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Seanad Éireann debate -
Wednesday, 2 Jul 1986

Vol. 113 No. 13

Garda Síochána (Complaints) Bill, 1985: Committee Stage (Resumed).

Debate resumed on amendment No. 1:
In page 5, between lines 45 and 46, to insert the following new subsection:—
"( ) Where a complaint has been made orally it shall be the duty of the Chief Executive Officer to provide, from the information sent to the Board, a summary of the complaint to the person who has made the complaint. No further action shall be taken on the complaint until the summary is acknowledged as accurate by the signature or mark of the person making the complaint."
—(Senator O'Leary.)

I referred to the contents of section 4 and the way in which I proposed it should be amended by amendment No. 1. The Minister is right, as I said yesterday, in recognising that, in addition to written complaints, oral complaints are to be provided for. Oral complaints should be taken every bit as seriously as written complaints. If I have read the Bill correctly, the procedure which the Minister proposes to adopt is as follows. When a complaint is made orally, this complaint is reduced to writing by the appropriate person — very often it will be a member of the Garda Síochána who is receiving the complaint — and a note of that reduction and a note of the receipt of the complaint are to be given to the person who is making the complaint. What does not appear to be required from that person is confirmation that the note on the memorandum prepared which purports to be a summary of the complaint is satisfactory.

It is important that people who for one reason or another, are unable or unwilling to reduce a complaint to writing in their own hand should be confronted with a written substance of their complaint for two reasons. This is the prime reason for moving this amendment. It is important that the member of the Garda Síochána who is the subject of the complaint should be aware in a very accurate manner, and a manner which can be referred to at a later date during the course of the investigation, of the exact nature of the original complaint. It should not be open to the person making the complaint, having gone through the procedure to say at the last minute or, indeed, when the decision has been reached by the complaints procedure which, in some instances, obviously would go against the complainant: "That was not the complaint I made at all." or "While the garda did take a note of some points about which I complained there were additional points of which he did not take an adequate note."

Sitting suspended at 10.45 a.m. and resumed at 10.55 a.m.

To conclude what I was saying before I was rudely interrupted by The Workers' Party, which is certainly a rude interruption, in order to fully protect the integrity of the investigation and in the interest of justice and fair play both for the complainant and more particularly for the member of the force who is the subject of the investigation the issues between the parties must be clearly identified and acknowledged by the complainant so that no residual doubt can remain as to the subject matter of the complaint. I should like to bring briefly to the attention of the House section 4 (2) (b) which states:

On receipt of a complaint by a member at a Garda Síochána station—

(i) he shall record it forthwith, together with the date and time of its receipt, and furnish an acknowledgment in writing of its receipt to the complainant, and

(ii) the member in charge of the station at the time the complaint was received there shall notify, or cause to be notified, the chief executive and the Commissioner of the complaint as soon as may be, and send each of them a copy of the complaint or, if the complaint was not in writing, a copy of the record of it.

It is not clear what is to be supplied to the complainant by the Garda Síochána. It appears to be only an acknowledgment in writing of the receipt of a complaint. For example, if a long, complicated complaint is made a member of the Garda Síochána only has to acknowledge it in writing by saying: I hereby acknowledge having received a complaint on today's date from you at a particular Garda Station. It will be signed and given to the person without him being sure whether the oral complaint was accurately reduced to writing. I do not think that members of the force will inaccurately do that job because it will be open to scrutiny. The accusation could be made later, by the complainant, particularly if the complaint is not upheld, that two years were spent investigating a complaint which really was not the substance of the matter complained of. I want it to be crystal clear that where it is not a written complaint the complainant is under an obligation to consider at an early stage the precise nature of the complaint as it has been reduced to writing, to make any addition to it as he considers appropriate and to acknowledge it.

For example, I referred in passing yesterday to the Kerry Babies Tribunal. There was a typical example of people who started complaining about one matter but who ended up complaining about a different matter altogether. That is an example of what can happen. There are many people who would seek to justify their original complaint and I do not think it is right or proper that this area should be left vague. I have had professional experience of where complaints were made against medical practitioners, for example, complaints of misconduct under the contract which they had with local health boards to supply services in the general medical services area. In all such cases, if a complaint is made with regard to the manner in which the service is being provided it must be reduced to writing. A complaint will not be considered unless it is reduced to writing. In those circumstances it is appropriate that this or a similar amendment should be made. If the Minister is able to convince me that already within the Bill this mechanism exists I am quite happy to accept that. In the absence of that assurance, I think it would be an ease to both parties but particularly to the member who would be the subject of the investigation to have an amendment of this kind made.

When I was speaking on the Second Stage of this Bill I did not really so much criticise the Bill as suggest that a possible shortcoming was the fact that it seemed to be too comprehensive, too complex, tried to dot every "i" and cross every "t" and to provide for every possible situation. In a sense, Senator O'Leary is adding to this feature of the Bill by providing for another step which way in the end only discourages the person who is making the complaint. That is one of the things about the Bill, that there are so many steps, procedures, that a person making a complaint would lose heart halfway through and just abandon the whole thing. To provide that "no further steps will be taken until the person acknowledges that their complaint is as set out in this way" might have that effect. The section as it stands could in effect, by implication anyhow, provide that the acknowledgment would in fact set out the complaint. A conscientious officer of the board would in the circumstances say, "We acknowledge receipt of your complaint as follows" and it is quite likely that the acknowledgment would in fact set out the complaint as received. Perhaps it would be a good idea that, instead of going as far as Senator O'Leary suggests, the Bill should say that the acknowledgment would in fact acknowledge the complaint as received by them or as understood by them. Then, it is up to the person making the complaint to write back or communicate with the board and say "No; that is not exactly what I meant". If he does not respond to say that the board have got it wrong then I think they should go ahead. I think it is going too far to say that nothing further should be done until they hear back from the person making the complaint. Basically I think Senator O'Leary has a point. It is very easy in a situation like this for an oral complaint to be misinterpreted — misinterpreted by whoever took it in the first place, or misinterpreted between there and arriving at the board. In principle I think the point is good but I would not be in favour of making it quite as formal and as complicated as suggested by Senator O'Leary.

Senator O'Leary has made a valid point here. However, if one pursues the point, what he is really saying is that the board should not investigate an oral complaint. What he is in effect suggesting is that every complaint should be reduced to writing in one form or another. It is a good point. It is a good point in the sense that it prevents any difficulty arising at a later stage in relation to what precisely the board have investigated, what precisely is the nature of the complaint and these would be set out pretty clearly what is to be investigated. The current practice in relation to the Garda Síochána (Discipline) Regulations, 1971, is that the member concerned is furnished with a copy of all statements made in relation to the investigation together with a copy of the precise charge made against him, being one of the scheduled charges in those regulations. Certainly a difficulty can arise if a similar procedure is to be followed in relation to this Bill. It is difficult to furnish a member with something which is based on the oral complaint. The importance of the Bill is to ensure that at the end of the day the person who makes the complaint is satisfied that the subject of his complaint has been properly investigated. That can only be achieved if that complaint is reduced to writing. That can only be achieved if the nature and content of the complaint is reduced to a precise form. If the matter is left to an oral complaint that it is difficult to interpret precisely what the nature and basis of the complaint is. For those reasons, I would support the amendment put down by Senator O'Leary, purely in the interests of clarity and in the interests of ensuring at the end of the day that a person who makes the complaint cannot allege that his or her complaint has not been properly investigated or has been only partly investigated. I believe also that the amendment put down by Senator O'Leary is an amendment which is in measure in ease of the Garda in relation to this Bill and something they are entitled to be assured of.

It seems to me that the amendment proposed by Senator O'Leary would introduce an additional complication into the procedure and delay quite substantially the consideration of oral complaints. There is a point there I will come back to in a moment. What it provides for is that a summary of the record of each oral complaint should be prepared by the chief executive of the board, sent to the complainant for authentication and signature by the complainant. Obviously, it could take some time between the moment when the complainant called to the local Garda station and the time he would receive the summary of the complaint in the post. A further period would elapse then after the complainant had received the summary, signed it and sent it back, assuming that he found it to be an accurate record of his complaint. Only then under the amendment proposed by Senator O'Leary could the investigation begin.

As Senator Eoin Ryan has pointed out before now, he was not alone on Second Stage in complaining about what he saw as the complexity of the Bill. He was indeed joined most eloquently by my friend Senator O'Leary on that point. I would think that the amendment can be criticised on the same grounds, that it would add a new element of complexity. Some oral complaints could in fact be of a fairly serious nature. We could imagine the case, for example, of a person in custody in a Garda station who complained of serious ill treatment. A complaint of that kind, and indeed there are others — just take that example — should be investigated without any delay. It should be of its nature investigated immediately. The draft treatment regulations which we discussed in this House only yesterday provide that in such a case the member in charge must arrange for the person making the complaint to be medically examined as soon as practicable. As for the Bill it would require any member of the Garda Síochána on becoming aware of the complaint to take any necessary steps immediately to obtain or to preserve evidence about the conduct being complained of.

You would have to do that without waiting for the complaint to go to the board and without waiting for a decision as to the admissibility of the complaint. You would be obliged to take that action immediately so as to ensure that the complaint, if it were deemed admissable, could be fully and properly investigated. Those considerations would indicate the need to have a system that allows us to deal very quickly with complaints and therefore the need to avoid anything that would cause delays. It would be somewhat anomalous, although I know there may be two views about this, to require oral complaints to be authenticated in this way and not to require the same kind of authentication of written complaints — written complaints which could conceivably be rather confused in some cases, where they are badly expressed and perhaps not very clear.

I think it is better that we should have a situation where the chief executive of the board would decide quickly on the admissibility of a complaint on the basis of what is presented to him, whether it is a written record or a record of an oral complaint, rather than to delay the whole precedure by looking for further and better particulars or for authentication. If he decides that the complaint is inadmissable he must say precisely why. He must say what condition or conditions of admissibility have not been fulfilled by the complaint. It would then be up to the complainant if he felt aggrieved by that decision to remedy any omissions there might be in the original complaint and ask the board to review the chief executive's decision. I would imagine that in practice most complaints would be likely to disclose enough information to allow the chief executive to make a decision fairly quickly as to whether the complaint is admissable or inadmissable. If there are omissions or inaccuracies in the account given in a letter of complaint or in the record of an oral complaint, then they can be adjusted at the time when the investigating officer comes to take a full statement. It seems that that is the correct point at which to look for an accurate account of the conduct complained of and then have it signed by the complainant.

I thought for a moment that Senator Durcan was going to support my point of view, although he seemed to take a slightly different track during the course of his remarks. What is clear is that in an ideal world — and this world, as we all know, is far from being ideal — all complaints should be in writing. I fully take the points made in that regard by Senators, including Senator Durcan. The fact is, however, that it would impose an unjustified disability on some potential complainants if we were to require that all complaints should be in writing. It is reasonable and essential to allow for complaints to be made orally. We had some discussion on Second Stage of the circumstances in which oral complaints might be made.

Senator Eoin Ryan's suggestion that an acknowledgment would be accompanied by a record of the complaint is certainly something that we could look at. There is another possibility also. I would imagine and I hope Senators will regard this as being something other than a purely bureaucratic concern, that the Garda Síochána in playing their part in this scheme would provide Garda stations with some kind of a standardised form on which they would record their complaint and that the acknowledgement could be accompanied by a copy of that form. I would have to discuss the details of implementation with the Gardai. There could be there an opportunity effectively to give the complainant that kind of record. The essential point I want to make is that to propose, as the amendment does, that the procedure could not start in any real way until this authentication had taken place could in many places unnecessarily delay the beginning of an investigation in a way that is unnecessary.

I would like to add that the board in their own interest should, when they are acknowledging the complaint, acknowledge what they understand the complaint to be. Quite apart from the frustration as far as the complainant is concerned, if he finds that the wrong complaint is being investigated it would be a great waste of time for the board if they embarked on an investigation of a complaint to be told at the end of the day that that was not the complaint at all. It would be well worth our while from a purely bureaucratic point of view to say what they understand the complaint to be.

I think Senator Eoin Ryan has got to the kernel of what my amendment was about. I will be withdrawing my amendment because I acknowledge some of the points made by the Minister as being valid. I do not want to add another bureaucratic step in the already overburdened bureaucratic steps contained in this Bill. I acknowledge many of the Minister's points as being accurate. I think you have to view my amendment as a response to what is not in the Bill. The reality of the situation is that while we have got the Minister's assurance as to what might be done, all the Bill actually requires of the Garda is that they would acknowledge receipt of the complaint. That could be a one liner: "I hereby acknowledge having received a complaint on the — day of — 1986 from John Murphy". That, I think, would cover the situation as far as the Bill is concerned.

I sincerely hope that other practices will now grow up. I am concerned with trying to ensure that the procedure is correct. If the Bill were amended, if in some way there could be an obligation on somebody to supply a copy of the complaint as reduced to writing to the person, I would be quite happy with that. Let the person then raise an objection if they want to and if they do not, let the assumption be that they are accepting the summary as accurate. That will not get over every problem but it will get over most of them. I do perceive a weakness in the legislation, which will be exploited by those who feel aggrieved by the results of complaints. That is where I think the exploitation will be. Those who are aggrived with the results of complaints and particularly those who have made the complaint and have not got the result which they desire, in my opinion, will exploit this weakness as indicating that proper and comprehensive note was not taken of what they said or that it got lost in a bureaucratic muddle and had gone too far before they realised it.

For those reasons I acknowledge the legitimacy of the additional point made by the Minister about the necessity to have certain processes of investigation carry on even prior to the submission of the complaint to the chief executive of the board. That is another reason why I agree to withdraw the amendment. Having said that, when we come to discuss the section I will be asking the Minister to respond and to set our minds at rest that the interpretation which I am putting on the legislation, which I think Senators Durcan and Eoin Ryan are also putting on it, is incorrect. In so far as this amendment is concerned, I am happy to withdraw it.

Amendment, by leave, withdrawn.
Question proposed: "That section 4 stand part of the Bill."

Would the Minister like to comment on what he understands to be the legal position as distinct from what he hopes to be the actual practice with regard to section 4 (2) (a) (i) which reads:

He shall record it forthwith, together with the date and time of its receipt, and furnish an acknowledgment in writing of its receipt to the complainant...

The same applies to (2) (c) (i). From a legal point of view would the one line acknowledgment cover that and does the Minister anticipate any difficulty arising as a result of that?

From a legal point of view, what Senator O'Leary calls a one liner would cover that. However, as I said earlier we have to take account of some other circumstances. In my view — and I think some Members of the House would share this view — the ideal situation would be one in which a complaint was made in writing. For a number of reasons, including the requirement that complaints be made in writing, some people would be put off making a complaint. We have allowed, properly, for the possibility of making a complaint orally. Obviously that has to be recorded and forwarded to the board. As I said, I would expect, though I have not discussed this matter in detail, that there would be a standard form on which such complaints would be recorded. I would see no difficulty either in ensuring that at the moment the complaint is recorded in the station, that it be shown to the complainant or that the acknowledgment would be accompanied by a copy of that record. I take the point made by Senator O'Leary about the difficulties that might arise afterwards.

I do not want to repeat in great detail something I said on Second Stage but the Minister was not here then. I am concerned about how people will feel about making a complaint in a Garda station. I gave an account on Second Stage about the one occasion on which I was involved in making a complaint about misbehaviour by a member of the Garda. I was not the victim of the misbehaviour, I was speaking on behalf of somebody else. I went into a very large Garda station in Cork and there were about 40 gardaí in the station sitting around the fire as it was a cold winter's morning. One of the gardaí came to the desk and spoke to me very politely. When I said I wanted to make a complaint about the behaviour of a member of the force, a frosty silence descended on the entire Garda station and every single word I had to say about the complaint was taken in, not just by the individual who less than enthusiastically was writing down my complaint, but by every member of the Garda who was present in the station at the time. If people, — particularly outside Dublin — are going to identify the Garda station as the only place for making a verbal complaint, bearing in mind that evidence shows, and this has been my experience, too, that the people who come in contact with the law most frequently and who have the most grievances about the law tend to be people who will have greatest difficulty in making written complaints and would need assistance in doing so — it is obviously not practical or feasible to make a regulation saying that under all circumstances such complaints should be heard in private. Nevertheless, it should be possible to suggest in some sort of guidelines that, as far as possible, people making complaints under this legislation should have their complaints dealt with in some privacy so that they can not be overheard by other members of the public who are present and particularly by other members of the Garda. The function of the Garda in this case is simply to transmit a complaint as an agent of the complaints board and there should be no necessity to go into a Garda station and have the entire membership of the Garda listen to your complaint. There should be some element of privacy involved. My own experience was somewhat awesome but, as the Minister can see I survived fairly well but I would not wish it on anybody else.

I think Senator Brendan Ryan would agree with me that one would have to travel a lot of the country to find a station in which there would be at one time 40 gardaí sitting around a fire.

I was making an estimate. The Minister was very good at making estimates himself.

I am grateful to Senator Ryan for that piece of folklore which we must classify in the annals of mythology but I take the point he is making. In most cases where people live outside an urban area and are going to a Garda station to make a complaint, most frequently they will go to a Garda station where the station party consist of a sergeant and two or three gardaí or, in a number of cases, where the station party consist of one or two gardaí and there is no sergeant. I would invite Senator Ryan to look again at the provisions of section 4 (1) (a) which reads:

A member of the public who is directly affected by, or who witnesses, any conduct of a member and who wishes to have a complaint concerning that conduct considered by the Board shall himself or through his solicitor or, in the case of a person under the age of seventeen years, through a parent or guardian or, in the case of a person who is mentally handicapped or mentally ill, through a parent or guardian or some other person interested in his welfare make a complaint in relation thereto orally, or send or give it in writing, to the Board at the office of the Board, to a member at a Garda Síochána station or to a member above the rank of chief superintendent at a place other than a Garda Síochána station within six months of the date of the conduct.

That provides a number of different channels and circumstances through which a complaint can be made. In that we have recognised the central point Senator Brendan Ryan was making — which is a quite legitimate point — that people who have complaints to make about a member of the Garda might feel constrained in making the complaint directly to another member of the Garda Síochána. Of course, the complaint does not have to be made in the station to which the member being complained of is attached. It can be made in any Garda station. As I mentioned, there is a procedure under which the complaint can be made to a person above the rank of chief superintendent at a place other than a Garda station. I freely admit that that is a fairly limited channel. There are not all that many people above the rank of chief superintendent, those in question would be the assistant commissioners, deputy commissioners and the Commissioner. There are not many of those and they are not very accessible to people with complaints to make. We provide also that the complaint can be sent or given in writing to the board at the office of the board so that as far as possible we have provided a sufficient variety of channels to get over the problem mentioned by Senator Brendan Ryan which I fully agree is a problem and is the reason for our providing all those different channels.

Perhaps I felt that there were 30 or 40 Garda present but it definitely seemed like an over-powering number and I do not usually feel overpowered. It was a unique experience and the Minister has taken it quite seriously. He is accepting my point but he is not accepting some of the consequences or realities of Irish life. Large sections of our population, for instance, do not know solicitors or members of the Garda above whatever rank is specified. For a large section of urban Ireland outside Dublin — people in Cork, Limerick, Waterford and Galway — the only place they will know of to make a complaint is the Garda station. Large sections of our society would have difficulty in making a written complaint so they will make a verbal complaint and the prospect of not being able to make it in conditions of some privacy will intimidate many from making complaints. I do not ask for a change in the legislation but it would be helpful in terms of guidelines to Garda stations about dealing with complainants under this legislation, if it was suggested that as far as possible complaints should be heard with a reasonable degree of privacy.

I should like the Minister to comment on subsection (6). It says that where a complaint has been made a member can still be charged with an offence relating to that conduct. But it goes on to say that the member shall not be charged except with the consent of the DPP. Would the Minister tell us what is the purpose of this?

This subsection makes it clear that a member of the Garda Síochána may be charged with an offence notwithstanding the fact that a complaint could be made in relation to the conduct in question. If, for example, the gardaí had evidence that a member had assaulted a member of the public, they could proceed to charge the member with the offence and need not wait for the person who was assaulted to make a complaint under the provisions of the Bill.

It also provides that where a complaint has been made the member may not be charged with an offence in relation to the conduct alleged in the complaint except by or with the consent of the DPP. The importance of that is that the bringing of a prosecution against a member who is the subject of a complaint, particularly a prosecution that results in his acquittal, affects the action that the board may take in relation to the complaint. For example, the board cannot refer a breach of discipline to a tribunal if the breach is in substance the same as the offence of which the member has been acquitted. In the circumstances the DPP is the most appropriate person to decide whether or not to prosecute the member who is the subject of a complaint.

I thank the Minister for that explanation and I agree with it. I would ask the Minister to help me with one point with regard to concurrent investigations. Where it comes to the attention of the police authorities that a person has been assaulted, using assault as an example, normally they make their own investigations and in due course the person is charged. Where the alleged assault was allegedly carried out by a member of the force and is the subject of a complaint, as I understand it, it goes through the complaints procedure and afterwards through the preliminary stages and ultimately an investigating officer is appointed. Is all investigation of the matter, both in its complaint complexity and relative to any criminal prosecution vested in that investigating officer?

Is there a residual power of investigation that remains with the force as in the normal way pending arriving at the stage of the appointment of the investigating officer? I am not talking about the case where you have to take action which is covered by subsection (5), that in an emergency you must preserve the situation. Will other normal investigations have taken place in the meantime quite separate and distinct from the complaints procedure? At what stage will the power of investigation switch from the ordinary procedure to the investigating officer who has been appointed by reason of the complaint having been made?

Once the complaint is sent to the board the procedure that is provided for in the Bill would have to be followed. All of that investigation would be carried out by the investigating officer subject to the overview of the investigating officer that is provided for elsewhere in the Bill by the chief executive or by the board. All of the investigation of that complaint would be carried out by the investigating officer.

I would bring the attention of the Senator to section 6 (1) (b) which provides that:

Where it appears to an investigating officer that the conduct alleged in a complaint may constitute an offence, the law and practice applicable to the investigation of offences shall, subject to section 4(6) of this Act, apply in relation to the investigation.

That sets out very firm guidelines for the investigating officer as to how he must go about his investigation.

I understand that. But where there is an alleged assault by a member of the force and there is not actually a formal complaint by the person subject to the assault, presumably the members of the Garda Síochána would, in pursuance of their duties, be investigating that assault in any case. If after a period of two months a formal complaint is then made by the person, is the investigation stopped, pending the investigating officer getting on with the business of processing the formal complaint?

The Senator will correct me if I am wrong in saying that he is imagining the following kind of case where as a result of some activity by a member of the force and without a complaint having been made by the public it appears that that member might have been in breach of Garda discipline regulations.

Or a breach of the law.

Yes, a breach of the law. The disciplinary requirements of the force would require an investigation to be carried out internally into that kind of conduct. If a complaint is subsequently made by a member of the public, that complaint must be dealt with under the procedures that are set out in the Bill. The Bill is designed specifically to deal with the way in which complaints by members of the public are treated so that an investigating officer would be appointed. That investigating officer would clearly be able to have at his disposal the results thus far of any previous investigation that had been carried out in the force.

Would the police investigation stop or would it run concurrently with the other investigation?

It would run concurrently because the conclusion arrived at in relation to the complaint would clearly have implications for the disciplinary action that would have to be taken in the force.

On a point of clarification. Could a member be subject to, firstly, internal Garda disciplinary regulations and, secondly, the Garda Síochána (Complaints) Bill, if enacted, and, thirdly, the criminal law in respect of one particular activity if appropriate complaints have been made? Is the Minister satisfied that a member should be subject to the rigours of all three? Are we talking about double jeopardy?

We are not speaking of double jeopardy. We are talking about different ways of investigating and arriving at a conclusion about a particular event.

Question put and agreed to.
Section 5 agreed to.
Question proposed: "That section 6 stand part of the Bill."

Would the Minister explain the thinking behind section 6 (1) (a)?

The Commissioner shall appoint a member of the Garda Síochána (in this Act referred to as an investigating officer)—

(i) not below the rank of superintendent, or

(ii) if he considers that the circumstances so warrant, of the rank of inspector...

That appears to be almost contradictory. On the one hand, the Minister is putting it very strictly that it cannot be below the rank of superintendent. But then it says "if the circumstances so warrant it, below the rank of inspector". Effectively, what is being said is that one might as well put in "the Commissioner shall appoint a member of the Garda Síochána not below the rank of inspector". Is that not the sum total of what is available to him? Why does the Minister say he cannot appoint somebody below the rank of superintendent and then qualify it immediately by saying if he considers the circumstances so warrant it he can appoint an inspector? That is a total contradition. This has been used in the Criminal Justice Act. He had to appoint a chief superintendent if he thought a chief superintendent was not good enough. Would the Minister explain what is the reasoning behind this?

The explanation is simple. It is not one that will give the Senator any great difficulty. The norm is that the commissioner would appoint a superintendent to investigate cases. Where, however, he found that the matter was not of very great importance, he could appoint an inspector or where, for example, he found that because of the exigencies of the situation a superintendent was not available, he could appoint an inspector. The reason for putting the reference to "not below the rank of superintendent" first is to indicate clearly that in the normal case it would be a superintendent who would investiagate the matter.

Senator O'Leary is right about this. I see no necessity for wording it as it is. It is quite likely to lead to some kind of legal proceedings at some time if an inspector is appointed. The contention is made, why was it not a superintendant and what were the special circumstances which warranted the fact that it should be an inspector rather than a superintendant? I can visualise this giving rise to quite ridiculously complicated proceedings and applications in another place because an inspector was appointed instead of a superintendent and somebody is not able to show in a satisfactory way what the special circumstances were. I agree entirely with Senator O'Leary. Why not just say "not below the rank of inspector as seems appropriate" or something like that and allow the discretion to the commissioner to appoint whoever he thinks fit? It is one of the features of this Bill which is, as I have said before, very well intentioned. It shows great industry and great dedication to considering every eventuality but it will lead to complications. Senator O'Leary has made a very good point.

Again, my reply is that the intention is that in the normal case a person not below the rank of superintendent would be appointed, but that since there is a limited supply of superintendents and since there may be cases where, either because of a limited supply of superintendents or because of a relatively trivial nature of the complaint, it could safely be investigated at a lower level, we will provide for the appointment of an inspector. If we were to say simply "an appointed member of the Garda Síochána not below the rank of inspector", then the norm would be that inspectors would investigate all of the cases, whereas the norm we want to establish is that it would be a superintendant who would do so.

Knowing the general state of my confusion about most things, it ill befits me to be talking about clarity of thinking, but I have noticed in a lot of Bills that come before this House — this has been my learning experience over the past five years — there are these little catch all phrases, stuck in on tailends of legislation to enable the people who are, perhaps, going to have to operate the legislation to do a lot more if they are stuck than would otherwise be the intention of the Bill. If the Minister means that where there is no Garda superintendent available or where the commissioner is of the opinion that the complaint is of a relatively minor nature, why not say so? Why not put it into the Bill that in the circumstances that, perhaps, where no superintendent is available and/or the commissioner is satisfied that the complaint is of a relatively minor nature, he can use a member of the force not below the rank of inspector? Why not say so rather than leave such strange phrases as, "if he considers the circumstances so warrant". I think that reflects sloppy thinking more than anything else and a desire to leave plenty of room to manoeuvre in case something comes up we have not thought of. I do not think that is a particularly good way to frame legislation.

It is a constitutional right.

It is very kind of the Senator to recognise my constitutional right. I feel a bit like the navigator trying to pass safely between the Scylla of Senator Eoin Ryan and the Charybdis of Senator Brendan Ryan with Senator O'Leary providing the storm from my left. The discussion we have just had shows very clearly some of the difficulty of producing a measure of this kind. Senator Eoin Ryan is complaining about excessive specification. Senator Brendan Ryan, while apparently beginning to complain about excessive specification and the tagging on in legislation of things that allow those who have to administer it to do eveything, still wants me to be even more specific about what ought to be done.

The Minister is very good at that.

Being so far safely in the middle and not on the rocks I am probably steering the proper course.

With this country in the state it is in, can being in the middle be a virtuous position? I could imagine a situation where somebody who is the subject of an investigation — I hope this never arises because I think it is the most awesome thing to visit on any member of the force — is told the recommendation is that he should be dismissed. He may say: "I was only investigated by an inspector; so, obviously, they started off thinking that it was not a very important case; even the Minister said in the Seanad that inspectors would be used only in cases which were not considered to be so important".

I certainly would not like it to stay on the record that the Minister really means that you would only use inspectors where it was not so important because in those circumstances in my opinion you would be limiting the range of punishment which would ultimately be open to the complaints board, or whatever they are to be called. I would consider the suggestion I made that it would be a straight person, not below the rank of inspector. If that is what the Minister considers appropriate, I have no objection to it. That is far better than the way it is drafted at the moment.

I would warn the Minister against allowing the view to prevail that it is only or primarily in cases where not important matters were being investigated that inspectors would be appointed. That should not be the case because circumstances might arise where inspectors were appointed and that this would subsequently give rise to a situation where somebody has to be punished very severely for something that has been proved.

Section 11 provides for an appeal board so that the kind of case in which the conclusion indicated by Senator O'Leary would be arrived at, would not only have gone through the normal hearing but it would also have gone through an appeal.

Obviously, we are not going to get anything on the inspector and superintendent. We will not go into that any further, or at least I will not. I cannot speak for my colleagues.

Quite a number of Members referred to the use of the expression "as soon as may be" during the course of Second Stage. During section 6 this is used in quite a number of cases. It is used in section 2 (a):

An investigating officer shall complete the investigation under the section as soon as may be, and if he is unable to do so within the period of 30 days...

I can understand that flexibility has to be provided for in that regard. The idea of an interim report within 30 days is very good. I congratulate the Minister for that, though it adds a certain complication to the investigating officer's brief to have to do that. Leaving aside that for the moment, it is also probably an extra hurdle he has to overcome. You can imagine the situation where a report is prepared by an investigating officer beyond the period of 30 days and he had not produced an interim report, would that invalidate the whole procedure? I know that if I was arguing for a garda who was in trouble, I would say it did. I would argue that although, say, 45 or 60 days had been involved, there was no interim report. There is the requirement to produce an interim report. I would be arguing along those lines if I was professionally representing a member of the force but I hope I never am, that it will not arise that anybody will need professional representation.

The second point I should like to make is relative to 2 (b), which says:

An investigating officer shall, as soon as may be after the completion of the report on this section, furnish a report in writing...

Is there any way we can tie that down a bit further? The phrase, "as soon as may be", is as I understand it, probably the least urgent of the time constraints put on people in legislation. There is "as soon as possible", "as soon as is convenient" and so on. What is the best judicial interpretation of "as soon as may be"? I am sure the Minister's officials have that available to them. I am sure it has been considered. Would the Minister share with us what the correct judicial interpretation of "as soon as may be" is?

I agree with the point Senator O'Leary has made. I should like the Minister also to define for us as far as he may, in ministerial sense, the meaning of the words "as soon as may be". Yesterday when discussing the draft regulations for the treatment of persons in custody in Garda stations, I raised the question of the meaning of the words "without delay", as distinct from "as soon as practicable". Indeed "as soon as practicable" seems to be a phrase that is creeping into legislation very frequently now. It is a phrase that one can put some understanding on but "as soon as may be" seems to be longer and open ended. Perhaps the Minister might try to define it for us in some way.

As a mere economist, I always feel some trepidation when lawyers get after me, who, obviously, have a perfectly clear idea in their own minds as to the meaning attached in legal practice terminology, to ask me to give them an idea as to how another judicial mind might interpret the phrase.

Senator Durcan mentioned our discussion yesterday where in one case the phrase used was "without delay" and in another case "as soon as practicable". "Without delay," as I pointed out yesterday, does not necessarily mean immediately. There are circumstances in which, for very practical reasons, "without delay" might not mean immediately, as in the case which we were discussing yesterday, mentioned by Senator Michael D. Higgins, of 30 people who were brought to a Garda station and it was not possible "without delay" to inform each one of them of the charges against her, as it was in that case. "As soon as may be" is a phrase that is hallowed by long usage. I would hesitate to guess how often it turns up in legislation, but it has turned up very often in legislation over a long period. The meaning that we would attach to it is that there must be no undue delay in the carrying out of whatever it is that must be done as soon as may be. For example, it would seen that when talking about section 6(2)(a), the investigating officer should complete an investigation under this section as soon as may be.

Multiplied by three.

If the Senator will bear with me, not having as agile a legal mind as he has, I tend to be more pedestrian and take it in stages: the investigation must be completed as soon as may be. That means that it should not unreasonably be held up. It means that it should not be suspended in the interest of doing something that is of a less urgent nature than that investigation. If the investigations officer is unable to complete his investigation within 30 days from the date of his appointment, he has to furnish an interim report. Now he has to furnish that interim report as soon as may be after the period of 30 days has elasped. That means that once the 30 days have passed and he has not finished his investigation, he must, as soon as he can, produce an interim report. Again, he cannot prefer a less urgent task to the furnishing of that interim report. In each one of these cases Senators will see that it would be unrealistic and impractical to write "immediately" instead of "as soon as may be".

As soon as possible.

In my view "as soon as possible" has a less imperative ring to it than "as soon as may be". We may have to agree to differ on that, but "as soon as may be" in my view means as soon as he possibly can. Senators may be misreading the word "may".

On the other point raised, it would be important that if the investigation had not been completed within 30 days, which I think is a reasonable period, there should be an interim report so that everybody concerned could be assured that the investigation was not simply being long fingered. If it appeared, during the course of an investigation that the investigating officer was not carrying out all of these things as soon as may be, and that he was preferring less urgent work to the investigation he was carrying out, he would begin himself to run the risk of it being charged against him that he was neglecting his duty.

On that "as soon as may be", there are two points I want to come back to. Could we talk first about "as soon as may be", and what it means? My interpretation of "as soon as may be" is that it is certainly less urgent than "as soon as practicable" and probably less urgent than "as soon as possible"? It appears to be a very loose choice of words that could reasonably be put in there. I would say "as soon as may be". Look at it from the outside: Somebody has a complaint being considered and feels nothing is happening. He writes to the board and asks what is happening. Why is he not getting a result of the complaint? Forget the investigating officer for the moment. Just take the chief executive who must also submit things as soon as may be.

Suppose two months had elapsed between the receipt of the report and the taking of action by the chief executive officer, would that be within or without the limit of "as soon as may be"? In my opinion there is no way he could go to court and say, "they are refusing to consider my complaint because they have not done it within a period of two months". That is not practicable. As soon as may be might be six months, or nine months. And that is, as Senator Durcan said, in respect of each step of the procedure. Now you are talking about a situation where the investigating officer shall complete an investigation as soon as may be. Then after the completion of an investigation, there is another period as soon as may be in which to furnish a report. Forget the interim report for the moment. The chief executive then has another "as soon as may be" in presenting the report to the board. It just appears that the "as soon as may be" provisions are being compounded one upon the other.

Senator Durcan is quite right in saying it is "as soon as may be" multiplied by three. The first "as soon as may be" is for the completion of the investigation, the second relates to the writing of the report and the third to the submission of the report by the chief executive officer. That appears to be a very slow procedure. In the circumstances the Minister should look again to see if it adequately conveys the urgency which he, no doubt, wishes to convey or see if there is any other form of words which could be used. Lastly, dealing with that point, I ask the Minister again if he has got advice and if he has, would he share that advice as to whether there has been a judicial interpretation of "as soon as may be"?

The phrases "as soon as may be", "as soon as practicable" or "as soon as possible" are all somewhat airy-fairy and difficult to define. Certainly, for the citizen who makes a complaint they are phrases which are difficult to comprehend. I would refer the Minister once again to the regualtions for the treatment of persons in custody in Garda stations, which we discussed in draft form yesterday. Regulation 9 which is headed "Information to be given to an Arrested Person" uses a delightful phrase when it says:

The member in charge shall without delay inform an arrested person or cause him to be informed...

I think the phrase "without delay" is more precise. It is more easily understandable to the person who would make a complaint. I would ask the Minister to consider inserting in section 2(a) in substitution for the phrase "as soon as may be", the phrase "without delay". It is a phrase which is more easily understood by the citizen and it is more precise; it is more suitable for this type of section bearing in mind the nature of the legislation we are talking about and the nature of the section entitled "Investigation of Complaints".

I would have to say, with respect, that the comparison Senator Durcan is making with the treatment regulations is not really all that relevant, although I know he is an admirer of the language in the regulations. The reference to "without delay" is in the circumstances of somebody being furnished with particular information when taken into custody. The person who receives it and the person who gives it are both present at the same time, so that "without delay" is an entirely appropriate phrase to use in that case.

I am not inclined to follow Senators O'Leary and Durcan in their remarks about the cumulation of the phrase "as soon as may be". Where an investigating officer is appointed — ignoring all of the frills for the moment — he must complete his investigation "as soon as may be". He is being supervised and he has to produce a report for the chief executive of the board. The chief executive of the board will be spurred on in his request to the investigating officer by the provision that the report be produced "as soon as may be". He will want to know and satisfy himself that it has been produced "as soon as may be". Further, if an investigating officer has only one case to deal with and it is a fairly straightforward case it would be perfectly within the competence of a chief executive to call him in and say "Look, superintendent, this is a fairly simple case. I want a report from you quickly. It has taken you four weeks and so far I have not seen anything. That is not ‘as soon as may be' in my book. Now, go away and produce your report quickly". Therefore, "as soon as may be" could in some cases be less than 30 days; in some cases it might be a few days; in other cases it might be longer. If an investigating officer has, at a given moment, five or six cases on hand it would be unreasonable to tell him that he should complete an investigation at any other time than "as soon as may be", taking into acount the work he has to hand. It might also be unreasonable to require him to produce an interim report on each case immediately after the 30 days had elapsed from the beginning. Each one of these situations would have to be judged, and "as soon as may be" in each case would have to be judged in the light of the circumstances of each case.

On the specific question raised by Senator O'Leary I cannot illumine him on a judicial interpretation of the words "as soon as may be". I would prefer not to venture into it because it was in an area of planning which would not be of direct relevance to this. As Senator O'Leary and I both know, the time scales involved in urban planning matters are rather different from the kind we have in mind here.

Before Report Stage I will look at the judicial definition of "as soon as may be" and, if necessary, I will share my views with the Minister by way of an amendment.

Would the Minister like to comment on the point I made about the inclusion of the interim report provision? An interim report is required. I do realise that it can be done "as soon as may be" after the exploration report. Let us put forward two possibilities, one is that an investigation is completed 32 or 33 days after it started and for one reason or another no interim report is ultimately made. Will that invalidate the procedure? I think there will have to be an interim report even though it is actually produced at the same time as the final report. There will have to be an interim report if the procedure is to be followed. I would warn the Minister — this is not objecting to the procedure as such — that the standard of proof required in this is a sort of quasi criminal standard of proof. Every step that is required by law to be taken will have to be taken. When you are talking about the possibility of dismissing somebody from their means of livelihood any step that is missing may be held to invalidate the procedure. You may be able to say that the person was not prejudiced by the failure to produce an interim report. That would be the defence I would put down if I was on the other side, that there was no prejudice by the failure to produce an interim report. At the same time I warn the Minister that it is a matter to which he should give some attention.

Could the Minister explain again to my less than sharp wits what precisely is the objective of subsection (5)? I understand it to be a device whereby the board, through the chief executive, may carry out investigations themselves without the assistance of the gardaí in circumstances where they think it is appropriate. I would like to have my understanding clarified before I start involving the Minister in a discussion on it.

To come back first to Senator O'Leary's question I could quite easily conceive a situation in which a report would be produced in the time scale which he mentioned. The report would begin by saying that it is both an interim and a final report. That would certainly resolve any of the doubts that he raised. There is no objection to a final report being also the interim report.

On Senator Brendan Ryan's question, subsection (5) is there to empower the board to request the chief executive himself to order or carry out an investigation if it is not satisfied that the investigation is being carried out properly by the investigating officer first appointed. It is in the nature of a backstop so that the board can always be assured that if it is not happy about the way an investigation is being carried out it can have the investigation carried out at a higher level and by somebody who is more directly in touch with the specific concerns of the board in the operation of the Act.

On subsection (8) I cannot reconcile paragraphs (d) and (a). It appears that paragraph (a) details a procedure where in matters which the investigating officer judges to be liable to affect the security of the State he shall refer the matter to the commissioner. Then paragraph (d) says:

Nothing in this subsection shall prevent the making of arrangements between the Board and the Commissioner whereby, in a particular case or more generally, a matter referred to in paragraph (a) of this subsection may be dealt with by some other procedure.

I cannot understand the necessity for paragraphs (a), (b) and (c) given that paragraph (d) says what it says. I find it objectionable that it would appear that the investigating officer, the commissioner and the Minister together could decide that certain matters could be withheld from the board. I can fully accept that there are matters which might be contained in a report which should not be published. I can fully accept that there are matters that the board itself should not publish. I cannot accept that it could be the decision of the investigating officer, the commissioner and the Minister as to which matters affect or are liable to affect the security of the State. We have an unfortunate history in this country of having a fairly broad definition emanating largely from the Minister's own Department of what are matters liable to affect the security of the State. I believe that the board should have a say, if not the final say, in deciding what is liable to affect the security of the State. It appears that paragraph (d) does allow for that. I would like first of all to have my own understanding as to the relationship between paragraph (d) and the remainder of the subsection and then perhaps we can go on from there.

This subsection makes provision for non-disclosure in the investigating officer's report of information that would otherwise be appropriate for inclusion in it where it would be liable to affect the security of the State or constitute a serious and unjustifiable infringement of the rights of some other person. As Senator Brendan Ryan has pointed out it is only if, and to the extent that the investigating officer, the Commissioner and the Minister for Justice are in agreement that the disclosure of the information would be liable to have those consequences, that a direction may be given that the information is not to be included in the report. Where a direction of that kind is given, the fact that it was given must be stated in the report together with such part of the information as the Minister in this case might have authorised to be given for the assistance of the board.

We have two particular concerns, one relates to dangers to the security of the State, others to dangers to the rights of other persons. I think Senator Brendan Ryan takes the point about the security of the State although I note that he has some hesitation about the breadth of the definition that is used. I do not intend to pursue that matter with the Senator here as it is a more general concern.

The Minister might have to.

These remarks are getting more threatening by the hour.

I could not let that go. I would propose to raise it if I want to.

I must respect the Senator's rights but I, too, have certain liberties in the matter although I am sure the Senator and I will find a suitable occasion to discuss the matter. If the Senator wants to pursue that, then I must agree with that.

Senator Brendan Ryan did raise the matter at Second Stage. I stated and I quote from my reply in relation to paragraph (d) of the subsection:

This provides that nothing in subsection (8) shall prevent arrangements being made between the board and the Commissioner for dealing with cases covered by the subsection in some other way. For example, the Commissioner could disclose information of the kind that we are concerned with here, that is security information or other information that would place a person at risk, to the chairman of the board alone on a personal basis which it would be dangerous or risky to disclose to all the members of the board. This is a particular reason for having this provision in the Bill.

For example, a case where that provision might be invoked would be where information might otherwise have to be disclosed about an informer. The Senator, while he may feel that here is excessive breadth in the definition of what constitutes matters of national security may also be aware that it is not unknown for senior Garda officers not to be told by subordinates of theirs who the subordinates' informers happen to be if it is believed that that would either put the informer in some danger or reduce the security that would attach to a particular source of information. These same concerns are here.

I would consider it a safeguard that for this provision to be invoked three people have to agree that this is the appropriate procedure, that is, the investigating officer, the commissioner and the Minister for Justice. It would not necessarily be the case that if it were the name of a person that was not going to be revealed each of those persons would have to know the name but it would be a necessary condition that each of them would have to be persuaded that it was necessary to act in that way.

There are three different interests involved. The investigating officer has his own concern with concluding his investigation properly and professionally. The commissioner has his own concern as being the chief disciplinary officer of the force and the guardian of its good name and the one who is obliged to make sure that it is an effective force and the Minister for Justice who must have regard to the public interest in the matter and whose primary concern must be with the general public interest rather than with the interest of a particular case. If those three people can agree that it is appropriate to proceed in that way that decision will not be taken lightly nor would it be taken in cases where there was not a very compelling reason for doing so.

Am I right in saying that paragraph (d) can only operate if the board and the commissioner agree, that if the board wanted a different procedure to operate and the commissioner declined to agree to that different procedure it could not operate and the provisions of paragraphs (a), (b) and (c) would then apply? What the board may wish can be vetoed by the commissioner in the first place — is that right?

Or vice versa, if the commissioner wanted to introduce a different procedure the board could have a veto? It could only be by agreement between the board and the commissioner that a procedure other than the procedure listed here could be followed?

The Offences Against the State Act and the Misuse of Drugs Act are two Acts which it has been alleged to me frequently have been used indiscriminately for purposes far beyond their intent. Since the Offences Against the State Act almost by definition relates to matters connected with the security of the State it would be very difficult for any investigating officer of the rank of superintendent to disclose any material connected with certain complaints. For instance, I know people who have had their premises searched or have been arrested under the Offences Against the State Act, and to endeavour to investigate a complaint like that would be virtually impossible. When a garda is asked in court why he has suspicions for arresting somebody under the Offences Against the State Act he almost universally claims privilege. In a situation where there is a wide area of public concern most of the complaints will not be capable of being adequately investigated, or at least the grounds on which a report is drawn up will be incomplete because large areas of the information will be withheld. I have no doubt that the commissioner, the superintendent and the Minister will have no difficulty in this regard.

Sitting suspended at 12.30 p.m. and resumed at 12.40 p.m.

Before the involuntary interruption of the business of the House, Senator Brendan Ryan was making the point that there was a danger that under the provisions of the Offences Against the State Act and the Misuse of Drugs Act when combined with the provisions of this section it would, in his view, be conceivable that a great deal of information might be withheld from the board under the arrangements we were discussing. I have to make the point, first of all, that the fact that where this provision is invoked and used has to be notified to the board would, in itself, constitute a substantial disincentive to the frivolous use of the provision. Secondly, it would not at all be the case that the simple fact that a matter was being considered in the context of either the Offences Against the State Act or the Misuse of Drugs Act would not allow information generally to be withheld from the board in the report of an investigating officer. The kinds of information are very specifically set out. The grounds on which that procedure may be invoked are very tightly defined. Thirdly, I recall to the Senator that under section 4 of the Bill a wrongful arrest is one the types of procedure about which a complaint can be made.

I do not want to be too political about this. If the Minister looks back on the list of names of those who have held the office he now holds he would be hard pushed to argue that they were all such models of probity and rectitude that one could assume that their judgment on matters like the security of the State would be superior to the sort of person he has in mind as chairman of the complaints board. I do not know why the chairman of the complaints board could not be part of the decision making process about these issues. There is a whiff off this procedure which can actually exclude somebody as eminent as the chairman of the Garda complaints board or the chief executive, or both, from even an assessment of the quality of the information on which these judgments are being made. There are obviously good legal and constitutional reasons why the Minister of the time would be involved. I do not understand why there is this suggestion that somehow it would be improper or a risk to the security of the State if the chairman or the chief executive were to be drawn into the confidence of the investigating officer, the commission or the Minister.

I accept completely that there are areas where the security of the State could be threatened and that there are areas where personal privacy could be seriously diminished. The necessity for a provision like this is not at issue. The question is why should not some part of the complaints procedure personnel be involved in the decision? Is there some overwhelming reason involving the interest of the State which suggests that these people should not be informed? I do not understand, if there is. This is just the natural reaction when the issue of the security of the State comes up, which is, to hold it within the State apparatus and not let it out to anybody else. If my suggestion were adopted it would be very healthy for everybody and would mitigate the possibility of abuse.

It is true that improper use of arrest powers is an offence under the schedule that the Minister referred to. It is also true that it is very difficult even in court, to get a garda to explain why he arrested somebody under the Offences Against the State Act, other than to say that he had reasonable suspicion. On the grounds for that suspicion, by and large, a garda will claim privilege. I cannot see us being able to do much in terms of detailing why people are arrested under the Offences Against the State Act beyond a garda saying he has reasonable suspicion, if the garda involved can convince the investigating officer, who, I am sure will convince the commissioner, who I am sure will convince the Minister, that national security is threatened. Once one gets involved in the Offences Against the State Act one is on very shaky ground, and is liable to be accused of being sympathetic to the aims, if not the activities, of the Provisional IRA. People can immediately get in on very tricky ground. It would confirm the view that this was a body which had the power to look at matters and to take decisions about matters, even where the State might feel a conflict of interest. As it stands, it seems that where the State is happy that something is a threat to national security there is little the complaints board can do about it. The simple solution would be to involve the chairman of the board in the process of deciding where national security or questions of personal privacy were so important that they had to be left out of a report.

Progress reported; Committee to sit again.
Sitting suspended at 1 p.m. and resumed at 2 p.m.