GSOC Publishes Observations on Draft Police Reform Legislation

Saturday, 4 December 2021

The Garda Síochána Ombudsman Commission (GSOC) has today indicated a broad welcome to legislative proposals for the expansion of its powers and remit, provided for under the draft Policing, Security and Community Safety Bill, saying that they “address a clearly defined, and long-signalled, gap in Ireland’s policing accountability infrastructure”.

The broad welcome was included in a set of observations published today on the GSOC website.

The observations place a particular focus on the importance of ensuring meaningful institutional independence and adequate resourcing to guarantee that the proposed expansion to GSOC’s remit can be fulfilled in practice. They also emphasise the need to impose firm obligations on all actors involved in an investigation of Garda wrongdoing to cooperate promptly, in order to ensure investigations are concluded in a fair, timely and effective manner.

The observations also welcome the bill’s proposed reforms to GSOC investigatory powers, which have the potential to significantly improve the efficiency, timeliness and fairness of investigations, while ensuring constitutional and procedural safeguards which are the right of everyone living in Ireland.  These reforms would bring GSOC’s powers in line with the best practice of other statutory bodies provided with civil and criminal investigative powers in Ireland, policing bodies in neighbouring jurisdictions, and of An Garda Síochána themselves.

There are, however, significant improvements that need to be made to ensure the independence of a reformed GSOC is preserved, and that its expanded remit is given the resources, expertise and backing it needs to succeed.  GSOC looks forward to engaging with all stakeholders during the bill’s passage through the Oireachtas.

ENDS

NOTE TO EDITORS:

The Scheme of the Bill

• The heads of the Policing, Security and Community Safety Bill are available HERE.
• The broad-ranging heads of bill seeks to address some of the key recommendations of the Commission on the Future of Policing, amongst which was the expansion of the powers, independence and remit of the Garda Síochána Ombudsman Commission.

GSOC’s Observations

• The Observations published by GSOC today are available HERE.
• The Observations are drawn broadly from observations made to the Department of Justice during engagement on the drafting of the Scheme over these last two years.
• Key recommendations in the Observations include:

On the proposed new investigative powers

• The unwieldy approach to investigations provided for in the current legislation, where GSOC is obliged at the outset to designate whether an investigation is a civil or criminal matter, is highly inefficient. The problems with it have been widely discussed, by GSOC, by An Garda Síochána and by the Commission on the Future of Policing.
• Heads 168, 169 and 171 of the new Bill propose a new streamlined approach to investigations, bringing GSOC in line with the practice of police oversight bodies in other countries and jurisdictions, as well as with other investigatory bodies in Ireland.
• “GSOC strongly welcomes the provisions contained in Heads 168, 169 and 171, which permit a streamlined approach while also upholding constitutional and procedural safeguards which are the right of everyone living in Ireland. GSOC is of the view that these provisions have the potential to significantly improve the efficiency of investigations by reducing the practical difficulties caused by the current processes of gathering evidence, and improving these processes, as part of the conduct of investigations. Those being investigated pursuant to Heads 168, 169 and 171 retain the protection of well-established procedural safeguards, which remain a requirement in any investigation

GSOC would further note that the approach taken under these heads to the initiation and conduct of formal investigations is entirely in keeping with best practice in neighbouring jurisdictions and with other statutory bodies provided with civil and criminal investigative powers in this jurisdiction.

GSOC would finally observe that An Garda Síochána enjoys similar powers to those outlined under these Heads in the conduct of its investigations – powers that, far from giving rise to procedural or constitutional concerns, provide protection and reassurance to members of the public.”

On automatic referral of complaints to the Garda Ombudsman

• The draft bill provides for all complaints to be referred automatically to GSOC. This is welcome, however, the approach is subject to review after three years.
• “GSOC is extremely concerned at this provision. It effectively places a three-year lifespan on what should be a fundamental and permanent reform: a statutory obligation on the Garda Commissioner to refer all complaints to the Garda Ombudsman. The provision is not in keeping with a core recommendation of the Commission on the Future of Policing that “all complaints about the police should be routed through the IOPO” and that “IOPO should investigate all such complaints itself, without recourse to Garda investigators”. It has the potential to fundamentally undermine the enhancement of police oversight which is the aim of this Bill”

On Search powers

• These are unchanged from powers currently in effect.
• GSOC believes that the current provisions require further improvements:
  • The requirement for the Garda Ombudsman to seek the authorisation of the Garda Commissioner in relation to the search of a Garda Station is not compatible with the principle that the Ombudsman should be independent in the investigation of complaints. GSOC, however, would welcome alternative approaches to the authorisation, oversight, and operation of the search of Garda premises, including through judicial oversight.
  • Search powers currently only operate in the context of investigation of a matter concerning the death of, or serious harm to, a person. There are broader circumstances wherein a search may be necessary, and the search of Garda premises should be possible the context of the Garda Ombudsman’s broad investigative remit, rather than only in the context of matters concerning death or serious harm.

On timeliness and cooperation

• “Obligations placed on a reformed Ombudsman body, particularly with regard to timely completion of investigations and provision of information, [must be] accompanied by matching statutory obligations for transparency and cooperation on all other parties, including An Garda Síochána and the proposed Independent Examiner of Security Legislation.”

On resourcing:

• A successful oversight model means “Ensuring that the expansion of the reformed body’s functions and competencies is accompanied by a commensurate expansion of capacity in the form of resources, personnel and expertise that guarantee the ability to deliver them. Limitations on resourcing during the lifetime of GSOC have contributed to the issues it has faced in delivering on its mandate. Adequate resourcing of GSOC is a core recommendation of the Commission for the Future of Policing.”
• Regarding the possible expansion of GSOC’s remit into historical investigations: “The expansion of the reformed body’s remit beyond that of contemporary police oversight body, into the investigation of historical cases, is a significant step. Such a step would not be practicable without a significant and dedicated allocation of resources and specialist expertise to such a function, distinct from the body’s other functions.”

On complaints by children and young people

• In GSOC’s view, it would be appropriate from a children’s rights perspective for this legislation to recognise the capacity of young people age 16 years and above to make a complaint to the Garda Ombudsman in their own right.