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.