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Dáil Éireann díospóireacht -
Wednesday, 4 Jun 1986

Vol. 367 No. 5

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

SECTION I.

Amendment No. 1 is in the name of the Minister. Amendments Nos. 2 and 13 are related. Amendment No. 66 is consequential on amendment No. 1. Amendments Nos. 1, 2, 13 and 66 may be taken together, by agreement.

I move amendment No. 1:

1. In page 3, subsection (1), lines 25 to 27, to delete "an act or omission standing specified for the time being as such in the Regulations or in any other regulations made under section 14 of the Act of 1925 after the establishment day" and substitute "conduct specified in the Fourth Schedule to this Act".

A brief word of explanation is in order on these amendments. The group of amendments we are considering here is designed to set out in a schedule to the Bill, rather than in the schedule to the Garda Síochána (Discipline) Regulations, the kinds of behaviour that a member of the public may complain about to the complaints board. That procedure has a number of advantages. In the first place, it makes for easy reference, that is, that the public do not have to look beyond this Bill for information. The matter is set out as a schedule to the Bill. The details are also more accessible to the Houses of the Oireachtas for the purpose of debate. It makes it possible to exclude all those breaches of discipline which are of purely internal disciplinary concern, for example, disobedience of orders and so on.

As compared with the schedule to the discipline regulations, the new schedule to the Bill will not include a reference to criminal conduct by gardaí for which they have been convicted. In other words, a complaint by a member of the public which is specifically related to a conviction of a member of the Garda Síochána will not be admissible under the Bill. The public, of course, can complain to the board before the conviction about the conduct which constituted the offence. Then the board will supervise the criminal investigation and, if the member is subsequently prosecuted and convicted, the board will have power to deal with that member under the Bill. That is the effect of amendment No. 2.

It is conceivable also that there might by no complaint from the public to the board before the conviction. Take, for example, a conviction for using an untaxed car or an uninsured car. Such a conviction constitutes a breach of discipline under the Garda Síochána (Discipline) Regulations and the member of the public, if he is so minded, can write to the Garda Commissioner, although the Commissioner would be aware in the normal course of events of any convictions of members of the force. The Commissioner would then invoke the discipline regulations to inquire into the suitability of the member concerned for retention in his or her present rank or, indeed, even in the force.

In a particularly bad case the Commissioner would be authorised by the regulations to dismiss the member concerned without holding an inquiry but, at the same time, giving the member concerned an opportunity to advance reasons against the dismissal. The new schedule does not include a reference in the disipline regulations to engaging in prohibited spare time activities. These activities would include, for example, actively or publicly identifying with a political party or behaving in relation to political or other matters in such a way as to give rise to public apprehension about the member's impartiality in carrying out his or her duties.

Complaints about conduct of that kind are best left to be handled under the discipline regulations although, if the particular conduct being complained of were to come within the category of discreditable conduct — that is at Item 8 in the new schedule — it could of course be investigated by the board. I do not think the other items that are being left to the discipline regulations call for any special comment but it might be useful if I were to mention them for the record. They are misconduct towards another member of the Garda Síochána, disobedience of orders, breach of confidence, giving an unauthorised character reference in support of an application for a liquor, betting or gaming licence, signing or circulating a petition about matters affecting the Garda Síochána other than through authorised channels, neglect of health, untidiness on duty or in uniform, drinking on duty or unauthorised entry of licensed premises.

One of the purpose of this Bill is to enable the Garda Síochána to avail of the full powers of arrest and detention of suspects on suspicion of involvement in serious crime which are contained in the Criminal Justice Act passed by the Oireachtas in 1984. The crime situation has deteriorated alarmingly in recent months and a new and frightening level of violence has been experienced in vandalism. It has brought about a crisis in many communities and frustration for the Garda. To tackle the new outbreak of crime effectively the Garda urgently need additional powers and resources. They need the Criminal Justice Act now, without delay. These measures which we are discussing here are directly related and are tied in to the Criminal Justice Act and will have the effect of making it available to the Garda in its full sense.

Because of the importance of providing the Garda with the new powers immediately, I want to suggest to the Minister that we pass all the remaining stages of this Bill today. The important thing for us to do now is to put the new criminal justice powers into operation without delay. On behalf of Fianna Fáil, I put forward in 1983 a draft complaints procedure to accompany the Criminal Justice Bill. The Minister has now, some two years later, put the Government's proposals before the House. He has also put down 48 amendments to his own Bill. I have listed 12 and The Workers' Party have listed another number of amendments.

The crime situation now demands that these amendments be discussed and concluded today. That should be possible and I propose to the Minister that we discuss the Committee Stage amendments up to say, 7 p.m. at the latest, that we then break maybe until 9 p.m. and that we resume to take the Report and Final Stages of this Garda Síochána (Complaints) Bill. This recess would give the Minister an opportunity to consider what has been said on Committee Stage and make any final amendments which might be necessary. I am proposing this unusual measure in the interest of assisting the Garda and the Minister in their efforts to defeat criminals and obtain more convictions.

We have done our homework on both sides of the House and with the necessary co-operation I think the Bill should be completed today. We owe this to the Garda Síochána and the hard pressed members of the public who are afflicted with crime. I am sure that the Whips could make the necessary arrangements if the Minister is agreeable. If the Minister were to have a break for even a few hours, he could examine the amendments put forward by our party and The Workers' Party and having listened to the debate, he could then include whatever amendments he wishes. We are not going to press these matters or debate them at great length at this stage, although they are very detailed proosals and, as the Minister knows well, have many ramifications.

One matter is highlighted by the Minister's amendment being considered now and in his statement to us, which is that the existing disciplinary code is one with which the Garda are familiar and which operates well. In relation to the Criminal Justice Act and following the Ó Briain report, there was shown to be a need for additional safeguards for people in custody and for a complaints procedure. I never saw the complaints procedure as taking over from the internal disciplinary code. The two have become intermingled to some extent in the original proposed draft to which the Minister is now putting down amendments. It is very necessary to separate, in so far as possible, those internal matters of discipline which are appropriate to be dealt with by the Garda Commissioner. The Minister has mentioned a number of these and the sort of matters which should be left to the disciplinary procedure. The Garda have views on that and in their discussions, at an earlier stage on the draft Bill, they were concerned about the overlap. We should be clear that our objective is to have a complaints procedure for the public in relation to those matters which rightly concern the public. The complaints procedure is the public's Ombudsman or watchdog for the operation of the Garda Síochána as a whole, that body being excluded from the consideration of the Ombudsman.

I am quite sure the Minister would be happy to have at least Committee Stage concluded today, but I do not see why we could not agree to having a break and then having Report Stage. We have discussed at considerable length the points on which we agree and disagree and they may be discussed again during the day. As evidenced by the long list of amendments which the Minister is proposing at this stage, he has made strenuous efforts to try to get the Bill right. Many of his amendments refer to points debated at an earlier stage which he has taken on board and he has gone a long way to meeting the points I raised on Second Stage. He and his officials have had discussions in considerable depth with the Garda associations and others to try to get the balance right. It is of major importance that this matter, which has been before the House in one shape or other for a long time, should be concluded as urgently as possible.

I agree with Deputy Woods and I am glad that we can take this procedure. Having spoken to the Deputy last week and this morning, I would agree with the general approach he puts forward. I should point out that, as the Deputy has said, a number of the amendments that I have put down arise from our debate on Second Stage. Others, which we shall see as we go through them, are consequential on the amendments of substance as a result of the Second Stage debate. I am perfectly prepared, if it is possible for the House, to take Report Stage this evening. I would remind the House that there will be a break in this discussion between 7 p.m. and 8.30 p.m. for Private Members' Business, so if the House were agreeable we could aim to conclude Committee Stage at 7 p.m. and possibly take Report Stage from 8.30 p.m. onwards.

I have no objection to that. I only suggested 9 p.m. for the Minister's sake as he would have to do the work.

There are a few points which we might usefully discuss with a view to coming back on Report Stage. That sort of procedure, if agreeable to the House, would allow us to make progress.

I suggest that the Minister might possibly be wiser to say 9 p.m.

It is probable that there will be a division and that would bring us to 8.45 p.m.

Peace has broken out between the spokesperson for Fianna Fáil and the Minister on this issue. I have no objection to the Bill being completed tonight. I should however like to make the point that while this Bill on complaints procedure has been tied in with the Criminal Justice Act, a complaints procedure is required irrespective of any Criminal Justice Act which is or is not in operation at any particular time. I have argued at length that there is a need for an independent complaints procedure. That was clear from the Ó Briain report and even before that from the point of view of protecting not only the individuals who might be in the custody of the Garda Síochána but the Garda from malicious accusations. That is now generally accepted.

Having this legislation pushed through today will not make all that much difference to the crime rate in this city and around the country. There are grave reservations among the Garda as to how effective the Criminal Justice Act will be when the sections on detention and so forth are finally brought in. There are concerns that it may not be operable because of its complexity, but that is for another debate. It can truthfully be said that the issue of a complaints procedure has been debated at length and the Minister has gone a considerable distance to meet the points raised by the Garda and by others also as to how the system would work. I only have a small number of amendments to the Bill and I do not see any great problem in dealing with them.

Might I suggest that if an arrangement, as suggested, is to be agreed upon, perhaps the Whips should consider making it a bit more formal and perhaps making it an order of the House?

Would it be in order for me to suggest that the Whips get together and submit a proposal for an order of the House at the end of Question Time?

The Minister mentioned the Garda Síochána (Discipline) Regulations, 1971. The amendment deals with that. Amendment No. 13 states:

In page 5, subsection (3) (a) (iii), lines 45 and 46, to delete "a breach of discipline" and substitute "be conduct specified in the Fourth Schedule to this Act".

The Fourth Schedule specifies the conduct to which the Minister referred. Amendment No. 66 which we are considering now is the Fourth Schedule. This is a very important Schedule. It covers the conduct which is included under this section and under the complaints procedure. Where it states to delete "a breach of discipline" and substitute "be conduct specified in the Fourth Schedule to this Act", the said conduct is, under subsection (3):

On receipt by the Board of a complaint or of a notification under subsection (2) of this section, the chief executive shall consider whether the complaint is admissible and the complaint shall be admissible if the following conditions are satisfied.

A complaint would be admissible to the whole process of investigation and consideration by the Board if it satisfies certain conditions. Under subsection (3) (a) (iii) conduct specified in the Fourth Schedule is defined. The conduct which the Minister is introducing and which is a major change to the Bill is given in amendment No. 66. It states: "in page 27, after line 39, to insert the following Schedule". The matters which would be admissible would include discourtesy, that is to say, failing to behave with due courtesy towards a member of the public. That is obviously one of the areas which we would like to have seen covered. Secondly, neglect of duty, that is to say, without good and sufficient cause——

(a) failing or neglecting——

(i) properly to account for any money or property received by him in his capacity as a member, or

(ii) promptly to do any thing which it is his duty as a member to do,

or

(b) doing any such thing as is mentioned in subparagraph (a) (ii) of this paragraph in a negligent manner.

Here we have examples of what we would regard as the sort of thing that in other Departments would be brought to the attention of the Ombudsman if they were not dealt with satisfactorily by the Department in the first instance. That brings us back to the informal way in which they might be treated and the extent to which the informal application of any of these rules would apply.

The third area is falsehood or prevarication, that is to say, in his capacity as a member—

(a) making or procuring the making of—

(i) any oral or written statement, or

(ii) any entry in an official document or record, which is, to the member's knowledge, false or misleading, or

(b) with a view to deceiving, destroying or mutilating any official document or record or altering or erasing or adding to any entry therein.

The fourth area is abuse of authority, that is to say, oppressive conduct towards a member of the public, including—

(a) without good and sufficient cause, making an arrest, or

(b) using unnecessary violence towards any person with whom the member is brought into contact in the execution, or purported execution, of his duty.

The Ó Briain report was particularly concerned with the oppressive conduct towards members of the public or the abuse of members of the public in any way. There would therefore be a clear procedure to pursue this kind of abuse in a regular and organised way. The Garda and the members of the public in general could be happy that, taking the overall activity of the Garda, these are very few and far between. Nevertheless, where they occur there is a recognised and established procedure to deal with them.

The fifth area is corrupt or improper practice, that is to say——

(a) soliciting or receiving as a member and without the consent of the Commissioner any gratuity, present, subscription or testimonial (other than customary collections for such purposes as presentations to members on the occasion of transfer, marriage or retirement),

(b) placing himself as a member under a pecuniary obligation to any person in a manner that might affect his ability to discharge his duty as a member,

(c) improperly using (or attempting to use) his position as a member for his private advantage, or

(d) failing wilfully and without good and sufficient cause to pay any lawful debt in such circumstances as to be liable to affect his ability to discharge his duty as a member or as to be liable to compromise other members.

The areas which the Minister is covering are fairly extensive and go ino a wide area of the relationship of the Garda Síochána with the community generally. They would cover questions which would be regarded as leading to a situation in which a member was placed under an obligation. No. 6 states:

Misuse of money or property in the custody of the Garda Síochána belonging to a member of the public, that is to say, misappropriating, or wilfully or carelessly misusing, losing or damaging, any such money or property.

No. 7 states:

Intoxication, that is to say, owing to the effects of intoxicating liquor or drugs or a combination thereof, being unfit for duty either while on duty or while not on duty but wearing a uniform in a public place.

No. 8 states:

Discreditable conduct, that is to say, conducting himself in a manner which the member knows, or ought to know, would be reasonably likely to bring discredit on the Garda Síochána.

Finally No. 9 states:

Accessory to conduct specified in this Schedule, that is to say, conniving at or knowingly being an accessory to such conduct.

The Minister is proposing that this Schedule would be included as the schedule referred to under No. 13, page 5 of the Bill. The areas of conduct which the Minister covers are quite extensive and they will cover a wide variety of areas of conduct in addition to the ones which are already specified in the section.

From our point of view any of these measures should in the first instance be related to the conduct of the member while on duty or while exercising the powers as a member. This is dealt with elsewhere in one of the other amendments. These are measures which define in the Fourth Schedule the kind of conduct which the Minister is referring to. They seem to be fairly comprehensive. Other matters which are mentioned are that the said conduct will constitute an offence or, secondly, a matter which is covered in this particular Schedule. As far as I can see, the provisions are fairly extensive

I am quite happy that the matters of internal discipline are left to the internal procedures, the Garda Síochána (Discipline) Regulations 1971, which are fairly extensive. They cover the point which the Minister mentioned of prohibited spare time activities. I take it from what the Minister has said that the question of prohibited spare time activities is being left to the disciplinary procedures under the disciplinary regulations. Prohibited spare time activities as defined in the disciplinary regulations at present include: identifying actively or publicly with a political party, behaving in relation to political matters in such a manner and in such circumstances as to give rise to reasonable apprehension among members of the public in relation to impartiality in the discharge of duties and engaging, whether for reward or otherwise, in any activity which though not mentioned in subparagraphs (a) and (b) is prohibited by the Commissioner either by general or special directive as being likely to interfere with proper discharge of duties and as being likely to give rise to reasonable apprehension among members of the public in relation to impartiality in the discharge of duties or as being for good and stated reasons inappropriate for members of the Garda Síochána to engage in.

I take it that, No. 15 of the Schedule of the Garda Síochána (Discipline) Regulations 1971 is a matter outside the ambit of this complaints procedure and will be dealt with under the disciplinary regulations and that if people have complaints in relation to that matter, they are complaints which are purely ones which should be made to the local superintendent and dealt with under that procedure.

Deputy Woods is correct on that unless the conduct falls under the category of discreditable conduct as I pointed out in my introduction.

Amendment agreed to.

I move amendment No. 2.

In page 3, subsection (1), line 30, after "section 7 (9)", to insert "and also conduct constituting an offence in respect of which, after the date on which a complaint relating to that conduct was made, there is a conviction by a court of the member concerned".

Amendment agreed to.

An Leas Cheann Comhairle

Amendments Nos. 3 and 9 in the name of the Minister can be discussed together by agreement as they are cognate.

I move amendment No. 3:

In page 4, subsection (1), line 3, to delete "his parent" and substitute "a parent".

Amendments Nos. 3 and 9 are drafting amendments.

This amendment obviously substitutes a `a parent' for `his parent'. I presume that is all that is involved. Amendment No. 9 is similar.

Not to go back over it, this is to cover the possibility that people have two parents.

Amendment agreed to.

Amendment No. 10 is consequential on amendment No. 4. By agreement, amendments Nos. 4 and 10 may be taken together?

I move amendment No. 4:

In page 4, subsection (1), line 6, to delete "section 4 (1)" and substitute "section 4 (1) (a)".

This is a consequential amendment, which proposes to amend section 4(1) by creating a presumption that any person who goes to the Garda Síochána with complaint wishes to have it considered by the board unless that person requests otherwise when making the complaint.

As the Bill now stands, it envisages that there will be some complainants who do not wish to involve the board at all but to leave their complaints to be handled by the Garda for example, at local level. These would be minor complaints where, for example, the complainant might feel that a quick ticking off or timely advice from a superior officer or local level is all that is called for. I think we would all wish to leave that level of choice to people making that complaint.

On the other hand, a strict interpretation of section 4(1) might require the Garda to inquire in every case whether the complainant wished to have the complaint investigated by the board. In the case of written complaints received by post, this could cause delays in that the Garda would have to check back with the complainant. Even in a case where a complaint was made, orally, at a Garda station and was subsequently handled by the Garda there would be scope for argument later as to whether the complainant wanted the Garda, rather than the board, to deal with it.

The proposed presumption in favour of the board dealing with all complaints made to the Garda Síochána will eliminate any confusion on points of that kind as there will now have to be an express request in writing before the jurisdiction of the board can be ousted or by-passed.

I have said that matters which could be dealt with informally, in a routine way, should be so dealt with. It has been my experience as a public representative that when one refers a complainant to a superintendent very often the matter is cleared up at that level and the complainant is satisfied. Superintendents do a great deal of such work which goes unnoticed at higher levels. Many such occurrences arise from misunderstandings or misinterpretations. Discourtesy is not intended but may arise because of the difficult task involved. Sometimes people are upset when they see a member of the Garda Síochána coming near their premises at all because they fear that others will think there is something wrong, leading to a certain misunderstanding of the role and function of the Garda in those circumstances.

I had the experience recently of an informant having given the Garda an erroneous address, a house situated four doors away from another man with the same name. The Garda searched the house of Mr. B instead of Mr. A. Mr. B, being an upstanding, civic-minded person who gave every support to the Garda, was extremely upset that they should have come to investigate anything in his house, garden or elsewhere. In those circumstances it is difficult to explain to a person the position of the Garda. Yet it was a perfectly natural mistake because it was a friend of Mr. B's who had informed the Garda in relation to stolen goods but who had not specified clearly which of the houses was involved. All Mr. B would require would be that a superintendent, inspector or someone else would say: we are sorry that this happened but mistakes can occur. In fact Mr. B asked me to ensure that if any member of the Garda Síochána returned to apologise that he do so in plain clothes because in the vicinity in which he lives it is not uncommon to have stolen goods found on premises.

We need a means of enabling the Garda to relate to the community without becoming tied up in formalities. It should be remembered that the vast majority of citizens want to support the Garda and the Garda can rest assured that they have that general support. However, if on some occasions it does not appear evident it may be that people are somewhat frightened to be seen to be too obviously supporting them. Another case comes to mind which happened about a week ago, of people knowing about stolen goods being moved within a certain area. They were afraid to tell the Garda because the first thing that will happen is that the Garda will call to the informant's house when they will find themselves immediately in difficulties with their neighbours. I tell such people that if and when they encounter such difficulties they can telephone me, I will ring the Garda informing them of the position, leaving them to pursue the matter, communicating with the informant with appropriate discretion. I could cite many other examples of such happenings within the last few weeks. Nevertheless it is important that there be informal means of handling such situations, of building up a good relationship between the members of the Garda and the public in general. Equally it should be recognised the position in which some members of the public may find themselves at given times in given circumstances. There should be methods devised to deal with such difficulties without exacerbating people's problems.

What I am saying is that there is even more support for the Garda than may be after he had spoken to him. I can see thing to which the Minister might devote a little attention. We have gone into the matter of the neighbourhood watch. The Minister will know that there are areas in which the neighbourhood watch has not been successful or has been taken off. Breaking down barriers and developing relationships in some of these areas would be important and productive. In that context, having complaints dealt with in an informal way by means of a simplified process is particularly important. Indeed the initiation of that process probably should begin in the course of children's schooldays, the Garda meeting school children frequently, establishing a relationship with them so that they would have a good basis on which to relate to them later. There are far too many fears on the part of members of the public generally in these situations and we could do more to break down those barriers.

We are taking amendments No. 4 and 10 together. Amendment No. 4 proposes the deletion of section 4 (1) and the substitution therefor of section 4 (1) (a). Section 4 (1) says:

A member of the public who is directly affected by, or who witnesses, any conduct of a member and who wishes to have a complaint concerning that conduct considered by the Board shall himself or through his solicitor or, in the case of a person under the age of seventeen years, through his parent or guardian make a complaint...

and it goes on to deal with that in more detail.

Amendment No. 10 proposes to insert an additional subsection. Subsection (1) provides that a member of the public who is directly affected can make a complaint orally, or send or give it in writing to the board at the office of the board, to a member at a Garda Síochána station or to a member above the rank of chief superintendent at a place other than a Garda Síochána station within six months of the date of the conduct. The Minister proposes to include paragraph (b) which reads:

"(b) A complainant who makes a complaint to a member under paragraph (a) of this subsection shall be presumed, for the purpose of that paragraph, to wish to have his complaint considered by the Board unless, at the time of the making of the complaint, he himself or his solicitor or, in the case of a person under the age of seventeen years, a parent or guardian requests otherwise in writing.".

Unless persons stated at the time they made a complaint under paragraph (a) that they wished to have it considered informally, it would be considered by the board. It should be kept as informal as possible. I see the Minister's difficulty in providing cover for the board. My main desire is to keep complaints which could be dealt with informally out of this machinery. I proposed that such informal complaints be dealt with by the superintendent. The number and nature of such complaints could be noted and a record of them sent to the Commissioner and to the board. The board could then observe what was happening in a general way.

Many complaints of a minor or routine nature could be dealt with by the superintendent on the spot. We should not make the system more bureaucratic. The Commissioner will have power to delegate the handling of routine inquiries to a superintendent. We discussed this before and the Minister was of the view that my concerns in this area could be covered by the Commissioner having the power to delegate. How would that affect this since there is a requirement to have something in writing?

If, for example, there was a case involving discourtesy which may not have been intended as such and if the person asked the superintendent to look into the matter, would the superintendent have to get a note from the person to say that he did not want the matter formally investigated? That is probably what it would amount to in practical terms. The onus would be put on the superintendent to get a written note from the person after he had spoken to him. I can see the technical and practical reasons for stopping the inquiry there and for making it clear that was what was intended by the person making the complaint.

I often find that if I listen to someone making a complaint and talk it over with him the person discovers that the matter complained of was perhaps unintended or due to misunderstanding. The same could apply to the gardaí and people may find that they do not wish to go any further with a complaint. Many complaints could be resolved at a basic level, given goodwill. If a person has to sign a note or a certificate it would be better to have a standard format for doing so. If a person meets a superintendent and after talking to him signs such a note, that fact is all that needs to be notified to the board. That would eliminate the need for the matter to go before the board, come back to the superintendent and then have the superintendent meet the person. I wish to keep the informal things informal, although I know it is necessary to have the protection the Minister proposes.

I agree with the Deputy's wish to keep informal things informal. That is part of my intention. I want to clarify the position so that there is no doubt about the way a complainant wants a complaint to be dealt with. It is because we are setting up a formal Garda complaints machinery which will have the confidence of the public and the gardaí that I am proceeding in this way. I am creating the presumption that any complaint which is brought forward by a complainant will be presumed to be a complaint a complainant wants dealt with by the board unless the complaint specifices otherwise. If we were to do it any other way there could be a doubt at a later stage and a complainant could say he or she did not really understand that it would not be investigated by the board. When a complaint is brought forward the complainant will have to decide whether he or she wants the matter to be dealt with by the board or not and will have to indicate that that is their wish. Where it is stated that a complainant wants the matter dealt with in that way it will not go to the board.

I do not intend to swop stories with Deputy Woods. However, where a member of the public is a little unsure about the best way of contacting the Garda without causing embarrassment or without giving rise to complications with the neighbours, my advice to public representatives is not to act as a conduit or channel between the Garda and the person in question but to advise that person how they should go about contacting the Garda. Deputy Woods is suggesting that one should say to the person, "if you want to talk to the Garda I will give them a ring and get them to talk to you", but my view is that it would be better to suggest to the person that they should give the Garda a ring, should show concern. In my view that would be a better way of bringing about this link, this co-operation, this closeness between the Garda and ordinary people that all Members want to bring about.

I often act as a conduit but I am sure the Minister will agree that many people are reluctant to ring the Garda. They will often talk to public representatives and having done so will feel happy and will not bother anybody. Very often it is simply a matter of understanding the procedures. People may be reluctant to telephone the Gaarda because they realise that as soon as they do they are making a formal complaint. People who may wish to express their unhappiness about a certain thing may not be anxious to make a formal complaint. A public representative may suggest to people that they should contact the local superintendent and have a word with him. Some people will do that but others would be afraid to do so. Many people request public representatives to make contact with the superintendent and arrange a meeting for them. Once the contact is made a public representative need not bother any further. The gap that exists should be attended to.

This is the gap that we want to narrow and break down.

I am highlighting what happens in practice. A book on management which was presented to me recently recommends that top managers spend 40 per cent of their time on the shop floor so as to be able to pick up all the "vibes" from employees. If we want to eliminate the gaps that exist between the Garda and the public we will have to get such a relationship going. I accept that it is more difficult where the function of the Garda is to maintain discipline and apply the law.

I accept what the Minister has said with regard to the conduit but I must point out that in many cases there will be no communication. That will result in unhappiness which will roll on into the pubs and other places rather than sorted out and clarified up front. I take it the superintendent will be in a position to deal with a complaint in the first instance, that he will be able to request that the person making the complaint signs a document indicating that the person does not wish to take the matter any further? Will the superintendent be required periodically to notify the board of the number of such informal complaints? It is clear that a person may write to the board with a complaint but I am referring to those who will convey a complaint to the local superintendent to be sorted out. I hope the superintendent will be in a position to deal with such informal complaints immediately and to indicate that it has been dealt with to the satisfaction of the complainant. I hope such informal complaints do not have to go before the board because there is a danger of a hardening of attitudes. A simple matter could become very serious if there was a delay in processing such a complaint. I presume that board will be notified of the number and nature of the complaints without having to be involved in a more comprehensive way.

I should like to make it clear that where a complainant makes it clear that they do not want the matter to go to the board the matter will not go to the board. There will not be any question of the superintendent, or anybody else in such a case, having to wait for clearance from the board before action can be taken. Where a complainant makes it clear that they want the matter dealt with outside the scope of the new procedure, informally it will be a matter for the local officers to decide how best to deal with it. If it is a case of a friendly word to the member in question, or where a ticking off would suffice, that will be the end of it and there is no procedure, nor do I propose one, under which any record of that will be sent to the board. If, however, the matter being complained of is one that has a disciplinary dimension, and the matter has to be brought further, it will be dealt with by the officer in question under the Garda Síochána (Discipline) Regulations. It is only then that such a matter will go up through the system.

Do I take it that the Minister does not intend to notify the board of the informal complaints? If a person signs a document indicating that they do not wish to pursue the matter further can they be satisfied that the matter will not go before the board?

I should like to make it clear in case there is any misunderstanding about this that the signing that the Deputy is talking about is not an indication by the complainant that they do not want to pursue the matter. It is an indication that they want the matter dealt with informally at local level rather than by the board.

The only point remaining is the notification to the board of the number and nature of such complaints. The informal resolution will apply to many cases and they will be removed from the whole system without going before the board. However, I suggested originally that at the end of each month the board should be notified of the number and nature of such complaints. That would mean that the board would be kept informed of what was happening and of the views of members of the public in regard to complaints. These would go directly to the Commissioner and the Commissioner would get notification so that he could take appropriate action. Informal complaints would indicate to management the best way to establish good relations between the public and the Garda — a kind of running survey of how the activities of the Garda were being perceived by the public.

These notifications would be a useful indication to management of future steps to be taken in the ordinary training and in-service training of gardaí and of how best to improve relationships with the public generally. If the Minister does not intend that these will go to the board, I take it they would still be considered by management.

I understand the concern of Deputy Woods but I would not make such a large issue of it. As I said, there are several possible cases to be considered. One is when a complainant believes that what is required is that the local inspector or superintendent should have a quiet word with a garda. I do not think it would add to the functions of management if they knew that in a particular division that there were, say, 25 cases in which members of the public found that gardaí were a bit abrupt. In cases in which matters of discipline were involved, they would be entered in the Garda management process anyway and that would be taken into account by divisional and headquarters managements in regard to the running of the force.

The only concern I have about the two amendments is that we would ensure that it will be clear in everybody's mind just how a complainant would want a complaint dealt with so that at a later stage there would not be any confusion or lack of clarity as to what the complainant had in mind at the time. In that way we would have the confidence of the public and the Garda in the system. The best course is that every complaint would go to the board except when the complainant indicated that he wished it otherwise. I presume that the complainant who would not think that his complaint was of any gravity would suggest that a ticking off would be sufficient to deal with it, and a ticking off is not something that normally would be recorded in the Garda system. If an inspector came to a garda and said: "You should have been a little softer in dealing with those people who asked you a fairly routine question", that would not be listed in Garda records and would not go through the Garda bureaucracy.

That is where we get into the rigidity of the Garda machine. We are talking about the number and the nature of complaints. As the Minister said, you might get 50 cases of abruptness on the part of gardaí in a month and perhaps something more than tick-offs should be administered by management. We can look at the Police Complaints Board Review in England for 1984 and we will see that of the 17,245 complaints, 14,373 required no disciplinary action. That is very important from the point of view of police relations with the public. Most of the problems in England were not major, but people might misunderstand such problems. Between 1978 and 1984 in Britain the pattern was similar to the one I have just cited, with a similar proportion of the complaints made not requiring disciplinary action. There were 1,424 cases of officers receiving advice. There were 194 cases of charges being brought.

Here there could be forewarnings to management in regard to the type of problems that would arise. In the original proposals I made when the Criminal Justice Bill was going through the House I spoke about the importance of dealing with complaints as informally as possible. I was thinking of the number and the nature of informal complaints and I was suggesting that the number and the nature of complaints might be referred to the Commissioner. If they are the matters covered by the document the Minister is proposing in amendment No. 10, then the Minister might consider that these are things of which management would get a forewarning and this would lead to a better system of management in the future.

Amendment agreed to.

Amendments Nos. 5, 18 and 19 in the names of Deputies Mac Giolla and De Rossa are related and may be discussed together.

I move amendment no. 5:

In page 4, subsection (1), to delete lines 11 to 13 and substitute the following:

"`investigating officer' means an officer of the Board appointed under section 6 of this Act to investigate an admissible complaint;".

Amendment No. 5 is a matter of definition of what an officer of the board would be. This is the section which allows the Commissioner to appoint a member of the Garda to be an investigating officer. This amendment is consequential on amendments Nos. 18 and 19. The reason I tabled these amendments is because I consider the one major defect in the Bill to be the lack of an independent investigating procedure. In establishing a board and a complaints procedure we are trying to improve the confidence of the public in the gardaí. There is a defect in the Bill in that we are allowing the situation to continue whereby if a person wishes his complaint to be formally proceeded with the Commissioner will be empowered under this Bill to appoint a garda to investigate a complaint against the gardaí.

The single most frequent complaint I have received about the present procedure is the one about the gardaí investigating complaints against themselves. Obviously it will not be done by the garda accused of misconduct but it is obvious that gardaí are investigating their colleagues. The board should have their own investigating officers and where a person wishes to have his complaint dealt with formally it should be done by the investigation officers of the board.

When the Minister spoke on Second Stage on 28 January 1986 he dealt with this matter. He dealt with what he considered to be recruitment difficulties and he made the following comment:

... 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.

For the very reason mentioned by the Minister, namely, that the scale of the problem is not a major one, I would expect that the vast majority of cases would be dealt with informally. The question of costs does not arise when one considers we would be relieving members of the Garda from the task of pursuing the investigations. In turn, they would be free to pursue their normal policing duties, whether on patrol, in court or elsewhere. I do not believe the net cost would be very high. It would be a price well worth paying in any event because we would in that way overcome many of the concerns that exist relating to the present procedure where gardaí investigate complaints against their own colleagues. As I am proposing in the three amendments, the investigators should be full time investigators and should be answerable only to the board.

The nub of the whole Bill is to try to ensure that the public in general have confidence in the procedures established to deal with complaints against the Garda. That is particularly important in view of the new powers the Garda will have under the Criminal Justice Act which will be brought into effect once this Bill is passed. It is essential in view of that situation that the public should have confidence in the procedure and the board to be established.

I do not accept the argument made by the Minister on Second Stage that it would be too costly. It would release gardaí from the duties of investigating complaints and free them to do their more normal and routine police work. The Minister also referred to problems of recuitment and he spoke of people who might have the necessary skills to carry out investigations. I have no particular objection to retired gardaí being employed as investigators. The fact that they have had many years experience would be an advantage and in many cases they would have retired before reaching retirement age. Former members of the Garda Síochána would be ideal candidates for the job. I do not accept that the public would have qualms if such people were employed to carry out that work.

As Deputy De Rossa has said, the effect of his amendments would be that complaints would be investigated by staff especially hired for that purpose by the board rather than by Garda investigating officers appointed by the Commissioner as proposed in the Bill. I could agree this would be the ideal way of going about it if it were practicable or affordable but I do not think it would be either. Deputy De Rossa referred to one of the points made by my predecessor when he introduced the Bill but I should like to recall some of the other points made also by my predecessor on the same occasion. He said:

I believe that investigation by a fully independent body is unrealistic.

For one thing, it would be necessary to appoint a large number of independent investigators — in effect a second, though naturally very much smaller, police force to handle the work — and it is by no means clear where persons with the requisite skills and experience for this could be found, bearing in mind that it would often involve investigating complaints alleging criminal offences — assaults and the like. Former or retired gardaí would, presumably, be unacceptable as not being manifestly independent.

In this connection I note the point made by Deputy De Rossa to which I shall refer later. The Minister continued:

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 was the only sentence Deputy De Rossa quoted. The Minister continued as follows:

Even if independent investigation were free of the difficulties mentioned, there is the fact that many occurrences giving rise to complaints are seldom witnessed by independent third parties and, consequently, there is frequently a conflict of evidence between the complainant on the one hand and the garda on the other without any corroboration of the complainant's allegations. In these cases supervision of the investigation by an independent board is likely to be just as effective as investigation by a fully independent person. The credibility of the parties is what has to determine the outcome and, if in the end there is a doubt, the deciding authority — whether it be a board, tribunal or court — must give the benefit of it to the garda as the person being accused.

I must point out that the board are given power in section 6 (5) to have a complaint investigated by the chief executive where they consider the public interest demands it or where the board are not satisfied that a complaint has been properly investigated by the gardaí. I would not see that provision being invoked on anything other than very rare occasions, particularly having regard to the extent of the powers of supervision given to the board over the conduct of the investigations.

The selection of gardaí to carry out investigations is not proposed simply because of the excessive cost of any alternatives. Even if an alternative agency were a cheaper way of achieving the result, I doubt that it would be as effective or if persons with the requisite skills could be recruited and kept in what would be a fairly small force with limited promotional opportunities.

Deputy De Rossa said he would have no objection to retired gardaí. I think he suggested they would be ideal for the job because of their experience but the same point can be made of serving gardaí, particularly when they are operating under the supervision of a board and where in specific cases section 6 (5) of the Bill gives the board power to have the investigation carried out by a chief executive.

I did not intend to imply that serving gardaí would not be ideal to carry out the investigation. Of course they would. I agree that, in the vast majority of cases, they would do an excellent job in pursuing complaints, but we are talking about whether a particular group would do the job as well as another, but whether the public would have complete confidence that the procedure being established is totally independent.

As I said, the most frequent complaint I get about the present complaints procedures is that it is gardaí investigating themselves. While I have no doubt that in the vast majority of cases they do so effectively, efficiently, fairly and justly, the fact is that people have this idea in the back of their minds that it is not a totally independent procedure and, if their complaint is not validated by the investigation, they have a niggling doubt whether the gardaí carrying out the investigation can be expected to come to a decision which may be harmful to their colleagues. That is a point we must bear in mind when we are deciding whether to have an independent investigation team or to use the existing Garda force to carry out the investigations.

Gardaí who had left the force, because of early retirement or for any other reason, could carry out an investigation and would be seen to be independent because they were no longer part of the Garda force. It is as important for the Garda that they be seen to be independent as it is for the public because the Garda require the confidence of the public to carry out their duties effectively.

The Minister referred to the fact that I only quoted one point from his predecessor's Second Stage speech. I quoted that section because it appeared to be the main point the Minister was making, although I referred in passing to the fact that he had also referred to the expected unsuitability of retired gardaí. In his pre-decessor's speech, the question of cost loomed very large in his argument, although there seems to be a contradiction in what the previous Minister and what the present Minister said in relation to cost. On the one hand it is said that a large force of investigators would have to be appointed and, on the other hand, that the small number of complaints would not warrant a large force of investigators. Perhaps the Minister will explain where the large number of investigators come from, and how many complaints he expects the board would have to deal with in any one year.

I do not have any figures of complaints received, but I have figures for the numbers of gardaí who were disciplined, dismissed and so on during the years 1972 to 1985. The figures for gardaí fined — these disciplinary measures did not necessarily arise from complaints from the public — for breaches of discipline were in October 1985, 107; in 1984, 103; in 1983, 108; and less than 100 in the previous three years. The average figure seems to be 100. A number of gardaí were dismissed in those years as well varying from three in 1972 to as many as 17 in 1984, but dropping to four in 1985. It appears that the complaints which would require to be investigated by an independent body would not be so large that we would not need a large army of investigators.

Assuming gardaí are investigating complaints the time taken obviously precludes them from being involved in normal police duties. It would make for better use of Garda time if they were free to follow normal investigations of crime, routine patrolling and so on and not have the problem of dealing with what would be relatively minor complaints about breaches of discipline by a garda.

I put down amendment No. 48 to the Criminal Justice Bill, 1983. We looked at this from an Opposition point of view and at what was happening in other countries. I did a certain amount of that work during the summer recess of 1983. Subsection (3) (e) of that amendment proposed that the Garda Síochána Complaints Commission should have the functions conferred under or by virtue of that legislation in relation to the investigation, including the supervision of any investigation or complaints made by members of the public concerning acts of misconduct on the part of members or officers of the Garda Síochána. Our main concern there was that the board — we called them the commission then — would have the power to supervise and also the power to investigate exceptional circumstances.

We recognised that the most practical and feasible way of dealing with the investigations was the precedent whereby the gardaí themselves would appoint someone at a high level to look into and investigate any matter. That has the confidence of the people in present circumstances, but we recognise Deputy De Rossa's point that there could be circumstances in which it would be important to have the matter dealt with other than by the members who would be dealing with that internally, so to speak. The Minister has met that by the provision he has made in the Bill. For instance, section 6 (1) (c) provides: "The Board may prescribe general principles to be observed in the appointment of investigating officers under Paragraph (a) of this subsection." Therefore, the board have a function in that sense in that they set the principles to be observed there.

Section 63 (3) (a) provides: "The Board shall supervise generally the investigation of complaints..." so that the board have the function of supervising the investigation of that complaint anyway under that section. Section 6 (5) (a) provides that the board may at any time request the chief executive to investigate or cause to be investigated, a complaint. It is not only for the chief executive himself to investigate, but he may cause a complaint to be investigated. I understand that to mean that, if it is necessary for the board to take on some external specialist for a particular investigation, the board can make direct provision for circumstances, which I think Deputy De Rossa recognises would be likely to be exceptional but could arise and would be necessary. From the various discussions and debates we have had, it seems that for all practical purposes the Minister has covered this requirement.

We can find evidence in some other countries. I remember reading that where they tried the other procedure of having a totally external arrangement it did not work in practice. In practical terms it was not very feasible. The people had not the same insight into the operations generally to make it feasible. I will have to get the reference to that separately, but I remember cases where that was occurring, where it was tried and it was not working or was not working out very well. That was probably in the US. Naturally, this would come to one's mind as a matter of concern. The Minister is making reasonable provision for that here by allowing the board, where they consider it necessary, to investigate directly or to cause an investigation to be done in some other way, but under the normal procedure the gardaí would be able to do the job thoroughly with integrity and with the support of the public. Once we make provision for exceptional circumstances we need not be unduly worried about public confidence generally. That provision is made and the board will have that oversight all the time and that supervisory power.

I am sorry I missed part of this debate and I hope I am in order in saying a few words.

We are discussing three amendments.

If this Bill is to be taken seriously by the public the board must be and must be seen to be independent. A recent case in which I was involved in Drogheda made me think. I will not call it a celebrated case, a word used in judicial circles. When discussing my case subsequently with a senior police officer friend of mine in a very informal manner he said to me: "I do not wish to discuss it because, after all, they are my colleagues." That appalled me. He was not concerned that perhaps his colleagues had been guilty of an indiscretion or of wronging me. That fact that they were his colleagues was paramount for him.

That illustrates the fear I have about gardaí investigating themselves. There is a fair measure of public concern about this. The gardaí should have representation on this board, but gardaí should not investigate themselves. They should be investigated by somebody from the legal profession, somebody outside and independent of the gardaí. If this Bill is to be anything other than a charade, the board must be totally independent of the police. As Deputy De Rossa said, this Bill is in the interests of the police themselves and any decisions made by this board must be seen to be completely independent of police influence.'

Deputy De Rossa began by asking what would be the expected level of complaints. I am sure he will not disagree with me when I say that is in large measure an unanswerable question. It is very difficult to say in advance. The figures Deputy De Rossa referred to of around 100 cases in each of the last four years of gardaí being fined and varying numbers of gardaí being dismissed, as he said, would not all relate to the kinds of complaints that would be dealt with under this Bill. A number of them would relate to purely disciplinary matters that would not come under the umbrella of the procedure we are providing for in this Bill. On a more general level the number of complaints has been running at around 400 or so a year in the last two years. Again, that is not necessarily an indication of the number of complaints that would fall to be dealt with by the board when set up, if only for the reason, for example, that a number of those complaints might be dealt with informally at the request of the complainant. Therefore, it is difficult to say what the number would be.

Deputy De Rossa is not on good ground when he believes he detects a conflict between what I was saying about the cost and size of separate investigative machinery and what my predecessor said at the time he held this office. I made the point, as did my predecessor, that if we were to take that road we would need a fairly large force of people. It would be large enough to cost a bit; it would be too small to provide any career prospects for people in it. There is no conflict between those two statements. I said that, apart from anything else, the cost was not the main factor in deciding me against taking that road. I might say in passing that, if I had the resources to have extra investigators of any kind, I would like to have them in the Garda force. We have provided the maximum level of resources we can for manpower in tha Garda at 11,400. As I have pointed out in this House, the strength of the force is greater than it has been for very many years.

I must point out to Deputy De Rossa and Deputy McGahon that the difference this Bill makes compared with the present situation is the fact that now we are providing for a board who will supervise these investigations. Let me point out to my friend and colleague, Deputy McGahon, that he is rather inconsistent to require that gardaí be represented on the board and then to demand that the board be fully independent. The two things do not go together.

Progress reported; Committee to sit again.
Sitting suspended at 1.30 p. m. and resumed at 2.30 p. m.
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