It was inevitable from the moment president Mary McAleese signed the Garda Síochána Act 2005 into law that the Garda Síochána Ombudsman Commission and the Garda Síochána would sooner or later clash over access to criminal intelligence.
The Garda believes it has an overriding obligation to maintain the confidentiality of intelligence sources. The commission has a statutory duty to investigate allegations of wrongdoing in the force. It cannot discharge that duty at any serious level without access to information.
Without commenting on the case currently at issue, it is important to recall that in every instance in which systemic wrongdoing has been revealed in the Garda Síochána down the decades, it
has been cloaked by the invocation of confidentiality and security.
In Donegal, an unregulated intelligence regime led to the gross corruptions uncovered by the Morris tribunal. At its heart, a cohort of unscrupulous gardaí advanced their own ends, using security as their cover. The commission was not set up as ornamentation.
The Morris tribunal concluded that the Garda Síochána was in danger of losing its character as a disciplined force. It was scathing in its condemnation of corrupt gardaí and the failure of the Garda authorities to rein them in over years.
The Oireachtas established the commission as an oversight body to prevent this happening again. It was given, effectively, the same powers as the Garda. Its three commissioners were to be invested at the highest level of authority that the State can provide; nominated by Government, approved by the Dáil and Seanad and appointed by the president. The legislation envisaged that sharing of information between the two agencies in the State with police powers would be the norm.
Section 108 states that the commission and the Garda Commissioner “shall, by written protocols, make arrangements” inter alia for “the sharing with each other of information (including evidence of offences) obtained by either the Ombudsman Commission or the Commissioner.”
However, the Act also anticipated that issues could arise.
Sections 99 and 100 provide for the designation of certain stations, or parts of stations, or any "document storage facility" which, if the Garda Commissioner, in the interests of the "Security of the State" wishes to place off limits, may only be searched by the commission's officers with prior notice and, if necessary, with the agreement of the Minister for Justice.
Conditions
The Minister may then set down "conditions or restrictions" on any such search. Ultimately, section 100 provides for the appointment of a High Court judge, in certain cases, to examine documents and other matters and then report to the Taoiseach. The Taoiseach, in turn, will report to the Houses of the Oireachtas, if necessary excluding sensitive information.
Furthermore, section 126 provides that the Minister, may designate “information, documents or things or classes of information documents or things” to be restricted in the interests of the security of the State.
It is significant that the only ground for the withholding of information from the commission and the application of such restrictions is that of State security. But no such consideration has been raised, at least publicly, in relation to the current issues between the commission and the Garda. They concern drugs trafficking.
It may also be significant that the “designating” Garda stations, or parts of stations, or “documents or things” has never happened. Early attempts to deal with the issue in discussions between the two agencies ran into the sand. It may be that certain parties considered open-ended ambiguity to be preferable to clarity.
In the aftermath of the Morris tribunal, deputy commissioner Peter FitzGerald drew up a charter of best practice for the operation of Garda informants, now to be known as “Covert Human Intelligence Sources” (CHIS).
Solemn assurances were given by the Garda authorities to Government and to the Oireachtas that henceforth these would be strictly adhered to. The commission’s investigation now at issue sought to establish, inter alia, if there was any validity to the allegations made (by some Dáil deputies among others) that the FitzGerald rules were being sidelined.
There have been some worrying straws in the wind. In July 2011, Mr Justice Barry White, presiding at what was dubbed the "Grumpy Jack's" murder trial, was severely critical of gardaí for running an informant "off the books", contrary to the FitzGerald rules.
There are a number of issues here and it is important that the good faith and genuine concerns of those involved should be recognised. But if trust cannot be developed between the two agencies, the ombudsman commission can never fulfil its mandate beyond investigating petty allegations against low-ranking gardaí.
Perhaps this is now what is wanted. The political establishment may now feel it went too far in establishing the Garda Ombudsman Commission as it is constituted. Some might prefer to go back to having the
guards investigating the guards a
s before. At least it would be more honest.
Graduated system
Prof Eunan O'Halpin warned here recently about the dangers of commission investigators going on "fishing trips" into Garda databases. Nothing like this has ever been proposed. The existing protocols provide for a graduated system of information exchange with strict commissioner-to-commissioner contact at the extremely sensitive end of the scale.
The Garda has said, effectively, that it will trust nobody, not even another agency staffed by professional law-enforcement officers and supervised by commissioners who have been subjected to the most rigorous selection process that the State can operate.
But if the Garda Commissioner were a chief constable in England or Wales, he would have to accept that his criminal intelligence would be accessible to a variety of agencies, from the Independent Police Complaints Commission to the Serious Organised Crimes Agency to the Home Office.
Monopoly in any sphere is problematic. In policing, as the history of this State has shown, it can on occasion bring us into some dark places. The establishment of the commission put a check on that monopoly. It is now down to Alan Shatter to decide if that was mere window-dressing or if it is to be made meaningful.
Conor Brady is a former editor of
The Irish Times
and a former member of the Garda Síochána Ombudsman Commission