Paper presented to James Connolly Education Trust
Dublin, 24 October 2000

“Do we need Patten-type reforms
in the Republic?”

Johnny Connolly




Introduction

The question posed is appropriate and timely. It is also indicative of the cycle of history and how the failure to make any significant alteration to the policing model of the Royal Irish Constabulary upon the establishment of the Irish Free State is now coming back to haunt us. It is also interesting that it is the ideas emanating from that failed political entity north of the border to which we are now looking for guidance. One comment I would make is, I would suggest that if we are going to envisage reform of the kind to be discussed, we seek a different title. The native is tired of the governor telling him what’s good for him when the example set always seems to disappoint.
      The focus of this paper will be on the existing accountability situation vis-à-vis the Garda Síochána in the Republic of Ireland. Last year I gave a paper on the specifics of Patten. For those of you for whom that paper did not leave a lasting impression I’m going to finish off by emphasising the principal accountability elements of Patten as I see them and briefly look at their relevance for the Garda Síochána.
      Policing in Ireland is at a crossroads. The normality of high crime rates has served to undermine the primary claim upon which state policing rests. Declining police effectiveness, declining public confidence in the crime control capacity of the police, the persistence of a heroin crisis, which has resulted in communities engaging in their own self-policing initiatives, the increased costliness of the police, abuses in police power—all have contributed to a significant erosion in public confidence in the police.
      Now of course this is occurring at a time when many of the institutions of the state are encountering a credibility crisis: the political system with its tribunals, the courts with the O’Flaherty controversy, the Catholic Church with the ongoing drip-feed of allegations of child abuse. That the Garda Síochána is now under the spotlight is not particularly because of the controversial shooting of John Carthy by the Garda Emergency Response Unit or the allegations of Garda lawlessness in Donegal: it is reflective of a wider disintegration of the basis of the authority upon which the claims of the state, here and elsewhere, are founded. The accountability of the police is particularly important and certainly one of the thorniest of conundrums, since it involves watching the watchers.
      In the current punitive climate which exists in Ireland, the enhanced discretionary powers which have been made available to the Garda and the latitude they have been afforded in terms of questioning suspects are not tempered by any perceived need to put in place effective mechanisms to ensure that these powers are used properly. The dangers in terms of police accountability are compounded by the broad and diffuse nature of the police role in the affairs of society.
      The Garda role encompasses crime control, public order, state security, economic and social regulation, public administration, and accident and emergency. The immense powers and resources available to the Garda Síochána are virtually unique in modern society. No other public body in the Republic is composed of more than ten thousaned individuals, each of whom is invested by law with an extensive array of broad discretionary powers to encroach coercively and summarily in certain circumstances upon personal rights and freedoms, including the liberty, privacy, property, bodily integrity and even the life of each individual in the state; “democratic accountability and control over such a powerful public body is a vital issue.” The powers available to a Garda member involve, in particular, the power to use force and to detain and interrogate crime suspects. The Criminal Justice (Drug Trafficking) Act (1996) conferred seven-day detention powers upon the gardaí for drug suspects.

An Garda Síochána: in pursuit of accountability

I will now describe the existing mechanisms of police accountability in the Republic. Here I will focus on two dimensions of accountability. Firstly, the way in which the Garda Síochána can be held accountable to the rule of law, i.e. ensuring that they don’t abuse their powers. This is a particularly difficult question, in that the police is a unique institution in that within the organisation discretion increases as one goes down the organisation. Also, there exists within policing what has been described as the “law of inevitable increment”, whereby “whatever powers the police have they will generally exceed by a given margin.” Here the forms of accountability include the Garda Complaints Board and the role of the courts.
      Secondly, I will look at the wider issue of accountability. Rather than focusing on preventing the police from doing what you don’t want them to do, i.e. abuse their powers, it involves ensuring that the police do what you want them to do, i.e. reflect your policing priorities etc. This is also a bit complex, as it raises the question as to the different pressures placed on the police and the way in which the unequal distribution of power in society can be reflected in the way in which the policing process occurs. We can illustrate this with reference to the policing of Dublin’s heroin crisis, whereby local anti-drug activists have long argued that the policing of Dublin street traders appeared to be a higher priority for the Gardaí than the policing of the equally open but more harmful dealing of heroin. Primarily here we are talking about police responsiveness to the public, either through their elected representatives or to communities.
      Firstly, we must consider the arena in which such powers are traditionally used and the fact that they are usually quite hidden from the public gaze.

Police on the beat

A great deal of power is exercised on the beat, out of visibility of those whose role it is in the hierarchy to hold their juniors to account. Furthermore, given that it is those who spend their time in public spaces, on the street, who are most exposed to policing, it is they, “the police property groups” (homeless, young people, travellers, etc.) who suffer most abuses of power. This has been shown in the disproportionate policing of the black community in London and the nationalist and Catholic community in the North of Ireland. The huge array of discretionary powers available to gardaí on the beat has been significantly enhanced by the introduction of the Criminal Justice (Public Order) Act (1994). This has
equipped gardaí with an armoury of coercive powers which they can deploy to deal with public situations and to maintain a certain social order on the streets and in public places . . . There can be little doubt that this Act substantially enhances the public order powers and role of the Garda Síochána.

The protection of people in custody

A study by Bohan and Yorke (1987) which looked at public perceptions of the Garda Síochána found that 40 per cent of respondents felt that “in court, some gardaí would rather cover up the facts than lose face,” while 57 per cent agreed that “the Garda Síochána sometimes exceed their powers by abusing suspects physically or mentally.” In 1995 the report of the International Committee for the Prevention of Torture (CPT) on Irish places of detention concluded that “persons held in certain police establishments in Ireland, and more particularly in Dublin, run a not inconsiderable risk of being physically ill-treated.”
      This problem has been worsened by the recent seven-day detention powers made available to the Garda in the Criminal Justice (Drug Trafficking) Act (1996), which followed the Veronica Guerin shooting. Before a person can be detained for seven days under the act, permission must be obtained from a judge of the District Court, who must be satisfied that there are grounds for such an extension. Garda reluctance to divulge information about an ongoing investigation could render this judicial intervention a “rubber-stamp” exercise. In reality, in that act the legislature has conferred the necessary inquisitorial powers not on judges, or on public prosecutors, but on the state’s investigator’s, the Garda Síochána, and the venue for the exercise of these powers is not a courtroom, or a prosecutor’s office, but the Garda station.
      The treatment of prisoners in custody is determined by the provisions of the Criminal Justice Act (1984) (Treatment of Prisoners in Custody in Garda Síochána Stations) Regulations (1987), the Criminal Justice Act (1984) (Electronic Recording of Interviews) Regulations (1997), and the Judges’ Rules. With regard to the long-running saga over the introduction of the electronic recording of interviews in Garda stations, one writer concludes that “as a watchdog,” the measures produced are “toothless”.

Garda Complaints Board

The development of the complaints procedure came about as a result of the significant increase in police powers as a result of the Criminal Justice Bill (1983). The publication of this bill occurred in the context of a growing public disquiet in the mid-seventies and early eighties about Garda practices, particularly in relation to issues emanating from the Northern conflict.
      Since 1990 there has been an astronomical increase in complaints made by the public against the Garda to the Garda Complaints Board: from 750 in 1990 to 1,400 in 1998. A significant number of these fall within the category of abuse of authority. An almost 100 per cent increase in complaints against the gardaí should be a serious cause for concern. Its effectiveness is seriously debatable.
      The Garda Complaints Board is intended to be independent of the police, but the presence of Garda members on the board raises obvious questions in that respect. The board is unlikely to be representative of those who would be most likely to have a grievance with the Garda. Its procedure is too slow and cumbersome.
The general picture is still one of the Garda Síochána being seen to investigate complaints against themselves . . . The sceptics can point to a very low success rate as evidence that the force is not really serious about prosecuting its members for criminal offences committed in furtherance of their policing objectives (ibid., 348).
      The proof of the pudding is in the eating. In 1995, out of a total of 154 citizen complaints alleging criminal wrongdoing, only one prosecution resulted. In 1994, out of 136 such complaints, there were no prosecutions. Although such complaints are passed to the DPP to decide whether or not to prosecute, a contributory factor in the low success rate might be a lack of enthusiasm among gardaí when called to investigate their fellow-members. It is worth recalling here the Stalker Inquiry in the North, which was confronted by a wall of silence in its attempts to elicit evidence from RUC officers about alleged wrongdoing by their colleagues.
      Despite recent increases in public complaints about abuse of power by the Garda, the recently published Strategic Management Initiative report recommends that, on the basis that complaints against the Garda undermine their morale, the board should have the right to rule out “a greater number of complaints, including vexatious complaints.”
      Weaknesses identified in the operation of the complaints procedure can be explained with reference to the circumstances in which it was introduced. The focus of the complaints procedure “is on satisfying the public that allegations of abuse by the police in the exercise of their powers, particularly those with respect to the detention of suspects, will be resolved fairly” (ibid., 263). “In establishing the Garda Complaints Board the Government did not approach the issue from the broad perspective of how a complaints procedure might assist in the general task of calling the police to account” (ibid., 263).

Accountability to the courts

Turning first to the civil law, there has been a significant increase in people seeking tort remedies for police misconduct. Among these problems are the absence of a duty of care on the Garda Síochána with regard to the victims of crime, and uncertainty whether the state is vicariously liable on the basis of a master-servant relationship for the tortious acts of individual Garda members. This issue arises as a consequence of the fact that the Garda member, when exercising a large degree of his power, is doing so not on behalf of the state but by virtue of the powers vested in him at common law. Furthermore, Walsh questions the accountability potential of the civil law, as it is confined to satisfying the needs of individuals on a case-by-case basis.
      The accountability of the Garda Síochána to the criminal law is undermined by a number of factors. Firstly, it is the Gardaí themselves who are appointed to investigate complaints against their own members, and, as has been shown in the context of the Garda Complaints Board, the potential for success in this area is limited. The special working relationship between the DPP and the Garda Síochána might militate against the DPP initiating criminal procedures against members of the force, preferring to opt instead for the disciplinary mechanisms internal to the force.
      With regard to the role the judiciary could perform in supervising or disciplining the Garda in the exercise of their duties: firstly, there is the so-called exclusionary rule, whereby evidence obtained unlawfully by the police in the course of their investigation can be ruled inadmissible at trial. This could indirectly lead to the police refraining from such practices. From a consideration of the case law, however, the Irish judiciary has been reluctant to apply it for such purposes. In doing so the judiciary have struck a balance between, on the one hand, “the need of the individual and the general public for a police force which can tackle crime efficiently and effectively and, on the other, the need to ensure that individuals and the general public are protected against over-zealous police practices” (ibid., 366).
      It is a matter of opinion whether the courts have struck the correct balance. Some would argue that there are other remedies for police malpractice and would question whether it would be right that a criminal should go free because the police have committed a “technical” error in the course of the investigation.
      My own view would be that, given the failure of the Garda Complaints Board and the absence of other effective accountability mechanisms at present, the judiciary may be all that the Irish public has left to ensure that the Garda Síochána are held accountable. The benefits of this judicial form of accountability should not be overstated, however. In the recent case of Paul Ward, who was convicted for his role in the murder of the journalist Veronica Guerin, the Supreme Court was highly critical of the behaviour of the Garda Síochána during the investigation, even to the extent that they called the main witness, Charles Bowden, a compulsive liar. Despite this, however, they still went on to uphold Ward’s conviction on the basis of Bowden’s evidence. Here it seems that the public policy, the need to be seen to be doing something, took precedence over questions of justice.

Accountability to politicians

Modern society is characterised by “police fetishism”, whereby the police are presented as a prerequisite of social order, holding the “thin blue line” between “order and chaos.” While a great deal of research has shown that the police perform only a marginal role in the reproduction of social order, this exaggerated public sense of the police role serves to undermine democratic processes which seek to render the police accountable.
      The minister does have a great deal of ability to determine policing policies and practices, particularly by virtue of the fact that he holds the purse strings, and in his capacity to appoint and remove the Commissioner from his post. The minister, for example, has the statutory power to determine the distribution of the force throughout the state, or to establish specialist units in the force. The minister also has a remarkable degree of control over appointments of senior ranks in the force, from Commissioner down to superintendent. The relationship between the minister and the Garda Commissioner was a focus of the Strategic Management Initiative, and its recommendations, if implemented fully, should clarify matters significantly in this area.
      The minister has great latitude and can circumscribe the Commissioner’s freedom in terms of the internal management of the force. In practice, however, ministers have shown little enthusiasm to exercise such powers. While this “hands-off” approach can serve a useful purpose for the minister, whereby he can claim responsibility for police policies or disown them in accordance with his judgement of the whims of the electorate, it raises an important issue about the democratic accountability of the force to the wider public.
      This is particularly the case in a punitive climate, such as that prevailing at present, where the politically inspired rhetoric of “zero tolerance” contributes to the significant enhancement of police powers, the natural thirst of the politician for political power feeding into the insatiable thirst of the police for more latitude when dealing with suspects. In such a climate the public becomes dependent on the ability of the parliament to influence government policy and thus protect its fundamental freedoms in this area. A survey of parliamentary proceedings conducted over a two-year period outlines a number of reasons why the public should feel less than served in this respect.
      Ultimately, how the public is served will depend on the extent to which other members of parliament can call the minister to account for police actions.
The Dáil offers the potential for a high degree of Garda accountability through questions to the minister. Questions can be asked and answered in the Dáil on potentially every aspect of Garda activities, from the most general to the most detailed and from the most sensational to the most mundane (ibid., 382).
In practice, however, little of substance appears to emerge. Ministers’ written responses to questions tend to be brief and repetitive, leaving one with the impression that “the minister actually functions as a barrier against attempts to question Garda operational matters” (ibid., 383).
      On other occasions the minister avoids answering questions by suggesting, often on dubious grounds, that such matters are internal to the force. This is a crucial matter, as the public perception is often that some laws are enforced more enthusiastically or consistently than others, and that police policies reflect this bias. By closing off public debate in this area, the minister is making clear his perception that the general public has no right to know what such policies are. Such a ministerial attitude must operate as a major constraint on serious police accountability in Ireland
      This obstructive approach which characterises the ministerial written answers to questions can be overcome through the oral question procedure, whereby other deputies have the opportunity to dig beneath the surface of the minister’s curt replies.
      However, where discussion does occur it is unimaginative and superficial. The “Holy Trinity” approach to policing, whereby all policing problems are reduced to a question of police numbers or resources, seems to have cross-party support in Ireland.
      There are a number of possible explanations for the prevalence of this “culture of non-accountability”. The most fundamental of all, I would suggest, relates to the state security function of the Garda Síochána. This role has often been used by the Garda and by politicians to hamper open debate in this crucial area. As one former Minister for Justice once put it in relation to a bungled burglary operation,
there is nothing between us and the dark night of terrorism but that force. While people in this house and people in the media may have freedom to criticise, the Government of the day should not criticise the Garda Síochána. We all know that there were mistakes made in the operation, but it is obscene that the Government and the minister responsible should be the first to lead the charge in the criticism of the Garda Síochána (ibid., 401).
The logical outcome of such a position is, however, that the Minister for Justice is an unsuitable figure to facilitate the political accountability of the Garda Síochána. Indeed, as one writer puts it, “the minister’s role could be interpreted as being designed to protect the Garda against the full rigours of democratic accountability.”

Community power

Finally I will look at the issue of community power. In recent times we have seen the emergence of Community Policing Forums in north and south Dublin inner city. The scheme in the north inner city is now into its second year, and early indications suggest that it is meeting with with some success in terms of addressing local policing concerns, and it appears to be forging a system of local accountability. It is too early to judge this process, but for the community involved, community policing models such as that in the north inner city are seen as consistent with the need for increased community empowerment in the policing area. The Garda Síochána remains one of the most highly centralised institutions in the state, and it remains to be seen whether the community policing forums represent a genuine transfer in policing power to such an extent that the local community may begin to have a real say in terms of how police policy is formulated in their local area.

The Patten solution

Having presented a pretty dismal account of the current state of accountability of the Garda Síochána, I wish to raise some of the relevant matters in the Patten Report. Here I am referring to the Patten Report in its original form and not the Northern Ireland Police Act, which has significantly eroded many of the accountability mechanisms identified in the original report. Here I am just going to give a run-down of the various mechanisms envisaged in that report which I think would be of great benefit in this jurisdiction.
      The central framework upon which the report rests surrounds the Policing Board. The successful establishment of the Policing Board will be its ultimate litmus test. This structure of democratic accountability, at both local and government levels, combined with the central role allocated to the philosophy of community policing, represents the most innovative aspect of the report and if introduced here would, I think, have profound implications.
      The Policing Board would include nineteen members, ten of whom would be elected from parties with seats on the Executive, when it is established. It has seldom been pointed out that the other members would be elected from the trade unions and from voluntary organisations and community and business groups.
      The role of the board is very wide-ranging. It must hold the Chief Constable (Commissioner) and police service publicly to account. It must also set objectives for policing up to a five-year period (rather than the Garda corporate document, which is prepared by the Commissioner and presented to the Government, as envisaged within the SMI). The board must monitor police performance and it has the responsibility for hiring and firing police officers; in the Republic this is currently within the ambit of the powers of the minister, or it is internal to the force.
      In its approach to policing, the board must adopt the philosophy of community policing. This will involve an inter-agency approach and an emphasis on problem-solving policing and crime prevention, as distinct from strict law enforcement. This philosophy must be central to all future policing. (This is increasingly the case in this jurisdiction but still, I would suggest, not central and certainly very underdeveloped.) Consistent with such a policing model, the commission recommends an internal restructuring of the force and the devolution of internal decision-making powers, so officers have as much local discretion as possible. (The Strategic Management Initiative also makes recommendations in this respect.) Patten also includes a recommendation for local police beat units, which would remain in a specific area for a few years so as to encourage the formation of local contacts and thus build up trust—a very important issue for local people. The report envisages the Policing Board being augmented by District Policing Partnership Boards at a district level, with Belfast having four such boards. The idea that district councils can raise 3p on the pound would mean that local DPPBs can hire in local security where necessary, for example for entertainment events.
      In terms of the recruitment of Catholics, in the South we should consider as analogous to the need to recruit more women, and more Dubliners to police the capital.
      The effect of these initiatives, when combined with the introduction of an Ombudsman to oversee complaints and initiate inquiries, the appointment of a commissioner to oversee covert law enforcement and Special Branch activities, and the establishment of an independent complaints tribunal, comprising members of the legal profession, would be to produce multiple levels of democratic accountability, unprecedented in the history of policing in Ireland.

The future

The need to introduce mechanisms which can render the Garda Síochána fully accountable to the public they serve is more important now than at any time in their history. This is not just a matter of national importance, but the development of a European superstate with an attendant policing dimension raises profound questions as to how the citizen can ensure that this increasingly complex and powerful institution does not abuse its role.
      There are tentative indications that the Department of Justice recognises this point. This is reflected in its relatively enlightened Discussion Paper on Crime and the establishment of a National Crime Forum to ascertain the views of the public in the area of criminal justice generally. However, there are greater signs that the punitive climate and its attendant culture of non-accountability has a significant life-span remaining. The Leahy Committee, established by the minister to consider how the recommendations of the Strategic Management Initiative, might be implemented, seems set to enhance the powers of the police and set aside its more rational and reasonable recommendations. This “sinister development”, of which Walsh expresses concern, should also be seen in the light of cross-border policing developments. While co-operation between the Garda Síochána and the RUC throughout the course of the conflict in Northern Ireland might have been seen as an important means of the Garda fulfilling its role in relation to the security of the state, one would expect that the resolution of that conflict would see a fundamental shift in the nature of policing in the country as a whole. The Irish public is entitled to presume that the resolution of the Northern conflict would bring about a form of normalisation in the relationship between police and people. What increasingly seems likely, however, is that “normalisation” involves the Southern criminal justice system adopting the Northern norm. This point is illustrated by the erosion of the right to silence, the dramatic enhancement of Garda powers, such as the introduction of seven-day detention, and the increased use of “supergrass” testimony in juryless courts.
      Finally, the durability of incongruous policing structures and the absence of healthy political debate or informed input in this area has remained a consistent feature over time. Both factors hinder attempts to render the force more democratically accountable and will need to be overcome if the Garda Síochána is to preserve its relatively popular status in the years ahead.


Further reading
      J. Connolly, Beyond the Politics of Law and Order: Towards Community Policing in Ireland (Centre for Research and Documentation, Belfast, 1997).
      J. Connolly, “From Colonial Policing to Community Policing,” Irish Criminal Law Journal (1998).
      J. Connolly, Report on the Establishment of a Community Policing Forum in North Inner-City Dublin (forthcoming).
      J. Connolly, “Policing Ireland: Past, Present and Future,” in The Irish Criminal Justice System (Paul O’Mahony, ed.) (Institute of Public Administration, Dublin, forthcoming).

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