The Bill establishes a new procedure for investigating and adjudicating on complaints from the public about the conduct of members of the Garda Síochána.
The procedure will be operated by a complaints board which will be independent in the exercise of its functions. Although investigation of complaints will continue to be carried out by the gardaí, the chief executive of the board, or some person acting on his behalf, may investigate a complaint if the board considers that the Garda investigation has not been, or is not being, properly carried out or that the public interest requires that the complaint should be so investigated. Provision is also made for tribunals to adjudicate on complaints which may disclose a breach of discipine. A member who is dissatisfied with a decision of a tribunal may appeal to an appeal board.
These are the main features of a Bill which implements the undertaking given by the Government in the programme it adopted on taking office that an effective independent complaints procedure would be established to safeguard the interests of both the public and the gardaí, who are often the subject of false allegations.
In addition, when circulating the Criminal Justice Bill the Government gave a commitment that those of its provisions which gave increased powers to the Garda would not be brought into operation until new procedures for the handling of complaints against gardaí were in operation. Senators will recall that this House amended the Bill to write that commitment into it and to make the operation of these provisions also dependent on the making of regulations for the treatment of persons in Garda custody in accordance with section 7 of that Bill. Proposals for these regulations have been published as a White Paper and they have been discussed in the Dáil. A motion taking note of the proposals is on the Seanad Order Paper and I hope it will be debated in the very near future.
There have been discussions with the Garda representative associations both before and since the publication of the Bill. The discussions proved to be extremely useful and not only led to adjustments which were, by any objective standard, improvements but also increased the level of acceptability of the proposals. That is not to say that some areas of disagreement do not remain but I think I can say that the gardaí accept the principle of, and the need for, an independent element in the procedure for handling complaints by members of the public as being likely to vindicate members who are wrongfully accused of misbehaviour and also to improve their relationship with the community of which they are part.
In addition, further improvements were made as a result of the views put forward in the Dáil in the course of constructive debates on the second and committee stages of the Bill. There was no disagreement on the principle of the Bill by any of the Members of that House. Where we agreed to differ was mainly in relation to the presence of the Garda Commissioner or his representative on the complaints board and, to a much lesser extent — in the sense that the opposing view was advanced by only a few Deputies — in relation to the gardaí carrying out the investigation of complaints.
Before the Bill was finally drafted, these two issues had been discussed in both Houses during the closing stages of the Criminal Justice Bill debate and the Government gave careful consideration to the views that had been expressed.
On the question of including the commissioner or his representative on the board, it seemed to the Government that there was a compelling case for doing so. The commissioner is the chief officer of a disciplined force. He is the custodian of its good name. Conferring on any outside body powers in relation to the investigation of complaints and the imposition of disciplinary action on members necessarily involves some diminution of his authority in this respect. That is unavoidable but to exclude the commissioner from any role at all in the consideration of complaints against his members would, in the Government's view, be bound to undermine seriously his authority and have adverse effects on morale and discipline. I believe that the Bill strikes the right balance. Although, inevitably, his role in disciplinary matters will be weakened, the fact that he will be represented on the complaints board as well as on disciplinary tribunals will preserve his position to the maximum extent consistent with introducing a decisive independent voice into the complaints procedure. In the complaints board his representative will be one of nine members. On a tribunal, which has power to determine the disciplinary action to be taken, he will be one of three.
Apart from the need to have the commissioner represented on the board for the reasons I have mentioned, I believe his presence is also necessary in the interests of avoiding friction in the actual operation of the scheme. A situation where the board would be operating at arm's length from the commissioner's office would, it seems to me, be likely to give rise to misunderstandings, friction and resentments — the classic "them and us" syndrome. That cannot happen, or at least is less likely to happen, when the commissioner is represented on the board and is in a position to sort out any problems of this kind that may arise from time to time. It is in his interest, as chief officer, that any genuine complaints are investigated thoroughly and fairly and for that reason his role as a member of the board must only be supportive.
The other matter which was criticised in the Dáil was the fact that the investigation of complaints would continue to be carried out by the gardaí. It was said that the public could have no confidence that such investigations would be impartial or thorough. It was suggested that the investigation should be taken out of their hands and left to a team of independent investigators attached to the board. Those who make this case ignore the very serious practical objections there are to it. First of all, many of the complaints alleged against gardaí amount to allegations of criminal offences — assault and the like. These allegations have to be investigated in the same way as any criminal offence, and the investigation has to be subject to the control and directions of the Director of Public Prosecutions. I do not think it right that criminal offences should be investigated by civilian investigators and, in any case, the gardaí are entitled to be treated in this respect in the same way as other members of the public suspected of criminal offences. Second, it would be extremely difficult to recruit civilian investigators of the requisite experience for the task. It was said that retired gardaí would be suitable but I do not see how it can be argued that gardaí up to retirement could not have the confidence of the public but would undergo a complete change of attitude towards their former colleagues on retirement. As a practical matter, the size of the civilian team would not be large enough to provide adequate career prospects for persons of the calibre required.
All in all, I think the Bill has adopted the correct approach. The Garda will continue to investigate complaints but investigating officers will be subject to supervision by the board and be liable to produce such supplementary reports as it may require and to carry out any directions it may give after consultation with the DPP if a criminal offence is involved. In addition, as I have said, if the board thinks that the Garda are not investigating a complaint properly, it can request the chief executive to investigate it himself. I do not expect that this power would have to be exercised very often but it is there and it provides a substantial measure of reassurance to the public that their interests will be fully protected.
As I have said, a number of amendments were made as a result of views put forward in the Dáil and outside it as well as during the discussions with the Garda representative associations. I should like to mention the most important of them. A Fourth Schedule has been added to the Bill listing the particular breaches of Garda discipline about which a member of the public may complain. I believe that Senators, and the public generally, will find that a more convenient arrangement than having to refer to the breaches specified from time to time in the Garda discipline regulations, especially when some of those breaches are of purely internal concern, such as disobedience of orders or other conduct prejudicial to discipline.
The membership of the complaints board has been increased from seven to nine members to enable arrangements to be made to ensure that members of the board serving on a disciplinary tribunal will not have had any previous involvement in the cases coming before them. I was not fully convinced of the need for this amendment because the function of a member of the board is simply to decide whether a breach of discipline may be disclosed whereas it is for a tribunal, having heard all the evidence, including the case for the member concerned, to decide whether a breach of discipline has in fact occurred. However, the Garda associations attached particular importance to this aspect and they made what seemed to me an impressive case for the amendment. Although some members of the board will not participate on the investigative side so as to be available for membership of tribunals, they will be available to take part in collective discussion. The Garda Commissioner or his representative on the board will not be eligible to serve on a tribunal but provision has been made for the commissioner to nominate for this purpose a chief superintendent or a member of higher rank who has not been involved in the investigation of the complaints in question.
Another amendment confined the requirement on gardaí to furnish information to matters arising in connection with the performance of official functions. And specific provision was made for prohibiting the unauthorised disclosure of confidential information by members of the complaints board or appeal board or by members of the staff. That is in section 12 of the Bill. Finally, it is being made clear that a person who makes a complaint to the gardaí, rather than to the complaints board itself, will be presumed to wish to have his complaint considered by the board unless, at the time of making the complaint, he or she requests otherwise in writing. This will allow complainants to specify that they wish their complaints to be dealt with by the Garda themselves. Presumably they would do so in the case of minor complaints which they felt could be dealt with adequately by a rebuke to the member concerned from a superior. On the other hand, it ensures that every other complaint will be subject to the board's supervision and, where necessary, to adjudication by a disciplinary tribunal of the board.
The main provisions of the Bill are in sections 4 to 11. Senators will see that persons can make complaints by writing or calling to the office of the board or to any Garda station or to one of the Garda commissioners — this latter provision is intended to cover letters of complaint addressed to the commissioner at Garda headquarters. All complaints intended for the board, however and wherever made, will be examined by the chief executive for admissibility. Admissible complaints will be sent to the commissioner who must first consider whether they are suitable for informal resolution. I believe that many minor complaints, if justified, can be disposed of by an explanation and an expression of regret. However, each case of informal resolution will be subject to scrutiny by the board, and it can require the complaint to be formally investigated if it thinks that it was not suitable for informal resolution. In any event, informal resolution is not possible in criminal cases or where either the complainant or the member concerned does not consent in writing to it.
Section 6 details the procedure for a formal investigation. It provides that the board must supervise generally the investigation and may give directions to an investigating officer. It must consult with the DPP in relation to the investigation of any complaints which may constitute a criminal offence. This is the section which contains the board's power to have an investigation carried out by the chief executive or some other person if the board considers that the public interest requires it or that the Gardaí have not carried out the investigation properly.
Section 7 sets out the various options open to the board after it has considered the report or reports of the investigating officer and the comments and recommendation of the chief executive. If it considers that the conduct alleged may constitute an offence, it must refer the matter to the DPP. If it thinks that neither an offence nor a breach of discipline is disclosed or that the complaint is otherwise not admissible, it takes no further action. If it thinks that only a minor breach of discipline is disclosed and that it could appropriately be dealt with informally by the Commissioner by way of advice, admonition or warning, it refers the matter to the Commissioner. And if it thinks that a breach — other than such a minor breach — may be disclosed, it refers the matter to a tribunal.
However, it may not refer a case to either the Commissioner or a tribunal if the breach is in substance the same as an offence of which the member concerned has been convicted or acquitted. That is the "double jeopardy" rule, now set out in statutory form in subsection (7). In relation to a conviction, this means that the member is not to be tried again before a disciplinary tribunal for the same or substantially the same offence. However, the fact that the member has been convicted is itself a breach of discipline necessitating consideration by a tribunal of the member's suitability for retention in his or her present grade or, in a serious case, in the Force itself.
Subsection (9) of section 7 provides that a member of the Garda Síochána who has refused to answer a question or furnish information during the investigation of a complaint may subsequently be required to do so in certain limited circumstances. Before this provision can be invoked, there must be no possibility of criminal proceedings arising in connection with the conduct referred to in the complaint and the conduct must have arisen in connection with the performance of the member's official duties. The investigating officer must also inform the member concerned that he is acting in accordance with this subjection and that any answer the member gives will not be admissible in evidence against the member or his or her spouse in any proceedings whatsoever other than disciplinary proceedings against that member.
I believe this is an appropriate provision to have in a measure which is designed to enable complaints by the public to be properly investigated. It does no more than place the gardaí in the same position as any employee in the public or private sector who is asked to give an explanation or his or her conduct following a complaint about it. It is a provision which I expect will be used only rarely but it seemed right to the Government to take the opportunity presented by the introduction of this measure to set out in statutory form the position in this respect, together with the safeguards I have referred to.
The provisions in section 8 and 9 about tribunals do not, I think call for special comment except, perhaps, to say that decisions of tribunals must be implemented by the Commissioner or, in the case of dismissals of members above the rank of inspector, by the Government. Sections 10 and 11 are concerned with the appeal board which will hear appeals from members against decisions of tribunals — either a decision finding a member to be in breach of discipline or a decision that disciplinary action should be taken or both. The appeal board will have a circuit court judge as chairman, a practising lawyer and one other member who is not a serving or retired member of the Garda Síochána.
The remaining provision to which I would like to invite attention is section 13. It provides for the board making an annual report about its activities and it goes on to specify that the board may include in that report information and comment in relation to any matters which come to its notice and to which it considers that the attention of the Minister for Justice should be drawn. Moreover, the board is obliged to keep under review the working of the system of investigation and adjudication of complaints and to make a report on it to the Minister not later than three years after its establishment and at least once during every subsequent period of three years. In addition, the Minister for Justice is empowered to request the board to report to him on such general matters relating to its functions as he may specify. These provisions are designed to promote public confidence in the procedure by encouraging the board to make its reports as informative as possible.
Finally, I would hope that this House, too, will endorse the Bill in principle as providing an adequate framework for dealing with complaints from the public about the conduct of the members of the Garda Síochána. If there are any points of detail that Senators may wish to have me comment on, I shall endeavour to do so when replying and, in any event, I shall consider them between now and Committee Stage. In the meantime I commend the Bill to the House and look forward to a constructive debate.
