I referred to the two aspects of this Bill which I felt were of some general interest. The structure of the Bill and of the complaints procedure is far too complicated to meet the needs of the members of the general public who wish to make complaints against members of the Garda Síochána. I have dealt with that matter fully, so I will not bore the House with it again. There are, however, a number of other points to which I should like to refer during the course of this Second Stage debate. The Minister in his speech introducing this on Second Stage referred to one point which is of central importance to the complaints procedure and to discipline within the Garda Síochána. He referred to the contents of section 7 (9) which provided, according to the Minister, that a member of the Garda Síochána who has refused to answer questions or furnish information during an investigation of a complaint may subsequently be required to do so in certain limited circumstances. Because this provision can be invoked there must be no possibility of criminal proceedings arising in connection with the conduct relating to 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 subsection and that any answer the member will give 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.
The Minister also said he believed this was an appropriate provision to have to enable complaints by the public to be properly investigated. It does no more than place the Garda in the same position as any employee in the public or private sector who is asked to give an explanation about his or her conduct following a complaint about it.
The Minister has been misled in this regard and he is overstating the strength of his argument considerably. One of the attractive elements of the complaints procedure promised by the previous Minister for Justice during the discussion on the Criminal Justice Act was that he intended to make it a disciplinary offence for a member to refuse to answer a question in respect of a matter which arose in the course of that member's official duties. It is obvious that this matter has been substantially watered down by the Minister and his Department following representations from the various Garda representative organisations. I recognise the right of the Garda representative organisation to make the representations but it is up to the Minister to view those representations against the background of the common good. In doing so, he has gone considerably farther than the common good requires or would allow.
In addition the statement of the Minister, to which I have already referred, contains at least one substantially incorrect statement. It is not true to say that this provision places the Garda Síochána in the same position as any other employee in the public or private sector. There is no obligation on the member of the force during the investigation of a disciplinary offence to answer the question and the matter of answering that question at a later stage only applies where there is no possibility of criminal proceedings. In effect, that will only apply where the Director of Public Prosecutions has already decided that no criminal proceedings should take place. That is not the position people in ordinary jobs find themselves in when faced with an accusation about the performance of their duties.
Imagine the position of, say, an employee of a supermarket who was suspected of leaving money short or putting money in their pocket, or indeed, of assaulting a member of the public with whom they were doing business. There is a case — assault of a customer by a person going about their duties — where they would obviously be liable to criminal proceedings. Of course, the fact that they are liable to criminal proceedings and would not have to answer questions from the Garda Síochána concerning whether they had assaulted somebody would not remove from those people the responsibility of answering questions from their employer about the incident. Even while assault proceedings are pending there would, of course, be a duty on the employee to answer questions from the employer concerning whether or not the assault had taken place and the circumstances surrounding it. I could not imagine a situation where the morning after an assault was alleged to have taken place, somebody goes back to their job in Roches Stores, or wherever, and is accused of having assaulted a customer, The question of legal proceedings is pending and the manager says: "Why did you do that?" And they say: "I will not answer any of your questions because I am not obliged to incriminate myself". Of course they are not obliged to incriminate themselves, but as a result of the failure to answer the questions they leave themselves liable to dismissal.
The fact is that a person has to make a choice. As an employee there is no doubt that they must answer questions which relate to their employment. As a potential defendant they are, of course, entitled under the Constitution and the law, as it is, to refuse to answer those questions, but they must, as is normal, take the adverse consequences of their refusal, whatever those adverse consequences may be. in the normal situation an employee would not be entitled to refuse to answer legitimate questions from their employer on the sole basis that to do so might leave them open to prosecution. They would be entitled to refuse, but the employer would be entitled, in advance of any assault accusation in court or any adjudication by the court on it, in respect of an employee who had refused to give the information requested by the employer, to dismiss the employee or take other disciplinary procedures. So it is not true to say that the members of the Garda Síochána are in the same position as any other member of the general public or any other employee of a State, semi-State or other organisation.
People seem to be confused about two things. One is the investigation by the Garda Síochána of a matter in their role as the upholders of the law so as to lay a possible complaint against a person, on the one hand, and their role as part of an investigation team to decide whether disciplinary proceedings are justified on the other hand.
As the Minister quite rightly points out, in the unlikely event of a decision being taken to ensure that a member of the Garda Síochána ultimately is forced to answer questions and where the person must be informed in writing that that particular section is being invoked, the member would have to be advised that the information made available under that section will not be admissible against him or his spouse in any proceedings whatsoever other than in the disciplinary proceedings against him. Is that not the protection that you need?
Members of the Garda Síochána say they want the investigation of complaints against their members to be carried out exclusively by members of the Garda Síochána. I know the Minister has got rid of the exclusive element of that but, by and large, the complaints against members of the Garda Síochána will be investigated by members of the Garda Síochána.
That is fair enough but what they are confusing is the fact that the same force, although different members, may also be investigating that complaint for the possibility of laying criminal proceedings against the person. They are getting those two things confused and there is no need for it. There is no reason why the investigating officer, in the pursuit of his duties, could not give precisely the same undertaking that any information which he would glean would not be admissible against the member except in so far as the disciplinary proceedings were concerned. It is not necessary. The same person will not be investigating the criminal element of it. I do not see any good reason why the investigating officer cannot at an earlier stage require information from the member to aid and assist that inquiry. That information could be used only in the investigative process for disciplinary proceedings and for the actual hearing of such proceedings.
I do not see any reason why that should not be done. What has happened is that the obligation to answer questions from one's superiors as to the method in which you carried out your duties can now be set aside if any member saw even the remotest possibility that as a result of answering that question he might leave himself liable to prosecution. When a complaint has been made the members will say nothing, as they are entitled to do. That has destroyed the effectiveness of the Bill. It is a matter which we must consider on Committee Stage. If a separate force or a separate arm of the Garda Síochána was in existence for the investigation of complaints like this, this problem would not arise. It should be part of the procedure that no use could be made of the information so gathered except in disciplinary proceedings. It has already been suggested that that requirement should exist. There is no reason why information cannot be sought at a much earlier stage to decide whether disciplinary proceedings are justified.
There was an amendment in the other House excusing from the duty to make certain information available to wives of members of the Garda Síochána who are themselves members of the Garda Síochána. I do not understand that. It seems to be confusing the criminal law and discipline. It appears that somebody decided that questions which are legitimate in respect of every other member of the force should not be legitimate in respect of spouses of members of the force who are themselves members of the force. Where a husband and wife are members of the force under no circumstances can one be asked questions about the other, irrespective of the circumstances, for disciplinary proceedings. That appears to be ridiculous. The reduction of the obligation which should exist to answer questions has effectively destroyed a substantial portion of this procedure and makes it virtually useless. It might work in theory but not in practice.
The Minister of State might like to give us an expanded view on what is meant by the principle of double jeopardy. He referred to it in his speech. What is the present position in regard to double jeopardy? What he is saying in effect is that it may not refer a case to the Commissioner or a tribunal if the breach is in substance the same offence as that of which the member concerned has been acquitted. I am not worried about the conviction aspect because that is dealt with elsewhere. The standard of proof required in a criminal matter is totally different from that required for a disciplinary hearing. I do not know what the present disciplinary procedure is in this regard, but the Minister might like to give us some information on that.
Exceptional procedure must exist which would enable matters to be considered at a disciplinary level even though an acquittal on a charge related to the same incident has been returned in a court case. Is that not precisely the same as what would happen in any other job? If you go back to the case of a woman working in Roches Stores, if she is acquitted of assaulting a person that does not mean that she cannot be dismissed from her job. There are procedures under the Employment Appeals Tribunal to make sure that power would not be wrongly used. If it is wrongly used a person should be entitled to have their job back.
It is not true to say that, where a person has been acquitted of a criminal action in respect of a series of events, no disciplinary procedure applies in everyday business. That is not the way it operates. In the vast majority of cases where there is an acquittal it is unlikely that a breach of discipline can be proved or sustained against a member, but there could be circumstances in which a breach of discipline would be capable of being shown against a member even though it may not have amounted to a criminal offence. Very often people are charged with the wrong criminal offence. I may have decided to charge a person with murder when it should be manslaughter. They charge them with one offence instead of another. In those circumstances the person is acquitted. That does not mean that the person has not done anything.
Similarly, I do not think it should mean that a member of the Garda Síochána should be totally incapable of being disciplined in respect of a series of events which led to his acquittal. That should be the normal situation. The Minister should allow for flexibility even if it is a flexibility which is guarded by many different procedures which must be gone though before the matter can be looked at again. But it is important that the possibility should continue to exist.
Reference has also been made to the Fourth Schedule to the Bill which deals with disciplinary matters for the purpose of the public making complaints against members of the Garda Síochána. It is right to say that discourtesy, neglect of duty, falsehood, prevarication, abuse of authority, corrupt or improper practice, misuse of money, intoxication, discreditable conduct, accessory to conduct specified in the Schedule, that is, conniving at or knowingly being an accessory to such conduct, are disciplinary offences. That does not cover the full range of disciplinary offences in the force. For example, it does not cover the possibility of members being involved in work outside their duty which is incompatible with their duties as members of the Garda Síochána.
If a member of the public from now on comes across that and makes a complaint it would appear that the complaint would be automatically excluded. It would be considered in the first instance by one of the various filtering processes which are necessary before the matter would come through. It would have to be decided whether it was an admissible complaint. The complaints board chief executive would have to decide whether it is an admissible offence. If it is not in the Schedule, then it is not an admissible offence. In other words it is proposed that a member of the public will not be allowed to complain in respect of a member of the Garda Síochána who is doing a job which is incompatible with being a member of the Garda Síochána. I am not suggesting that I know any garda who is doing this. If a member of the Garda Síochána was acting as a bouncer in a nightclub that would be quite incompatible with membership of the Garda Síochána. If a member of the public saw that and was offended by it and if under the Bill he makes a complaint, is it true to say that that complaint would be considered not to be an admissible complaint? I wonder if that is true. If it is true, is it right?
There is another point that Members will be aware of and that is the question that members of the Garda are correctly discouraged in my view from displaying political favours or displaying too close an affinity with any political party. The Garda Síochána Discipline Regulations, 1971 cover the various points I am making. Under No. 15 on page 31 of that statutory instrument it says: "Prohibited spare time activities — identify actively or publicly with a political party."
Does that mean that it this is not in the Schedule and if somebody wants to make a complaint against members of the Garda Síochána that they have been closely identified with members of a political party, that that is not a proper complaint for the public to make against the Garda under this procedure? Of course, I understand somebody internally may make the complaint. Of course, the Garda Síochána Discipline Regulations, 1971, or whatever will take their place from time to time, will cover that. As regards a member of the public making the complaint it would appear to me that it is not an admissible matter. In those circumstances that seems to be a rather strange decision. Something like that is obviously a matter for public concern — it is not an internal matter; it is not like filling in the station book incorrectly which is obviously an internal matter to be covered by internal disciplinary regulations. I am not talking about those things. It is not like not turning up for duty on time, which again is an internal disciplinary matter and which of course is covered by the regulations. This is a public matter. If I, as a member of the public want to complain about a member of the Garda, that he or she is engaging too openly, actively or publicly in the affairs of a political party, is that going to be ruled an inadmissible complaint? If it is, it is incorrect and is not appropriate.
There are other things like unauthorised entering of a licensed premises, that is to say, without good and sufficient cause while on duty or while off duty, but wearing uniform entering a premises in respect of which the statutory licence or permit has been granted in relation to intoxicating liquor, betting or gaming. There are things like that which obviously have some relevance but I am sure that, on the question of engaging for reward or otherwise in an activity like, for example, being a bouncer in a night club or becoming publicly identified with a political party the Minister will give me the thrust of his view is with regard to allegations of that type. I am sure we will be able to apply that to the various other possibilities which exist in respect of potential breaches of the Garda Síochána Discipline Regulations, 1971 and which are public in nature, but which are not specifically dealt with in the Schedule which again, was added during the course of the Dáil debate.
I noticed that during the Dáil debate certain additions and changes were made with regard to the number of people who shall form part of the board and the number of people who may form part of the tribunal. They are matters which I would like to take the opportunity to discuss with the Minister on Committee Stage. It appears to me that, as initiated, this Bill incorporated into the Bill itself references to the regulations. Any matter which is a breach of the regulations appears to me to be an admissible matter. The regulations — and these are the regulations of 1971 — have been taken out of the Bill and substituted by a Schedule 4 which contains only a portion of those regulations. There are a lot of internal regulations with which I do not think the members of the public have a legitimate cause of complaint. But there are other things. The trouble with including anything in the Schedule is that you are leaving things out, and there are things left out there. I notice there has been a significant change in the legislation during the course of its passage through the other House which includes the fact that the disciplinary regulations are no longer considered essential parts of the procedures.
I consider that giving the disciplinary body the right to require the retirement or resignation of a member as an alternative to dismissal is quite good and quite positive, and is something which has my support. I notice in addition that in regard to the reference which I made to the circumstances where a member can be called on to give an explanation, the notification of the applicability of that section must be given in writing to the member. It fascinates me that it is considered appropriate, and I do consider it appropriate that it is required to give notice in writing to a member of the force who is under an investigation like that in those circumstances. But any kind of similar obligation which was proposed to be inserted in the Criminal Justice Act for the benefit of the ordinary, decent people, was resisted strenuously. From time to time people are accused of offences which in some cases they commit and in some cases do not. Any such suggestion that they should be given in writing the substance of what was being insisted upon and the reason it was operating and the source of the authority was resisted strenuously. It appears to me that we are correctly protecting the people who in my opinion do not need the protection to the same extent as the general public.
I note that there is considerable resistance to the idea that six months is the appropriate length of time in which a complaint can be made. I think it is quite short. The appropriate time is six months under the Petty Sessions (Ireland) Act: the normal time for the laying of a complaint is six months, if my memory serves me right. But for all serious indictable offences there is no time limit at all. One can be told of a complaint against one very long after the actual offence is alleged to have been committed. That is only right and proper. The six months is about right, and I would support the Minister in that. I do not support that association who are vigorously campaigning to have that reduced to what I consider to be a ridiculous 28 days.
That is basically what I want to say about the Bill. The idea is excellent, the idea of extending in statutory form the complaints procedure which at present seems to be operated on a fairly secret basis as far as the general public is concerned, to a basis where at least anybody who has a Ph.D in law will understand it: presumably the rest of the people can pay people to explain to them what it is all about. At least it is available, and the theory of it is available. No doubt explanatory memoranda of all kinds will be got out for the information of the general public. That is a good idea. Unfortunately, the procedure which has probably been imposed on the Minister by the growth of the disciplinary procedures in the past, together with the additional complaints boards and appeal boards and others conspire to create other situations. In my view, as regards most complaints the position is going to be quite unworkable. It is just not going to deliver the goods.
Finally, the reason we need a Garda Complaints Bill and the reason we must make it easy for people to make complaints against the Garda, confident in the knowledge that they will be properly assessed, is not only to give redress to people who are badly treated by members of the Garda Síochána, but also to restore confidence, or to maintain confidence, in the members of the Garda Síochána and the way in which they act and, by so doing, to make a contribution towards the elimination, prevention or developing of the alienation to which Senator Ryan referred.
The alienation between members of the Force and the general public is the most dangerous development in the field of police matters I have come across during my lifetime. The alienation about which I spoke during the debate on the Criminal Justice Act is something which it is most essential should not be allowed to develop in this part of the country to the same extent as in other parts of the country. The existence of a complaints procedure which will permit complaints to be dealt with speedily and to be done in a way which is considered fair by the general public and by the person making the complaint and the members of the Garda Síochána, is an ideal which will help to increase the status of the members of the force — something to which I am committed — as being truly the representatives of justice in Ireland and not just the representatives of law and order.