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The Policing, Security and Community Safety Bill is a mammoth piece of legislation. It reforms all aspects of police oversight, governance and accountability in this country. One element of that is the investigation of police misconduct.
The Garda Commissioner Drew Harris has criticised proposals in the Bill concerning the powers of the Garda complaints body. The Association of Garda Sergeants and Inspectors (AGSI) has said they are “without justification” and the Garda superintendents representative body has described them as draconian.
It is important to reflect on whether their concerns are justified or whether this is another example, as we have seen in the past, of police resisting independent accountability.
The need for reform of the Garda Síochána Ombudsman Commission (Gsoc), the body tasked with investigation of complaints against the police, is not in itself controversial. The commission has itself commented at length on how complex, unwieldy and inflexible the legislative regime for investigations is, making their work overly complicated.
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Currently Gsoc applies different processes when investigating criminal or disciplinary matters. But this is a huge part of what makes its processes so unwieldy
Garda representative bodies and the public alike have criticised the fact that about 40 per cent of complaints to Gsoc are “leased back” to gardaí for investigation. The commission’s own survey has found that significant numbers of the public believe that Gsoc is part of An Garda Síochána. Most troublingly, only about 30-40 per cent of investigations are independently conducted. All of this shows that Gsoc is not the fully independent body we need it to be to have confidence that Garda misconduct is being effectively investigated.
The Commission on the Future of Policing recommended the creation of a new body with an expanded remit. It should receive all complaints in order to investigate holistically, looking at practice, policies and procedures and not just the conduct of individual members. But it went further and said that any issues that come to light internally should also be sent to the body for investigation. So, for instance, if a sergeant realises that a Garda under her command has been misusing databases to access information inappropriately, or has been acting corruptly, she should send these to the new Gsoc. At present these are investigated internally, by gardaí. Whether or not a concern is independently investigated should not depend on who witnesses the behaviour but at the moment it does. If a member of the public sees it, they complain to Gsoc, but if a garda sees it, it is invariably handled internally.
In terms of the powers of investigation held by the complaints body, the commissioner argues that full investigative powers, equivalent to those of a garda, should only be granted where the complaint involves an allegation of a criminal offence. Currently Gsoc applies different processes when investigating criminal or disciplinary matters. But this is a huge part of what makes its processes so unwieldy: if during an investigation for one, it appears the other has occurred, the whole process has to start again.
This is bad for complainants, and for those complained against. What the commissioner seeks would retain this convoluted aspect of the process. It’s worth noting that the Police Ombudsman for Northern Ireland does not make this distinction. There, the options are either informal resolution or a formal investigation. The commissioner criticises, and I agree, that informal resolution is not provided for in this Bill, but the call to separate types of investigations beyond that, and the attendant powers, can only be considered an effort to restrict the circumstances in which we have independent accountability.
What has received most attention publicly is that the commissioner and representative bodies have criticised the provisions around searches of Garda stations that may be conducted by the complaints body. Contrary to some coverage that describes this as an expansion, it is an existing power which is held by Gsoc. So what is being criticised are the powers of the existing body which is largely regarded as insufficiently effective. The commissioner proposes that, except in circumstances of urgency, Gsoc should have to secure a search warrant and in this he may be correct. But he also seeks to limit this to criminal investigations and states it would be preferable if consent from the commissioner was secured. In a truly independent system of accountability, the consent of the commissioner should never be required.
It is time to implement a system that is powerful enough and sufficiently resourced to create confidence that police misconduct is being properly tackled
These are not the only elements which the commissioner has criticised. In his submission to the Justice Committee, he also criticised the expanded remit of the new body. He states that the bar is too low for referrals, that there is no assessment of the veracity of the complaint and that vexatious complaints may be referred to the new body. The inference from this statement is that gardaí should be making an assessment as to whether or not a complaint is vexatious. For the commissioner to suggest that it should effectively be able to vet which complaints are suitable for referral is highly problematic. And it indicates that the concept of independent accountability is not fully accepted.
Creating a system for independently investigating police misconduct is both tricky and essential. We have heard a great deal in recent weeks from policing organisations and groups on their views of the proposals. We have heard little of their commitment to independent accountability, and we certainly have not heard the views of complainants.
The Policed in Ireland podcast has repeatedly heard from those who are frustrated and disappointed by their experiences of Gsoc. The consequences of this are personally devastating but they also delegitimise the entire policing apparatus of the state, reducing confidence and trust.
We also have heard little about how the proposals deviate from the recommendations of the Commission on the Future of Policing concerning the name of the new body, the breadth of incidents considered, its ability to consider policies and procedures in its investigations and that no serving police from the Garda Síochána or elsewhere should conduct these investigations.
Enough damage has been done in the last two decades to public conceptions of the police in Ireland. At the root of this, in my view, is our failure to implement effective systems of accountability. It is time to remedy this, to implement a system that is powerful enough and sufficiently resourced to create confidence that police misconduct is being properly tackled, while doing so in a way that respects the welfare and rights of members of An Garda Síochána. Adopting all of the recommendations of the commissioner and addressing the concerns of the representative bodies will not, in my view, take us to that place.
Dr Vicky Conway is Associate Professor of Law at Dublin City University and host of Policed in Ireland. She is a former member of the Commission on the Future of Policing