Government measures to reform the Garda Síochána don't go nearly far enough, writes Prof Dermot Walsh
The first report from the Morris tribunal is probably the most serious and damning exposé of wrongdoing within the Garda Síochána since its establishment. Unfortunately, the key themes concerning culture and accountability which run throughout Morris's findings are much more familiar. Equally disturbing is the fact that the Government is putting its trust in remedial measures that fall very short of what is required to deal with these deep-rooted problems.
At least since the days of the "Heavy Gang" in the 1970s there have been gardaí acting as if they were above the law. Behaving at times as if they were the law, they resort to oppressive methods to force evidence and confessions from persons in their custody, rewrite suspects' statements to make them more incriminating, suppress evidence which does not suit their version of events and tell lies in court to cover up their own wrongdoing and that of their colleagues.
These activities have been complemented by instances of heavy-handed, sometimes brutal, methods in the Garda handling of public order situations.
The frequency and extent of these abuses gathered pace throughout the 1990s, as is witnessed by the growing number of serious criminal prosecutions that were lost or seriously hampered due to Garda wrongdoing, the millions of euros paid out in compensation to those at the receiving end of the abuse, the increased willingness of judges to condemn Garda practices in very blunt and unequivocal terms, and the images and first-hand accounts of Garda brutality that have featured on television news and current affairs programmes. The findings of the Morris tribunal have added yet another dimension.
A critical factor in the growth of these practices is the emergence of a police culture in which individual members feel that their primary allegiance is to their colleagues, their secondary allegiance is to the force, with allegiance to the law and the citizen coming a poor third.
This is reflected in the almost universal failure of gardaí to report such wrongdoing by their colleagues, a widespread failure to give full and frank co-operation to internal inquiries, the Garda Complaints Board and, in some cases, even courts and judicial tribunals. This culture is fuelled by the knowledge that current accountability mechanisms are weak and ineffective.
The Garda complaints procedure, introduced in 1987 as a trade-off for enhanced Garda powers, has never managed to fulfil its accountability mandate. Of the thousands of complaints submitted to it, only a tiny fraction have ever resulted in disciplinary action against the gardaí concerned. None of the very many cases which have given rise to serious public concern over the past 17 years has been brought to a successful conclusion through the complaints procedure. Much of the blame can be attributed to the fact that the procedure depends on the gardaí themselves to investigate the complaints.
This external accountability deficit is not being filled by internal controls. Indeed, there is growing evidence of middle and senior management tolerating improper practices by the rank and file in the course of Garda operations where those practices are seen to produce results. The report of the internal inquiry into the fatal shooting of John Carthy, for example, suggests that internal inquiries are no more objective and robust in their probing of Garda activities than those carried out for the Garda Complaints Board.
Democratic scrutiny of the Garda represents another accountability "black hole". Currently, there are no mechanisms through which the Garda can be called to account at local level for their policies and practices. At national level the Minister for Justice functions more as a buffer protecting Garda practices and operations from scrutiny by the Dáil rather than as a vehicle for delivering effective democratic accountability.
Disturbingly, there is no persuasive evidence that either the Government or the Garda have the resolve to tackle these deep-rooted problems of culture and accountability. The Garda have been in denial about the nature and extent of the problems. Over the past decade the Government has pursued a consistent policy of heaping ever more extensive powers on the Garda, without much objective analysis of the need for such powers or for mechanisms to curb their abuse. The latest instalment appeared earlier this week with the publication of yet more draconian measures in the form of the Criminal Justice Bill.
The contention of the Minister for Justice that the new Garda Bill lays the foundation for a fundamental change in the management and accountability of the Garda Síochána, which in turn will address the problems exposed by Morris, is very wide of the mark. There is little that is new in the Bill and certainly nothing that is revolutionary, or even capable of preventing a recurrence of the problems exposed by Morris.
Much of it repeats the contents of current measures governing the force. Of those provisions concerning the management and control of the force which are new, most simply put in statutory form what has been the position in practice for many years.
The one critical area where superficially there does appear to be significant change is the complaints procedure. Although purporting to establish an "ombudsman" model, the reality is that the new procedure is likely to be only a pale shadow of that which applies in Northern Ireland.
The new "Ombudsman Commission" does not represent a radical departure from the current complaints board. It is nothing more than a multi-member body masquerading as an ombudsman. Its capacity to engage and deploy independent investigators will be wholly dependent on the resources made available to it by the Government.
By curbing its resources the Government can force it to rely on gardaí to carry out investigations. In other words, the current model of gardaí investigating gardaí is likely to continue even under the new arrangements.
Further weaknesses include: the extreme complexity and cumbersome nature of the investigation procedures; the narrow range of complaints that can be dealt with; the ability of the Minister and the Commissioner to curb certain investigations; and the failure to give the Ombudsman Commission powers to uphold complaints and to investigate Garda policies and practices on its own initiative. In short, the new procedure falls very far short of a new model. It is merely a modified version of the current discredited system.
If the Minister is serious about addressing the problems exposed by Morris, and effecting the first fundamental reform of the Garda since its establishment, he will have to start again. This time he should not be afraid to borrow from the methodology and reports of both the Patten Commission and Senator Maurice Hayes, which between them revolutionised police management and accountability in Northern Ireland.
Before drafting a Bill, he should engage in a period of widespread and transparent public consultation and make good use of established national and international experts who share his goal of seeing the Garda Síochána develop into a service capable of dealing with the complex policing challenges of the 21st century in a manner that reflects best practice in liberal democracies based on the rule of law and respect for human rights.
Prof Dermot Walsh is director of the Centre for Criminal Justice in the School of Law at the University of Limerick and author of The Irish Police