THE GARDA SIOCHANA AND ITS ACCOUNTABILITY It was a distinguished British barrister, international human rights campaigner and a longserving Labour MP at Westminster, Ben Whitaker, who said that one of the best tests of a country s democratic health is the way its police do their job. (He died in June aged 79) 35 years ago he came to Dublin to address a conference organised by the Garda Representative Bodies, as they were then known, and urged the creation of an independent Garda authority. So we re making progress! The police are almost always a perfect microcosm of society s shared values, Whitaker held. Their standards are those of the mainstream from which they are drawn. They embody and uphold establishment values. Another distinguished commentator on social policy, George L. Mosse, added perceptively, that while armies have often done so, history does not record a single instance of a revolution anywhere being led by the police. Ben Whitaker used a colourful metaphor in describing the role of the custodians of law and order in the British tradition the constabulary tradition - with which he was most familiar. He likens it to a flock of sheep which decides to pay a number of own to dress as sheepdogs. These supposed sheepdogs protect the flock but they also regulate its behaviour. When they do so overzealously or ineptly, the other sheep may say; don t 1
tell us what to do; you re only a sheep like the rest of us and you re dressed up as a sheepdog only because that s a power we give you. This is called policing by consent. So when we look at our police, the way they do their work, the priorities which we assign to them, the standards they embody we are almost invariably looking at the values and the standards of our wider society. If society tolerates physical brutality or sexual abuse, so will the police. If society operates on the principle of the nod and the wink and the blind eye so will the police. If society accepts corruption in business or politics these too will be found in the police. This is as true in Ireland as it has been from Los Angeles to London; from 1930s Germany to the deep south of the US in the racist 1960s. So how are we doing here? Openness, transparency and accountability are required in the operation of our police. I doubt there is anyone in the room who thinks otherwise. But we also require other things of our police. The protection of our democracy is required; the confrontation of financial and corporate corruption is required; safety on our streets and in our homes is required; protection from violent anti-social behaviour is required. We require order in our public places and safety on our roads. We require our children to be protected from drugs, from sexual exploitation, from cyber-predators and from random violence. 2
I doubt if there is anyone in the room who doubts this either. The task we entrust to our police the Garda Siochana the guardians of the people s peace - is considerable, challenging and sometimes dangerous. We asked a routinely unarmed force to hold the line for 30 years from the early 1970s in this state against an armed conspiracy whose aim was to take down the democratic basis of the state. Twenty guards died in the line of duty over that period. We ask them to deal with a criminal class involved principally in the drugs trade that is as ruthless and as well-armed as any in western Europe. Our overall crime rates are low. Only Iceland among European countries has a lower rate. But in parts of Dublin, the rate of murders by shooting is higher than anywhere else in these islands. We ask them to maintain public order among a young population that is close to the top of the league in drugs-consumption across EU. I suggest that we sometimes lose sight of the scale, the complexity and the dangers of the job we ask them to do. We give them considerable powers and immunities in order to enable them to discharge these functions. And we have incrementally increased these powers in recent years to the point that would have been unthinkable to legal practitioners, judges and indeed even the gardai themselves perhaps a decade ago. Police forces everywhere almost always maintain that their powers are inadequate. For decades that was true here. We gave the gardai extraordinary 3
powers to deal with the IRA and other subversive organisations, while rather limiting their powers in dealing with ordinary, non-subversive crime. But we have changed all that. It is not widely apprehended among the general public that a series of Criminal Justice Acts passed by the Oireachtas between 2006 and 2009 gave the gardai virtually all of the powers in relation to ordinary crime that they have had down the decades in dealing with subversive crime. Between the three Criminal Justice Acts 2006, 2007 and 2009, the full range of powers that had been fashioned by the State to deal with subversion and terrorism and more - were now available to be used against ordinary crime. Membership of or helping to direct a criminal gang became an offence. The word of an appropriate person without any need for supporting evidence could be adduced to support such a charge, although the court could decide what weight, if any, to attach to it. Jury trials, with all of their vulnerabilities, would be a thing of the past in dealing with professional criminals on serious charges. They would be dealt with by the Special Criminal Court in the manner of the IRA and other subversives of previous decades. Under the 2009 Criminal Justice (Surveillance) Act the gardai, the defence forces and the revenue, have legal cover to enable houses, cars and even people to be bugged if it is suspected they are involved in crime. And evidence secured in this manner may be put before a court. 4
We have also, over recent years, built in various safeguards as we have begun to accept that for all the good work done by the majority of the members of the Garda Siochana, there have also been abuses. It hasn t really worked as well as it might. Crises in the gardai have been cyclical, arising each decade; the Heavy Gang and the fingerprints scandal in the 1970s; illegal phone tapping and the Kerry Babies in the 1980s; Donegal in the 1990s; the Kieran Boylan case in the 2000s; and now more phone tapping, whistleblower allegations, penalty points abuse and so on. Successive governments have applied remedies on an ad hoc basis, usually after some form of inquiry; after the 'Heavy Gang' we had the report of Judge Barra O Briain; later we had the Regulations for the Treatment of Persons in Custody; next came the Garda Complaints Board; then in the Garda Siochana Act of 2005, the Garda Ombudsman Commission and the Garda inspectorate. But it has generally been too little and too late. The core issue here, I would argue, has been unwillingness on the part of the political establishment and the administrative elite specifically the Department of Justice to cede any control over the State s police apparatus. There has been a veneer of public accountability while retaining the essence of central, political control. It goes back a long way. Our model of policing has its roots in a history that goes much further back than the foundation of the state. 5
The great sociologist of policing Charles Reith, in his definitive A New Study of Police History, identifies two distinct models or traditions of policing in the western world; the police of the prince and the police of the people. These can also be described as the constabulary model and the gendarmerie model. The constabulary is generally locally controlled, routinely unarmed and lives among the community. The gendarmerie is controlled by central government, is armed and frequently lives in barracks or other official quarters. The Garda Siochana established in 1922 was designed to have the strengths of the gendarmerie model which it inherited from its predecessor, the Royal Irish Constabulary, while at the same time it was to express the more civilising aspects of the constabulary model; blue uniforms, unarmed, a rank system borrowed from rural England. We ended up with a hybrid. The Garda Siochana was brought into being to discharge two functions, as did the RIC; it was to be a civil police and at the same time the state s front line security service. This is rare, unknown indeed through western Europe and in many Common Law countries where the police and the security services are quite distinct. So the Commissioner of the Garda is not just the chief of police. He is also the head of national security. Your local superintendent or chief is not just the community s police manager but also the 6
state s security representative for your area. In this, The Garda Siochana is closer to being the police of the prince than the police of the people. This dual situation has suited a great many interests down the decades. It suited the politicians who saw the gardai as a rich source of patronage in promotion or preferment. It was always easy to deliver favours for constituents when the local sergeant or the district superintendent believed that he would require his TDs support for promotion. The reality of political influence has largely faded. But - crucially - many gardai believe that having "connections" is still a deciding factor in advancement. The dual role of the Garda Siochana also suited the civil servants who controlled a state wide network of willing and obedient agents. It also suited many of the gardai who were frequently very happy to see themselves linked in to the state s structures of power and privilege. It has not suited the individuals who haven t had insider connections. It hasn t suited the vulnerable who have fallen foul of people in power. It hasn t suited those gardai who don t have political connections and who have believed that their role was to enforce the law impartially. It doesn t suit a society that has moved on from the post civil war situation in which central government effectively 7
wanted a security garrison in every town and village. So what needs to be done? I would suggest that we finally to decide do we want a police of the prince or a police of the people. Do we want a police that serves the needs of the community and not merely the demands of central government? Do we want a police that can be manipulated through promotion or preferment by politicians or do we want one where there is genuine independence for its members to operate within the law? Much of the solution would appear to be contained, at least potentially, in the Heads of Bill of the Garda Siochana Amendment Act 2014 presented by Justice Minister Frances Fitzgerald and accepted by the government. We have a promise of an independent garda authority. We have a promise of enhanced powers for GSOC. GSOC will be given powers under the 2009 Criminal Justice (Surveillance) Act. Tellingly, while these surveillance powers were given to the gardai, the defence forces and the revenue, they were not extended to GSOC. They will have direct access to PULSE. They will be able to examine any garda practice, procedure or policy with having to get ministerial consent as has been the case heretofore. We have a promise that the garda commissioner in the future will be appointed through an independent process and the post will be opened to persons outside of the force. These processes are now in train. 8
The devil, as always, will be in the detail. And we have yet to see much of the detail. We do not know how the independent Garda authority will be constituted or what its powers will be? We do not know how the process of appointing the new commissioner will operate. We do not know how the authority and the commissioner will operate together. Why do I have a doubt that the Department of Justice will relinquish its authority over the commissioner authority that was broadened and put on a statutory footing in the 2005 Garda Siochana Act? It is clear that the remit of the new authority will extend to issues of state security. Government has legitimate concerns here and is entitled to have direct line of report from the State s security chief. But the invocation of state security has always been the great escape clause for the covering up of garda misconduct. It largely provided the smokescreen behind which systemic Garda abuses developed in the Donegal division. How do we deal with this? How do we prevent the police from getting through this gap in the hedge as they have so often done in the past? If we end up with a garda authority whose remit is limited to community relations, road traffic regulations and policing public events, we will run the risk of perpetuating the cycle of political manipulation and misconduct among serving officers. It is proposed that the commissioner will report to the authority on civil policing and to the minister 9
on security issues. I am not aware of any proposals for monitoring the latter role. In the UK, the heads of MI5 and MI6 are required to account to the Intelligence and Security Committee at Westminster and at least some of this takes place in open session. We do not have any equivalent here. We also need some judicial referee or arbitrator who can step in when the gardai claim state security as a cover or shield. There are provisions for such arbitration in the Garda Siochana Act 2005. But the regulations for their application, to the best of my knowledge, have never been brought forward. Moreover, they are so convoluted as to be virtually unworkable, involving the nomination of a judge of the superior courts who will report to the Taoiseach who will then decide whether contested information should remain secret to the gardai or whether it should be made available to GSOC.. I do not doubt the Minister s good intentions, no more than I ever doubted Michael McDowell s intentions. But getting politics out of policing and getting policing out of politics is a lot easier said than done. So some extent, I suggest, we are witnessing a game in which the Minister giveth and then she taketh away. For example, she announced that GSOC would have authority to investigate allegations of criminality by the commissioner. Later she said this would require the consent of the Minister. I doubt that this is legally sustainable but I think one would also have questions about such an arrangement, given some of the combinations of 10
minister and commissioner that we have experienced in the past. If we want a police of the people we have to persuade the prince, along with the courtiers and the mandarins not necessarily to surrender their power but to make it genuinely and fully amenable to independent oversight and invigilation. We have made some progress but we are not there yet. ends 11