Morris Tribunal Report and the Garda Siochana Bill 2004

on Thursday, 02 December 2004. Posted in Issue 49 The Garda Síochána Bill 2004 (Somone will be watching you!), 2004

November, 2004

Peter McVerry SJ*


1. Morris Tribunal Report

The Morris Tribunal\'s Report into corruption involving some Gardai in Donegal (1) has major implications for the Garda Síochána generally. The Report calls for radical reform of the structures within the Gardai, structures which have remained essentially unchanged since the foundation of the State and which are clearly in need of reform. This  is an opportunity which must not be missed.

The Tribunal\'s basic premise is that in any organisation with such a large number of employees or members, management must assume that a level of "fault, deceit, negligence and cover-up will occur" and manage accordingly. (2) Other organisations, such as the Church and political parties, have already, with great pain, had to face this reality and introduce changes in structures of management and accountability.  The spotlight is now on the Gardai.

1.1 Corruption

The Morris Tribunal sought to establish where, in the local Donegal area, "fault, deceit, negligence and cover-up" occurred but Mr Justice Morris  is clear that "the combination of corruption and negligence which characterised the relevant period in Co. Donegal could easily occur again under different circumstances but, obviously, in a different way."(3) In other words, this was not just a local problem.   The Report notes that following the Tribunal\'s Opening Statement, by far the biggest response was from members of the public requesting that the Tribunal look into complaints of what they perceived to be improper Garda conduct which was outside the terms of reference of the Tribunal. The Report concludes:

"The Tribunal has sat through a year of evidence and read thousands of documents and, as a result, has come to the conclusion that An Garda Síochána is losing its character as a disciplined force....Ultimately, the gradual erosion of discipline within An Garda Síochána is a developing situation that will, sooner or later, lead to disaster." (4)

The Tribunal\'s conclusion could also be reached by an analysis of a litany of events within the Garda Síochána over the past decade.  During this time, millions of euro have been paid out in compensation to those who were the victims of ill-treatment or abuse by the Gardai. Gardai have been found to lie in court, to cover up their own or their colleagues\' wrongdoing, to tamper with or re-write statements to make them suit the prosecution. Their heavy-handed tactics have been videoed and shown on television, and they have resorted to oppressive methods to force confessions from persons in custody.

1.2 Management Failure

The Report\'s focus is on the failure of management to "manage accordingly."  Proper management, the Report says, would have uncovered the corruption within a short period of time. Senior management was grossly negligent and guilty of a shocking failure to manage.  There was an abdication by senior officers of their duty to maintain the men and women under their command in good order and in the pursuit of standards based on truth.  There was a neglect of the fundamental duty of police management to ask questions and get answers.   In terms of line management, it was all too easy for Dublin-based Garda Headquarters to "be hoodwinked and misled" (5) by local officers, while the Department of Justice is "utterly isolated" from Garda Headquarters. (6) 
Again, the Report notes that this critique of management structures is not confined to Donegal but has significance for the whole force.  The management structures in place for dealing with Co. Donegal were no different than those in respect of other counties.

"The Tribunal regards its recommendations, therefore, as being of as general import as it does its findings of fact." (7)

Again, the failure of management is evidenced not just by the events in Donegal. Some Gardai who are known to have perjured themselves in court, to have assaulted innocent members of the public, to have tampered with evidence, are still serving members of the force.  What disciplinary action was taken against them was never made public and the perception exists, perhaps based on reality, that there was, in fact, none.

The failure of some members of the Gardai to account for their actions resulted in the internal Carty Report into events in Donegal failing to uncover the truth.  This refusal to cooperate was also evident during the Tribunal which noted: "It is clear that members of An Garda Síochána adopted a thoroughly uncooperative manner with my investigators." (8)

The Report highlights the absurd situation that Gardai who fail to account for their actions are not in breach of any discipline! The Garda Representative Association supported this position on the grounds that no-one should be required to incriminate themselves, as is the case for all other members of the public.

However, the Morris Tribunal rejected this position on the grounds that the Garda
Síochána cannot be compared to other organisations, as it, uniquely, has the authority to interact through force with the public. The enormous powers that the Gardai possess obliges them to account for their actions in a manner which preserves the integrity of that interaction.(9)  The potential for real harm to people through the exercise of  these powers is obvious and there is a clear need for responsible accounting. Failure or refusal by Gardai to account for their actions, should, in the opinion of the Tribunal, merit disciplinary action which could ultimately lead to dismissal. The Report  explicitly notes the provisions of the Garda Síochána  Bill 2004 to set up the Ombudsman Commission, but it is clear from the points made on this that the Tribunal does not believe the powers under the Bill will be adequate to rectify the situation. (10)

2. Garda Síochána Bill 2004

Ireland\'s policing structures, having remained virtually unchanged since the foundation of the State, are now far removed from what is internationally recognised as best practice.  In the light of the corruption and negligence being investigated by the Morris Tribunal, of growing disquiet at the revelations of criminal abuse by some Gardai which appear to go unchecked, consistent criticism of the ineffectiveness of the Garda Complaints Board even by members of the Board themselves, and polls which show a diminishing confidence in the Gardai, particularly - but not exclusively - among young people, the Minister for Justice, Equality and Law Reform is introducing significant changes to the structures of policing in Ireland through the Garda Síochána Bill 2004. (11)   Minister McDowell has described the new Bill as a defining piece of legislation for his term of office.   While the Bill is a huge improvement on the very feeble Bill proposed in 2003, it still leaves unaddressed issues of serious concern.

2.1 Ombudsman Commission

The Ombudsman Commission  will be a three-person independent body with power to investigate complaints against members of the Gardai. (12) Why we need three highly- paid members to form a Commission, when the Ombudsman in Northern Ireland has proved, on her own, to be extremely efficient  and independent, and is widely respected, has never been explained.   Why the Commission members cannot be appointed by open competition rather than being Government appointees, has not been explained.   The suspicion is left that it is more difficult for a three-person body, appointed by the Government, to be as embarrassingly critical of the authorities as the Northern Ireland Ombudsman has sometimes been.

Nevertheless, the powers of the Ombudsman Commission have been significantly increased from the 2003 version.  In that earlier version, only the most serious complaints were to be investigated independently; all others would still involve Gardai investigating Gardai, which was one of the core defects of the old Complaints Board. The 2004 Bill proposes that the Commission will have the power to decide whether any particular complaint will be investigated by the Commission\'s own independent investigators or whether it is sufficiently minor to warrant being passed to the Garda Commissioner to investigate internally.  Even in these situations, the Garda Commissioner will have to report to the Ombudsman Commission who will retain supervision of the investigation.   The investigators will have the powers to arrest and detain Gardai under investigation, enter premises, seize documents and take bodily samples.  The Ombudsman Commission can refer files to the Director of Public Prosecutions directly, without having to go through the Gardai.

{mosimage}In the earlier version, the Ombudsman Commission could only investigate possible offences if a complaint was made to it, except in very limited circumstances. Now, like the Northern Ireland Ombudsman, the Commission can undertake investigations even where no complaint has been made. For example, the media may highlight a possible offence but the person affected may not wish to make a complaint for whatever reason. The power to initiate investigations now lies with the Commission. However, it appears that the Commission will not have the  power to investigate, of its own volition, "patterns of behaviour" or systemic corruption but will be confined to investigating individual complaints.

While the proposed  Ombudsman Commission is a major improvement on the previous version, it remains to be seen whether it will get sufficient resources to carry out the independent investigations which it deems necessary. If resources are limited, the Commission will be compelled to use the (free) services of the Garda Commissioner to investigate what may be, in fact, quite serious complaints against the Gardai.

It also remains to be seen who the members of this first Ombudsman Commission will be and if they can command public respect for their independence. For example, the appointment of a former Garda officer would kill the Ombudsman Commission before it even began work. The outcome of the first few complaints which the Commission will have to investigate will be closely watched to see if its credibility is real, its ability to get to the truth is proven and if the public can have reason to have confidence in its impartiality.

2.2 Garda Inspectorate

Alongside the Ombudsman Commission, which will investigate complaints against Gardai, the Minister for Justice in August 2004 announced plans "to establish a Garda Inspectorate" (13) , which will review the practices, standards and performances within the Garda Síochána, in the light of comparable international policing standards.  The Inspectorate will have nothing to do with taking prosecutions.  It is an audit body designed to ensure a high standard of professional performance within the Garda Síochána and it will be staffed by civilians.  It will report directly to the Government, through the Minister for Justice, Equality and Law Reform.   It appears, however, that its reports will not be made public. (14) (In the UK, the reports of the equivalent body, Her Majesty\'s Inspectorate of Constabulary are available on the Home Office website.)

The need for a radical shake-up of existing controls and oversight mechanisms within the Gardai is beyond question.   The Garda Síochána has long been very defensive about itself and slow to admit to serious structural and procedural problems within the force, and even slower to do anything about them. As already noted, the Morris Tribunal is highly critical of the failure of the structures of accountability within the Gardai in relation to the events in Donegal, and the inability of Garda Headquarters in Dublin, and of the Department of Justice, to even know, or find out, what was really going on.   The Garda Inspectorate is intended to meet this need.  It is designed to be the eyes and ears of the Minister and the Department of Justice.  However, there are major concerns about the proposal for a Garda Inspectorate.

In Northern Ireland, the functions of an inspectorate are largely undertaken by the Policing Board.  This is an independent body composed of members of the public drawn from a wide spectrum of interests.  The Police Service of Northern Ireland is directly accountable to the Policing Board.  In other words, the police are not under the direct control of Government.

In the Republic of Ireland, the Garda Siochana will continue to be directly under the control of the Government.  This is the major difference between the proposed Garda Inspectorate and the Policing Board in Northern Ireland and the major cause for concern.   It has to be noted that the difference between the police in Northern Ireland/UK and the Gardai in Ireland is that in the UK, the police are not responsible for the security of the State.  This function belongs to totally separate security bodies, MI5 and MI6. In Ireland, the Gardai are responsible for both public order and the security of the State.   This means that the Gardai have access to highly confidential information, which it would not be in the interests of the State to have divulged.   While this structural situation exists, it may not be desirable to have an independent body, composed of members of the public, overseeing the Gardai.   Nevertheless, the absence of an independent body to whom the Gardai are accountable is of major concern and the
creation of a new arm of the security services to take responsibility for the security of the State would be highly desirable.

2.3  Accountability to the Minister

The Minister proposes a different structure of accountability.   He is introducing local policing committees to be formed jointly with local authorities. (15)  These committees will act as forums for discussion on policing matters in local areas, allowing input from local public representatives (though not apparently from community representatives) but they will have no powers of oversight in relation to Garda policy and practice.  They are essentially talking shops which the Garda authorities can ignore.

The Minister also proposes to make the Garda Commissioner accountable to the Oireachtas through the Public Accounts Committee.(16) However, this accountability would extend only to the financial aspects of the Garda Síochána. Even if the Minister were to increase the remit of  Oireachtas committees in relation to Garda accountability, it would remain unsatisfactory.   Oireachtas committees have not proved to be very effective in exerting accountability or bringing about change (with the notable exception of the Dirt Tax investigation) and,
in the aftermath of the Supreme Court judgment that Oireachtas committees may not make findings of fact,
or any findings detrimental to the reputation of any individual, the possibility of them exerting meaningful control is minimal.

In reality, the Minister is retaining full control of the Gardai and the Commissioner will continue to be directly accountable to him/her.   This provides ample opportunity for political interference both in policing practice and in internal promotions. The days may be gone when a Garda, trying to enforce the drinking laws, raided a licenced premise only to find a Minister happily having an after-hours drink, and was offered the choice of having one himself or being transferred to the back of beyond.   However, the Minister retains broad discretionary powers in relation to the operation of the Garda Síochána.  (Ray Burke was Minister for Justice when the Gardai were investigating planning corruption in Dublin!).

It may be recalled that a Fianna Fáil Government appointed the late Judge Barra O\'Briain to investigate the activities of the "Heavy Gang" in the mid-1970s.   He produced a report with detailed recommendations, ranging from the appointment of a "custodial guardian" in each Garda Station to the provision of audio tape-recording facilities for use during questioning.  Thirty years and a succession of different Governments later, not a single one of his recommendations has been implemented, apart from the very recent installation of video-recorders in some Garda stations.  His recommendations would have reduced considerably the reasons for many of the complaints made against Gardai in recent times and might have stemmed the loss of confidence in the Gardai by the public.   A series of high profile cases, from the Kerry Babies case to the Dean Lyons case, which raised serious public concerns about the policies and procedures of Garda investigations, met with a total lack of political response.

We need an efficient, transparent police force working to the best internationally-recognised standards but that is incompatible with a police force that is compliant, responsive and  amenable to political pressures.   Irish politicians seem unwilling to let go of control.   The Minister has stated that "putting in a new layer of insulation between the Department of Justice and the Garda force would be, in my view, a retrograde step."

The relationship between the Gardai and local communities, particularly in working class suburbs and inner city areas, is problematic and in these areas, at least, confidence in the Gardai has waned, particularly among the group whom the Gardai are most likely to encounter, young males. The failure to establish community structures which would have a degree of control over Garda policy is a missed opportunity.  The proposed Garda Inspectorate consolidates political control over the Gardai.

There is a need for a body outside the Department of Justice to which the Garda Síochána would be accountable, and which would monitor Garda performance.  Structures that would make the Gardai accountable to the people, and not only to the Minister for Justice, are required, as is the situation in most police forces today around the world.

3.  A Unique Opportunity

The Garda Síochána  Bill 2004 was intoduced as "a radical and far reaching modernisation charter for An Garda Síochána" . (17) As the first serious legislative effort at reform of policing structures in over a century, the establishment of an independent Ombudsman Commission and a Garda Inspectorate is very much to be welcomed.

However, it is important that this reform be as thorough as possible, as it may be a long time before a similar opportunity is again available. The detail, therefore, which is still to be announced, is of critical importance.

We would recommend that the following areas of the proposed legislation be reviewed:

Garda Síochána Bill 2004, Part 3 - Establishment and Functions of the Ombudsman Commission (Sections 56-73)

(i) It needs to be questioned whether an individual Ombudsman role, as Nuala O\'Loan has in Northern Ireland, would be more effective both in terms of costs and decision-making capacity than the proposed three-person model.

(ii) The Ombudsman Commission needs to be
sufficiently resourced to carry out investigations which it deems necessary. The alternative will be a reversion to using Garda resources to investigate what may be serious complaints against Gardai.

(iii) The perceived independence of the Ombudsman Commission will be irreparably damaged if any of the members appointed are former Garda officers.

The Proposed Garda Inspectorate

While we await the full detail of this proposal, there are a number of elements that are necessary to achieve an efficient, transparent police force working to best internationally recognised standards.

(i) Reports of the proposed  Inspectorate should be publicly available, as is the case in the UK.

(ii) There is a need to loosen political control over the Gardai. This could be achieved through the proposed Garda Inspectorate being made publicly accountable to a body outside the Department of Justice.

Garda Síochána Bill 2004, Chapter 5 - Accountability (Sections 35-40)

The Morris Tribunal states that "all members of An Garda Síochána must be obliged to account truthfully for their duties" (18) and failure or refusal to do so should merit disciplinary action, possibly leading to dismissal. It explicitly notes that the proposals in the Garda Síochána Bill 2004 will not adequately rectify the current deficiencies.

Finally, the relationship between the Gardai and some local communities has deteriorated over the years. There is an opportunity to rebuild
confidence in that relationship by establishing community structures which would have a degree of control over Garda policy.

{mosimage}*Peter McVerry SJ has worked with homeless young people for over 25 years


References

 


References

 

1. Report of the Tribunal of Inquiry Set up Pursuant to the Tribunal of Inquiry (Evidence) Acts 1921-2002 into Certain Gardai in the Donegal Division, (Chairman: Judge Frederick R. Morris), Report on Explosives ‘Finds\' in Donegal, Dublin, 2004.
2. Ibid., p. 457.
3. Ibid., p. 453.
4. Ibid., p. 490.
5. Ibid., p. 455.
6. Ibid., p. 454.
7. Ibid., p. 454.
8. Ibid., p. 491.
9. Ibid., p. 492.
10. "An impression may have been created during the course of the  hearings of the Tribunal that this situation is in the course of rectification by virtue of the Garda Síochána Bill 2004." (p. 495)
11. Garda Síochána Bill 2004,  Dublin: Stationery Office, 2004.
12. Ibid., Part 3 - "Establishment and Functions of Garda Síochána Ombudsman Commission" (Sections 56-73).
13. "McDowell Announces Plan for Garda Inspectorate", The Irish Times, 5 August 2004.
14. "A sensible idea, but new body must show resolve", The Irish Times, 6 August 2004.
15. Garda Síochána Bill 2004, Chapter 4 - "Co-operation with Local Authorities and Arrangements for Obtaining Views of the Public" (Sections 30-34).
16. Garda Síochána Bill 2004, Chapter 5 - "Accountability", (Sections 35-40).
17. "McDowell Publishes Garda Síochána Bill 2004", available on www.justice.ie.
18. Report of the Tribunal of Inquiry,  op. cit., p. 513.