are honest, hardworking, committed and dedicated to their roles in An Garda Síochána. They have demonstrated this by studying in their own time and passing at least six legal, policing and management exams and by having been successful in a minimum of four promotion interviews. These people are the first line supervisors and managers and play a pivotal role in the running of the Garda organisation.

That An Garda Síochána must be open to scrutiny, examination and oversight is a given for AGSI members. The processes, however, must be clear and the guidelines under which this oversight is carried out must be adhered to. It cannot be a case of "make it up as you go along" with timeframes and fair procedures cast aside at will. The Garda Síochána Act 2005 sought to codify and to integrate the organisation into one statute. From a discipline point of view, I refer to the most significant changes within the Act. The introduction of section 39, statutory duty to account, was brought about in the aftermath of the disclosures in the Morris tribunal, which was ongoing at the time, and, in particular, in respect of difficulties senior officers had espoused by reason of the fact that members of An Garda Síochána would not answer questions or would not "account". Prior reasoning was that a member did not want to incriminate himself or herself or to provide information which may lead to a disciplinary process. This was always misconceived and in the normal relationship that exists between an employer and employee, the duty to account applies as a matter of law.

This section was amended by section 43 of the Criminal Justice Act 2005. In practice this appears to work but it has also been open to abuse.

It has led to the use of the section to compel individuals in the disciplinary process. That is to say that after the process of the disciplinary regulations has been initiated, the deciding officer, investigator or otherwise invokes this section which clearly should not be the case. It is a breach of discipline not to comply with a properly made direction but it should be clarified that this section cannot be invoked in the disciplinary process as that process is fully covered in the 2007 regulations.

The Garda Síochána (Discipline) Regulations 2007 came into operation on 1 June 2007. They brought in a two-tier element for minor and non-minor breaches of the discipline regulations. The general disciplining particularly on the non-minor side has been open to abuse where it has become simply a paper exercise and used in circumstances to discipline individuals within a division without any real recourse. The procedure is that the appointing officer appoints the deciding officer. In the very nature of how this is organised, there is a degree of prejudgment, particularly where no specific reasons are given, and in the decisions no reference is made to the facts relied on or ignored in reaching the decisions.

The review by the appointing officer is even less effective and I am not aware of any review that was successful save for maybe a reduction in a fine or other disciplinary action or allowing of a review in respect of one of a number of breaches otherwise upheld. The process should be more open and transparent and not be dealt with within the Garda division in which the person under investigation is working. Any determination of facts in any event should be dealt with where the Garda member gets a fair hearing and puts forward his or her case and cross-examines where necessary. This is simply not available to them at this time in this process. Importantly, a person should be entitled at an interview in respect of these minor breaches to have their legal representative present.

Regarding standard of proof, in the discipline regulations a breach is to be established on the balance of probabilities. Clearly, the balance of probabilities is what applies in civil law; in other words, one proves, for example, 51% in favour of a particular proposition and then on that basis the balance is tipped in favour of the proponent. Obviously, when dealing with breaches of discipline and in particular the serious ones, this leaves us with 49% possible doubt which does not arise in this standard but which has grave effects on a Garda member, including dismissal from his or her position. Consideration should be given in the more serious matters to establishing the proofs beyond a reasonable doubt when an individual's career is in the balance.

Suspension is another area of contention where there is no readily available review of a suspension order when a member of An Garda Síochána is subject to an inquiry - either discipline or criminal. There are clearly no guidelines given concerning suspension save that the opinion of the Commissioner having regard to the circumstances when rendering such a course desirable is in the interests of An Garda Síochána. This is noticeable with internal investigations and also those being governed by GSOC. There are huge delays in our legal representatives' dealings with GSOC. In the case of one member who is currently suspended, long after the initial investigation was notified the AGSI solicitor is unable to obtain a proper update from GSOC or enter a process where the AGSI client can make submissions concerning the lifting of the suspension which would have regard to factors in the case, including the nature of the alleged offence or breach, delay, etc.

The rate of pay of a Garda member on suspension must be dealt with as a matter of urgency. All civil servants who face suspension are automatically granted suspension allowance or pay at 100%. A garda is allowed 75% of basic pay, or following intense scrutiny of his or her financial situation, a maximum of 90% of basic pay. This of course is not 75% of the garda's pay, as allowances make up almost 24% of his or her pay. This provision must be regularised to bring An Garda Síochána into line with others in the public service. The suspension of staff occurs more often in An Garda Síochána than in other agencies. It must be remembered that in penalising the garda by the reduction in suspension allowance as occurs at present, the garda's spouse and children are also penalised, which is wrong.

The 2005 Act contains several features which should bring about proper oversight of the workings of the organisation. We have strategy statements, annual reports, a three-year review report, a professional standards unit, joint policing committees, section 43 accountability, the Garda Síochána Ombudsman Commission and the Garda Inspectorate. Each of the sections and parts of the Act set out the various frameworks.

It seems to be that several organisations should be merged into one and that An Garda Síochána through the Commissioner should answer to an independent body such as a Garda authority which is wholly independent of the Department of Justice and Equality and the Minister. The make up of this authority and the selection of people to serve on such authority are vital. At present, the Government is keen to make all the decisions, which is a cause of concern to the AGSI. It is suggested that a group of Deputies representing all parties consider the formulation Garda authority. It would seem that a committee such as this one would fit this requirement.

I wish to make a few additional points.

Chairman

Mr. Redmond's time is almost up.

Mr. John Redmond

We believe that GSOC should be answerable to the new Garda authority. At present, complaints may only be made to a High Court judge.

Where there are new variants of oversight groups and there are increased budget requirements, these should be provided by way of additional budget as opposed to being taken from the existing Garda budget.

The confidential recipient should not be GSOC or the chief superintendents in the Garda organisation. GSOC should investigate all complaints made to it and should not "lease back" complaints to the Garda organisation for investigation.

The Guerin report mentioned the lack of supervision for probationer gardaí. We have raised that and similar matters for many years. The lack of supervision is as a result of a lack of available sergeants to mentor and coach probationer gardaí, in particular when they enter the Garda organisation.

The new roster introduced a new unit, meaning that the numbers in the Garda organisation are now divided by five as opposed to four previously, because there were four units. Reducing the numbers adds to the burden on current numbers in the Garda organisation, which are just above 13,000. There are ratios in EU police organisations of police officers to citizens; no such ratio is applied to the Garda organisation. This means that the numbers in An Garda Síochána are decided on a subjective basis.

An Garda Síochána is a police service. The idea that an annual budget can be set aside to deal with everything that might occur in any year is not realistic. While we must be conscious of financial constraints, an emergency service cannot provide a full service to the public in the same way that a business might provide a service.

Chairman

I thank Mr. Redmond.

Mr. Tony McGillicuddy

I thank the Chairman, committee members and assembled guests. The Bar Council's position as outlined in the written statement is reasonably short. It steps slightly back from the situation because some of the other contributors will be able to give information from the coalface. Those of us in the barrister profession see matters that come up in court. In an arena where a number of reports are being done and commissions of investigation have been announced and are to commence their works on varying aspects of oversight and effectiveness of policing, at the same time this committee has been charged with doing this work by the Oireachtas by way of a Dáil motion. There may be a requirement for some pause to step back slightly and consider the structure of the house as a whole and the framework we will have after this is complete rather than patching up little problems here and there, fixing a few leaks while the major infrastructure of policing is not addressed.

It is important for the public and the system itself that if there is to be a Garda authority, inspectorate, ombudsman, An Garda Síochána itself and some of the subliminal things such as the policing committees that operate in communities, it will be hard for the public to know what everybody is doing. Even the interrelationship between them is difficult without having a framework at the start. Our position as outlined in our submission is that we need an overall review either by this committee or the Law Reform Commission even if that meant that whichever body was asked to do it was asked to put aside whatever other work it was doing for a number of months.

Some people might believe that is akin to asking for a Patten-like commission; I do not know if that is the case. There were different historical situations in Northern Ireland in terms of policing being a contested issue and different parameters and matters that came into the background there. Given where we are in May 2014, it is less than ten years after the introduction of the Garda Síochána Act 2005. It might be seen as a cause of concern that this committee and the other ongoing reviews and public events show that there is considerable stress in that 2005 Act.

One might say that an Act from the 1960s or 1970s might not be working properly or different bodies are perceiving different problems with it. It is more concerning that this is being perceived for a recent Act. That is why the Bar Council is calling for legislation in this area to be done properly. There might be an impetus to do something quickly but it is more important to do it properly. If one steps back a little now, one might save matters in the future. That is taking account of the public need and concerns about this area.

One must take into account policing on the ground in a changed society with more diverse racial backgrounds and mix of people, as well as being more urbanised than heretofore. Then one must consider the management and oversight of that and then over that the policing authority and the Minister and the Oireachtas having accountability. The issue of how this pyramid of responsibility works is a much more significant issue than just doing something piecemeal regarding oversight.

The Bar Council would be happy to contribute to any overall review but it believes a body such as the Law Reform Commission should draw together the different strands of reviews and recommendations in this area. One must also look back at the recommendations of the Morris tribunal to see what was done to implement them. If they have not worked, we must ask why. This could be done quickly if the impetus were there. It is important that the public knows what the proposed oversight bodies will do. For example, does the public know what the Garda Síochána Inspectorate does now?

Over the years, many of us in criminal law practice have seen gardaí not putting dates on statements, a point brought up in the Guerin report. Judges have also made criticisms about this. We have seen junior gardaí handling cases with little assistance from their seniors. How does a junior level garda who is not equipped with experience or the tools to handle a case find himself or herself prosecuting a rape case or a serious robbery? Where is the continuing professional development for these gardaí? There is a bigger picture here and far bigger than the matters being considered today. The committee should consider making that its first and overall recommendation.

Chairman

I thank Mr. McGillicuddy for his presentation. I call on Mr. Robert K. Olson of the Garda Síochána Inspectorate to make his opening statement.

Mr. Robert K. Olson

I thank the committee for inviting the Garda Síochána Inspectorate here today. I am chief inspector of the Garda Síochána Inspectorate and I was appointed to this position in June 2012, having previously served for three years as deputy chief inspector on the establishment of the inspectorate in 2006 with Kathleen M. O'Toole. Today, I am joined by our two deputy chief inspectors, Mark Toland and Debra Kirby. Mark Toland joined the inspectorate in June 2012, having retired at the rank of chief superintendent from the London Metropolitan Police Service after 30 years of service. He was awarded the Queen’s Medal for Policing in 2009. Debra Kirby was appointed as deputy chief inspector in January of this year, having served with the Chicago Police Department for 27 years. She retired at the rank of chief having served in a variety of commands including general counsel to the superintendent commissioner and a licensed barrister in the state of Illinois. We are very fortunate to have both as members of our team.

The Garda Síochána Inspectorate is an impartial independent statutory body which is tasked by the Minister for Justice and Equality with evaluating the efficiency and effectiveness of the Garda Síochána and to recommend best practices in policing. Established in 2006, the inspectorate has to date produced nine reports on various thematic inspections making a total of 281 recommendations for change. The majority of these recommendations have been accepted with over 66% already implemented. This will increase dramatically with the implementation of the most recent report on the fixed charge processing system where all recommendations made have been accepted and the appointment of a criminal justice working group to ensure implementation.

Notwithstanding the difference in focus of GSOC, the Garda Síochána Ombudsman Commission, and the inspectorate, the 2005 Garda Síochána Act provides potential for some overlap of responsibility under section 106(1) of the Act, which caters for GSOC examining a Garda practice, policy or procedure for the purpose of preventing complaints. Section 106(2) states the Minister may request the ombudsman commission to examine the practice, policy or procedure either on his or her own initiative or following a recommendation to do so by GSOC. The inspectorate suggests an amendment to this part of the Act that requires the Minister and GSOC to consult with the inspectorate in the first instance on any such examinations. The nature and scope of the consultations with GSOC could be underpinned by protocols. This is recommended to ensure the respective organisations are fully aware of work previously or currently being undertaken and that the inspectorate be in a position to advise on the issue or issues being examined.

Section 115 deals with membership of the inspectorate. Due to problems and challenges posed with a mid-term vacancy, the inspectorate suggests that this provision in the Act should be amended to include the wording “in so far as is practicable and having regard to relevant experience, shall have regard to the objective that at least one of the members shall be a woman and at least one of them shall be a man”. This form of wording is similar to that used in section 14(7) of the Dublin Transport Authority Act 2008. This amendment will provide the necessary flexibility in filling mid-term vacancies, such as occurred last year.

The inspectorate, as an independent body, considers that it would be desirable to have available to it in legislation provision for inspections or inquiries to be carried out on its own initiative. It is noted that GSOC has the ability to carry out a public interest inquiry and the inspectorate considers that where there is a policing public interest issue which relates to inspectorate functions, it should have that ability to commence one. The inspectorate considers that this is an opportunity to enhance the responsiveness of the legislation in anticipation of any matter of public interest which the inspectorate considers should be inspected.

The inspectorate has no statutory authority to require full implementation of its recommendations, but considers it desirable that section 117(2) of the Act be amended to provide for follow-up to the inspectorate’s recommendations. A practice of monitoring implementation through constructed status implementation reports templates has been adopted with the co-operation of the Garda Síochána. However, the inspectorate’s value would be considerably strengthened through the introduction of a specific follow-up role in the implementation of its recommendations. The Act should also make provision for re-inspection at the discretion of the chief inspector.

Section 117(4) provides for the laying of inspectorate reports before the Houses of the Oireachtas by the Minister. The inspectorate suggests this section be amended to provide for the prompt publication of its reports. The members of the inspectorate consider that publication of its reports should be made as soon as practicable following its submission to the Minister.

From time to time delays have been experienced in the application of section 117(4). The inspectorate acknowledges that a new process has recently been put in place to ensure timeliness in publication of reports but considers that the Act should encourage such timely publication.

The inspectorate has encountered some problems with section 118 regarding the provision of information from the Garda Síochána. It considers its functions would be significantly enhanced and made more efficient by a statutory requirement for the Garda Síochána to provide unimpeded access to Garda records, including unrestricted access to PULSE and other record management systems. In addition, the inspectorate considers that statutory provision should be made to provide for drafting of protocols regarding unannounced site inspection visits to Garda facilities. Currently, protocols established with the Garda Síochána provide for advance notice of visits to Garda locations. Cold calling has a particular value in establishing, in real time, the operational effectiveness of how the Garda Síochána undertakes its policing functions. Police inspectorates in other jurisdictions are provided with this capacity.

The inspectorate is grateful for the opportunity to raise these matters with the committee today and would welcome any issues which committee members may wish to further explore with us.

Ms Maura Butler

The Association for Criminal Justice Research and Development, ACJRD, wishes to thank the Chairman and the Oireachtas Joint Committee on Justice, Defence and Equality for the invitation to address aspects of our submission on the effectiveness of the legislation related to the oversight of An Garda Síochána including, in particular, the powers and remit of the Garda Síochána Ombudsman Commission, GSOC. This presentation will give a broad overview by focusing on an abbreviation of extracts from the association’s submission.

The views expressed in this submission are those of the ACJRD in its independent capacity and are not those of ACJRD members' organisations or their employers. We have structured our report in four parts outlining the organisation, an executive summary, reference and analysis of current legislation for ease of reference and our proposals.

Conducting research towards the advancement of community welfare and the integration of those who are disadvantaged is a key goal of the ACJRD. This community focus is a critical issue in policing and consequently its incorporation, as public confidence, into police oversight is synonymous with rule of law principles. Another ACJRD focus is the interaction of children and young people with the criminal justice system, which is generally regarded as an important matter, as demonstrated by the Children Act 2001 and policy of the Department of Children and Youth Affairs. The ACJRD accordingly proposes consideration of some amendments to reflect the heightened importance of ensuring the protection of young people as a distinct cohort in these circumstances.

One of the ACJRD’s stated objectives is the promotion of the highest standards of practice among professionals who work in the criminal justice system. The ACJRD’s proposals are proffered with a desire to suggest possible improvements towards best practice and effective policing, while noting that it is important to strike a balance to ensure any oversight system does not frustrate members of An Garda Síochána in carrying out their duties. The ACJRD aims to promote innovation in justice and supports the development of new approaches to criminal justice challenges. It is hoped that by suggesting innovative approaches, the governmental goal of achieving optimal oversight of An Garda Síochána will be assisted.

The ACJRD supports the Government’s commitment to the establishment of an independent policing authority to exercise executive control over An Garda Síochána. We respectfully submit that lay involvement in any such authority should be more extensive than was envisaged in respect of the proposed Garda Síochána executive management board, included in 2007 legislation which has not been enacted, and suggest that any model adopted might draw extensively on the experience of the Northern Ireland Policing Board.

This submission confines itself to the powers and remit of GSOC and the processing of public complaints regarding the behaviour of members of An Garda Síochána. At present, GSOC’s independence of action is limited on a practical level by its resource dependency, and on a theoretical level by the statutory restrictions on its capacity to communicate. The current model can be perceived as facilitating the existence of a systemic accountability and communication gap, although as GSOC comes within the remit of the Minister for Justice and Equality it is not subjected to extensive oversight by the Minister due to an appropriate respect for its autonomy.

The ACJRD proposes that measures should be adopted to bolster the independence of GSOC by having a system of Oireachtas committee oversight to facilitate accountability and reporting, a legislative restatement of the independence of GSOC and the removal of current restrictions on GSOC discussing matters of policy. Consideration should be given to facilitate sharing between GSOC and the Garda Inspectorate of appropriate information, applying appropriate safeguards and confidentiality measures. The ACJRD further submits that the current system imperfectly balances individual and collective responsibility with respect to public complaints. GSOC should be empowered to recognise and deal with systemic problems which cause complaints to be made. Certain duties in respect of complaints could be imposed on members of An Garda Síochána in an individual capacity, rather than in a collective or representative manner. Mandatory reporting requirements in respect of serious incidents could apply in a discretionary manner to all members of An Garda Síochána individually with an appropriate mechanism to prevent multiple reporting. Individual gardaí could bear a similar duty regarding the preservation of evidence, as occurs in the ordinary course of the prevention of crime. There should be a broad duty on individual gardaí, GSOC and members of staff of GSOC not to discuss ongoing complaints outside of the complaints investigation process. The nature of a complaint determines the manner in which GSOC investigates it.

With regard to informal resolution, referral to the Garda Commissioner, an Ombudsman hearing or a section 98 investigation, the ACJRD proposes the adoption of a broader definition of serious harm. Cases involving death or serious harm might be extended to include non-minor incidents of misbehaviour which relate to persons under the age of 18. The existing six-month time limit which regulates the admissibility of complaints should not be applied where serious matters such as these are in issue. Amended legislation could review section 94 of the 2005 Act to provide GSOC with a method of identifying minor or routine complaints utilising an accelerated complaints procedure. The duty to inform a Garda member of the existence of a complaint, and the discretion to delay that notification could be transferred from the Garda Commissioner to GSOC, as could any matter which requires investigation under Part 4.

To facilitate the speedy processing of complaints, it is suggested that where matters of State security are in issue they should be resolved by way of direct application to court. GSOC might be empowered to authorise its officers to access electronic information systems operated by An Garda Síochána within the parameters of an ongoing investigation. Complaints against off-duty Garda members could give rise to a discretion to discontinue an investigation where appropriate, rather than disentitling GSOC from considering the complaint. However complainants should be required to disclose any personal interactions or grievances which they may have with the member complained.

It is submitted that the scope of a breach of discipline which may come within the remit of GSOC could be regarded as restrictive and that Schedule 5 of the 2005 Act ought to be revised accordingly. Provision could be made for a disciplinary register wherein the Garda Commissioner records the outcome of all complaints procedures which are then made available to GSOC on request, while taking into account the confidentiality of information and personal data protection provisions. Where a complaint is upheld, consideration could be given to granting GSOC the power to impose minor sanctions equivalent to those available under internal Garda disciplinary procedures, subject to an appeals procedure.

Members should be entitled to legal aid once they are informed they are being investigated for serious misbehaviour and have complaints overturned or alternatively have any public record of the complaint expunged once a predetermined amount of time has passed. Complaints could be published, as occurs with regard to the solicitors' disciplinary tribunal process. Provision should be made for a system whereby the Garda Inspectorate may request statistical information and data from GSOC and that appropriate safeguards are designed to allow such a request to be processed. The ACJRD’s submission details some thoughts on possible amendments to sections 90 to 98, inclusive, of the Act.

In short, they are as follows. GSOC identification of routine or minor breaches of duty could be resolved by an informal procedure with a unified set of investigatory powers vested in GSOC officers. Mediation should only take place on a voluntary basis in accordance with the International Mediation Institute and the Mediators' Institute of Ireland guidelines, as opposed to the present situation in which there is almost an imposition on gardaí to become involved in mediation. Obliging members of An Garda Síochána to apologise for behaviour that they do not accept occurred is unlikely to enhance the integrity of the complaints resolution process. Section 91 could be extended to include any complaint of significant misbehaviour affecting a person under the age of 18 years. Section 94 has the potential to lead to an extremely prolonged disciplinary process. It should be considered whether GSOC might be given the power to impose limited sanctions equivalent to those available for minor breaches of the Garda regulations. I am referring to section 95. GSOC's power to make a finding that a complaint was a result of a systemic error and to suggest that an apology be made on behalf of An Garda Síochána generally should be considered. Where GSOC makes a finding that a serious breach of discipline has occurred, it could have the power to instigate disciplinary proceedings under the regulations.

It is submitted that the investigatory powers of GSOC officers should be extended to include access to the relevant files, records and electronic information systems of An Garda Síochána, subject to authorisation by the Commission. I am referring to section 98. Regarding section 99, the power of the ombudsman to authorise a search of a Garda station could also incorporate less serious instances. However, it should be noted that the current provisions have been shown to be adequate and extension of the powers has not been sought by the ombudsman commission.

Chairman

I must interrupt, as Ms Butler’s time is well and truly up.

Ms Maura Butler

I beg the Chairman’s pardon. I tried to go as quickly as I could. I thank the committee for the opportunity to make a submission.

Chairman

We will revert with questions. Dr. O’Flaherty is next. I remind him of what I stated at the beginning, namely, that we must not criticise or make charges against any entity or person in such a way as to make him, her or it identifiable in any way.

Dr. Richard O'Flaherty

I am fully aware of the medical legal implications. I thank members of the committee for inviting me and giving me the opportunity to speak on behalf of deprived people, particularly in Limerick. I will first tell members something about myself. I grew up on a small farm in west Galway. My mother was a Fine Gaeler and my father a staunch Fianna Fáiler. I was given no political outlook – I was told to do the right thing. I qualified as a doctor in UCG. My Hippocratic oath says, "Do no harm". These two principles have governed my entire life for 40 years.

We all have Dr. O’Flaherty’s written statement.

It would be helpful if perhaps we heard an overview from him on the sort of abuses he has experienced directly and the ways in which they could be tackled through legislation.

Chairman

We are interested in how the legislation might be changed so that this could not happen again.

Dr. Richard O'Flaherty

I suggest that all patients be entitled to their doctor of choice when in custody and it should be a criminal offence for a garda to refuse that, with the matter also to be reported to the Garda Síochána Ombudsman Commission, GSOC. A protocol should be put in place to protect vulnerable people, which I was trying to describe to the committee. Another vital element can be seen in England and everywhere else. No statement should be taken without a solicitor being present, and it is crazy to allow two detectives to question an illiterate person, a dyslexic or somebody with limited intelligence, essentially by reading a statement to the person. It is crazy in this day and age to have two big gardaí do such a thing, as it is intimidating enough to be in the presence of gardaí. Not having a solicitor present, especially if the person may have been subject to a little bit of intimidation, is not right.

Dr. Richard O'Flaherty

I thank Mr. Redmond for his presentation and also for all that he has forwarded to us. I have carefully read his submission and listened to his helpful consolidation in his presentation today which leads me to ask the following. How do his members view GSOC? What is AGSI's view of the role of GSOC?

Mr. John Redmond

When it first became apparent that there was going to be an oversight body to take over from the Garda Complaints Commission, and this was going to be the ombudsman commission, I was contacted by GSOC before it became operable. There was a series of meetings with interested parties or stakeholders and I represented the Association of Garda Sergeants and Inspectors. We met on a regular basis coming up to it being empowered to carry out its duties. For about 18 months before it came into force I met it on a regular basis where we discussed many things. We discussed the culture of the organisation, we discussed how best it would approach complaints and what the likely reception was going to be from members of sergeant and inspector rank. The other associations were represented as well.

At all times I accepted the need, and AGSI accepted the need, for an oversight group to deal with complaints against members of the Garda organisation. At all times we proposed that it should be totally and utterly independent from the Garda organisation. This is one of the problems. GSOC operates with a limited number of staff and within a limited budget. It is constrained, to some extent, in the amount of business that it is tasked with investigating or examining. The result is that it passes or leases back a certain amount of complaints to the Garda organisation. In our view, one can never have a robust or publicly acceptable system that gives back, to the people complained of, a complaint made against them. It should be totally separate. That is one of the biggest issues that we have.

With regard to interaction on a daily basis, we have some concerns. Some of it is that GSOC is constrained within the Act and within some sections of the Act. First, where there is an inadmissible complaint made against a member of the Garda organisation, GSOC feels it is obliged to tell the person. Let us say it is me, for instance, then it would say: "Dear John, There has been an inadmissible complaint made against you". That is where the matter ends. I am left wondering what I did, what am I alleged to have done and where I did it. How am I going to learn from a person who makes such a complaint? Even though it has been judged to be inadmissible by GSOC, how can I learn from it? How will I know what I did that might have been wrong and how can I correct it?

Second, I would want to know who made the complaint or through what interaction was this complaint made. That is another issue of concern.

Third, Ms Butler mentioned mediation earlier and the necessity to be totally accepting of mediation before one is tasked with being involved in mediation. That is an important issue from our point of view and so we would agree with her view, of course.

The fourth point refers to where GSOC would try to say, in some instances, that there are several service level complaints and "we would like you to deal with them informally, please". At the moment, unless the person complained of agrees to the informal resolution of those complaints, as well as the person who made the complaint, they cannot be dealt with in an informal way. We have found that some of our people, men and women who carry out their duties, have a bad day from time to time. Please bear in mind that I am not talking about serious breaches but minor, informal service level things where somebody was rude to a person they may have stopped or somebody who approached the counter. They are very much the small breaches at service level. We have no problem, in theory, with dealing with those complaints. The problem is there is a requirement and expectation that one will immediately apologise even where one might not have been wrong. That seems to be the desire from GSOC whose attitude is: "Look, accept this, its no biggie and deal with it. The complainant is happy, you just have to suck it up, it is something alleged against you but it is nothing big."

Senator Katherine Zappone

In light of what Mr. Redmond has said, does he think GSOC is sufficiently transparent in its operations? Is there something legislatively that restricts its engagement with AGSI?

Mr. John Redmond

Deputy Pádraig Mac Lochlainn

I did not explain it properly. At the GRA conference, the GRA called for a charter of fairness, which brings clarity to the rights of members of the Garda Síochána. That is entirely reasonable. Any citizen under investigation, whether in the private or public sector, has a right to due process and to defend himself. This has been missing from the debate. There is agreement that we need more powers for GSOC, but we also need to be clear about the rights of members of the Garda Síochána, who have the same rights as any other citizen to defend themselves under due process. The association calls for a charter of fairness and for a new clear set of guidelines that are enforceable. I would like to hear the thoughts of Mr. Redmond on this point.

Mr. John Redmond

I mentioned in my oral submission that there is a concern that timelines are not being adhered to and that cases work on the balance of probabilities rather than beyond reasonable doubt. This applies only in serious cases. I am not suggesting that we throw out the requirement for proof. There is a need to make sure someone sets out what the person against whom a complaint has been made can expect, what we can expect GSOC to do and how it should approach an investigation. We have no objection to that and we agree that such a charter should be set out.

That would be interesting. It is a fully fledged election, like a local election.

Mr. Mark Toland

It is a proper election and my friend was elected in Surrey. We went over there not just to meet him but to look at Surrey where they are very innovative and creative. They tend to pilot nearly everything in Surrey because it has quite a small force and, if it works, it goes nationwide. If it does not, Surrey has to manage it. We met that individual because we were really interested in how it works with the organisation. It is very powerful because the chief constable now reports to that individual.

Ms Debra Kirby

Dr. Richard O'Flaherty

One has a right to have a solicitor. If anyone present had the privilege of being arrested - I was once - one is given a form, which sets out the entitlements. One is not entitled to a doctor of one's choice, but one can request a doctor. I have more than 40 years' experience and the officer in charge of the basement cells where detainees are held makes the decision. That is dangerous.

The Deputy asked whether the procedure is set down in legislation. I do not think anybody has instructed the Garda Síochána on whether it has an entitlement to stop the detainee's doctor coming in to see him or her. Under the medical card contract, the doctor is obliged to go and see the medical card patient no matter where he or she is. If a medical card patient is detained, one should go and treat him or her and report.

Deputy Niall Collins

May I ask for clarification? Is it at the discretion of the member in charge in the Garda station, whether a person in custody gets to see a doctor?

Dr. Richard O'Flaherty

Where I practised in the mid-west, that is correct. I have been told by a senior Garda officer that the majority of detainees have no paramedical treatment and the most of them have no first aid treatment.

Chairman

Does Mr. McGillicuddy wish to add to that point?

Mr. Tony McGillicuddy

There are custody regulations from 1987 that govern the regulation of persons in custody. They have not been updated since and it probably would be worthwhile that either the inspectorate, the Garda Síochána or the Oireachtas, through the relevant Minister, would update them. The custody regulations provide that when a person is arrested and brought to the Garda station that they should receive a notice of their rights which would include, times of rest and also sets out what the detainee should do if he or she requires the services of a doctor, for example that he or she should communicate that he requires the services of a doctor to the member in charge. There is a person designated in each Garda station who is required to ensure the person is properly treated and in accordance with the regulations.

In terms of Dr. O'Flaherty's comments, just from experience of doing court cases in which these issues have arisen, certainly in Dublin, there is a list of doctors that the gardaí use and from my own experience, detained persons would almost never be allowed to get their own doctor, it would be a doctor from the list the gardaí use and have some kind of contract with. Issues might arise around that.

If a person is detained in a Garda station, the member in charge can make a decision if the detainee has been arrested for questioning under the Criminal Justice Act 1984, the Drug Trafficking Act, the Offences Against the State Act or the Criminal Justice Act 2007. They can make a decision for that person's detention to be suspended or for the person to be removed to a hospital and their detention is then suspended if that is the case. There is also a provision in the legislation - I cannot remember the Act - that if a doctor comes to a station that he or she can make a decision that a person's questioning would be suspended for a certain period if the doctor provides a certification. A doctor might say that person can take medication. They do not have to be brought to hospital, but the doctor can suspend his or her questioning for a particular period. There are provisions in the custody regulation, albeit they are there since 1987. There have been a great many changes in the law since.

In response to another matter that Dr. O'Flaherty raised, the Director of Public Prosecutions has issued a communication to An Garda Síochána in recent days about having solicitors present at interviews. I have not read that myself, but as I understand it, it is a communication to the effect that An Garda Síochána should accede to a request if the detainee asks for his or her solicitor to be in attendance with him during an interview, that the request should be granted. I think that communication issued towards the end of last week from the Director of Public Prosecutions. There has been recent case law on that issue. There is video recording of interviews, but one of the other points raised is that there is not much video recording of other parts of a Garda station.

Some years ago in the United States, video recording was introduced in police cars and police officers had video recorders fitted on their lapels. This practice has been of assistance as it allows interactions between the police and members of the public to be recorded and retained. I hope I have been of some assistance as regards the law on these matters.

Chairman

Ms Butler wishes to contribute?

I thank the witnesses for coming before us. The discussion about doctors on-call is very interesting. It occurs to me that if a doctor from the panel was uncertain about an issue on the basis that a person's medical records were not available from the general practitioner because it was 4 a.m., he or she would surely refer the patient to hospital for tests.

Dr. Richard O'Flaherty

That does not occur.

Deputy Alan Farrell

Dr. O'Flaherty is the expert.

Many of the questions I had prepared for this group have been asked and answered. I recognise the need to balance the need for the suggested reform of the Defence Forces, the Garda Síochána and across the justice administration, with the need to rebuild trust as a result of the drip-drip nature of the various incidents that have emerged in recent years and became most acute in the past five or six months.

If a member of the public is not satisfied with the Garda Síochána, who does he or she call? Given the number of organisations involved, it is necessary to ask this question. A member of the public may contact his or her solicitor or a free legal centre. However, given that there is no one-stop-shop for members of the public, how do we improve on the current position? One of the speakers referred to having plaques in Garda stations that inform members of the public who they should contact if they are not satisfied.

Chairman

Mr. Olson has indicated that he would like to respond.

Mr. Robert K. Olson

I will take a shot at answering the Deputy's question. From a micro-perspective, when we did the report on fixed charge penalties it became clear to us that not every Irish citizen was aware that a petition process is available. The Deputy asks what needs to be done in this regard and the report makes some recommendations on that matter. The Government must do more marketing, as the private sector does, by getting its message out and ensuring members of the public are informed. That is not the case at present.

Deputy Alan Farrell

A number of submissions refer to deficiencies in the Act. To be fair to those who drafted the legislation, it may be more appropriate to refer to omissions from the Act, which are the cause of many of the current problems. A number of reports, investigations and so forth have been commissioned as part of the current corrective process. To repeat a question I put to the witnesses who appeared this morning, what effect will the publication of the findings of these investigations have on the administration of justice and morale in the Garda Síochána? I refer also to Government moves to introduce an independent policing board by Christmas and a suite of further legislative changes that will be produced.

Chairman

Mr. Redmond has indicated he wishes to respond.

Mr. John Redmond

This is a trying time for members of the Garda, especially the sergeants and inspectors who I represent. On the one hand, they are tasked with being the supervisors for the front-line operative, while on the other they are also the first line manager. In some respects, the position is a little like what occurred in banking in that the events of recent months have had repercussions for front-line officers who are bearing the brunt of public frustration about what has taken place and what is reported to be taking place. This is very difficult for them to take as they are trying to provide a professional police service and motivate those who report to them. Moreover, inspectors have one foot in the management camp.

It is clear that this is an issue for senior management who, unfortunately, do not face the public every day. From that point of view, recent developments have contributed to further reducing Garda morale, which is already at a very low level. As I noted, those to whom I have spoken about this issue have made clear that they want to get on with dealing with policing on a professional level. By this I mean they want a light shone in dark and dusty corners to reveal whatever needs to be revealed. It should be swept out as soon as possible, albeit not in a rushed or piecemeal fashion.

We have heard references to a new confidential recipient, new inquiries and investigations, the Garda Síochána Ombudsman Commission doing this and the Garda Inspectorate doing that. We will be all over the place in a couple of years. The action taken now should take us 20 or 30 years into the future and on the basis the process should not be rushed, although it should not be unduly delayed either.

Mr. Robert K. Olson

Mr. Robert K. Olson

In regard to the experience of whistleblowing over the past number of years, did the Association of Garda Sergeants and Inspectors advise or support any of the whistleblowers regarding their concerns or the issues raised?

Mr. John Redmond

Membership of our association is voluntary and the data we get is covered by data protection. That aside, we could never discuss whether an individual is or is not a member of the association, nor could we get into discussing to what extent we interacted with a member who might have been in the association on any issue. I am not trying to be evasive, but I cannot go into it, because we are talking about an individual. With respect, I would be reluctant to get into that.

Deputy Finian McGrath

The reason I asked the question was that many Deputies have been hearing the opposite. They have heard there was significant hostility from the association's members towards these people.

Mr. John Redmond

Mr. Mark Toland

The joint committee adjourned at 4.35 p.m. until 9.30 a.m. on Thursday, 15 May 2014.

Joint Committee on Justice, Defence and Equality debate - Wednesday, 14 May 2014

Garda Oversight: Discussion

Mr. David Joyce

Mr. Mark Kelly

Mr. John Devitt

Ms Brigid Quilligan

Ms Brigid Quilligan

Ms Fiona Crowley

Mr. Simon O'Brien

Mr. Mark Kelly

Mr. Mark Kelly

Mr. Mark Kelly

Ms Fiona Crowley

Dr. Des Hogan

Mr. John Devitt

Dr. Des Hogan

Mr. Mark Kelly

Mr. John Devitt

Chairman

Ms Fiona Crowley

Mr. Simon O'Brien

Mr. Simon O'Brien

Mr. Mark Kelly

Mr. David Joyce

Ms Brigid Quilligan

Mr. John Devitt

Ms Fiona Crowley

Mr. John Devitt

Ms Fiona Crowley

Mr. Mark Kelly

Dr. Des Hogan

Dr. Des Hogan

Mr. John Devitt

Mr. Kieran FitzGerald

Ms Carmel Foley

Ms Carmel Foley

Mr. John Devitt

Mr. John Devitt

Mr. John Devitt

Mr. John Devitt

Mr. Mark Kelly

Mr. John Devitt

Ms Fiona Crowley

Mr. Mark Kelly

Mr. David Joyce

Mr. David Joyce

Dr. Des Hogan

Mr. Mark Kelly

Mr. Simon O'Brien

Mr. Simon O'Brien

Mr. John Devitt

Ms Susheela Math

Mr. Simon O'Brien

Ms Fiona Crowley

Ms Fiona Crowley

Dr. Des Hogan

Ms Brigid Quilligan

Ms Brigid Quilligan

Ms Brigid Quilligan

Mr. Damien Walshe

Mr. David Joyce

Ms Fiona Crowley

Mr. Walter Jayawardene

Mr. Kieran Fitzgerald

Ms Brigid Quilligan

Mr. Simon O’Brien

Mr. David Joyce

Mr. David Joyce

Mr. John Devitt

Mr. Mark Kelly

Mr. Simon O'Brien

Ms Carmel Foley

Mr. Kieran Fitzgerald

Mr. Kieran Fitzgerald

Mr. Kieran Fitzgerald

Ms Fiona Crowley

Mr. Damien Walshe

Dr. Des Hogan

Mr. Mark Kelly

Mr. Simon O'Brien

Joint Committee on Justice, Defence and Equality debate -
Wednesday, 14 May 2014