The publication of the Guerin Report provides a valuable opportunity to take stock of the present organisation and supervision of the Garda Síochána, and how the existing system might be improved. More importantly, it should cause us to reflect on deeper questions of police ethics and how respect for ethical standards can best be instilled in the gardaí collectively and individually.
Moral legitimacy must the lodestar of any future reform initiatives. In a constitutional democracy committed to the rule of law, no police force can operate effectively unless all of its members are clearly seen to obey the law and operate with complete integrity in their dealings with the community they are meant to be serving. Without that assurance, members of the public will scarcely be wholehearted in offering the support and co-operation on which police forces are so dependent in the discharge of their duties.
There is an influential school of thought, associated mainly with the American psychologist Tom Tyler, which holds that people are far more likely to obey the law when they perceive the principal actors within the legal system, such as police and judges, to be fair, impartial and willing to adhere strictly to rules and procedures. Proponents of this view believe that consistent procedural fairness and propriety is more efficient than the threat of harsh punishment in dissuading people from committing crime. This may be over-optimistic in some respects, but it is certainly true that law-abiding citizens are far more like to co-operate with a police force which is clearly committed to transparency, legality and accountability and which is not willing to sidestep the rules in order to achieve desired outcomes.
Police in most countries depend largely on the public to bring serious crime to their attention. Pro-active policing, in the form of traffic checkpoints and so forth, will bring a certain amount of offending to light. But few serious crimes against the person will be detected unless victims or people close to them are willing to make a report or complaint. The willingness of victims and others to report crime depends crucially on the level of public confidence in the efficiency and integrity of the police.
The allegations described in the Guerin Report are relatively few in number but most of them are sufficiently serious to warrant further investigation. They are certainly matters of significant public concern, which is the essential criterion for instituting an inquiry under the Commissions of Investigation Act 2004. An investigation into the allegations made by Sgt McCabe (and other whistleblowers who may yet come forward) could well be time-consuming and expensive, but it would have a number of benefits.
First, it would determine whether there has been wrongdoing, criminal or otherwise, by individual members of the Garda Síochána. Obviously, a commission of investigation, no more than a tribunal of inquiry, cannot make findings of criminal liability or impose punishment. Any statement or admission made by a person to a commission cannot later be used in any legal proceedings against that person. Decisions to prosecute would have to be taken by the Director of Public Prosecutions, but prosecution should remain possible where offences appear to have been committed.
Police misconduct must be effectively deterred, by penal sanctions where the criminal law has been violated, and in other instances by effective disciplinary measure.
The English Court of Appeal has recently upheld quite severe sentences for police officers convicted of gaining unauthorised access to computer systems, even where they did not make any inappropriate use of the material. More serious police misconduct tends to be punished quite heavily indeed, and it is widely agreed deterrence must be a key consideration in the choice of sanctions.
Even in the absence of a criminal prosecution, a statutory investigation into the matters covered by the Guerin Report could also have a significant deterrent effect. It would send out a clear message to every member of the gardaí that wrongdoing, however long it remains undetected, will eventually be exposed. Arguably that was the main benefit to accrue from the long-running tribunals of inquiry into planning matters and payments to politicians.
The other pressing necessity is the establishment of a police authority. The first duty of such an authority should be to assist the Garda Síochána in discharging its fundamental duty to protect society. It must be fully cognisant of and sensitive to the risks, difficulties and dangers which rank-and-file gardaí face on a routine basis in the discharge of their duties (and, which we all agree, the vast majority of gardaí discharge in an exemplary manner).
True enough, a police authority must be free of any political prejudice and it must be vigilant to ensure that credible complaints are investigated, whether by itself or another authority, and that any obvious shortcomings in Garda operations are effectively addressed. Its role should be to encourage and promote policing of the highest quality, and not solely to censor or reprimand.
An effective and credible police authority needs highly experienced individuals drawn from a variety of backgrounds who are prepared to engage at the outset in a steep learning curve to appreciate what the gardaí actually do and to offer constructive knowledge as to how they might do it better. Without that deep knowledge and commitment, a police authority will be of little value.
Tom O’Malley BL is a Senior Lecturer in Law at NUI Galway.
