Dáil Éireann díospóireacht -
Thursday, 20 Mar 1986

Vol. 364 No. 11

Garda Síochána (Complaints) Bill, 1985: Second Stage (Resumed)

Question again proposed: "That the Bill be now read a Second Time."

Mr. Hyland

I am disappointed that the Minister for Justice is not in the House to hear this part of the contribution to the debate. I say this because what I intended saying would have been very relevant to the Minister's presence. I intended appealing to the new Minister to use his good offices in improving the relationship between his Department and the Garda and also between himself and the Prison Officers Association. Without going into the implication, political or otherwise, of my plea, I put it to the Minister that it is very much in the national interest that in both instances relations are improved. Both the Garda and the prison officers carry out an exacting, dangerous and demanding job on behalf of the people. We cannot afford the waste of time and energy that is resulting from the impasse between the Minister's office and these two vital areas of law enforcement. Because of this new portfolio, the Minister has an excellent opportunity of taking the initiative in this area. I am confident that there is a wish on the part of the prison Garda and on the part of the prison officers also to have this undesirable impasse brought to an end. This cold war has gone on for far too long.

I am sure the Minister will agree that legislating in a vacuum and in the absence of dialogue and discussion as well as of goodwill, particularly in this sensitive area, can lead only to a weakening and a deterioration in an area of public administration which more than ever needs to be strengthened. We in Fianna Fáil do not regard this area in any way as one for political point scoring. The Minister can be assured of our assistance in bringing forward legislation which strengthens the law in this area following the full implementation of the Criminal Justice Act and which will also protect fully the public interest and the rights of the Garda. We must strike the right balance between protecting the public interest and the rights of individual gardaí who operate on our behalf.

The publication of this Bill, taken in conjunction with the Criminal Justice Act, has generated a considerable amount of interest and has resulted in a number of submissions from the representatives of the Garda associations and other interested bodies. This is a welcome development but it was to be expected. We on this side have given serious thought and consideration to the views that have been expressed to us in relation to this area. To the extent that the public do not have the same organised facility for the expression of views as we have, it is important that in this House we exercise our judgment and our interpretation of the public interest in this very important area. I trust that the end product will be an Act which will provide sufficient power for our Garda to enable them to perform their duty freely and unrestricted while at the same time containing adequate safeguards for our citizens.

It should be restated that for the first time since the foundation of the State we have on the Statute Book an Act which empowers the Garda to arrest any citizen on suspicion and to detain him for questioning for up to 20 hours. That is a significant departure from the legislation under which the Garda had to operate up to now. Because of the serious level of crime, we gave the Minister our full support for that far-reaching provision. We gave that support because we considered it necessary, particularly in view of the serious deterioration in law and order in recent years, the challenges facing the Garda force and the individual members of that force who place even their lives at risk in enforcing the laws which have been enacted in this House on behalf of the people.

I have no doubt that the provision of the Criminal Justice Act will be administered by the Garda force in a caring and professional manner. Nonetheless, we felt at the time — and it is still our view — that in the light of these new provisions the rights of the citizens need to be protected in legislation. We regret that the much needed provisions of the Criminal Justice Act have been delayed unnecessarily for a period of over two years pending publication of this Bill. If we in this House are as concerned as we say we are about the need to control violence and escalating crime, if there was the urgency for bringing into the House the Criminal Justice Bill, which certainly was the case at the time, it does not make any sense that the provisions of that Bill have not yet been implemented.

They were debated at length in this House over many months and contributed to in a significant way by Members from this side of the House, particularly our spokesman, Deputy Woods, and resulted in the tabling and acceptance by the Minister of amendments which totally altered the structure of the Bill as it was originally circulated. One of those amendments made provisions for the Bill which we are debating today. It was accepted at that time that there was an urgency and public demand — and even a demand from within the Garda force — that the new provisions of the Criminal Justice Act be implemented without delay. Yet we find over two years later that we are debating one of the provisions accepted on amendment on Committee Stage from speakers on this side of the House.

It is also a matter of growing concern that the Minister has not brought before the House a Bill which is also necessary for the full implementation of the Criminal Justice Act. That Bill is for the protection of persons in custody. We are no nearer now, two years after the introduction of the Criminal Justice Bill, to its full implementation. I do not want to make a political comment, but it is an established fact that the life span of this Government must of necessity be running out. They are into their fourth year and, even if they go the full term of five years, it is difficult to see how they will be able to implement every aspect of the Criminal Justice Act unless the two remaining requirements of that Act are treated with some degree of urgency.

We are anxious to dispose of this Bill as quickly as possible and are anxious to assist the Minister in any way we can in that regard. I must ask him, through his Minister of State, when it is intended to bring before the House the additional legislation for the protection of those in custody. Until such time as these two provisions are debated, agreed on and eventually incorporated into legislation, the gardaí will not have the advantages which we told them they would have following the acceptance of the Criminal Justice Bill and the Criminal Justice Act which followed it. This is a serious situation. I do not want to repeat myself, but we all realise now that the position is very serious with regard to the steady deterioration in law and order. I shall make a few general comments on that topic later.

It is a shame that in their fourth year in office the Government have failed to introduce the supporting legislation needed for the full implementation of the Criminal Justice Act. This has led to frustration and uncertainty in the Garda force. In debating the Garda Síochána (Complaints) Bill we are dealing with only part of the overall problem now facing our Garda force. It is true to say that individual members of the force operating on our behalf do not know exactly where they stand and what new regulations will govern their behaviour as individual members of the Garda Síochána. The sooner we legislate finally and put on the Statute Book the exact requirements of this House with regard to Garda performance, the sooner we shall have a estabilised Garda force and the restoration of harmony within that force, and the faster we shall get the fullest implementation of the law.

It is not right or fair that so much of the thinking and time of our gardaí must be taken in wondering what we in this House will do in relation to this Bill and ever promised legislation and where they will stand when it is implemented. There is, indeed an urgency about legislating in this area and I hope that immediately after the passing of this provision the Minister will bring before the House the remaining provision for the protection of people in custody.

The new Minister comes into this office with a certain advantage. There is always the danger when a Minister has been in office for a considerable period of time, as his predecessor was, that one can become entrenched in one's views and become a prisoner of one's actions. A change of portfolio provides an opportunity for a new approach. I am a little disappointed that the Minister for Justice, Deputy Dukes, is not in the House today to hear what I say. I know that the Minister of State deputising for him will convey my views to him and we want to reassure the Minister that we are as concerned as he is about the need to tighten up and introduce this new legislation. I am sure he knows that the gardaí are equally anxious. The new Minister is a placid gentleman and should be in a position to reintroduce the dialogue necessary to create the goodwill which is essential in this very sensitive area. Legislating in a vacuum without the backing, support, understanding and goodwill of those for whom we are legislating could not work successfully.

I ask the Minister to initiate immediately a programme of action for the upgrading and improving of the performance and working conditions of the Garda Síochána, to bring the entire Garda force into line with the improvements and upgrading of the forces which have taken place in other countries. At present our Garda, apart from having to deal with localised crime, are faced with the ever more serious challenge of international crime. Therefore, it is of the utmost importance that the force are kept fully updated in terms of training and the most modern techniques which are available to police forces around the world.

Discipline within the force is no substitute for management. If we are serious about the organisation and management of the force, the first step must be the establishment of a Garda Authority. A lot has been said and written and many views have been expressed in this House in relation to the overall structure of the Garda and there are conflicting views in relation to the establishment of a Garda Authority. The establishment of such an authority would put the Garda on a new level and give them the independence they desire and which would assist them. When the Minister is replying I should like him to comment on this matter and to tell us if he is thinking of establishing an independent Garda Authority and if it is his intention to bring in legislation in this regard in the near future.

It is a pity that we deal with legislation in such a fragmented way in this House. In my contributions on the Bill dealing with the reorganisation of the courts I made the point that there is far too much fragmentation of the various Acts with which people must comply. In the area covering the performance of the Garda Síochána I hope the Minister will lose no time in bringing provisions before the House which will, once and for all, consolidate the legislation under which the Garda operate and clarify the role of the force in the future, the need for an independent Garda Authority and all the other matters relating to this aspect of the performance of the force.

We must legislate for the protection of the public while, at the same time, protecting the rights and working conditions of members of the Garda Síochána. It is a difficult task, but it can be resolved to the satisfaction of both by reasoned and fair debate. I interpret the mood of the public at present in relation to the Bill as wanting and expecting us to give all the powers to the Garda which they need to enable them to perform their duties in a free and unrestricted way while at the same time — this is where it becomes difficult for us as legislators — endeavouring to protect the public interest arising from the strengthening of the legislation and the increased powers which we are giving to the Garda in the Criminal Justice Act. In the very disturbing social and economic climate at present this is not an unreasonable expectation on the part of the public. All that the Garda ask is that in performing that difficult task that they should be given the same degree of protection and privilege as other sections of the community and, as one garda put it to me, the same rights and protection which the criminals are given under legislation also enacted in this House. That is a fair, reasoned and understandable request.

The Garda should feel safe and confident in the knowledge that this House will legislate fairly on their behalf. The House and the Garda generally will accept that the full implementation of all aspects of the Criminal Justice Act will provide the force with substantially increased powers. I indicated earlier what these powers were, but I am sure Deputies will accept that the provision for arrest and detention without being charged for up to 20 hours is a far reaching one and was not conceded lightly in the House. Because it is far reaching, the House will accept — and I know the Garda will accept — the need to protect the public interest and also the need to protect those arrested and detained.

It is also worthy of note that the Minister's predecessor, who was critical and slow to accept the principle of an independent tribunal, has gone overboard in terms of the sanctions which he proposes in the Bill as circulated. In the debate on the Criminal Justice Act, Members on this side of the House, particularly our spokesman, Deputy Woods, spent many tedious hours trying to convince the Minister that, following the far reaching provisions of the Criminal Justice Act, there was a need in the public interest and that of the Garda Síochána for the setting up and establishment of an independent complaints tribunal. The public would be happy in the knowledge that there was a procedure on the Statute Book through which they could make their views known in relation to behaviour which was not in accordance with the normal accepted standards of Garda performance.

Members of the Garda Síochána would be equally happy to know that there was provision for a fair and independent examination of allegations which might be made against individual gardaí. That is why, despite the very lengthy, tedious arguments put forward on this side of the House, the Minister at that time was reluctant to accept the need for the principle of an independent tribunal. Yet, for whatever reason, by the time he got around to circulating this Bill, he had made provision for sanctions which far exceeded anything put forward by Members who spoke during the debate.

The Minister's action in this area fully vindicates the judgment and the foresight of Fianna Fáil on the need for the establishment of such a tribunal. It is obvious that, following the debate on the Criminal Justice Bill and the reasoned arguments put forward in the House, the Minister decided that such a tribunal was essential. What surprises all of us is that, despite his initial resistance during the debate, he has now circulated in this Bill provisions which are extreme and are viewed as being so by individual gardaí. I regret to say that this change by the Minister in relation to the Bill circulated and the establishment of a complaints tribunal reflect an over-reaction on the part of the Minister to a series of unforgiveable events within the Garda Síochána which have been condemned not only in this House but also within the force itself.

I do not have to spell out for the House the series of rather tragic events which took place within a very short period of time within the Garda. These actions were immediately condemned as being unacceptable by the representatives of the various Garda associations and by the Commissioner. It is sometimes forgotten that before this Bill came before the House there were in operation very strict disciplinary procedures within the Garda for dealing with any kind of misbehaviour by individual members of the force. It is sad and tragic for the force that these events took place because they have tended unfairly to mar and tarnish the image of the force in the public mind. All these matters have been dealt with within the existing disciplinary procedures in the Garda.

An Ceann Comhairle

Some of these things may be sub judice. I think they are. There are some High Court actions pending.

Mr. Hyland

I have not referred to any particular case.

An Ceann Comhairle

No, the Deputy has been careful but it might be possible to identify some of them.

Mr. Hyland

I referred to a series of events which took place within a short period of time and tended to mar the image and the public perception of the Garda force. When one examines the performance of the Garda Síochána over a long period, the number of incidents is extremely small, bearing in mind the changes which the force have had to face and the provocation on the ground in relation to individual garda performance. I know that the public at the end of the day will recognise as they have always done the credibility of the Garda Síochána and accord them the respect they are due.

The overall performance of the Department of Justice in recent years has been one of reaction. They have been reacting to events after they have occurred rather than anticipating their occurrence and taking timely action. The evidence of this approach to management has been reflected over the past three years in the succession of crises within the prison system. I know the Chair will tell me that this is not relevant to the Bill but I make this passing reference to give an example of the point I am making. Crisis has existed, although not to the same extent, within the Garda Síochána also. The new Minister should resume friendly dialogue and discussion with the representatives of the Garda associations.

Discipline is no substitute for management. What changes have taken place within the Garda Síochána following the Shercock case, the Kerry babies case, the tragic incidents at Ballinamore and the Bunratty incident? I will not refer further to those cases because of the advice the Chair has given, but I should like to know what action has been taken within the Department of Justice and the overall management of the Garda Síochána to ensure that there will be no recurrence of these incidents. It is true that members of the force have been disciplined but I put it to the Minister that a succession of events similar to those I have mentioned requires something more than discipline. That is why I made the comment that discipline is no substitute for management. If we are serious about the importance of the role of the gardaí and the challenges facing the force in the future we will have to give urgent attention and consideration to the management structure of the force.

I am not satisfied that all the young people at present joining the Garda Síochána have the dedication — perhaps vocation is a better word — which service in the force requires. That is not their fault. In the current extremely difficult economic climate young people are often compelled through necessity to take up employment which would not be their natural choice, if a choice were available in the first instance. I stress the need to upgrade and extend the period of training for Garda recruits. I spoke at length on this matter in the past and I believe the present course in Templemore is not sufficient to equip a new police officer with the training and knowledge needed to cope with the society in which we live. It is nothing short of expecting Garda trainers and lectures to have magical powers if they are to be expected to turn raw recruits into effective police officers in six months.

We have been giving much lip service, myself included, perhaps, to the need to up-grade and improve Garda training facilities for recruits. I do not know of any other job in which there is greater need for proper training than that of a garda on whom the public good depends so much. A period of six months would be inadequate in any other worker training scheme. I ask the Minister, therefore, to treat this as a matter of urgency because even the most dedicated young recruit will not succeed as a policeman if he is not given a sound basic foundation through his training. I do not have to spell out the other jobs in all of which much longer periods of training are required.

Since coming to office the Minister will be aware of the well founded reservations of members of the Garda in relation to certain sections of the Bill, and I hope he will resolve these matters through early consultation. There has been much concern in the force about these sections. I will refrain from making political comment, but I must point out that there are very strong views in regard to section 7(9). The late introduction of these provisions has created unnecessary conflict within the Garda. It is worthy of note that the Irish Council for Civil Liberties have been in conflict with the Garda on the matter of the retention of the right to silence, and the Minister must clarify his attitude in this respect and let us and the Garda know what are his views.

I am very concerned with the important proposals for the informal resolution of complaints and I suggest that unless the Minister agrees to modify that section by allowing some informal complaints to be dealt with and investigated at local or regional or, as it is known, at superintendent level, the entire system will break down and become ineffective. I am afraid the Minister is proposing to set up a totally unnecessary layer of bureaucracy which will continue to grow and to be self-defeating. He is proposing to transfer to Commissioner level an activity which up to now has been dealt with locally by a superintendent.

I do not know why this provision is felt necessary. The whole system will become clogged up and bogged down by the vast number of complaints that will have to be forwarded to headquarters and dealt with there on a national level. As the sensible man he is, I am sure the Minister will see the justification for our argument that this should not become a matter of controversy between the Minister and members of the Garda, or between him and us. It is only logical that certain complaints should be investigated at county or regional level.

Another point I should like the Minister to give some thought to is that all complaints, justified or otherwise, will end up in the files of individual gardaí. I suggest this would not only be unfair but morally wrong. Files live on much longer than we will and it is important for members of the force that there will not be anything in their files that will in any way affect their promotion opportunities unless the complaints were justified and proven to be justified.

The ordinary rank and file in the Garda fear that every complaint, vexatious or otherwise, made against individual gardaí will filter through the system and find a resting place in the files of individual gardaí. My hope is that if complaints are to be dealt with initially at local level, the screening process that would ensue would ease the fears I have been expressing. On Committee Stage I hope the Minister will amend the Bill so as to modify the method of dealing with complaints. The importance of this legislation requires that this be done, and even if it takes time and lengthy debate to deal with it, in the end we will get a product which will be acceptable generally and, above all, operable.

Another point is failure to deal effectively with vexatious complaints against gardaí. I agree that all vexatious complaints must continue to be examined. I am concerned that the establishment of such a formal method of dealing initially with complaints will lead to an increase in the number of complaints lodged. As a result of this legislation and the publicity surrounding it people with a vested interest in lodging complaints against individual members of the Garda Síochána will lodge unfair complaints on an increasing scale. The Minister should give serious thought as to how to deal with the increasing number of vexatious complaints which are likely to arise and which will contribute substantially to the burden of work to be undertaken under the structure we are setting up here. Such complaints should initially be examined at district superintendent level as to credibility and following the assessment of the superintendent complaints could then be forwarded to a higher plane for further adjudication.

If this legislation is enacted as it stands, without modification of this section all our good intentions in relation to the Bill will be nullified. The more dedicated and efficient a garda officer is the more he will become a victim of such activity. There is a much greater risk of an efficient garda having complaints lodged against him. It was suggested to me that if this Bill is implemented as circulated it will be a deterrent to some gardaí in the performance of their duties. Surely that is a retrograde step not intended by the House or the Minister? Despite the legislation I am sure the Garda force will continue to operate credibly in the performance of their duties in accordance with legislation provided by this House. On the other hand, it would be a great pity if, through thoughtless acts on our part, for instance in relation to vexatious complaints, an individual garda was restricted in the performance of his duties.

Law and order generally are related to overall economic conditions. The breakdown in law and order at present is a symptom of society rebelling against the lack of opportunity in this country today. The high level of unemployment is a major contributory factor to the breakdown of law and order. If our economic policies are geared towards unemployment we must substitute social policies for job creation policies. If both job creation policies and social policies are missing we must resort to the least desirable solution, the enforcement of law and order by the Garda Síochána. We have failed effectively to implement an economic development programme which will create employment and which will eliminate social injustices. In the absence of this programme we are having to provide more money to increase the strength of the Garda Síochána to enforce law and order. That is an unsatisfactory trend. It would be better to tackle the root causes so that we would not have to demand increased security at more cost to the State. Because of our failures we are being forced to provide scarce resources to maintain law and order.

Another by-product of the breakdown in law and order is the spread of crime from the urban to the rural areas and crimes are so numerous and so serious nowadays that people can no longer get ordinary insurance cover to protect their homes. That indicates the serious deterioration in law and order which this Bill is trying to redress by providing additional powers for the Garda Síochána. Because the breakdown in law and order has now spread from the urban areas to the rural areas we have all experienced sad examples of——

An Ceann Comhairle

I do not want to interrupt Deputy Hyland but I must for two reasons. First, the Deputy is outside the scope of the Bill and, secondly, this is a confined debate and I must be strict in keeping Deputies to the Bill.

Mr. Hyland

I was making the point——

An Ceann Comhairle

I thought the Deputy was ready for a full flight into——

Mr. Hyland

I was making a passing reference because in this Bill we are trying to provide additional powers for the Garda Síochána to deal with the overall breakdown in law and order. I was giving as an example, by way of a passing reference, of the spread of crime from the urban areas to the traditionally safer havens of the rural community. I urge the Minister of State to convey to the Minister the need to resume the old style community policing we knew down the years. There is a great need for the closest possible co-operation between the individual garda operating on the ground and the local community. There is a need also for identification between the Garda and the community. The community watch, which is part of what we are talking about today, was a very welcome development and is operating very effectively in a number of areas. Great credit is due to the individual members of the Garda who are co-operating with the local communities. I urge the communities, organised or otherwise, to recognise that there is a vast amount of goodwill on the part of the Garda to assist them in this very vital and important area. I urge more voluntary leaders and community organisers to become more actively involved in the establishment of the community watch.

Although it has been in existence to a limited extent, there is a greater need for closer co-operation between representatives of the Garda and our post primary schools. The practice of allowing high ranking Garda officers or individual members to talk to leaving certificate students or lower classes about the operation of the Garda Síochána and their views on the co-operation which is needed between young people, the community and the force would be an advantage and I would like to see that development continued. I want to pay tribute to many individual members of the Garda Síochána who, in their local areas, are playing a role far beyond the call of duty.

An Ceann Comhairle

We are dealing with a complaints Bill and you are inclined to get far from it. This is a limited debate by agreement of the House.

Mr. Hyland

Yes, but we are dealing with the performance of the Garda Síochána and I am speaking about their performance in the area of community development which I think will be a very vital area of Garda involvement in the future.

An Ceann Comhairle

If you were to single out every activity for which the Garda are responsible and deal with each at length it would be wrong of me to allow that to happen.

Mr. Hyland

I bow to your judgment. Again I appeal to the Minister to examine the three headings I have outlined in my contribution. There is a need to resume negotiations and dialogue with the Garda in order to get an acceptance of the measures contained in this Bill. I hope the House will give this Bill the same careful thought and consideration as was given to the Criminal Justice Act. From my experience that was one of the finest debates in this House with very genuine and serious comments made by the Minister and ourselves. I hope this Bill will enjoy the same non-political dialogue and discussion and will produce legislation which can be operated by the Garda and accepted by our citizens.

Mr. Skelly

I echo the sentiments expressed by Deputy Hyland but I am sorry to say that his wish will not be granted because this is a limited debate which will be finished in three and three quarter hours. We spent more than one year debating the Criminal Justice Act and 47 Members, which I thought a very small number, contributed to it. In this debate I doubt if we will have more than six Members contributing and yet this legislation will bring into force provisions in the Criminal Justice Act. That is a limitation of democracy. I was very sad to see that both sides of the House— Fianna Fáil and Fine Gael and Labour— agreed to limit this debate to three and three quarter hours. We represent the people and we will not have an in-depth discussion of this Bill. This is a tragedy and is sad for democracy. I also regret that Deputy Hyland's contribution was not balanced. He seemed to dwell on one group and went so far as to say — I am sure he did not mean it — that this Bill will give additional powers to the Garda. I think that was a slip of the tongue.

Mr. Hyland

If I gave that impression I wish to correct it.

Mr. Skelly

He seemed to base his case on the rural experience of the Garda.

An essential function of this Bill is that it should help to redress the balance— which was the buzz word we used in the Criminal Justice Act—between the rights of the individual and the powers given to the police to carry out their duties. The Criminal Justice Act contains many repressive measures and it was to be hoped that this Bill would compensate for those measures. It is always difficult to draw the line between giving the police the necessary powers to carry out their duties and still retain essential civil rights and liberties. However, because it is difficult it does not mean that we should shirk our responsibility in maintaining the essential balance. The balance between police powers and the rights of the individual is as much a part of democracy as freedom of speech.

I am sorry the Minister is not present and that some of the officials have left, but I hope they will pay very careful attention to what is being said and that it is not regarded as a foregone conclusion that this Bill, as initiated, will become law. Many suggestions will be made and I hope they will be listened to very carefully.

The Minister has a duty to maintain law and order but he also has a duty to ensure that the citizens of the State can go about their lawful pursuits without interference from oppressive authorities. The laws when implemented must not only protect society but must also protect the rights and civil liberties of individual members. It is widely acknowledged that the law must establish acceptable limits of behaviour of the individual towards the State, but it must also be acknowledged that the law must establish the acceptable limits of behaviour of the State, and therefore its agents, towards the individual.

In the Criminal Justice Act we have very restrictive measures which define the acceptable limits of behaviour of the individual towards the State. But this Bill is not as efficient in defining acceptable limits of behaviour of the Garda towards the individual nor does it provide the individual with an efficient, independent complaints system which will ensure that the rights of the individual and of the Garda are safeguarded. I hope we will produce a Bill better than any legislation obtaining elsewhere in the world and taking into account the complaints procedures obtaining in other countries. We can do so if we do not rely on our neighbours to guide us.

I am disappointed that the former Minister departed from his promise of establishing a totally independent complaints tribunal, which is what most people want. I will endeavour to make the case that it is what the Garda want. It is what will be in their best interest because it should be remembered they are citizens also. Indeed, this is in the best interests of police forces worldwide. We are constantly reminded by right wing elements that if the law is not enforced at all, then all individual freedom will be swallowed up in the ensuing chaos. However, if the law is enforced too harshly, without regard to individual rights, or if those who are charged with its enforcement use their powers in an improper manner, then individual freedom and respect for the law will be consumed in the process. It was Martin Luther King who once said, "Injustice anywhere is a threat to justice everywhere".

To put these matters in perspective and to maintain balance I should emphasise that the majority of the members of the Garda Síochána carry out their duties in a fair and proper manner. But, like any body of individuals numbering 11,000 or 12,000, the force contains some people willing to cut corners, ignore established safeguards, people who may have resorted to violence on occasions or ignored the rights of the individual. It is because such people exist that we must make every possible effort to safeguard the rights of individuals, providing them with an efficient, independent and fair system of complaining. We no longer want to hear stories about how an individual, say, fell off a stool, slipped down a stairs or walked into a door. Apart from doing the individual at the receiving end no good, that sort of thing is of no benefit to our system of justice nor to the good name of the Garda Síochána. I accept fully that most of the members of the force do not go around manhandling suspects in order to obtain confessions. Therefore it is in the interests of the ordinary, decent, hard working members of the force that people who do wish to cut corners or to obtain confessions by the use of strong arm tactics are clearly identified and punished.

There have been some cases of suspects wrongly and deliberately accusing a garda of ill-treatment. Therefore it is necessary to provide safeguards for the Garda to protect them from such false allegations. In this Bill we should provide the mechanism through which all legitimate complaints can be dealt with in a fair manner, so that policemen going about their lawful duties in a lawful manner will be protected from such false allegations. The Mr. Justice Barra Ó Briain report provides an appropriate explanation of this in paragraph 10 where it is said:

The protection of Gardaí from false allegations of ill-treatment is a highly desirable thing. We gave thought to the possibility of curtailing the "privilege" which attaches to allegations made in the Courts. However, we came to the conclusion that protection of persons in Garda custody and protection of Gardaí from false allegations are two sides of the same coin. The general view of those whom we heard, and our own conclusion, was that the more difficult it is made for police to illtreat persons in their custody, the more difficult it will be successfully to fabricate charges of ill-treatment against the Gardaí.

That point might be more clearly illustrated if we draw on that celebrated detective and mentor of former Ministers, the great Sherlock Holmes: if we eliminate all the possibilities for making false allegations of ill-treatment in custody then the ones that remain must be true.

In order to keep matters in perspective and bring ourselves up-to-date it is necessary to refer to former indiscretions, the present state of the law and the present complaints system. In February 1977The Irish Times published a series of articles giving detailed accounts of the ill-treatment of suspects in custody by a squad of detectives commonly referred to as “the heavy gang”. It was pointed out that the safeguards for people in custody had been ignored and abused by this group of interrogators known as the heavy gang since the introduction of the Emergency Powers Act in October 1976. That group of interrogators used physical abuse and psychological torture in order to obtain confessions. Psychological torture involved such techniques as keeping suspects in a room with the blinds drawn, the lights on day and night so that they lost track of time, inducing an atmosphere of fear by loud banging, shouts, threats and, sometimes screams from outside the room.

The Sunday Tribune of 21 October 1984 gave a series of examples of different cases which I will not go into in any detail. I mention them merely to highlight such happenings. That paper mentioned the Kerry Babies Tribunal, the case of Michael Ward, of Christy Lynch, Thomas O'Connor, Amanda McShane and others. As a result of those actions Amnesty International sent a team of investigators to Ireland in 1977. They examined a total of 28 cases, seven of which related to persons arrested in connection with a particular case. They issued a report contending that consistency in the nature of allegations by persons arrested at different times in different parts of the country — in the opinion of Amnesty International — must lend weight to their validity, as also did the fact that in the preceding 18 months and longer the same officers had been mentioned as being involved in the maltreatment of suspects in reports made at different times in different parts of the country. There was grave concern on the part of the general public at the activities of this group of gardaí, lest they might represent a growing trend within the force. People were concerned that the practice of ill-treating suspects in custody was growing because there was no independent system for investigating allegations. The present leader of the Bar Council, Mr. MacEntee, said that in relation to the Garda themselves there was a general feeling within the force that it did not have adequate machinery for getting rid of members who may be errant and also the belief that the entire force was being left holding the can for people who could not be got rid of.

An Ceann Comhairle

What is the Deputy quoting?

Mr. Skelly

I am quoting from a statement made by Mr. McEntee. It is a newspaper report. I have not got a reference.

An Ceann Comhairle

It would be better if the Deputy had a reference.

Mr. Skelly

They are comments of Mr. McEntee as reported in The Irish Times of 14 February 1977. This is what happens when there is a group of gardaí willing to abuse and ignore individual rights. Initially an unfortunate individual suffers at the hands of such gardaí, but, ultimately, the force itself suffers as its credibility is damaged and the general public become alienated from them. It is important to make that point in case members of the force start accusing people like me of being anti-Garda when we are not. It is in the interests of the great majority of the people in the force to whom Deputy Hyland referred and for their and everyone's greater good. Even those individuals who would abuse it would see the error of their ways if they had all of that experience not only of what is happening in Ireland but also internationally. It is very easy to pull together the experience of the western world in the police forces and get the best system from it.

An editorial in The Irish Times in February 1977 observed that it was not right that persons who make serious complaints against any member of the Garda should have to depend on the gardaí and on them alone to investigate these complaints. However much the Minister and the Garda spokesman may proclaim the impartiality of such investigations, the simple fact is that, if there is any possible way out of it, dog will not eat dog.

An Ceann Comhairle

Deputy Skelly seems to be quoting a very long speech by somebody outside the House, and that is not in order.

Mr. Skelly

Deputy Skelly is not quoting anybody. Deputy Skelly has researched this himself and I am not quoting anybody.

An Ceann Comhairle

I understood that Deputy Skelly was quoting Mr. McEntee.

Mr. Skelly

No, sorry. Mr McEntee was only one line, one sentence. That is another sentence from a different article. I am not quoting anyone from outside. This is what we would expect, that a garda would be very reluctant to identify a colleague as a wrongdoer. This is what we have found in the past. The editorial that I have just referred to was entitled Quis custodiet? Who will oversee the guards? The full phrase being Quis custodiet ipsos custodes?— who will oversee the overseers? The answer the Minister for Justice has proposed in this Bill is that they will once again oversee themselves. This has not worked in the past. It had not the confidence of the people. It still has not the confidence of the people and it will not have the confidence of the people in future. It has not got it here, and I will show later that nowhere in the world has this form of investigation the confidence of the people. It usually results in no blame being attributed to anybody, yet personnel are transferred a few weeks later.

A recent example of this occurred in the Kerry babies case. Initially we had the terrible situation where a whole family confessed in great detail to a crime they could not have committed. Then, following widespread public disquiet, we had the awful spectacle of the tribunal. However, although the tribunal report exonerated the gardaí involved in the case from allegations of misconduct, the publishing of the report was followed by the transfer of gardaí involved in the case. This is the way such cases are treated, and it does no good for the administration of justice or for those charged with administering the law.

In the report the Minister issued on this case, which was published in The Irish Times on 24 October, he referred to these transfers and said: “As I have said the gardaí have been vindicated on the major issue.” He said that there were very clearly serious deficiencies in the investigation and that those deficiencies manifested themselves not only in things done or not done, as the case may be, but in attitudes of members at various points, and that the Commissioner informed him that in the interests of the force he considered it right and necessary to transfer these people from their posts. He emphasised again that this was not a disciplinary decision and he added: “transfers are made by the Commissioner and not by me.”

This does not add up. We are talking about the good name of the Garda and the individual members of the Garda as well as the people. A report on that in The Irish Times on 24 October mentioned the names of the different people who were transferred, Detective Superintendent John Courtney, Detective Sergeant Gerry O'Carroll, Detective Sergeant Skelly and Sergeant P. J. Brown as well as Detective Garda John Harrington. This report says that the transfers followed consultations between Mr. Wren and the Minister for Justice, Deputy Noonan, who had been considering the report which criticised some Garda procedures and practices in the case and was strongly critical of one of the detectives.

I am not interested here in trying to lay blame on individuals. The point I am making is that it says that it is thought that the Commissioner would transfer them in the interests of the service. These people suffered because automatically they lost their detective allowance etc. If it is in the interests of the service and if the system is wrong — we are saying that it is wrong and that the necessity of bringing in this Bill proves it is wrong — and if these people — professional gardaí who have been carrying out their duties over the last ten years as trained and instructed and operating the system as they are instructed to operate it — are exonerated by a judge of the High Court and then transferred in the interests of the force, it seems that they are then being made scapegoats for the system and that they are becoming the fall guys for this case, whereas we want to change the system of investigation. That should be corrected. We should change the system and we should not take individual members and make them the fall guys for the failures of the system.

We know that internal investigations by gardaí very often do not work, and that was such an example. The original internal Garda investigation to resolve the conflicts in the Kerry babies case failed completely, and that is the point I was making. We must have a system whereby individual members of the Garda cannot be vindictive and cannot take it out on any individual member of the public, or decide to abuse his powers even to the extent of committing perjury in court. That is what happened in the case against me. I have personal experience of disquiet and certainly there is disquiet amongst the public at that attitude.

We must look carefully at the measures contained in this Bill because these are the safeguards that are being put forward to protect our citizens against any abuse of powers contained in the Criminal Justice Act. We all recognise that law and order are essential to the continuance of civilised life in society. However, we must not make the mistake of thinking that law and order can simply be imposed from above in a democratic State. They must arise from the grass roots of our society and be protected by the wise use of authority and the impartial, independent and, of course, incorrupt administration of justice, which is another area we must examine on another day, particularly the political appointments of judges to the benches which have taken place since this State was founded and is a continuing scandal.

If we do not recognise this and make every effort to protect the civil liberties of our citizens while still protecting our democracy by giving certain powers to the Garda and to our courts, then we will change from a democratic State into a totalitarian State. We will end up living in a State where those charged with the task of protecting us from fear will be evoking fear in us and the civil liberties of all our citizens will be seriously curtailed.

Before going on to point out the obvious shortcomings in the procedures proposed by the Minister it is worth while to examine the present system. At present investigations of complaints are carried out by a senior officer of the Garda Síochána. Where a complaint merely refers to a breach of discipline the matter will be dealt with by the Garda Commissioner, but if a breach, of criminal law is found then the matter will be handed over to the DDP. Mr. Justice Barra ÓBriain said about existing procedure:

Criticisms of the present system made to us suggested that it was slow, that it tended to deter most complainants, and that it was manifestly unfair in that it depended on investigation carried out by members of the force who might be less than willing to find fault in the behaviour of a colleague.

Those sentiments will be re-echoed by review bodies around the world in regard to complaints investigated by the police themselves.

Paragraph 37 of the Ó Briain report makes reference to how inefficient it is having policemen investigating themselves. It states:

We understand that there is a general complaint that where accusations are made against individual members of police forces there is a tendency on the part of policemen not to co-operate wholeheartedly in the subsequent investigation of the complaint. The "wall of silence" which meets the investigating officers may well make any proper inquiry abortive.

I should like to refer to The Police Act, 1984, A Critical Guide published by the Greater London Council Police Committee, Discussion Paper No. 3 which states:

The Government has persistently ignored demands for a genuinely independent system for the investigation of complaints against police. The GLC, along with a wide range of other bodies, has advocated this — even the Police Federation favours such a system. But the Government has, once again, opted for what it describes as an "independent element" to the investigation of complaints which provides concessions of little value to public concern about the system.

I should like now to give some statistics, something Deputy Hyland was interested in. He referred to the thousands of complaints that would be made in the future. In order to help clarify his point I shall give the following information.

In 1983 there were 16,231 complaints filed against police officers. Only 10 per cent led to the disciplining of or "advice" being given to an officer and out of 34 charges which the old Police Complaints Board recommended should be brought, just six officers were found guilty. This may go some way to explaining why the British Crime Survey showed that less than one in ten people aggrieved by police conduct bothered to make a complaint.

The GLC has identified four factors responsible for the lack of public confidence in the "old" complaints system:

(1) The police investigate themselves;

(2) The Police Complaints Board was too remote and failed to exercise its, albeit limited, powers adequately;

(3) The Director of Public Prosecutions may be too cautious in recommending the prosecution of police officers; and

(4) Investigations are not conducted thoroughly enough and are not pursued as vigorously as they would be if the offence had been committed by a civilian.

There is a lot more evidence to show why the system of the police investigating themselves does not work.

The Parliamentary Papers 1974 (House of Commons and Command), Appendix 11, in a memorandum from Mr. K.V. Russell, a senior lecturer at the Leicester College of Education, also referred to this system and spoke about the Royal Commission set on the Police and its objectives. He said it was to consider...

"the means of ensuring that complaints by the public against the police are effectively dealt with." These provide a legal framework for the processing of complaints which conforms to the Royal Commission recommendation that arrangements should be devised: "which are acceptable both to the police and the public as fair and just, not favouring either at the expense of the other, and not weakening the morale of the police and their resolve to fight crime".

Unfortunately, although theoretically legally adequate, there are three specific deficiencies in the procedure which have caused dissatisfaction. Firstly, the internal nature of the whole process, and the absence of any form of independent (non-police) examination; secondly, the lack of formal provision for conciliation between the parties involved; and thirdly, the use of only two categories for the disposal of complaints.

He then went into a detailed examination of them and continued:

From the stand point of the public it appears that investigating officers construct an account which protects the police officer from blame. In some cases there is evidence to support that this is the role some investigating officers adopt.

I am anxious to make the point that internationally there is a lot of unhappiness with this system when it is not independent. It appears that we have thrown in the towel once more by taking up the British system, picking pieces out of it and not taking on an independent complaints tribunal as if we were not able to do it ourselves. If we have confidence in the Garda and do not have this huge number of cases why should we not do it? In Britain the population is up to 60 million and about 16,000 complaints were made.

I am sorry to see that in attempting to provide us with the long awaited independent complaints procedure the Minister did not provide us with a truly independent procedure. I suppose the Minister is acknowledging the serious criticism of the way in which the present system operates at least to the extent that he is proposing a new procedure. The Bill should have given us the opportunity of bringing the police and the public closer together by providing an efficient and fair procedure that will discipline those members of the force who are willing to disregard the rights of individuals. By not doing that, a wedge will be driven between the Garda and the public because the Garda have been provided with significant extra powers in the Criminal Justice Act which will be triggered by the introduction of this legislation, but the public have no significant extra safeguards in the Garda Síochána (Complaints) Bill.

I should like to stress that nobody should feel complacent about ensuring that the public will have confidence in the complaints procedure. It is vital that they should have confidence in the procedure because if that procedure does not enjoy the confidence of the public it will not be utilised, as I have proved. Such a system for processing complaints is useless because it is just perceived as a way of glossing over any irregularities that may have occurred. It is worth mentioning that we are bringing in a complaints procedure that is desirable and one of the main reasons is so that we can bring in what many people call unnecessary and very repressive measures in the Criminal Justice Act. For the last six months I have noticed in newspaper reports that beyond a shadow of a doubt there has been a dramatic increase in solving crime. There has been a dramatic fall off in all categories of crime. The Minister, the commissioner and others have been quoting a fall off of 10 per cent and so on and telling us how great we have done.

I should like to refer to some of the claims of the Minister. He claims a calm in mid-1985, that the drug problem is solved — the Concerned Parents helped — and that attacks on the old people were solved. The Minister claims that the problem of stealing cars has been solved, that gang warfare is under control and that drug barons are behind bars. He claims that the increase in the number of Garda patrols has reduced crime significantly and that the neighbourhood watch system is working properly. He claims, too, that there is a new recruit procedure in operation and a new promotional procedure also. He claims that there are new management structures for the force and new forensic facilities. If everything is under control, why do we need these extra provisions which will have the effect of alienating the population? These are oppressive and Dickensian measures that are being foisted on us by the Department of Justice and are supported by some paranoiac members of the Garda despite the fact that the force have our goodwill and total confidence.

In different parts of the world there are different complaints procedures in existence. The tendency in Australia in this regard is to use the Ombudsmen. A widening of the powers of the Federal and State Ombudsmen is being sought in that country in the matter of the investigation of complaints. The Australian Law Reform Commission recommended that the results of investigations should be referred to the Ombudsmen who would be able to receive complaints directly and who in exceptional circumstances would be able to conduct their own independent investigations. The Commonwealth Ombudsman, commenting on increasing community pressure for a completely external system of investigation, said that such a system, though likely to be more expensive, was unlikely to be as effective in obtaining a similar degree of co-operation from Australian Federal Police members. That factor has been borne in mind in this legislation.

In the US, the Home Office Research and Planning Unit in a paper published in 1983 considered civilian review schemes in a number of locations in the States and pointed to their lack of success which they said was caused either by the opposition of the police themselves or by failure of the review bodies to command sufficiently widespread public support and use. They said that the latter to some extent resulted from a lack of confidence that they would carry out truly independent investigations of complaints. The commissioner of the New York Police drew attention to the practical effect of removing the investigation and examination of complaints from the police and there followed a dramatic reduction in the number of complaints leading to disciplinary action against police officers. In other words, the effect of having a totally independent complaints commission in the US had the effect of reducing the number of complaints in the first place.

The Police Complaints Board in Toronto drew attention to the mistrust by some people of the ability of a police officer to be objective in investigating complaints and at the other extreme by some members of the police community if investigations were carried out entirely by civilian investigators. These are merely some examples of the findings in other countries. They are outlined in the publication, Police Complaints Board, Final Review Report 1977-1985, which was published by Her Majesty's Stationery Office, London. The Minister in his role as guest writer in the Irish Independent of 27 October 1984 is reported as saying that with the Criminal Justice Act and the Garda Complaints Bill he looked forward to having, at the end of the day, a system of criminal law and pre-trial diligence in bringing offenders to justice with respect for the personal rights of persons in custody and their dignity as human persons. I accept that in some cases false accusations of ill-treatment will be made by suspects in order to discredit evidence that has been obtained by thoroughly fair and proper procedures. I realise that the police who question the suspect in such cases will be placed in a vulnerable position and I have no wish to see any man who is doing his job properly being maligned. However, it is important to note the point that was made by Justice Barra Ó Briain at paragraph 10 of his report. I quote:

... we came to the conclusion that protection of persons in Garda custody and protection of gardaí from false allegations are two sides of the same coin.

Various procedures can be adopted to protect the suspect from false allegations. Some of these involve contemporaneous controls which might include provisions such as tape recording and other protections involving procedures that might be invoked after the event. With regard to contemporaneous provisions, recommendation No. 47 of the Ó Briain report is that when a person is arrested and taken to a police station he should on arrival at the station have assigned to him a member of the force who would be responsible for ensuring that the person is treated humanely and in strict accordance with Garda regulations while he is in custody.

It is recommended further that the custodial guardian should be one not connected with the investigation or with other police action which led to the arrest. It is recommended that the custodial guardian would be someone who would be responsible for looking after the prisoner's rights and needs and would have the right to prevent any member of the force, whether senior in rank or otherwise, from ill-treating the person in custody. That recommendation is not the perfect answer but it is a step along the road to ensuring that suspects in custody and the gardaí involved in questioning them would be better protected.

There is also a recommendation in relation to tape recordings which is the second and most discussed procedure for interviewing suspects in custody. The advocates of this procedure claim that it will provide not only an accurate report of all that was said during questioning but will indicate also the way the police conducted the interview by reason of the court being able to hear the suspect's tone of voice and to determine whether threats or inducements were involved. Those who are against tape recording put forward the argument that the use of this equipment would have an inhibiting effect on the suspect in relation to admissions about the offence concerned and to the gathering of criminal intelligence generally.

It is argued also that attempts might be made by some suspects to feign assaults or to make reference to false allegations of inducements given before the recording commenced. I submit that the taperecording of interviews would be of assistance to the Garda and to the suspect. Tape recording deters, if not prevents, the use of unfair questioning methods that some, and I stress "some," gardaí might use. It should reduce, if not remove, the risk of untrue and unfair allegations being made against police officers responsible for conducting interviews.

What transpires during an interrogation is vital frequently to a case brought subsequently against the person questioned. It is very important that the court be provided with the best account possible of what took place and a tape recording is one of the best possible accounts that can be provided.

With regard to the objections put forward by some people that the presence of the recorder would hamper investigation and would enable false allegations of inducements or violence to be made, I should like to refer to the findings of a Royal Commission who visited the USA and Sweden to examine how this procedure worked. They found that the experience and views of the US investigators was that the advantages of having admissions on tape far outweighed the drawbacks and that, while the presence of a recorder inhibits some suspects from talking, this would not constitute a weighty objection since the subject has a right not to answer questions.

The Royal Commission found in relation to the argument that suspects might use the tape recordings to attempt to make false allegations that "police officers in the United States and Sweden could not recall any incidents in which suspects had tried to use the recording to compromise them." This helps to put things in perspective. We have had an unbalanced submission from different quarters. It might help also to allay some of the fears that members of the force might have in relation to this form of protection.

Tape recording of the questioning of suspects presents certain difficulties. First, because recordings made in the open or in public places by the use of a portable recorder would often be of poor quality it would be necessary to record the interviews at police stations. Thus, the effectiveness of tape recording of interviews would initially depend on ensuring that the suspect should be interviewed without delay in a properly equipped police station.

A second major practical problem which must be faced is that of transcripts. It is difficult to work from the tape itself in the preparation or presentation of prosecution or defence cases. The courts, the prosecution and the defence, will almost certainly need transcripts if there is not a plea of guilty. The prosecution and the defence may well want them for pre-trial preparation, even where the case is not going to be contested. Because of the amount of material that would be produced from some interviews which is irrelevant to the purpose of proving the case against the suspect or is inadmissible evidence which may related to previous criminal offences and because of the problems of transcription, it may not be desirable to provide transcripts of the whole interview. Difficulties would then arise in achieving agreement between defence and prosecution on which parts of the interview should not be included in the transcript used in the trial.

While tape recordings of interviews will undoubtedly improve the accuracy of the record of interviews conducted in police stations, there are other changes that could be made to improve the accuracy of the evidence of witnesses who may be reluctant to go to a police station to have their statements recorded, or statements made by suspects on arrest. I shall return to that later.

I should like to continue with other safeguards that can be provided for suspects in custody. The custodial guardian recommendation and the tape recording of interviews are contemporaneous safeguards for suspects being questioned. The third contemporaneous safeguard could be provided by having a small panel of lay visitors for a police station. I would envisage that these visitors might be a local doctor, lawyer, clergyman or other responsible citizen within a district or area. Provided that these people could call into a police station and ask to see suspects in custody it would help to eliminate any abuse that might occur, I suppose in the same way as a member of the visiting committee of a prison would operate.

It is also desirable that we have controls after the event. This involves a review of the interview procedure when the case comes to court. In the United States there is an automatic exclusionary rule which has been used for more than half a century. Its use is justified as a deterrent to unlawful conduct by the police, to prevent prejudice at trial by eliminating certain kinds of evidence and to preserve the integrity of the court by preventing its involvement in illegal activity. I would ask the Minister to examine this carefully. One of the reasons that the United States Supreme Court felt constrained to develop the rule was to protect the citizen's constitutional right in the face of what has been called a vast abnegation of responsibility in the law enforcement agencies in disciplining themselves.

Do not think that an automatic exclusionary rule for any breaches of the rule for obtaining evidence should be used. However, since reliability is the primary purpose of the code of practice for interviewing suspects, the reliability of confessions obtained by breaching it must be open to question. Therefore, it would not be right for statements obtained in breach of the code to be accepted uncritically and without comment by the criminal courts. It should not fall to the defence counsel to point out the unreliability of statements obtained by such means. The judge should also point out to the jury the dangers of acting upon a statement the reliability of which is in doubt due to breach of the code of questioning. They should be informed that under pressure a person may make an incriminating statement that is not true, that a code of questioning has been introduced to minimise the risk of untrue statements being made and that if they are satisfied that a breach of the code has occurred it can be dangerous to act upon any statement made and so they should look for independent support for it.

The effect of the wording would be that where a breach of the code has occurred it would be necessary for the prosecution to consider the availability of other evidence before deciding whether it is proper to permit the case to proceed. This would encourage that which is universally regarded as good police practice, namely, that so far as is possible evidence from questioning should be checked and independent confirmation of its reliability should be sought.

I should like to return briefly to the note-taking procedure and the use of these notes in court. Part of the difficulty with such evidence is that while it may be prepared on the basis of notes taken contemporaneously and has been written out afterwards and while it is often represented as a verbatim record of the account given by the person interviewed, it is not. Even very experienced minute takers will not get down a verbatim record of conversations; that can only be done by highly efficient shorthand writers. No written record after the event can be more than a good summary of the main points made unless the interview was conducted in so slow and stilted a way as to allow an almost verbatim record to have been written in longhand. The Royal Commission on Criminal Procedure who looked at the question of the accuracy of notes recommended that in all cases where it was not possible to take a verbatim record or full contemporaneous notes of the interview, or where the suspect does not make a written statement under caution, the product of the questioning, if given in evidence, should be represented to the court as what it is — a minute of the main relevant points.

An Leas-Cheann Comhairle

I presume you are still referring to the Garda Síochána (Complaints) Bill?

Mr. Skelly

This is about nothing else.

An Leas-Cheann Comhairle

I would like you to stay on the Bill.

Mr. Skelly

It is a minute of the main relevent points made at the interview. The commission also recommended that detectives should be given courses in either speed writing or shorthand, thus helping to improve the accuracy of their accounts of interviews with suspects.

We also need a provision in the Bill whereby general policy in a district or area can be examined. Especially in a country with our size of population, it would be a good way of cleaning up the entire area.

There is also a problem which can arise in the case of a complainant where it is alleged that he must have suffered or witnessed police conduct. It was emphasised very strongly during the debate on the Criminal Justice Bill that all kinds of people go into police stations and I am drawing attention here to people who are nervous, illiterate, or the uneducated whose fluency of language may not enable them properly to express a legitimate complaint. I would like the possibility of the board initiating inquiries if it is not happy with certain aspects of a case to be considered.

In Britain, the Police Complaints Board was established in 1976 and was replaced by the Police Complaints Authority in 1985. The role of the authority is supervisory, just like that of the board that it replaced and just like the Garda Síochána Complaints Board as proposed in this Bill. I am glad that the Minister recognised the importance of having the confidence of the public in the integrity and impartiality of the investigation of complaints and the subsequent adjudication on them. If he is following those criteria he needs to be very careful about introducing the Bill in its present form which I submit is totally unsatisfactory because it is not independent. The arguments put forward by the Minister do not hold water and saying that the Garda Commissioner must be involved does not hold up either because, in the final analysis, he applies discipline.

I am disappointed that the Minister did not introduce a system which would have the confidence of the public and the only system which will have the confidence of the public is one which relies on an independent investigation. To carry out such a procedure it would be necessary to appoint independent investigators. I should like to make a point now which I will develop later. I do not see the difficulty outlined by the former Minister in finding people to carry out such investigations if, of course, there is the will to find them. We have them in other fields, barristers, tax inspectors, customs officers, harbour police and social welfare inspectors and there is no reason for not getting a body of people who would carry out investigations independently. Customs officers, tax inspectors and social welfare inspectors are employed by the Government to investigate cases which can at times be extremely complex. We could recruit people with such skills and, after appropriate training, they could carry out these investigations. Such investigators would have the benefit of their investigative skills plus the added bonus of not being reluctant to condemn a fellow officer.

It is all right for the Minister to tell us that the investigations will be carried out under the direction of the complaints board but if the board have not got and cannot get to the bottom of a matter because of the reluctance of an officer to investigate a colleague, then the whole procedure will collapse. I have demonstrated that adequately by the examples I gave in relation to different parts of the world. The Minister said that even if there were no recruitment difficulties, neither the scale nor seriousness of the problem in this country could be said to warrant such an extreme solution which would be far more costly than the solution proposed. I wonder if we are being offered a cutprice discounted system of complaints which will only make a half-baked effort to solve the problem. I do not think that cost should be a factor and anyway it would not be great given the seriousness of the situation.

A former Minister for Finance is now Minister for Justice and we will not argue about figures or hide behind them because we are talking about the freedom of the individual which is one of the bedrocks of a free society. That, therefore, is an argument which holds no water. It is not good enough to attempt to solve the problem. We must make every effort to solve the problem of police misconduct because, if we do not respect the Garda, the law itself will diminish. It is in their interests as well as those of the citizen that we get this right.

In October 1974 the Hon. Mr. Justice Donald R. Morand of the Supreme Court of Ontario was appointed to inquire into allegations of misconduct made against certain members of the Metropolitan Toronto Police Force. One of the issues that Mr. Justice Morand discussed was complaints against the police and in particular the effectiveness of the complaints bureau within the force which was responsible for handling complaints of police misconduct in 17 cases. Public hearings were held for 14 months and 97 complaints were examined in detail.

Mr. Justice Morand criticised the lack of vigour and skill in the pursuit of investigation of citizen complaints by the bureau, its lack of effective supervision and the practice of turning the case over to regular members of the force "who may have conflicts of interest and loyalty" where a criminal offence is suspected. We can see that in our own system and I do not have to go into detail. As a people, we do not obey laws or regulations totally until there is a complete breakdown. I spoke earlier in the week on the Dublin Transport Authority Bill and I mentioned that the appalling carnage on our roads and our high insurance rates are due to the fact that the Road Traffic Act has not been enforced for the past 16 years. You can literally do what you like; you can drive with 15 pints inside you; go through a red light and so on. How, in the name of God, can the public be expected to entrust a secret examination of a complaint to the police? They do not do it in other countries and it should not be done here.

Mr. Justice Morand's report also stated that a system must be developed for the prompt, impartial, vigorous and — he stressed — independent investigation of such complaints and incorporating appropriate safeguards for the rights of police officers. I do not think I could ever be accused of neglecting the rights of police officers. The tag that certain members of the force might like to put on people who are honest or courageous enough — or maybe mad enough — to dare to criticise the system constructively would not hold up on the basis of the contribution which I made because I have tried to be as balanced as possible. Unfortunately, Deputy Hyland seems to have consulted his friendly local cop for his contribution to this Bill and it was totally unbalanced.

Mr. Justice Morand's report went on to say that such a system must be highly visible and manned by personnel who command the respect of the force and the public. He also referred to The Metropolitan Toronto Review of Citizen-Police Complaint Procedure — Maloney Report, 1975. This report was carried out by Mr. Arthur Maloney, QC, an Ombudsman for Ontario. The report concerned itself specifically with citizen complaints against the police and the provision of an effective system for the ventilation and redress of such complaints. His proposals contain a number of recommendations similar to those set out in the commission's first report.

The principal points of similarity include the emphasis on conciliation, the obligation to report all complaints, the independent investigation unit of the police, the appointment of an Ombudsman by the Commissioner to act as an impartial filter in the process and the creation of a tribunal to determine the serious cases only in the provision for appeals. The only recommendation implemented so far is that the complaints bureau has been moved into a separate building distant from police headquarters. The others have not been adopted. Whether one goes from Sydney to Toronto one will find the same thing. Tribunals set up to investigate complaints come up with the same answer — that people have not got confidence where the police are investigating themselves and are reluctant even to make complaints. Investigations are not carried out with any vigour and enthusiasm. There is a total dissatisfaction wherever these systems are set up throughout western democracies. What do we do? We just follow the leader, perhaps because we have not the confidence to devise our own system.

All 47 speakers who had an opportunity to contribute to the earlier debate on the Criminal Justice Bill began by saying how much they admired the police force. It begs the question: What are we afraid of? Why not have an independent complaints tribunal? We trust them, we love them, they are the greatest, the best — all kinds of praise is heaped on them, yet in this Bill we are bringing in repressive measures, powers we do not need which will totally alienate the gardaí from the people. We are supposed to be doing it in the interest of both the police and the people, but the whole thing is farcical.

I spoke earlier about the abuses in the police force and the treatment of members of the force. I do not want to delay any further. I again express my outrage at the short-circuiting of democracy in this House by allowing only three and three-quarter hours and guillotining the Second Stage. It does nobody any good to carry on in this way. These are jackboot tactics. Least of all does it do the new Minister any good. He does not think it is important enough to come and listen to the debate. I think the Seanad suspended proceedings during the debate on the Criminal Justice Bill because of the non-presence of the Minister. He has reduced this debate to farcical proportions. We know what we are up against and to what extent the contributions, though limited, will be listened to. It is inexcusable to do this. We have Fridays, Mondays and Tuesday mornings. We sit for very short hours and people should be able to contribute to this debate.

I want to refer finally to the comments made by the Irish Council for Civil Liberties in regard to this Bill. They regard the Bill as a radically flawed half-measure and state:

Lacking a convenient procedure for reception of complaints, an independent investigative unit, and a truly adversarial hearing process, it cannot provide a fair and effective system for the resolution of citizens' grievances against the police.

They go on to mention the practical difficulties. A complaint may be made orally or sent or given in writing to the complaints board at its office or to the police. They state that the Bill inherently compromises the independence of the board by preserving the power of investigation within the police. They call for greater police accountability, saying that law enforcement practices have become utterly conviction-oriented. They also declare that an independent investigative unit responsible to the chief executive of the board should be instituted. They make the point that the process is not genuinely adversarial since the complainant is not allowed to examine the investigation report, to cross-examine witnesses or to have legal aid. They conclude as follows:

Plainly, then, a fair and effective complaints system is a matter of great urgency. It must be able to ensure that the police are held accountable if they violate citizens' rights, to guarantee a fair hearing to the complainant and the accused officer...

This is the body which operates for the protection of people's rights. I think they were ignored the last time as well and I wonder where the Minister gets his advice. We have come a long way from the Criminal Justice Act. The whole thing is unnecessary now. We should have a totally independent complaints tribunal and I do not think the Minister should enforce the sections in the Criminal Justice Act. It will be a sad day for Ireland when they are introduced. If we in this House and the people have full confidence in the Garda, the Garda bodies by their submissions and their actions and what they are calling for are saying that they do not have confidence in the people.

Prionsias De Rossa

I recognise that there is limited time for this debate so I do not propose to speak at length on the issue. I hope we will have time to deal with specific sections and objections on Committee Stage and that the Minister and the House will permit a much longer debate on that Stage. When the Criminal Justice Bill was before the House there was considerable debate over a long period which resulted, in my view, in a Bill which, while not totally acceptable to me, was a better Bill than would have been the case if only limited time had been allowed to discuss it.

When the Minister introduced this Bill I welcomed it as a step in the right direction. The Workers' Party and I have been insisting on the need for an independent complaints procedure for the investigation of complaints of misbehaviour by the gardaí. This Bill is, therefore, welcome. When introducing the Criminal Justice Bill the Minister offered this complaints procedure as a means of having accepted in the House the rights of detention and questioning and so forth incorporated in that Bill. I argued then that this need not necessarily be tied to that legislation because it was required irrespective of the other legislation.

Although I have reservations about this Bill, I welcome it. It is important that the confidence of people generally be maintained in the gardaí and it is equally important that the confidence of the gardaí be maintained. That can only be done if people generally are sure that when they come in contact with gardaí they will get fair treatment and that if they have a complaint it will be dealt with fairly. There are parts of this city and probably other cities around the country where the gardaí are not acceptable. There is a feeling among the poorest sections of the community that the Garda are against them and automatically they feel that they are against the Garda. That feeling has developed as a result of the application of the law by the Garda and there is a feeling among the poorest that there is one law for the rich and one for the poor.

It is a fact that the vast majority of those who come before the courts are the poor and they are the people who have the least opportunity to defend themselves. The vast majority of the people in jail come from the poorest sections of the community. It is little wonder, therefore, that there is antipathy against the Garda who are responsible for the administration of law, as they are seen to be enforcing the rules and regulations of our society.

An independent complaints commission or board would go a long way to reduce that antipathy against the Garda in the areas I have been speaking about. Whether it will be an independent board is the most important element in this. The Bill does not have a provision for an independent investigation procedure. It is still left to the Garda to investigate complaints against themselves, and that is the main complaint we have heard from the people. When introducing the Bill on 28 January last the Minister argued against an independent team of investigators mainly on the ground of cost. He said:

Moreover, even if there were no recruitment difficulties, neither the scale nor seriousness of the problem in this country could be said to warrant such an extreme solution which would be far more costly than the solution proposed.

That is a very strange approach to this suggestion. It seems to me that if the scale of the problem is small it is hard to understand why it should be a costly solution to have an independent body of investigators. We have the Ombudsman's office and there does not seem to be any problem in relation to cost. We have agencies for investigating other matters, perhaps not independent, and we are never told of the cost. I do not think the argument that it would be too costly to have a board of independent investigators appointed is acceptable because the nub of the problem is that the people feel the present procedure is not independent.

Unless we show in the Bill that we are concerned seriously about this problem and that the board we will appoint will have to appoint independent investigators, this board will not be acceptable and it will not do what we hope it will do, improve the confidence of the public in the Garda, and the competence of the Garda in relation to their duty to enforce the law. The Garda themselves have expressed a number of objections, and the Association of Garda Sergeants and Inspectors have expressed very strong objections. It would be a mistake for us to ignore these objections. I do not agree with all of them, but if we are to retain the confidence and morale of the Garda we must not ignore their strong reservations. I hope that on Committee Stage there will be no restrictions on time and that we will be given every opportunity to tease out the various sections in regard to which I, other Members and the Garda have expressed their views.

The procedure in the Bill for lodging complaints seems very weak. It is provided that they can be made at Garda stations or directly to the board's office, which presumably will be in Dublin. Even for people in Dublin it is not convenient to write letters expressing complaints. In many cases complaints may emanate from people who are not very skilful in using the pen or in expressing themselves in writing. For people outside Dublin the procedure will seem remote and difficult. To say that people can go to Garda stations is not acceptable. We are suggesting the establishment of an independent complaints procedure and though we agree that the vast majority of Garda members are honest, decent men and women who do not overstep the rules or abuse the citizens, the person making a complaint will fear, having come up against a member of the Garda who has not acted in the best interest of the force, that the procedure for lodging complaints at a Garda station is wrong.

I will be putting down amendments for Committee Stage, but I should like to emphasise that I think the procedure for lodging complaints should be as convenient as possible for the persons who have complaints to make. It should not depend on the person with a complaint to make having the courage to overcome nervousness to go into a Garda station to make a complaint. In many cases complainants will be obliged to go into the stations where the complaints may have arisen in the first place. It is not acceptable that the procedures laid down should remain unaltered.

I welcome the provision to establish a complaints board. I feel strongly that there must be an independent team of investigators. I do not go along with the idea that such a board would be too costly. Even if the Minister could show that a large cost would be involved, it would be worth it to protect both the integrity of the Garda and the confidence of the people in them. It is only through an independent board that this can be done.

I should like to read a point made in the report of the Ó Briain Committee at paragraph 59, page 18 where it was recommended that a complaints tribunal with a strong independent element should be set up. No detailed proposals were made but they stated that, whatever the composition, the membership should be clearly so impartial and above any suggestion of bias that it would earn the respect and co-operation of both the Garda Síochána and the public. It further stated that to function effectively no effort should be spared to secure the goodwill of several representative bodies. In paragraph 10 at page 7 of the report the committee came to an important conclusion:

However, we come to the conclusion that protection of persons in Garda custody, and protection of Gardaí from allegations are two sides of the same coin. The general view of those who we heard and our own conclusions, was that the more difficult it is made for the Gardaí to ill-treat persons in their custody, the more difficult it will be successfully to fabricate charges of illtreatment against the Gardaí.

That clearly expresses my view and the view of other Deputies in the House that we must ensure that as far as possible the opportunity for fabricating charges against the Garda should be minimised. As the Ó Briain report points out, that can only be done by ensuring that the opportunities to abuse the powers available to the Garda, the tiny minority of gardaí inclined to abuse their powers, are minimised. I appeal to the Minister to give ample time for debate on the Committee Stage of this Bill because it is very important to the public and the Garda.

Mrs. Barnes

I will not take up much time on the Second Stage debate but, like Deputy De Rossa and Deputy Skelly, I appeal for ample time to be allowed for the Committee Stage debate so that we can be satisfied that the same importance is accorded to this Bill as was accorded to the Criminal Justice Act. That is important from the point of view of the public and the Garda. What we are dealing with here is really the most humane way of dealing with people involved in crime and the victims of crime, and reducing the level of crime in our community. We are trying to make the processes easier and to support as much as possible the Garda Síochána. I echo Deputy De Rossa's point that all of us who debated the Criminal Justice Bill felt it essential for all the reasons I and others have given that this should be an independent tribunal. It is absolutely essential that impartiality is seen to operate. In making his Second Stage speech on 28 January 1985 the Minister said he believed that investigation by a fully independent body was unrealistic. Why is it unrealistic? On Committee Stage we will come back to that.

Cost should not be a priority when we are ensuring that the community are safeguarded. If we set up the right structures, cost could be reduced in other areas in both human and financial terms. The NESC report entitled The Criminal Justice System: Policy and Performance, No. 77, of December 1984 in trying to look in depth at the criminal justice system here felt that when we were talking about the due process of law it must include openess in decision making, a right to be heard in one's own defence, and impartiality by those making decisions. The due process of law under our Constitution must be applied in all cases and certainly in regard to what we are trying to accomplish in setting up this complaints tribunal. The Minister's argument that a completely independent complaints tribunal is unrealistic does not stand up to the criteria demanded in the NESC report.

In relation to cost and our effectiveness in the criminal justice system, a lot of the front line work and risk is taken on by the Garda. In the structures we are trying to set up we must ensure that the cost of setting up an independent tribunal is offset in other areas at which we have not yet looked. The NESC report states that our information and evaluation of the system is not a worthwhile base on which to base improvements and reduce costs. The report says:

Very little is known about the distribution of the discretion exercised by the police in deciding whether a person suspected of a criminal action will be charged or whether the charge will be proceeded with. Minimal attention is paid to the contribution that social policies can make to reducing avoidable crime.

These two sentences probably encapsulate what we are talking about with regard to the support of the community for the Garda and the difficulties they are experiencing in not having a true evaluation of their work and the type of investment and commitment we should be giving to the social policies that will be reducing avoidable crime.

The setting up of a tribunal which would be trusted by both sides would go a long way towards reducing the cost and would give people who find themselves caught up in crime, or accused of crime and who believe that the system is against them, more confidence in the system. These people consider themselves victims and the tribunal must try to get it across to them that they are impartial. A great deal of crime, and hopefully it will be avoidable crime, occurs among the lower socio-economic groups, the disadvantaged, those who are not so well educated and do not have much faith in the future. It is essential that this tribunal should be seen by the people whose lives are most affected to be impartial and worthy of trust. The tribunal should be accessible and these people should have enough confidence in the tribunal to apply to have their complaints listened to knowing all the circumstances will be taken into account.

When appointing members of the tribunal, social factors should influence the selection to the board. I do not intend to go in detail into the judicial system today, but one area which gives rise to most concern is the gap which exists between the people who judge and the people who are being judged. We must have people with experience of life, with compassion and who are caring, to judge others who have not had the same advantages and who feel that the system works against them. We can come back to that at a later stage.

The Garda may feel that in some way this House is attempting to punish them by setting up such a tribunal. It is essential for the Garda to realise that if they are to operate independently, this tribunal is needed as much for them as it is for the rest of the community. In the debate on the Criminal Justice Act the point came through very clearly that what was most needed by the Garda was the support and confidence of the community. In arguing for this tribunal I would expect the Garda to welcome it because it is not the intention of this House that this tribunal will work in any way against the Garda.

On page 10 of the NESC report it is stated:

The consultant argues on the basis of international research that there is no evidence that the size of a police force is related to its effectiveness in controlling crime; instead, the method of policing and its degree of community support appear to be the critical factor.

That is the cost we should be talking about. If the crucial factor is community support, then a totally independent and impartial tribunal is what we need and in the long term it will be less expensive than a tribunal of which either side is suspicious and has no trust in it.

The previous Minister for Justice brought about changes in the training of the Garda. Because of the change in social attitudes, bringing with it an increase in crime, and sometimes coming from areas where they had no experience of urban life, gardaí are under great pressure. I believe that with proper training and with confidence in this tribunal the police will be able to get our from under some of these pressures which must have contributed to some of the cases of misbehaviour we have all heard about. The hierarchy of the police is run on a military model. As somebody who would seek non-violent alternatives, I have serious questions to ask about hierarchical organisations of authority which are run on military models because they do not contribute to the kind of caring and non-violent alternatives we would all like to see.

Up to now we did not have the right kind of statistics to show us just how bad the crime rate really was. With this increase in crime there was tremendous pressure put on the Garda to get convictions, to lock people up and to throw away the key. If results were the priority, that must have put an intolerable pressure on the Garda. The fact that we have not yet reformed our judicial system must give rise to a lot of exasperation and frustration among the Garda. Even more than the rest of the community, the Garda are suffering because of a lack of information and statistics. They seldom know why cases processed by them end up the way they do. This must lead to a lack of confidence in the system they are operating. This cannot be divorced from what we are talking about here today — the setting up of this tribunal.

The Minister when referring to a complainant taking a case to the tribunal said: "Finally, the complaint must not be frivolous or vexatious". That worries me because we have to be more definite about how we define "frivolous or vexatious". Pressure could be brought to bear on people who were told that their complaint could be seen as frivolous or vexatious. We have to be very definite about how we define that phrase so that people would not be deterred from making serious and justified complaints.

Debate adjourned.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.