GSOC Chair speaks of the need for reform of the complaint-handling system with Garda Superintendents

GSOC Chair Justice Mary Ellen Ring was happy to be invited to address the annual delegate conference of the Association of Garda Superintendents yesterday, 20 April 2016.

She said that nearly ten years of experience of operation of the Garda Síochána Ombudsman Commission has shown a need for reform of the complaint-handling system. Her speech highlighted that GSOC is prepared to engage with all stakeholders to review legislation and processes, to work towards a system which is focused more on resolution than retribution.

Judge Ring looked back on the establishment of the Garda Síochána Act 2005 and comments from the Minister for Justice and Equality at the time, Michael McDowell, TD, acknowledging that there had been calls at the time that there should be no investigation of gardaí by gardaí but stating that this was neither practical nor necessary, based on experience from Ireland and other jurisdictions. The 2005 Act includes provision for allegations of disciplinary offences to be investigated by Garda superintendents under the Garda Síochána Discipline Regulations 2007. About 500 such cases occur annually. These are complaints primarily of (1) discourtesy – how a garda spoke to or behaved towards a person (11% in 2014, similar in 2015); (2) neglect of duty – allegations that a garda failed to take an action that could have been reasonable expected, such as returning a phone call or properly investigating an alleged serious crime (30% in 2014, similar in 2015) and (3) abuse of authority – excessive use of force, an instruction to do something which the person making the complaint believes was beyond the garda’s authority to instruct (33% in 2014, slightly up in 2015).

She spoke about the median time taken for these investigations being around 300 days, even though the protocols agreed between GSOC and the Garda Síochána states 16 weeks – 112 days. She highlighted that that’s 300 days or so when both the person complaining and the member or members complained about are waiting for an outcome. 300 days or so when the time of a Superintendent, and his/her colleagues, and the personnel in GSOC waiting for the report, could be put to better use.

There is no doubt in the mind of GSOC, said Judge Ring, that that many of the complaints that come to Superintendents under the unsupervised investigation process provided for by section 94(1) of the Act would be better served if dealt with under the informal resolution process provided for by section 90.  Many – if not all – of the 9% of discourtesy cases were probably capable of such resolution.  Similarly many of the lower level of abuse of authority (e.g. the instruction to do something) or the neglect of duty cases (e.g. the failure to return a phone call!) should be capable of being dealt with by informal resolution.  Undoubtedly the need for consent on the part of both parties is a stumbling block. It is difficult to understand why more gardaí don’t avail of this process, she said – it doesn’t appear on their “records”.  It is dealt with through the personnel in GSOC without fuss and a lot less of their time.

The Garda Síochána is a disciplined force. “So when a person steps out of line from that discipline, however slightly, it seems to me that the first responsibility for bringing that member back into line lies with the Gardaí,” she said.  “GSOC should not be doing the work of the Gardaí.  After ten years, it is time for the senior ranks in particular to step forward and say: how are we dealing with discipline in a real way? Have we allowed by legislation or otherwise our responsibility in discipline to be taken from us? Do our own structures encourage discipline or not?”

“There needs to be a greater recognition of the public service element of the Gardaí.  There should be NO complaints of discourtesy in 2016, never mind 9% or so. And discourtesy may not require a discipline response – it may require an inquiry as to how someone may have done or said something rude for instance.  Again GSOC hears from complainants that, in cases such as this, the response that is hoped for is not that someone is fired, transferred or even loses a day’s pay but rather a desire for someone to stand up and say that what happened shouldn’t have happened.”

The Judge said that she was conscious of such issues as “liability” which can arise from admissions of wrongdoing however slight.  On the other hand, we know from experiences across the board – be it from victims of abuse or people involved in medical negligence cases for instance – that acknowledgement of a complaint, acknowledgment of upset and recognition – without necessarily attributing individual blame – goes a long way in satisfying the needs of people who have been offended.  This should be part of the garda response to complaints as well.

Why do this? she asked. To prevent the undermining of public trust in the force.  What is wrong with stepping up and saying ‘I am sorry you appear to have had a bad encounter and here is what I am going to do’?

It may be time to look beyond just criminality or discipline.  A situation that is badly handled may not of itself be in breach of the discipline regulations or a criminal offence but should that be the end of it?  An investigation may reveal that it is possible that the situation complained of arose because the garda in question was not properly trained or may not be up to date in their training.  Should that finding not be made because it technically is not a breach of discipline?

In his own speech, President of the Association of Garda Superintendents Noel Cunningham acknowledged Judge Ring’s comments. He said that the views were “refreshing” and that he hoped they may bring about a different way of dealing with complaints, which would be welcome.

Judge Ring finished by saying that GSOC has already indicated to the Department of Justice and Equality that 2017 will be a time when we will be looking at our practices and procedures for the 10th anniversary.  A time when we will be suggesting what works, what doesn’t and what oversight should look like in 2017.