There is always a degree of delight in the schoolyard when it emerges that the prefect has been caught offside. So some schadenfreude could only be expected with the revelation that a Garda Síochána Ombudsman (Gsoc) officer had resigned when he let it be known that he attended a party for Gerard Hutch after his acquittal in the Special Criminal Court earlier this month.
The extent of the officer’s involvement with the Hutch family has yet to be clarified. A man in his sixties arrested as part of the investigation was released without charge on Friday, and a file will be sent to the DPP.
But while Gsoc officers have the powers, privileges and immunities of gardaí, they also have their duties and responsibilities. Even socialising, in this context, cannot be acceptable.
Gardaí are sometimes dismissive of Gsoc officers, questioning their professionalism and competence. Unless things have changed, there is little basis for this. When the organisation was established almost 17 years ago, the men and women recruited were handpicked from forces in other common law countries. They were experienced crime investigators, often holding supervisory or managerial rank, joined by a small number of former gardaí and military police. Security vetting was conducted by Garda Headquarters.
The possibility that Gsoc has been compromised comes even as its future structure and operation are about to undergo what has been promulgated as their first big modification since foundation. The Policing, Security and Community Safety Bill 2023, which is making its way through the Oireachtas, proposes inter alia to replace the three-person commission with one commissioner and to rename Gsoc the “Police Ombudsman”.
The Bill, with almost 300 sections, proposes a range of modifications to the State’s policing and oversight structures. The official line from Ministers is that it seeks to give effect to the recommendations of the Commission on the Future of Policing (2017-2018), chaired by former US police chief Kathleen O’Toole. It reflects much of the O’Toole report but it is also an attempt to tidy up after two previous Acts (2005 and 2015) which were, in many respects, ad hoc, politically expedient responses to serious issues within An Garda Síochána.
If Gsoc had been adequately resourced from the start, many of the causes of friction with gardaí – operational delays, for example – would have been avoided
Some of the changes proposed for the oversight function are little more than cosmetic – changing the name and reducing the membership from three to one. It is difficult to sustain the declaration in the preamble to the Bill that it will “amend and extend” the functions of the Ombudsman.
Significant limitations were placed on Gsoc’s powers in 2005 compared with the Police Ombudsman for Northern Ireland and the then Independent Police Complaints Commission in England and Wales. The current Bill does not close this gap. For example, the revamped oversight body will have no autonomy in the conduct of inquiries where, in the view of the gardaí, they might impinge on matters of national security. It will require the agreement of the Garda commissioner if it wishes to search a Garda station. It will have no direct access to Garda IT systems or intelligence reports. If the minister for justice wishes, he (or she) can prevent it from investigating the conduct of the Garda commissioner.
The State and the Garda have been, at best, partial and reluctant subscribers to the concept of independent police oversight. Because the Garda is also the State’s primary security service in addition to being a civil police agency, it will always remain under the control of central government, unlike forces in the UK.
In reality, Gsoc and the Garda Inspectorate were created primarily to mirror arrangements in Northern Ireland after the Belfast Agreement and only partially in response to abuses within the Garda.
The 2005 Act contrived to give the appearance of independent police oversight while denying its substance. Gsoc’s powers were assiduously circumscribed, while its numbers were fixed at a level that made it impossible for it to do its job. If the organisation had been adequately resourced from the start, many of the causes of friction with gardaí – operational delays, for example – would have been avoided.
The 2015 legislation, a reaction to intense political pressure, created the Policing Authority. But it went too far in the thinking of officialdom in holding the Garda to account and is now, accordingly, being watered down in the Policing, Security and Community Safety Bill.
[ Hutch party hangover: tensions between Gsoc and Garda bubble to the surface ]
The Hutch case has focused attention on Gsoc. Regrettably, other matters that should have been pointers for concern have not stirred comparable interest. That Gsoc took two full years to complete its investigation into the 2020 shooting of George Nkencho should have rung warning bells. And the conspicuous absence of Gsoc from investigations into more serious Garda wrongdoing strongly suggests that it has been sidelined by the gardaí in such matters.
So is Gsoc fit for purpose? Has it any significant achievements to its credit after almost 17 years of operation? Or is it merely a sop to an ideal that is not taken seriously by the gardaí themselves or indeed by the wider political and official establishment?
For all its limited resources and its cumbersome procedures, it has probably helped to curb aspects of garda misconduct. The gratuitous use of physical violence by some gardaí had been a problem in the past. In turn such behaviour fed into community resentment, especially among the young. There are indications that this has greatly diminished since the advent of Gsoc.
It is also a reality that An Garda Síochána has greatly stepped up its own processes for identifying and dealing with internal misconduct, whether criminal or otherwise. Much of this can be credited to Commissioner Drew Harris, who has no tolerance for wrongdoing among the members of his force. But some of it, at least, is down to the existence of the ombudsman. Many gardaí will reason, wisely, that it is preferable for the force to clean up its own act than to have outsiders come in to do it for them.
Conor Brady was a commissioner at the Garda Síochána Ombudsman 2005-2011. He is a former editor of The Irish Times