Doireann: Who Should Police the Police?

The Gardaí have immense powers to protect us. But who makes sure those powers aren’t used against us?

What can you do if Gardaí arrest you for no good reason or put you in a cell without access to a lawyer? What if they subject you to humiliating treatment like a naked strip-search? Or if they use a baton or a taser against you without cause?

No organisation is perfect. But when imperfections lead to scenarios like these they have to be taken seriously. That’s why robust Garda oversight bodies are vital. And that’s why we need a new Police Ombudsman.

The oversight bodies we have right now are not working as they should.

We currently have the Garda Siochána Ombudsman Commission (GSOC), the Garda Inspectorate (GI), and the Policing Authority.

The first investigates reports of Garda misconduct. The second is responsible for general oversight and inspections. The third is tasked with monitoring the overall performance of the Garda and holding senior management to account.

All three were set up in response to a stream of high-profile scandals and Garda misconduct – including the orchestrated smear campaign against Garda whistleblower Maurice McCabe.

As such, they were set up in a hurry and a little haphazardly. That means some of their responsibilities are unclear, and can overlap, and there are serious flaws in the way they function.

Gardaí Investigating Gardaí

Take GSOC for example.

In 2018, GSOC got 1,270 admissible complaints – meaning complaints of actual misbehaviour. But it is so underfunded and understaffed that it had to ask the Gardaí themselves to conduct many of the investigations into these complaints.

In other words, there are times when the police are investigating the police.

Incredibly, the power to refer an investigation to GSOC mostly lies with the Gardaí themselves.

The current law also says, though, that GSOC can investigate a member of the Gardaí where it may be in the public interest. In 2018, they opened 17 public-interest investigations.

GSOC has to open an investigation when there is a death or serious harm in Garda custody. There were 38 such referrals in 2018.

Under international human-rights law, there must be an independent inquiry when there’s a death or someone is subjected to ill-treatment in custody.

In Ireland, our legislation is weaker than this. It requires “serious harm” before an independent investigation is triggered. Ill treatment that isn’t considered serious enough may not be independently investigated.

And Gardaí are not required to inform GSOC of investigations they’ve initiated. There are times when GSOC has learned of serious Garda wrongdoing from the media – including once when a Garda sub-machine gun went missing from the back of a Garda van.

GSOC want the law reformed to deal with this. The Garda Commissioner does not agree.

A Toothless Body on Wider Reforms

GSOC can make recommendations for wider reform but it can’t insist that they happen.

At the end of 2017, GSOC recommended that guidance be issued regarding Gardaí attending property repossessions, like the high-profile one that took place at North Frederick Street in 2018. The only response that we know of, from GSOC’s 2018 annual report, was a letter of acknowledgement.

GSOC noted in the same report that they made a similar recommendation in 2013. Five years later, it still hadn’t been implemented.

GSOC can’t investigate matters to do with national security. The Gardaí can refuse to share information with the excuse that it would jeopardise national security.

But no outside body, or human-rights expert, can check if the security threat actually justifies a refusal to share information.

What’s the Solution?

What can be done about all these gaps in oversight?

The starting point is the law needs to better reflect Ireland’s human rights obligations and the Ombudsman needs to have the staff and resources to ensure human rights standards are upheld across An Garda Síochána.

The Commission on the Future of Policing recommends establishing a new complaints body that would be “significantly different” from GSOC – more clearly independent. They propose the “Independent Office of the Police Ombudsman (IOPO)”.

To deal with the problem of Gardaí deciding what to investigate, and what to refer to the Ombudsman, they recommend that all complaints raising issues of standards of policing and police integrity should be routed through the new Ombudsman, while performance-management would rest with the Gardai.

All complaints, though, would be logged on a shared database. So even where it relates to performance management, the IOPO would have the ability to track trends and patterns and ensure appropriate cases are being referred to them.

IOPO would also have the power to make recommendations for changes to policy and practice. There would be enhanced oversight of its own work, too, including through judicial oversight.

To stop the practice of “leasing back” complaints to the Gardaí themselves, the Commission on the Future of Policing recommends proper resourcing – crucial for an oversight body with real teeth.

Another significant recommendation is that the Garda Commissioner would be empowered in the new legislation to bring matters to the attention of IOPO, which in his or her opinion warranted investigation in the public interest.

These matters may include allegations of past police wrongdoing, ensuring accountability in the present for serious harms done by police in the past, like the allegations of serious abuse of power in the Kerry Babies Caseor allegations of torture against Osgur Breatnach in the Sallins case.

The government committed to these recommendations in its implementation plan for the Commission on the Future of Policing report in December 2018.

Next Steps

According to a document leaked this month, the new oversight body would be called the Office of the Ombudsman for Police Conduct (OPC) rather than the IOPO, but would appear to have the powers recommended by the commission.

Significantly, in line with the Commission on the Future of Policing’s recommendation, there will be an obligation to notify the oversight body of all complaints.

Apparently, this is of concern within the Gardaí because of the potential for paperwork. But proper oversight requires transparency and accountability – as does proper policing.

The leaked paper also suggests that a judge might be appointed to adjudicate where Gardaí refuse to produce documents on security grounds. This would be welcome.

The OPC would also be subject to judicial oversight where complaints are made against the agency itself. This too is positive and in line with the Commission on the Future of Policing’s recommendations.

Reform of the Garda-oversight bodies is coming. It remains to be seen, however, to what extent any new government will follow through on this one’s promises.

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