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

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

Mr. McGonagle

On the previous occasion I was talking about how important the independent element would appear to the general public. I was making the point that the public perception is very sensitive and that the reason for any element of independent investigation was to reassure the public that nothing would be hidden, that there would be no secrecy, no cover-up, but all cards on the table. I tried to explain that the chief executive officer satisfied the degree of independence. I went on to explain why I had come down solidly against the total lay investigation as distinct from an independent element along with police investigation. If we are to reassure the public we must obviously, on balance, have the confidence of the enforcement officers, the police. We then have the element of not total lay investigation but investigation by the police accompanied by or scrutinised by the person who will become the chief executive officer of the police board. That is on its way in the North also. When I was there there was no chief executive officer. He will be called the commissioner of police in the North: we call him chief executive officer here in the South. There is a two-pronged attempt to satisfy the public and then the confidence of the law enforcement officers must be secured also. My information is that law enforcement officers all over the world, where there is police complaints machinery, do accept that the best formula is to have an element of independent investigation along with their police investigation. The public should be made aware that the police are professional investigators. Apart from that, their status should not appear to be diminished as investigators into the complaints against their body or officers of their body.

I am satisfied that the main content of the Bill is satisfactory. I am critical of the weight of legal bodies both on the board and on the tribunal. Before I come to that I want to make an observation about the perception of independence. I do not like the idea of the Commissioner or his nominee being on the police complaints board in the Republic. It does not look good. I am not suggesting that the Commissioner's nominee would be biased and would be able to twist the arms of the rest of the board to make decisions: he would probably be a useful asset being an expert in the field. What I am saying is that public perception may not accept the board as being as independent as they might wish it because of the presence of the Commissioner or his nominee

I want to come back to the legal weight, the bodies of professional, legalistic persons who will be on the board and on the tribunal. I tried to explain that that was not necessary. I ask the Minister in reply to explain the weight of legal, professional bodies on both the board and the tribunal. A breach of the disciplinary code is not a breach of law. That is why the police complaints board in the North was and is a lay body. If there were lawyers on the board in the North it was not because they were lawyers; it was fortuitous that they happened to be selected. If legal opinion is required by a police board which is composed of lay persons, professional legalistic opinion can be bought and sought. I do not like the idea of the weight of the professional legal bodies on the board of the tribunal.

The chief executive officer will probably be a lay person. He will have to argue a case before the tribunal. He does not have to be a lawyer. Why are there lawyers on the tribunal? Why not lay people? That is what I think about the legal presence on both the board and the tribunal. I would like the Minister to explain why the legal profession is represented in such weight. It is very important that that be done.

There is one thing I must commend the argument for — the process of democratic consultation with the police officers concerned with their representative bodies. I am not aware that the police in Great Britain were consulted. I do know that the police in the North were not consulted. The Department have to be commended in the Republic for having consulted with the police bodies. This is democratic and it would be the only way probably to get agreement with the police officers representative bodies so that the Department are to be commended for that kind of process which is set in motion.

There is one outstanding problem — the right to silence — apparently, with one of the Garda representative bodies. I want to try to explain the problem about double jeopardy. Again, I ask the Minister to give an explanation in some depth about double jeopardy. I will endeavour in simple language to do that if it will assist. Natural justice determines or indicates quite clearly that no man should be tried twice for the same offence. That is inherent in the two areas we are talking about, a breach of criminal law and a breach of the disciplinary code. The criminal offence must be completely different from any charge or complaint that might be made on the basis of a breach of the disciplinary code. If therefore a breach of the disciplinary code is substantially the same as the breach of criminal law the board have no function — that is double jeopardy. The board may not hear such a complaint. The Explanatory Memorandum says that subsection (6) requires a board to postpone taking action or further action on a complaint if court proceedings are pending in the course of which it is likely that an issue relevant to or concerning conduct alleged in the complaint will be determined. That is understandable. It continues, "where the conduct alleged in the complaint has already been investigated by a court in civil proceedings and the court has determined issues in favour of the member concerned...". Why only "in favour"? ... "which are in substance the issues involved in the complaint...". Why only "in favour" or even "convicted"? The operative expression is "tried". It does not matter whether it is conviction or acquittal. No man may be tried twice for the same offence. The Minister will have to explain why this Explanatory Memorandum and the section in the Bill refers only to issues decided by the court in favour when in fact double jeopardy simply means a person cannot be tried twice for the same offence. Convicted or acquitted does not matter. The operative expression is "tried" where it is substantially the same.

Let me give an example to clarify the situation: a garda goes off the beat to which he has been assigned. He commits a burglary. He is apprehended and tried. It is a criminal offence. He has broken the disciplinary code by leaving his beat. The issue is not substantially the same and the board may operate in that context although he has been in court. The substance of his second breach — which is of the disciplinary code — is not substantially the same as the issue that was in court. That is double jeopardy. Therefore, the Minister will have to explain that also and why the language used is only "in favour" in regard to the decision of the court. I do not understand that.

I want to say something about the informal resolution of complaints. This is a very intelligent thing. It is one of the things that my board in the North recommended from time to time during our experimental years — the first three years were experimental. The informal resolution of complaints could be used to restore confidence, if it is lost, in a section of the public or an individual from the public in the conduct of an officer complained about. It is a good exercise in public relations, if you have a public relations department. The Garda should have a public relations department. As a matter of fact, every garda is a public relations person. The best form of policing that I ever saw was neighbourhood policing, where the police officers got to know everybody and everybody got to know them. They knew the officer was right when he arrested anybody or tackled anybody, or perhaps even advised people.

So, the informal resolution of complaints is good. I am taking it that the complainant has the right to insist on a formal resolution. I am also taking it — and this is even more important for the officer involved and the informal resolution of the complaint is going on about this officer — that the officer must be able to have the complaint formally investigated in cases where he believes that is the right way for him to clear his good name. I would like the Minister to clarify that situation. I am not too sure about it: it has to be clarified — whether the officer can insist on a formal hearing although people have decided that it should be done informally. That is the only kind of advice that I would have to give on the informal resolution of complaints. It is a good thing: it is intelligent. It should work. It is a public relations exercise, depending on how it is handled.

I understand that one representative body is a bit concerned about the right to silence. I think they are a bit confused about it. The right to silence problem has been handled expertly and intelligently this way: that an officer is obliged to answer questions put to him relating to a breach of the disciplinary code. He is obliged to answer those truthfully; but in so doing, if he does reveal something that might incriminate him in a criminal matter, he has complete immunity from there on. If the matter is of a criminal nature, he has the right to silence. He has the right to silence, therefore, in the criminal area; but he has no right to silence in the area of breaches of the disciplinary code. It is only commonsense that the right to silence rule should not operate in a breach of the disciplinary code. If I am wrong, I stand to be corrected. I believe that was the way it was handled. It is reasonable that a police officer is expected and obliged to tell the full truth concerning matters relating to breaches of the disciplinary code, but not inside the criminal area.

The appeal machinery for the officer complaining is good. It should work. We had no appeal machinery of that kind in the North. If we found the officer who was the subject of complaint guilty of misconduct and so on, he could appeal to the Secretary of State. We did not have the kind of machinery which is being set up here. Let me go back on this point again. If the board finds itself in the position that it can say it is likely that there is guilt here, they pass it on to a tribunal. This is very heavy machinery, quite apart altogether from the professional legal people on the board. We had a very simple operation. Five or six lay people with a chairman made the decision. If our decision was not, through recommendation to the Chief Constable, accepted, we had the power to direct him to set up a tribunal. No lawyers were on the tribunal. It comprised two of my board members and was presided over by the Chief Constable — that is all. When I examine the machinery which is in the Bill, with all its commendable features that I have stressed and pointed out, I find it rather cumbersome and weighty. I believe it will be very costly. It could have been done in a much simpler way. I do not know where the copy came from: it certainly did not come from Britain. It is a bit cumbersome from those two points of view.

Mr. Lanigan

This Bill has been a long time in coming before the Seanad. When the original Criminal Justice Bill came before the Dáil and Seanad, we expected that this Bill would have been before us at least a year ago. However, it is now before us. The passing of the Bill will bring into operation the provisions of the Criminal Justice Act and the Garda Síochána face an increasingly difficult situation in their efforts to enforce the law with an ever-increasing work load, often in a hostile atmosphere. The sooner this Bill goes through and the proper complaints board be set up the better. The Garda have been doing an excellent job overall. Whereas there have been many cases where gardaí have not operated with propriety, it has to be said that the vast majority of the force are people of the utmost honesty and integrity who are exemplary in their attitude to their job and the laws they seek to uphold.

In many cases, because of possible differences in interpretations in courts and the expertise of lawyers, the good police work of the Garda may come to nothing. This sometimes breeds cynicism among members of the force. This is very understandable.

Our Garda force is our citizens' first line of defence in crimes against the person and against property and we must give them every help possible in their ongoing efforts on our behalf. We must equally ensure that our citizens have protection from any action by gardaí which would be contrary to the laws of the State. We must ensure that in this Bill we give full protection within the law to our Garda force and our citizens on an equal basis. In the general atmosphere of increasing crime, it is definitely necessary to strengthen the hand of the Garda, but in doing so we must ensure that the powers of the Garda do not override the rights of our citizens. This Bill is an attempt to balance the legislation, to give both citizen and Garda equal protection within the law.

Section 1 (2) of the Criminal Justice Act provides that an Order shall not be made in respect of sections 4-6, 8-10, 15, 16, 18 and 19 until legislation is enacted relating to the investigation of complaints from the public against members of the Garda. The powers we are talking of here are in section 4, which deals with detention after arrest. Section 6 deals with powers of the Garda in relation to a detained person. Section 8 deals with the destruction of records. Section 9 deals with the application to persons in custody under section 30 of the Offences Against the State Act, 1939. Section 10 deals with re-arrest under the powers of this Act. Section 15 deals with withholding of information regarding firearms or ammunition. Section 16 deals with the witholding of information regarding stolen property. Section 18 deals with inferences drawn from a failure or a refusal to account for objects, marks and so on. Involved also is section 19, which deals with inferences drawn from an accused person's presence in a certain place. None of these sections can be proceeded with until a satisfactory complaints procedure has been introduced and until the regulations regarding the treatment of people in custody have also been introduced. Therefore, there is a large number of sections in the Criminal Justice Act which cannot be brought into effect until this Bill is passed.

The new powers of arrest and imprisonment have marked a departure in our laws. These new powers need the introduction of new complaints provisions. It is a pity that the Garda Síochána Disciplinary Regulations, 1971 are not any longer sufficient for today. Too many disturbing occurrences have taken place which necessitate the new regulations.

I will not enumerate the causes of concern of the public about the behaviour of a small number of gardaí and the need to see that complaints against them are dealt with in an impartial and just manner in which the public has full confidence.

It might appear to many people that recently there has been an increasing number of crimes committed by gardaí against members of the public and that there has been an increasing number of incidences of a doubtful nature in which gardaí have been involved. Is there an increasing number of crimes by gardaí or is it that the public are becoming more aware of their rights under the law? Is it because they are reacting to these rights that it appears that there is an increase in the number of crimes by gardaí?

As people become more educated, they become more cognisant of their rights and it may not be that there is an increase in the number of problems within the Garda but that those that exist are being found out and are being publicised. Perhaps we do not have so much to worry about as it would appear on the surface.

The Garda, under the law, have more power than any other section of our community. It is right and proper that these powers be carried out in an equitable and responsible way. The general public, in the majority of situations, see the need for a strong Garda force backed up by laws which would enable them to perform their duties in the fight against all the major types of crime which confront Irish citizens on a daily basis.

In the past, there has been a feeling that there are more laws hindering gardaí in the course of their duties than there are in assisting them. One would hope that with the enactment of the Criminal Justice Act and the Garda Síochána (Complaints) Bill that justice would be available to complainants against gardaí and also that the gardaí, themselves, would feel that they could be treated on an equal basis when complaints are made against them.

We must ensure that support for the Garda does not extend to giving them power to conduct themselves in an oppressive, irregular or otherwise unacceptable manner. Therefore, we need a system of dealing with complaints which is independent, fair and practicable. In too many countries, we have seen where, because of repressive measures which can be taken by police forces, law breaks down in a manner which was not intended by the people who gave these police forces the powers they have.

We have seen on our television screens and we read daily of the states which give their police forces too much power and the problems that are created. Eventually, what happens in these states where police have been given too much power, is that the laws of the state are disregarded and then there is a backup against the legal system which breaks down. As a result, there is the setting up, in some countries, of illegal police forces consisting of gangs purporting to be police forces but who are nothing more than thugs and gangsters. If police forces are given too much power inevitably this can be the result.

The complaints procedure should not hinder the normal work of the Garda. It should compliment their work and support their position within the community and act as a preventative influcence on a garda who might otherwise involve himself in dubious police tactics.

The Minister has delayed for too long in the setting up of a complaints commission. This delay has obviously hindered the Garda in their fight against the ever growing crime wave. When the Criminal Justice Act was introduced we were promised that the complaints commission would be set up with all speed. I am sorry that this is not the case. I would consider that many of the problems we have had in the past couple of years could have been solved were this complaints commission set up.

The Minister has not used the word "independent" in his proposed commission for investigation and adjudication of complaints. I was glad to hear Senator McGonagle mention this when he was speaking as a person who has worked on a complaints commission in the North of Ireland and who has at a practical level seen what value a complaints commission can be if it is independent of the Garda.

The Minister is providing in this Bill that of the proposed seven members of the complaints commission, one will be the commissioner or his deputy or an assistant commissioner. We object to this and suggest that no serving member of the force should be a member of the commission. If a matter of grave public interest is addressed by the commission, it would hardly be seen by the public to be independent if the commissioner or his representative was on that particular board.

We are agreed that the most practicable method of investigation/ adjudication, with some minor exceptions, is to leave it to the gardaí themselves on an informal basis and, if necessary, on a formal basis but not at commissioner level. If there is need after the findings of the minor board of adjudication or an in-barracks adjudication, if the complainant is not satisfied, then the complaint could be passed on to the commission if it were found that the complaint was of a nature that should be passed on because in many cases complaints are made which would not stand up in any court of law and which are not made for the proper reasons. It is important, therefore, that the gardaí should be protected from complaints of no standing.

If the board are seen to be independent, that would give them proper authority and make them acceptable to all sides. The role of the commissioner would not be eroded by virtue of the fact that he would not be represented on the board but rather that his role as Commissioner might be strengthened because he would have an independence within the force to make disciplinary judgments and if they were passed on to the board, he could not be seen to interfere in the work of the board or, indeed, interfere with the disciplinary aspects of his work as commissioner, which would have to be totally studied if the commissioner is to be put on the board. He would be in a very difficult situation in that he would be acting as a member of the Garda and he would be acting supposedly as a member of an independent commission in a matter of discipline within the Garda. I do not think it could work out in practical terms.

The Garda associations have looked for representation on the board. I would suggest that they would have as much right to a place on the board as has the commissioner. Nevertheless, I think, irrespective of what the association feel — they may feel that their desire to be represented on the board is as a result of the Minister's suggestion that the commissioner will be represented on the board — it might allay their fears as to what might happen on the board if the commissioner or assistant commissioner or a nominated person were not on the board either.

We agree with the Minister that the commissioner must have the right to exert discipline within the force and we do not feel that this right to exert discipline should do away with the need to provide a mechanism whereby members of the public can bring their complaints and allegations before a board which can clearly be seen to be independent.

In the case of the Garda complaints board it is essential that there should be close dialogue between the board and the Garda Commissioner. I do not think that this close dialogue should extend to having the commissioner on the board. An independent board would have the full confidence of the public in the Garda and we must ensure that we produce a board which is independent and seen to be so. There would seem to be an obvious value in having medical, vocational and community interests involved in the forum, and we agree with the Minister's suggestion that at least two members of the board should be practising barristers or solicitors.

When we look for medical representation, we know that an understanding of the medical and psychological aspects of treatment of persons in custody is extremely valuable. I take the point made by Senator McGonagle, who stated that the boards on which he served were totally independent and were vocational and community orientated in the main, that there were no professional interests involved. He felt that this state of independence to the board was very valuable. I agree with this because many of the complaints against the Garda would be made by people who do not come from a legal background: the complaints they would make would be about the operation of the Garda in their position as gardaí. It would seem that people who would have no legal background could adjudicate on matters such as this just as well as professionals. I feel, nevertheless, that where serious complaints are made and where legal judgments would have to be made, there should be a barrister and a solicitor involved in the make-up of the board.

Mention was made of the value of community policing and of having gardaí on the ground who would know the people in the area in which they work. If they know the people in the area in which they work, they also know the organisations in which they operate and they give better value as a Garda force. This is one of the reasons we suggest that there should be vocational and community interests involved on the complaints commission.

Gardaí are extremely concerned about their individual positions in relation to this Bill and we have no desire to have the point reached where the Garda are not free to pursue their work to the limit within the law. There must be a greater emphasis placed on in-depth training and in-service training for recruits and other ranks as they proceed through their careers. Gardaí need to be extremely well versed in their legal status at all times and also have knowledge of the legal systems, status of criminals or charged persons.

The professional criminal has a great knowledge of his rights within the law and he can often manipulate this knowledge to his own advantage. This makes it imperative to have the Garda as well versed in legal aspects of their job as is the criminal today. The criminal today is well versed in law. We have seen over the past number of years a growth in the knowledge of the law that these people have and we have seen them manipulate the courts. They are manipulating the lawyers. In too many cases they have not been incarcerated when they should have been and we have seen them cock a snoot at the law when they walk free, give finger signs and laugh and shout, make jokes and, indeed, run down the garda who has done all the work to bring them in, but because of some quip in the court these people have walked out free. It makes the garda disillusioned when they see criminals released on technicalities or because of the inadequacies of courts or released because of lack of space in prisons. We must ensure when we bring in laws that the laws can be enforced and that this Bill will give them back the confidence they should have to allow them to do the job in the best possible manner.

Where there are vexatious complaints made against the Garda and there is a continuation of these complaints there must be adequate provision so that the offended garda should have easy access to some method of stopping these complaints. In the case of minor complaints, there must be a system involved which is not onerous or bureaucratic and which will not take any civil right away from the garda.

In the case of the consideration of complaints against the Garda where legal or other fees are involved, consideration must be given to a system of reimbursement of these fees to the gardaí concerned. This is very important because it would appear that, in the case of a complaint laid against a garda, the garda might have to incur large legal fees to defend himself against these complaints. I may be wrong in this, but I do not see in this Bill where protection is given to the garda to re-imburse himself for these costs that he can face, particularly in a case where he would be exonerated of all blame for the complaint laid against him.

We have seen the need for the introduction of this legislation. Unfortunately, we live in a society in which we see an escalation in crime, increasing sophistication of criminals and increasing worry by the ordinary man or woman in the street that they are not getting the type of protection from our legal system that they want. They feel that, in general, the Garda do a good job. They abhor the fact that there has been an increasing number of incidents in which gardaí have been involved and they feel that there seems to be a need for further disciplinary procedures to ensure justice from within the Garda force. I hope that, when this Bill has gone through Second Stage and the Minister has heard the views of this House, some of the problems we have with the Bill can be eliminated and that on Committee Stage the Minister will amend his proposal to ensure, in particular, that an independent complaints commission will be set up.

Mr. Kelleher

I welcome the Bill and I am pleased to contribute to this debate. As Members are aware, the implimentation of certain sections of the Criminal Justice Bill is held up until such time as the Complaints Bill passes through this House, along with the provision of regulations governing the treatment of persons in custody.

The Bill marks another step in the programme which this Government adopted on taking office. On introducing the Criminal Justice Bill, the Government gave a commitment that the section's giving increased power to the Garda would not be brought into operation until the new procedure for handling complaints against gardaí was in operation. We all acknowledge the difficult task faced by the Garda in dealing with crime. I have no doubt that there is a willingness on the part of Members on all sides to strengthen their hand and support them in their fight against crime in the difficult and changing social scene in which they operate, while at the same time endeavouring to protect the rights of the citizen. It is regrettable that new powers are necessary, but the high levels of crime made them inevitable.

The real problems is to balance the legislation to give extra support to the Garda to enable them to curb the escalation of crime while at the same time protecting the rights of the citizen. We must give our full support to the Garda in carrying out their duties. We live in difficult times and crime is part and parcel of our lives. The Garda must have every assistance, through legislation and the support of the people, to safeguard the community.

I should like to see greater co-operation between the Garda and the community. If that co-operation is not forthcoming the Garda will not achieve a very high success rate in law enforcement and in the detection of serious crime. Members will be alarmed at the growing increase in urbanised crime, particularly those concerning drugs and armed robberies. We have a responsibility, as legislators, to take whatever action is necessary to strengthen the hands of the Garda in dealing with crime and protecting society from the worst effects of crime. If the Garda are to survive as protectors of the State, they must have community support.

In these difficult times of crime and vandalism we hear much talk about community policing and neighbourhood watch. They are good initiatives in their own right. In recent years we have had many cowardly attacks on old people and the Minister, politicians and community leaders are calling on the general public to become more involved in the fight against crime and against such atrocities. Support for the garda in carrying out their duties does not, however, extend to supporting conduct that is oppressive, irregular or otherwise unacceptable. Therefore we need a system for dealing with complaints against members of the force which is independent, fair and practicable. The complaints procedure should not impede the normal working of the Garda. It should complement their work. support their onerous position within the community and act as a brake or preventative influence on the would-be errant garda.

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 gardaí to protect them from such false allegations. In this Bill we shall provide the mechanism through which all legitimate complaints can be dealt with in a fair manner so that the gardaí going about there lawful duties in a lawful manner will be protected from such allegations. The main objective of any legislation establishing a procedure for dealing with complaints against police is to ensure that the handling of complaints should be just and seen to be just both to the complainant and to the gardaí. It must be a system in which the public have confidence in the integrity and impartiality of the investigation of the complaints and a subsequent adjudication of them. The Garda themselves are very conscious of the need to have public confidence in this aspect of their operations and of the importance it has in fostering good relations between themselves and the community.

Gardaí on the beat, if they are to be effective, must have good relationships with the community they serve. It is pleasing, therefore, to note that neighbourhood watch schemes launched last year are making steady progress. The same applies to the community alert schemes. In 1984 reported crime dropped by 2.6 per cent. That was the first decrease in a number of years. Reported crimes for 1985 show an even more remarkable drop, 8.5 per cent, the sharpest experienced since 1960. It was the first time since 1961 that there was a decline in reported crime for two years in succession.

The prevention of crime is one of our chief concerns and one which governs decisions on how manpower and equipment are allocated. We must ensure that the existing strength operates with the greatest possible efficency and effectiveness in meeting all the policing needs of the community. If I were to interpret the spirit of general Garda reaction to the Bill, I would say that the Garda are extremely concerned about their individual positions in relation to some aspects. I support the stand taken by the Association of Garda Sergeants and Inspectors who are a very responsible body of people and who were very aggrieved by the introduction of section 7 (9) in the Bill, as they see it, at the last minute.

I will make a few quotations from statements by different members of that organisation. I will quote from an editorial in the Garda News of June 1985 which states:

One can only speculate on the reasons why Mr. Noonan, at the very last minute, decided to introduce the controversial "right to silence" measure in the Garda Síochána Complaints Bill. Without even being told he must surely have been aware of the likely reaction among gardaí which such a proposal would generate. So there must have been some powerful and compelling reasons for taking such a step. If that be the case the Minister has been less than anxious (at least at time of going to press) to spell them out and certainly the evidence available to the gardaí and the general public is insufficiently convincing to sustain an argument in support of this extraordinary measure.

Apart from the fundamental rights aspect of this issue, there is a deeper and far stronger reason why the Garda so determinedly oppose this particular provision. Many gardaí feel genuinely hurt that they, and their profession, should be held in such low esteem by the Government and that they can no longer be trusted, can be no longer be accorded the same rights and respect as all other public servants — not to mention the criminals. At a time when the gardaí are under siege from all sides the least they could have hoped for was that their own Minister for Justice would not add to the cacophony of abuse but would instead do something to boost flagging morale.

The logic behind this legislation is to make the Garda more accountable for their actions. Fine, but how more accountable will they have to become before the Government are satisfied? Right now they are held accountable under a draconian disciplinary code under which they can be summarily fined, suspended or dismissed. They are accountable to the courts where every minute particle of their behaviour is daily analysed under the microscopic attention of the legal profession. They are accountable to the Minister for Justice who can order an inquiry into any aspect of Garda behaviour and, through him, they are accountable to the Oireachtas who can and most recently did, authorise an inquiry into Garda behaviour. On top of all this they will now be further accountable to another body who will authorise investigations and reinvestigations if they like, prosecute, adjudicate and sentence gardaí for alleged misbehaviour. The message from all this to the Garda is clear: "If they do not get you one way, they are sure to get you some other way."

From the same issue of June 1985Garda News I quote the words of the former president of the AGSI, Dan Ryan who states:

While I have supported the concept of some independent element in Garda complaints procedure I must admit that the contents of the Bill went far beyond what I or the Association had anticipated. In particular that section which requires members to answer questions and produce documents in certain circumstances is one, not only that I did not envisage, but one which I could never accept. It is a sad day when the members of An Garda Síochána should be treated less favourably than the rest of the citizens of this State. We have loyally served the people of this country for well over 60 years in very difficult circumstances, often with little thanks and with continuous risk to life and limb. We are charged with a series of duties more demanding than those required to be performed by any other public servants. We receive only limited resources to fulfil those duties and instead of the Government setting out to improve that situation we find that this measure is designed to further restrict the Force in the performance of its duties.

No one, least of all I, deny the need for the gardaí to be accountable for their actions. But I contend that at present they are amply accountable for those actions — as recent events have proven beyond doubt. We have a most stringent disciplinary code which enables the Commissioner to do practically anything he wants to a member.

Those are very strong words from the Garda representative association, the AGSI. I have one final quotation which highlights the frustration being experienced by members of the force at the moment. It is in the same issue of the Garda News of June 1985. It is a statement from the general secretary of the AGSI, Michael Murphy:

"Garda morale has suffered", he said, "there is a growing lack of confidence among members — confidence in their own worth to a community which seems to doubt that worth. In the last 18 months we have heard very few words of praise from the politicians with a few notable exceptions, for the police force facing a near impossible task with fortitude and courage. It is within this atmosphere that Mr. Noonan introduces his Bill. A Bill designed to ‘nobble' the Guards and ‘nobble' them good!"

It is against this background that the AGSI withdrew from discussions and negotiations with the Department of Justice on the terms of the Bill. They maintained that they were not prepared to have discussions with preconditions forced on them by the Department of Justice. In the words of their former president:

"We queried", said Mr. Ryan, "the need or circumstances that made certain provisions in the Bill necessary and to date the Department of Justice has failed to provide any convincing justification for these unprecedented measures. I repeat once again that this Association was and remains at all times ready to negotiate in respect of any proposed changes in the Disciplinary Regulations without preconditions. It will, as it has always done, respond in a responsible and constructive manner."

It should be remembered that this Association acted in a more than reasonable manner in facilitating agreement on the large range of comparatively severe measures initially proposed.

However, it was time to call a halt when this additional draconian measure was slipped in at the eleventh hour without warning, not to mention negotiation. Why are members of the force now being oppressed by this measure which applies to no other public servant nor indeed, to any other citizen...

It is equally relevant to point out that such a measure does not apply to members of any other police force throughout the EC. The right to silence is the contentious issue. The section, in a sense, requires members to convict themselves under the complaints procedure. Since this cannot be accomplished under ordinary rules of evidence, it is an area to which serious attention must be paid. The right to silence is afforded to all who are under investigation. To deny gardaí that right is a denial of natural justice. I would say to the Minister that a lot more consultation and discussion should take place between all concerned in this regard. On Committee Stage I hope we will be able to discuss this matter further with a view to seeking solutions to the problems at present being highlighted by the force.

I made reference earlier to a statement by the general secretary, Michael Murray. I was shocked in this House last week to hear a statement made by my good friend and party colleague, Senator Durcan, making what I would regard as an unfair attack on the general secretary for comments he had made on behalf of his association in the Garda News magazine. He accused Mr. Murray of making a political attack on the Minister and the Government. I would have to disassociate myself from his remarks because I believe that an officer of any association has a right to represent the views of his association, he has the right to challenge the Minister on different areas of legislation which he would believe to be damaging to his own organisation and he has a right to protect the members of his organisation. Senator Durcan in this House issued a challenge to Mr. Murray and in his own words he threw down the gauntlet to Mr. Murray. I regard that as Garda bashing and we have too much of that in this society. I believe some politicians can be accused of doing this to excess in many cases.

Returning to the terms of the Bill, the Minister has provided that of the proposed seven members of this complaints board, one will be the commissioner or his deputy or an assistant commissioner. In my view, this is neither desirable nor acceptable. Since the request from the Garda associations to have one of their members on the board was rejected, no serving member of the force should be a member of that board.

The Garda associations have sought the right to nominate a member to the board. If management is represented, then why should they not be represented too? This would be the normal argument. If management is to be represented, then should the staff not be represented also? For the board to be seen to be independent neither staff nor management should be on the board in this instance. I agree with Senator McGonagle's remarks in relation to this issue. I believe that for the board to be seen to be totally independent the commissioner should not be on the board.

The Minister emphasised the internal disciplinary control which the commissioner must exert within the force. I accept that they are a disciplined force and the commissioner has that function, but we are looking here at them as a body and our principal interest here is to provide a mechanism whereby members of the public can bring their complaints and allegations before a board who are clearly to be seen as independent.

I wish to acknowledge the willingness of the Garda associations to accept the principle of an independent complaints tribunal. Therefore, from the point of view of the public and of the Garda force, the term "independent" is crucial to this entire debate. The decision of the Garda representative bodies to accept the principle of an independent complaints tribunal was good judgment on their part and that is why I make the point as strongly as I can that the Minister should give serious consideration to this aspect on Committee Stage.

I say to the commissioner and the force generally that never in the history of the State was there such a need for the widest possible acceptance of the credibility and performance of our gardaí. Never was there a greater need for closer public co-operation with the force. I am greatly concerned that there is conflict in existence between the Minister, the Department of Justice and the Association of Garda Sergeants and Inspectors and I urge both sides to come together and try to resolve the difficulties that now exist between them.

There are a number of other areas in this Bill which the Garda associations are a little unhappy about. They are not satisfied that members of a disciplinary tribunal on the board who will adjudicate on a complaint may have been involved already in a decision to refer that complaint to the tribunal. They suggested that this could be unfair to a garda and would be contrary to their principles of natural justice. Another area of concern was the period within which a complaint must be made against a garda. The associations have suggested that the six months provided by section 4(3) is too long. They have suggested a period of 28 days which is more desirable. It should be noted that the law at present provides in the case of dangerous and careless driving that while the prosecution must be brought within six months, the defendant must be notified immediately, or within 14 days of the intention to prosecute. This is so that a defendant may be in a position to produce evidence in his defence. Otherwise, he may not be aware that he has committed any offence and it would be unfair to require him to defend such a case as late as six months after the alleged incident had occurred. I believe that a similar regulation should apply in support of the Garda Síochána.

Another area of concern to the Garda is the one of legal aid for their members. They look upon it as the failure of the State to defend members against actions arising out of the due execution of their duties. In a number of recent incidents actions have been taken against Ireland, the Attorney General, the Minister for Justice, the commissioner and a named member. The State provides legal representation for everybody involved but the member. Why isolate the member and force him to pay his own defence? In my own county I am aware of a sergeant who has difficulties because of having to pay legal expenses. He put in a claim for legal expenses in July, 1983. The claim was recommended by all parties — his district officer, his divisional officer, the commissioner and the Department of Justice. He was assured that the claim would be paid. However, three years later his claim is still not paid. The situation is now so serious that as a result of a mortgage judgment taken out recently against his property the sergeant may be compelled to sell the family home to pay the legal expenses. The Minister and the Department of Justice are fully aware of the case I am talking about. It is in the East Cork area and if the Minister wants details privately afterwards, I will have no difficulty in giving them. The sergeant owes approximately £10,500 in legal expenses. Not alone is this known in the Garda station but is widely known in the immediate area and it certainly does not do anything to boost his morale or help him to do his job any better than what he is doing it.

Having discussed the broad terms of the Bill, I must come back to the most contentious section, section 7 (9), relating to the right of silence. I am asking the Minister why he sees this wide and far-reaching measure to be necessary. What evidence is there to suggest either (a) widespread abuse of Garda powers or (b) widespread failure by gardaí to account for their actions in the normal course of duty to warrant such a fundamental diminution of the hard won rights of the Garda? The Department of Justice admit that by virtue of Regulation 9 of the Garda Disciplinary Regulations, 1971, the Garda have been in a special position in that the right of silence was specifically extended to cover disciplinary inquiries. This was a hard fought concession negotiated at the Garda Conciliation Council and was aimed at counterbalancing the otherwise stringent and severe regime provided for in the disciplinary regulations.

Regulation 9 is founded on the principle that no person shall be compelled to expose himself to penalty out of his own mouth. If a person is to be punished for a wrong-doing it should be proved against him by those who accuse him. I would urge the Minister to have another look at this section and amend it if possible at Committee Stage.

The Garda Síochána, sometimes at great personal cost, have never flinched from their duty to protect the community. They have played their part well in the past and I have no doubt they will continue to do so. The former president of the AGSI, Dan Ryan, said:

Let the word go out loud and clear. Give us the tools to do the job, reassert the supports which you have given us for the past 60 years, have confidence in us and we will restore peace, security and dignity to this country.

Mr. B. Ryan

Senator Kelleher had some very interesting points about the injustices being done to gardaí by certain subsections of this Bill. I am intrigued that he can tell us that the country is in the grip of a ferocious crime wave and then take great satisfaction from boasting about the fact that crime is in decline, for the first time in 20 years, in two successive years. It is hard to reconcile the two assertions.

Mr. Kelleher

The statistics are there to prove it.

Mr. B. Ryan

It is also interesting that crime is in decline without the obnoxious provisions of the Criminal Justice Act being brought into force. They were never needed and it is becoming obvious as crime declines that the obnoxious provisions of the Act which are still not in operation but which regrettably will be coming into operation soon were not necessary. Crime was being dealt with, according to Senator Kelleher, quite effectively without them. The Criminal Justice Act was appalling, continues to be appalling and unnecessary and will be the cause of much conflict, much trouble and an enormous amount of work for the complaints board. It was offensive in intent and remains offensive notwithstanding the improvements that were made to it.

It is important to remember that we have for our size a large police force. We are the most policed country in Western Europe. We have more police in proportion to our population than any other country in western Europe. Most authorities now agree that increasing the number of Gardaí would not per se necessarily improve anything in the area of crime. It disturbs me that we have such a large Garda force and at the same time so many people seem to feel that when they have their own personal crisis which requires the gardaí, gardaí are not available. We need to reflect on our large police force when we hear the glib demand for more gardaí.

I have many reasons to believe and be aware of the enormous generosity and kindness of many members of the Garda force. I have been on record in Cork on many occasions as praising the willingness and the ability of the members of the Garda to deal with homeless people who are intoxicated and are less than easy to deal with. Their good humour and their flexibility, patience and generosity far exceeds, very often, that of the so-called caring professions. I have seen more people brought home in a garda car than I ever saw brought home in an ambulance. I have seen people treated with greater dignity in a garda cell than they were ever treated in a hospital casualty department. That is to the credit of the vast majority of the gardaí.

It is also a regrettable fact that the Garda are not entirely made up of angels. Deterioration in the quality of behaviour have been referred to me by people who could not be described as liberal. I am surprised at some of the people who are extremely unhappy about the levels of courtesy in dealing with members of the public who come into contact with the Garda. I continue to be amazed at the number of people who feel obliged to contrast the general courtesy and disposition of members of the RUC with their experiences with members of the Garda Síochána. I get the impression that many gardaí do not seem to have the same recognition of themselves as servants of the public as used to be the case in the past. I can say, as one who did it once, to go into a Garda station to say that you have a complaint to make about the behaviour of a member of the Garda is a particularly chilling experience. I did it a number of years ago in McCurtain Street Garda Station in Cork. There were about 30 gardaí inside having an animated conversation about last night's football match, or something. I had a quite serious complaint to make about the behaviour of a member of the force not towards myself but towards somebody else. When I opened my mouth an icy chill descended on the Garda station and all conversation ceased. Every single word I said was listened to not just by the officer on duty but by everyone in the station. If I had not been reasonably confident of myself — I was not a Member of the Oireachtas at the time — and had not been in a position where I felt reasonably secure I think I would have been intimidated into silence on the spot not by any overt threat but by the atmosphere that descended when I said I had a complaint to make. I say this not so much by way of a complaint, I think the reaction was perfectly natural, but by way of an indication of the fact that simply setting up a complaints board will not necessarily make people feel that they are able to make complaints. I heard a Deputy in the other House from the inner city of Dublin explain in detail an experience that one of his constituents had of an extraordinary coincidence of complaint and prosecution, of a complaint being made against the gardaí and a prosecution surfacing months later about the same night. People may not necessarily be right but if a perception is left with people that making a complaint may cause trouble you end up with people still being afraid to make complaints. That is why, if investigations are to be done by the gardaí it will make people nervous. You would not believe the number of Members of this House and of the other House who warned me during the period of discussion on the Criminal Justice Act that I would want to be careful about what I was saying about the gardaí because they might "get" me.

Such considerations did not influence me and I have no reason to believe that those warnings were justified. I have had nothing but courtesy from the gardaí in this House and everywhere else. I have heard people with whom I have been associated in the public mind, Members of the Oireachtas in fact, making allegations about their being persecuted by the Garda. As far as I am concerned, nothing like that ever happened. Neither did I have any reason to believe that it would happen. I have no reason to believe that criticism of the gardaí by anybody produces the sort of consequences that people fear it will. Nevertheless a large section of our soceity do not share that view and that section of our society will not be reassured by a complaints procedure where the first thing they discover is that the person who is investigating the complaint is a member of the same force against which they are making the complaint. That will have a serious effect on people's confidence in a well intentioned complaints procedure which I welcome.

I am not sure that I could come up with an easy formula. I fully accept that to set up a parallel investigational mechanism independent of the Garda would be very difficult. I am very happy that there is a subsection which enables the board in certain circumstances to direct the chief executive or somebody nominated by him to carry out an investigation. I am more worried about public perceptions of how this will work than about suggesting an alternative mechanism which would be better. I am not opposing this procedure but we would want to recognise its limitations and understand with as much care as possible and as much detail as possible the sense of suspicion and alienation large sections of our society feel towards most of the institutions of the state.

The complaints procedure and the whole Bill are welcome. I want to congratulate the Government on it. It has been talked about in the country for a long time. I regret that large sections of the gardaí seem to be unhappy about it. It is important to remember that the individual member of the Garda Síochána has what can only be described as awesome powers. Those powers are both necessary and justified with the exception of the recent Act to which I took great exception and with the notable exception of the Offences Against the State Act. Most of the powers members of the Garda Síochána have, for instance in the area of drug abuse, are necessary but they are also awesome. The quality of investigation, discipline and regulation required in a body of people who have those powers must also be of an awesomely high standard.

This is where many members of the Garda representative bodies seem to lose their logic. They are not just an ordinary group of employees being investigated because of breaches of discipline in the course of their employment. They are a force with enormous powers that are necessary and justified who must be seen to use those powers properly. It is not just the power of arrest; it is the stature in society that those powers give a person; it is the stature that the Garda Síochána as a force have in our society; it is the role they play in our society. All of those things which are part of the process of enforcing the law in a free society necessitate an equally demanding discipline procedure to ensure that none of them can be abused through the most visible part which is the abuse of arrest or the abuse of position in return for privileges which people worry about and talk about. All of the things referred to in the Third Schedule are the sort of things I am talking about. Many of them do not look so serious in themselves but committed by people who are part of a force and who have enormous powers, they are serious offences because of what they do and because of the implied threat that can be behind what would be otherwise relatively minor offences. It is the implied threat carried by the powers a garda has that makes many of these things serious offences.

I do not want to go into a long catalogue of Garda offences. It is worth remembering that there have been many thousands of arrests under the Offences Against the State Act over the past number of years. Over 90 per cent of those arrests have not resulted in any charges being brought against the persons arrested. That is an Act under which people are supposed to be arrested only if the Garda have reasonable suspicion. I look forward to a complaints board investigating complaints in this regard. I find it difficult to believe that you can reconcile reasonable suspicion with a 90 per cent failure rate in terms of subsequent prosecution. The Offences Against the State Act says that a Garda must have reasonable suspicion that the person committed an offence, not that the person might be of some use in helping to find out who else committed an offence.

It is an extremely broadly sweeping Act. It is bad enough as it is, but it is worse when it is abused. I have no doubt that it is abused. It is used as a catch-all. I am glad the courts have begun to remind the gardaí that it cannot be used with the same lack of concern for the niceties of the law that it used to be. It needs to be investigated. A 90 per cent non-prosecution rate among people who are detained under the Offences Against the State Act is prima facie an abuse of the power contained in that Act. In the area of search of premises the figures the Minister gave this House or the other House on a previous occasion suggested a similar high rate of failure of about 90 per cent of searches producing nothing.

I could not let the occasion pass without detailing the experiences of two freinds of mine who were searched under the Offences Against the State Act and, given that the Minister present is who she is, I think she might find the story interesting. Among the items taken away by the gardaí for further examination under the Offences Against the State Act was a large supply of contraceptives which a friend of mine was in the process of selling as part of a pro-contraceptive lobby in a working class area in Cork. The interesting and intriguing part of it was that — this was before access to contraceptives was legal in this country — in order to confuse any curious garda the top layer of all the packages had a contraceptive removed and a balloon inserted instead. The garda showed an enormous interest in what "them balloons" were for. I think he suspected they were using them to make bombs.

A large supply of contraceptives was seized for inspection by the Garda Síochána under the Offences Against the State Act. My friends did not and will not be pursuing this as a complaint. They were fortunate to be articulate and they were equally fortunate in having reasonably articulate friends, myself included, and the matter was speedily tidied up. It was frightening experience for them which caused them great distress. I have no reason to believe, knowing them as I do, that there was anything in their activity. The fact that they expressed what could be regarded as strongly Republican views about Northern Ireland should not, of itself, justify the attentions of the gardaí. It is not an offence in this country to say you believe in Irish unity or that you believe the British Army should leave Northern Ireland. It is not an offence and it should not be a ground for suspicion in this country to say so. It was not an offence to support the H-Block hunger strike, even though I did not support them, and it should not have been regarded as grounds for suspicion. Both of those things were used against my friends.

I cannot let this occasion go without repeating that the arrest of the women in the Phoenix Park during the visit of President Reagan was one of the more disgraceful episodes in recent Irish history. The activity of the Garda Commissioner was involved there but I had better not say too much about that. They were locked up. It was never clarified what they were locked up for or why they were locked up. They were held for two days and refused bail by a garda who was most unwilling to communicate to anybody why he felt they should be refused bail. They were not going to abscond. They were going to go straight back to the Phoenix Park. There are no grounds in Irish law for refusing somebody bail on suspicion that the might commit a further offence. There are only two grounds for refusing bail — one is the possibility of intimidating witnesses and the possibility of 25 inoffensive women intimidating the entire Garda Síochána force who were witnesses to the offence seems rather unlikely.

The possibility of their absconding seems equally unlikely since they had every intention of going back to where they were arrested. The most convenient thing to do was to lock them up because they were a nuisance and an embarrassment and were also visible to President Reagan. They were effectively interned for two days to keep us from being embarrassed while President Reagan was here. A week later when President Reagan was safely out of the country the charges were dropped when they came before the District Court.

That was a disgraceful episode and one which did not reflect well either on the State or on the members of the Garda Síochána involved though I cannot but suspect that it was not the ordinary individual garda on the ground who took the decision that people should be locked up for two days but that it was taken at a considerably higher level in the interests of avoiding embarrassment. It was sad and it was very offensive. It reflected very badly on the Garda. I know that the women in question, none of whom to my knowledge, with one exception, had ever been inside a Garda station under any negative circumstances before, were terrified out of their wits. The general condition of many of those women over a two-day period deteriorated. They were not physically abused, I hasten to add. Their conditions were extremely uncomfortable, dirty and overcrowded, but there was no question of deliberate physical abuse or anything like it. Being locked up for two days, with accompanying uncertainty, discomfort and fear, all that had a profound effect on those people. That is the reason I keep coming back to what I started off with: that one cannot talk about complaints against the Garda as if they were just another bunch of public service employees. They are special in our society. They have all sorts of qualities that make them special, and they have enormous powers. That is why things that would be very dubious under normal circumstances, such as the restriction on their right to silence when dealing with offences, have to been seen in the context of the powers they have.

There is also the regrettable fact that in a number of recent cases where attempts were made to investigate allegations against the Garda through the current investigation procedure, they refused point blank on legal advice to say anything and frustrated the whole intent of the investigation. To some extent, therefore, one can only say that the activities of some members of the Garda have made this necessary. I regret it. I find also a certain irony in the fact that the Garda, who are now the most vocal defenders — at least some of them — of the right to silence, were among the most vocal members in our society who were demanding that the right to silence of suspects should be curtailed, if not eliminated. They were very upset when certain sections dealing with the capacity of the court to draw inferences from suspect silence were deleted from the Criminal Justice Act. I find it ironic that they are now claiming that certain rights should be given to them, but which if they had their way, would be denied to the ordinary citizen. It is a necessary part of this Bill that there should be a requirement that information be supplied. It is well enough qualified to be worth doing.

Most of us are reasonably well off, reasonbly articulate, reasonably comfortable and in a reasonably good relationship with the forces of law and order. But we cannot sit here and ignore the fact that one of the problems the Garda have — it is not necessarily of their own making, though it is partly — is that there are increasing areas of our society where they are not seen as part of the community but as an alien force. Alienation is not just a characteristic of the North; it is a characteristic of increasing areas of the Republic of Ireland as well. The only way ultimately that that sort of a breakdown of contact between the Garda and large communities can be ended is through the efforts of the Garda. It will require sensitivity and hard work on their part. It is increasingly difficult when very few gardaí live in the areas they are actually policing. There was a time when the Garda lived among the community they policed. Given the changes in demographic structures and the increased income bracket into which the Garda have quite rightly moved, very often they do not live in the areas which they are required to police and in the areas where there may be the greatest difficulty in gaining acceptance for them.

We need to have a long debate sometime concerning the causes of tensions between the Garda and sections of our society. If we identified it now and started to talk about it and started to work on it, we could do something about it. The neighbourhood watch scheme is a step in that direction. The whole accept of community policing needs to be extended, thought out and developed. It is a moot point whether one can have real community policing if the gardaí who are involved in community policing are not actually living in the community in which they are working. The difficulties for both the Garda and the community on working that out could be considerable. We need to work back towards a situation where the gardaí are part of the community they are policing. The only kind of policing that can work in a free society is policing by consent. You cannot do it any other way.

In that regard I should like to ask the Minister if the report on the training of the Garda will be implemented? What has happened to it? The quality of Garda training is central to an improvement in their relationship with the community. I would like to know what is going to happen with Garda training. The present period of training is obviously hopelessly inadequate. The possibilities of further training, the whole area of third level education for the Garda and the possibility of graduate recruitment into the force — all of those things would need to be thought about and looked at. There is a need for specialist skills, which are often lacking. There is a need, above all, as many of us have had painfully to witness, for communication skills by senior members of the force in dealing with the media. Members of the press will tell you that the quality of the Army Press Office by comparison with the quality of the Garda Press office is away ahead. The Army Press Office is efficient and forthcoming. This is the report that the media give to me. It is not the fault of the staff of the Garda Press Office. It is an attitude that needs to be looked at. That is all part of regaining the sort of acceptance that the Garda used to have.

I am an enthusiastic supporter of this Bill. I only regret that it is part of a package. This is the acceptable side of the package. That does not make the other part of the package any less offensive to me than it ever was. Nevertheless, it will be a welcome step forward. It will mean a considerable amount of progress.

I have a few queries about omissions in the Bill which I will refer to on Committee Stage. I am interested in section 6, which deals with matters of national security. It is difficult to understand what it actually means. It appears that if the investigating officer thinks that something in the report would threaten national security — I am extremely suspicious of leaving people in the State apparatus to decide for themselves what is a threat to national security. I have no doubt that there are people in the State apparatus who would regard me and a considerable number of people of my politics as a threat to national security. If one reads section 8(a)(b)(c), effectively the commissioner and the Minister may decide that certain matters may not be referred to in a report. Paragraph (d) seems to say the opposite. It seems to suggest that this is one procedure, but if the complaints board and the commissioner can work out a different way of doing things, then that is all right. I do not have the best legal brain in the world, but one of the best is coming after me. He might explain what it means. He has often done this before, for my enlightenment.

The other omission is by way of a query more than anything else. I understood that there were very strict prohibitions on the Garda engaging in gainful employment while they were members of the force. I thought that part time work by members of the Garda was frowned upon, if not disallowed. I happen to think in regard to this whole thing of members of the Garda taking on second jobs — and it does appear to be fairly widespread — whether it be commercial or other activities that it is not in the interest of the force that they should do so. It is not in interest of the community that they should do so. In the less controversial area of work where I have my other employment I am required by my employers, the vocational educational committee, to get their permission before I undertake any other kind of work outside of teaching, because they regard it as not being in the interest of education or of my students that I should have other activities which might take up a large part of my energies, time and effort. I think that is perfectly right. Whatever the implications it has on personal freedom, you cannot really have people doing two jobs; one as the day job and the other being where the money is made. I would like to ask the Minister whether gardaí are permitted to take on employment outside of their duty hours and, if not, would she consider inserting that activity into the list in the Third Schedule of offences about which complaints could or might be made.

I am glad we have got this Bill. My only major regret is that the passing of this Bill, together with the regulations dealing with people in Garda custody, will, of course, unfortunately result in the enactment of the draconian measures contained in the Criminal Justice Act. I am glad that, when we finally succeed in getting the Criminal Justice Act repealed — as I am sure we will when enlightenment finally dawns — we will at least have left behind a good procedure for dealing with complaints against the Garda and also improved regulations for dealing with people in custody.

Mr. O'Leary

It is with some regret that I am unable to share the enthusiasm of some Members with regard to the contents of the Bill which leave a lot to be desired. I propose during my speech on Second Stage and on Committee Stage to improve the Bill in such a way as to make it more effective in defending the rights of those who are making complaints and those against whom complaints are made. It is in this spirit I approach this delicate task.

Having a complaints Bill is an excellent idea, one that we should support and give help to because it is badly needed. There appears to be a substantial difference in attitude between various categories of complaints of breaches of discipline or alleged breaches of discipline by members of the Garda Síochána. It is true to say that breaches of discipline which arise and which are initiated internally within the Garda Síochána are pursued vigorously by the powers that be. Very often they result in very severe penalties against members of the Garda. Members of the Garda Síochána whom I have spoken to feel a little uncomfortable with regard to an additional amount of investigation of their activities. This is because they consider that the investigations that relate to internal matters are most vigorously pursued and, indeed, often result in serious consequences for members of the force.

Before moving on to the other types of complaints, I notice something which is worthwhile and welcome in the Bill. It is proposed to enable the various boards, tribunals and appeal procedures to have as an additional disciplinary reaction the power to require a member to retire or resign from the force as an alternative to dismissal. That is a good protection for members of the force and also for members of the public. A problem can arise where a member of the public makes a complaint, or where a garda is in breach of some regulation, whether it is an internal or external matter, and there is no doubt the complaint is justified but the upholding of the complaint in normal circumstances would lead to the dismissal of a garda. Sometimes in the case of elder members the effect of dismissal from the force is out of all proportion to the "crime" committed by or alleged against a member of the force. The additional power to require members of the force to resign and thereby retain their pension rights is one of considerable advance in the flexibility which is such an important part in dealing with this delicate area.

Members of the force feel hard done by at present with the strength with which internal disciplines of the Garda Síochána are pursued. However, the general feeling among the public — which is not shared by members of the force — is that complaints about actions of members of the force emanating from members of the public are not treated in the same way. The vigour which is shown in regard to internal breaches of regulation is not, in the public perception, the same when breaches are alleged by members of the public. A very prominent former Minister for Justice — I emphasise "former" and I will not state what party that person belongs to — when discussing the question of Garda complaints even before the drafting of this Bill, said that in his view the way in which complaints by members of the public were dealt with by members of the Garda Síochána was to use the tactic of delay, that the way the problem was solved was to postpone it until everyone got bored and tired and then it became irrelevant as a result of the passage of time. The procedure was strung out until such time as sufficient distance existed between the events which gave rise to the complaint and the actual action arising therefrom, that even if the complaint was upheld, the discipline taken was very small compared with the seriousness of the complaint. That assertion was based on that person's experience as Minister for Justice.

It is interesting in those circumstances to review briefly what is proposed in the legislation where a member of the public is aggrieved and makes a complaint against a member of the force. What is the scheme proposed? Will it serve the interest of speedy justice on the one hand, or, on the other hand, will it serve the process of delay — to which I have referred — in which members of the force handle their problems?

What is being proposed in so far as I have been able to untangle it from what is probably the most complex legislation I have ever read is as follows. When a member of the public has a complaint he visits a Garda station or gets in contact with the board directly; he can visit the office of the board or contact a senior officer of the Force but, generally speaking, he will have to write to the board or, alternatively, call to a Garda station. It appears to me that the chief executive of the board will have to decide whether the complaint which has been reduced to writing is admissible. All such complaints are reduced to writing. Even though this is appropriate, I will be putting down an amendment to that effect in case of the Garda Síochána. Having decided it is admissible, the chief executive has to notify the Commissioner who, in turn, can decide that the complaint should be dealt with on an informal basis. The decision will have to be made either by the Commissioner personally, or a person who is duly delegated by him to do that job. I do not think it is something that can be done automatically. If he comes to the conclusion that it is not a matter which can be dealt with by an informal method, he will appoint an investigator to invesitgate the complaint. That investigator, having been appointed, will investigate the complaint. The way in which that investigator can proceed is something I will discuss later. At the moment he proceeds with his investigation.

Under section 6 an investigating officer shall complete an investigation under this section as soon as may be and, if he is unable to do so within the period of 30 days from the date of his appointment, he shall write an interim report. We can take it as certain that, in respect of all serious complaints that are made, an interim report will be necessary. So an interim report which will have to be made to the chief executive and ultimately, of course, to the board. The chief executive will receive it and in due course will transmit it to the board itself. The board then will consider the matter and decide whether there is a possibility that there is an offence disclosed by the complaint and, if so, it will be referred to the DPP. The DPP will conduct whatever investigations he considers appropriate and make whatever decisions he wants to make with regard to the matter and, as a result of that, he will charge that member or some other member with an offence. If he does not want to charge, or if he thinks it is not appropriate to charge, it will be sent back to the board.

Having been sent back to the board, the board will be entitled to investigate the matter further if they want to or alternatively they will be entitled to take no action if they consider that appropriate. They will be entitled to warn the member under section 7(4) or if they consider that it is a serious complaint they can refer it to a tribunal. The tribunal are actually the body that will adjudicate on this. The board will not adjudicate on anything except its admissibility, or whether it is relevant to refer it to the DPP, or whether it is a trivial matter.

With regard to any complaint which ultimately turns out to be a complaint of substance, the board will not adjudicate on it. They will refer it to a tribunal and the tribunal will go through their own rigmarole and ultimately, if the tribunal find the member was in breach of his duties, it will go from that to an appeal. Does that suggest a system which will work with the minimum of delay, or does it suggest a system which, with the best of goodwill from the Department of Justice, they have been forced by precedent and by pressure to accept? They know that, as a result of that, the processing of complaints will be extremely slow and tedious and will take a long time. I must put it to the Minister that the most convoluted scheme which it is proposed to establish under this Bill is absolutely designer made to fulfil the requirement and the objective which a previous Minister for Justice said to me was the way in which complaints by members of the public were dealt with, that is, delay.

I must put it to the Minister that this complicated procedure where the person goes to the Garda station and the complaint goes to the complaints board to see whether it is admissible; it goes to the Commissioner of the Garda; it goes from him to an investigating officer; it goes from him back to the chief executive of the board; it goes from the chief executive of the board to the board; it goes from the board perhaps to the DPP; and if not it goes to a tribunal; and it goes from the tribunal to an appeal board.

It will never be finished. Not days or months but years will pass, because at each and every one of these stages people will be entitled to legal representation. They will be entitled to make sure that they are properly advised. There are procedures to be followed about people being notified about things in writing. There are procedures to be followed about people being asked questions. All these things will have to be followed. The investigating officer will require to be a most experienced person before he could possibly understand the complexities of the job which it is proposed to give him.

At least one, if not two, of these steps is quite superfluous. The procedure is quite unnecessarily complicated and does not appear to be designed to relate the decision as closely as possible within the confines or restraints of natural justice to the actual commission of the "offence". The origin of the complaint and the decision must be in some way connected in time, because the more they get separated in time the greater the possibility that one will not do justice to the other. It appears that this centipede of a procedure is not calculated to restore the confidence which members of the public should have in the complaints procedure. I look forward to the Minister's explanation as to why this procedure is necessary. It appears to me that one of the reasons the procedure is necessary is that at all times the commissioner is being kept closely in touch with the procedure. I wonder how realistic that is because, with regard to most offences or most allegations of this kind, the Commissioner cannot be expected to know personally what is going on.

My main problem with the legislation is not the principle involved which I think is excellent, but the procedure which it is proposed to adopt which is tortuous, to say the least. I am not sure this procedure is sufficiently streamlined to be able to protect properly the interests of the members of the Garda Síochána on the one hand and I am absolutely certain that their interests should be protected. On the other hand, I feel equally strongly that the complaints of the members of the public should also be dealt with.

The number of complaints against members of the Garda Síochána is something which is not well documented. The Minister might like, when replying on Second Stage, to give us some indication as to the number of external complaints which are received on an annual basis in respect of conduct by members of the force. How many of those were received in 1985, 1984 and 1983 and in respect of each of them going back as far as 1983, how many of those inquiries have been completed? In how many cases was the complaint upheld? I am not interested in what the disciplinary penalty was but the actual result. This is a necessary prerequisite for seeing the scale of the problem.

It is important that the Minister gives in his reply a good idea of the number of complaints which are likely to be the subject of this investigation procedure. It will also be important to know the average length of time taken in respect of such complaints under the present disciplinary code.

Debate adjourned.

Sitting suspended at 5 p.m. and resumed at 6 p.m.

Seanad Éireann díospóireacht - Wednesday, 25 Jun 1986