Problems with Garda complaints’ procedures deep rooted

The Garda Síochána Ombudsman Commission lacks the resources and independence necessary for its functionality, argues Lydia Bowers.

The smearing of Maurice McCabe has been labelled a frightening abuse of power by the State’s public bodies. Public figures such as Enda Kenny, Frances Fitzgerald and Nóirín O’Sullivan have had their futures questioned in recent weeks as new allegations have come to light in the police scandal that has dragged on for more than a decade.

The reality is that this case was not an isolated incident and the stepping down of certain figureheads may do much to stem the media attention but will not fix the issue at the heart of the matter. This extraordinary smear campaign is another example of systemic failings within the police system and an inadequate and under-resourced oversight body. Unless the procedures for investigating police misconduct are radically reformed, police officers guilty of corruption and abusive conduct can continue to be held unaccountable.

Not surprisingly, the lack of confidence in the capacity of the Garda Síochána Ombudsman Commission (GSOC) to successfully investigate complaints has peaked in recent months but the body has been the subject of sustained criticism since its creation in 2007. GSOC itself has laid out, in its 2016 report to the Oireachtas Commission, that it is under-resourced and overly reliant on the cooperation of the Gardaí.

“GSOC is purely an investigative agency. We do not have the power to prosecute, nor do we have the power to decide whether there has been a breach of discipline and apply sanctions if appropriate. These powers are with the office of the DPP and the Garda Síochána respectively.”

“Of course we all realise that they were structured in the first place not to succeed and sadly that remains the case”

It argued in its report that the latest reforms do not go far enough in ensuring its independence when investigating complaints. GSOC has explicitly stated that its capacity to fulfil its role is dependent on its access to the Garda PULSE and computerised information bases. GSOC has to request access to specific PULSE files on a case-by-case basis from An Garda Síochána, which has repeatedly caused a delay in bringing cases to court.

Back in 2014, during the Maurice McCabe whistleblower investigation, GSOC requested PULSE files on up to 3,000 terminated penalty-point cases yet the files were not handed over to investigators for between eight and nine months.

With such a dependence on Garda cooperation for the supply of video, electronic and any other evidence central to investigations, it would be injudicious to say that GSOC is the independent body that it was intended to be under the remit of the Garda Síochána Act 2005.

Furthermore, the body has no power to enforce their recommendations on formal complaints cases. GSOC investigators submit their recommendations to Garda supervisors who then have the final say which essentially flies in the face of a competent and effective oversight system.

These concerns are laid out in their September 2016 report: “In particular, we believe that the concept of the Garda Ombudsman having no power, at the end of a supervised investigation or one undertaken by a GSOC investigator, to seek a rationale should the Garda Síochána deciding officer go against our recommendation, is questionable in terms of effective oversight.”

The rate of successful complaints to GSOC remains very low. Currently, fewer than 3 per cent of complaints result in a recommendation for some form of criminal or disciplinary action, according to a 2017 academic report by University of Kent professor Dermot PJ Walsh. The commission itself has released numerous reports since 2013 and has repeatedly referred to its dependence on Garda information and cooperation to perform its functions. The 2013 report went as far as calling into question “the effectiveness of the Ombudsman Commission’s oversight investigative function”.

GSOC came into existence in 2007, yet its first Garda arrest was in December 2012, indicating that police suspects are very rarely interrogated under caution in custody. It is difficult for investigators not to be overcautious when dealing with Garda suspects when they depend on that same force to provide them with documents and other resources in all their investigations.

An additional constituent of our Garda complaints’ procedures that needs an urgent overhaul, by its own admission, is the shortage of resources awarded to GSOC. It is restricted by the lack of funding and manpower at its disposal, which pale in comparison with the resources available to the Gardaí.

In April 2015, Independent TD Mick Wallace made very damning remarks about the insufficient resources while addressing Justice Minster Frances Fitzgerald in Dáil Éireann. Mr Wallace remarked that GSOC does not have the potential to be the body that it was meant to be before adding: “Of course we all realise that they were structured in the first place not to succeed and sadly that remains the case.”

The current conditions that GSOC is working under inevitably leave the commission overly dependent on the body that they have a statutory responsibility to examine. Though a 13 per cent increase in funding in 2015 was designed to “strengthen the role and remit of the commission”, according to Justice Minister Frances Fitzgerald, the truth is that there is a chasm in the difference between the appearance of independence and reality.

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