The creation of an office of Garda ombudsman would be preferable to the proposed Garda inspectorate, about which there are some reservations, write Michael Farrell and Fionnuala Ní Aoláin
Donegal, Abbeylara, Dean Lyons, the Reclaim the Streets parade: in recent years, confidence in the conduct and accountability of An Garda Síochána has been undermined by a series of high-profile incidents involving alleged violations of human rights.
The Garda Complaints Board is widely seen as ineffective and lacking independence.
There is now a broad consensus on the need to reform the Garda complaints process, and both the Minister for Justice and his predecessor have promised substantial change. So far so good for Garda accountability
However, those interested in establishing a genuinely independent Garda complaints system which conforms to international and comparative best practice should scrutinise carefully the plans outlined recently by the Minister for Justice, Mr McDowell.
The Minister has indicated that he intends to make the investigation of complaints against gardaí part of the functions of a new three-member Garda inspectorate. The proposed inspectorate seems fairly similar to the British body called the HM Inspectorate of Constabulary (HMIC) and seems to draw upon the existing provision for Garda management to carry out periodic inspections of the service.
Many observers have welcomed Mr McDowell's proposals as both positive in themselves and a speedy response to a sensitive political issue. The Human Rights Commission has also welcomed his prioritisation of reform of the Garda complaints system.
However, the commission has also expressed a number of serious reservations about the inspectorate model, and has advocated instead the creation of an office of Garda ombudsman. To fully understand these concerns, a brief look at the role of the HMIC in Britain is required.
The role of the HMIC, which oversees all of the various police forces in the UK (including the PSNI in Northern Ireland), is to ensure the "efficiency and effectiveness" of the police.
It concerns itself with recruitment, qualifications, standards of training, types and standards of equipment, accommodation, organisational structures, policing methods and best practice generally.
These are all worthy organisational matters but do not in our view grasp the nettle of the problem of Garda accountability in the Republic at the moment
The problem is how to protect the rights of citizens from violation by Garda officers. It should be evident that observance of human rights standards is not the chief concern of the HMIC, nor is it likely to be that of an Irish inspectorate created along similar lines.
The Human Rights Commission also foresees situations in which human rights concerns could be in conflict with some of the other objectives of an inspectorate which is focused on police efficiency, first and foremost.
In the commission's view, the body best suited, structurally and philosophically, to ensure full and fair investigation of Garda complaints is an office of Garda ombudsman. This office would be solely dedicated to the investigation of complaints against gardaí.
The commission believes that only through an ombudsman's office can this sensitive issue be satisfactorily handled to the highest national and international standards.
This is the position in Northern Ireland, where the newly created office of Police Ombudsman, headed by Nuala O'Loan, has proved itself to be a robust and highly effective body discharging multiple investigative functions. Setting up an ombudsman's office is not sufficient in itself to ensure a functional and effective complaints process. To be effective, the ombudsman's office must be sufficiently resourced and imbued with the appropriate legal powers to discharge its functions effectively.
At a minimum, the ombudsman must have the necessary legal powers and resources to conduct fully independent investigations.
An ombudsman and his/her agents must have the legal capacity to call and question witnesses, to search for and obtain relevant documents and other evidence and to access all physical locations necessary to carry out an investigation.
Where the ombudsman investigates a criminal allegation, the office should have the same legal powers as a member of An Garda Síochána to arrest and hold suspects.
The Human Rights Commission has also recommended that the ombudsman should have the power to investigate incidents and behaviour which took place prior to the office being created (prior review powers).
The ombudsman should also have the right to conduct an investigation without the need for a complainant to lodge a specific complaint. This independent right should be activated when the ombudsman is of the view that a particular issue or a series of incidents raises public concern.
An effective Garda ombudsman would not only function to alleviate public disquiet but would also vindicate the rights of gardaí themselves by providing a fair and transparent legal process protecting the rights of all parties.
Thus, the commission believes that the creation of such an office is in the interests of members of An Garda Síochána as well as those who wish to complain about them.
The breadth of concern about the Garda complaints system demands an imaginative and purposeful response from Government.
The Human Rights Commission is not opposed to the creation of an independent inspectorate. On the contrary, we believe that such a body has a useful role to play in the regulation and oversight of An Garda Síochána.
However, in our view an inspectorate is not the best structure to deal with Garda complaints.
Thus, while we generally welcome Mr McDowell's commitment to reform in this area, we would urge a serious rethink about the structure proposed. We suggest that the most effective vehicle to deliver an effective complaints system is an office of ombudsman. The public and the gardaí themselves deserve no less.
We would also point out that the Belfast Agreement calls for the establishment of human rights protections in the Republic which are at least equivalent to those in Northern Ireland. Surely the best way to meet that commitment in the area of policing is the establishment of an ombudsman's office on the same lines as the one in Belfast?
Michael Farrell and Fionnuala Ní Aoláin are members of the Human Rights Commission