Seanad Éireann - Volume 113 - 19 June, 1986
Garda Síochána (Complaints) Bill, 1985: Second Stage (Resumed).
Question again proposed: “That the Bill be now read a Second Time.”
Mr. Durcan Mr. Durcan
Mr. Durcan: The Garda Síochána (Complaints) Bill, 1985, gives effect to the commitment by this party prior to the last general election that, if elected or given the opportunity to participate in government, we would introduce an independent complaints procedure in relation to complaints against members of the Garda Síochána.
The purpose of that commitment and the purpose of this Bill is to protect first, the public who may have complaints of a valid nature as against individual members of the Garda and, secondly, to protect the gardaí themselves. The Bill as drafted gets the balance right in achieving both of those objectives. In considering this Bill or any mechanism which provides a complaints procedure against the police force of any State, one must bear in mind the fact that no arm of the Government, no arm which runs our society or no arm of the State upon which we are dependent should in any way be in a position whereby they might be perceived as being above the law or being beyond the law. While we accept that gardaí in the exercise of their duties are subject to the law, we have to ensure that public perception is that the Gardaí are subject to reasonable procedure, this Bill achieves that objective.
Individual members of the Garda have  substantial powers and, in the exercise of those powers, they also have substantial responsibility. These responsibilities, while they should and must be exercised in a free and unsettled fashion, must, be exercised, first, in a manner which ensures that individual gardaí are aware of their obligations to the law of the land and, secondly in a fashion which gives the public confidence that they will be exercised in that way. We have to get the balance right between individual freedoms on the one hand and the overall protection of society on the other. This Bill has given rise to much debate within the Garda Síochána and within the country as a whole.
I believe, in achieving the twin objectives I have mentioned, the Bill gets the balance right. If the balance between the right of the citizen on the one hand and the protection of society on the other is upset then the individual citizen must have redress. That redress must be one which provides not merely for independent adjudication on any complaint but must be one which allows for a system whereby independent adjudication of a complaint is seen. One of the drawbacks and one of the problems of the existing procedure —the procedure which operates by virtue of the Garda Síochána Disciplinary Regulations of 1971 — is that the independence of that system, in so far as it is independent, is not seen by the public. One of the advantages of the new system envisaged by the Bill is that independence will be seen to be there.
At present individual members of the Garda are subject to the civil law of the land. In recent years we have seen many cases against individual gardaí, some successful, some unsuccessful in respect of alleged breaches by them of the civil court in the exercise of their duty. Individual members of the Garda are also subject to the criminal law. Also, in recent years we have seen an increasing trend whereby members of the Garda are charged and brought before the criminal courts. That is a good and a bad thing. It is a good thing if a member of the Garda  Síochána commits a crime that he should be made amenable to the law of the land. It is a bad thing if members of the Garda Síochána are too frequently brought before the criminal courts. If that trend increases and if there is an increase in the number of prosecutions brought against members of the Garda in the exercise of their powers and duties that would be a cause for concern. I am glad to say that there is no substantial increase in that respect. Individual gardaí are subject to the Garda Síochána Disciplinary Regulations of 1971.
One matter of concern to me is the role which the 1971 regulations will have if this Bill is enacted. Perhaps the Minister might spell out to us clearly whether the 1971 regulations are to be completely superseded or whether they will continue to exist in relation to internal complaints by gardaí as against other gardaí. There is now the Bill, the fourth arm, the Garda Síochána (Complaints) Bill, 1985, which, if enacted, will provide a fourth system to which the gardaí may become amenable.
It should be borne in mind — I have used the word “balance” already — that this Bill is part of a very delicate balance which the Government have achieved in giving the gardaí increased powers on the one hand but, on the other hand, introducing procedures whereby the gardaí will be seen to be increasingly subject to the rigours of the law. One of the commitments given by the former Minister for Justice, which was given statutory effect following an amendment put forward in this House during the Committee Stage of the Criminal Justice Bill was that the Oireachtas should give the gardaí more powers, that a complaints Bill would be produced and regulations would be introduced by the Minister to provide guidelines for the treatment of persons in Garda custody. I welcome those regulations. They are reasonably good. I welcome that we have a motion on the Order Paper which will give this House the opportunity of discussing those regulations in the very near future.
The Bill provides the statutory machinery whereby a person who witnesses an improper act committed by a garda may  alty to be imposed on the member. It is report that act to another garda, to a garda above the rank of superintendent or direct to the complaints board. I believe this has been welcomed across the board. Reservations have, however, been expressed in relation to two aspects of this Bill. First, the presence of the Commissioner of the Garda Síochána or his representative on the complaints baord and, secondly, the involvement of the Garda in carrying out investigations into complaints against their members.
I want to deal briefly with these two objections which have been raised in relation to the Bill. I believe it is right that the commissioner should be represented on the complaints board. The Commissioner of the Garda Síochána is the head of a disciplined police force. In this country he is the head of a unified police force. Perhaps we are one of the very few jurisdictions in western Europe which have one total unified police force, a unity that was achieved following the enactment of the 1925 Amalgamation Act. Therefore, by virtue of the nature and structure of the force and by virtue of the history of the force it is important that the commissioner or his representative be involved within the complaints machinery. The involvement is minimal. On the complaints board there is simply one Garda representative.
It is important that the commissioner should be represented to achieve maximum co-operation between the commissioner and the Garda and the complaints board. If the commissioner were not represented then the type of co-operation which is necessary to ensure the speedy and proper examination of complaints, would not exist. If one examines the system in relation to examination of allegations against members of the RUC, which took place in the recent past, where allegations were examined by members of an outside police force, and there has not been co-operation from within the RUC in relation to the examination of those complaints, one can see that the point I am making is a valid one. I would not like to see creeping into our  complaints machinery that type of non-co-operation or any grounds for non-cooperation.
Another point is whether complaints should be investigated by gardaí. I believe they should. The reason for that is quite simple. Complaints in many instances will give rise to the need for investigation from the point of view of breaches of the criminal law. That is a matter for a police force. It requires careful examination and ultimately will require the submission of a report to the Office of the Director of Public Prosecutions. That is one reason why I believe the gardaí should be involved at the investigative level.
I believe the Garda training enables them, in an expeditious and proper manner, to investigate a breach of discipline or a breach of the criminal law. That is the second valid reason why they should be involved in the investigative process. The third point is that the Garda should be encouraged to increase the level of co-operation which they have with members of the public. In recent years we have seen a drop off in that perception, which may be due to a number of factors. It may be due to the fact, first that gardaí do not live in the areas of their operation. Secondly, it may be due to the fact that gardaí are not involved in what is happening in their areas. If gardaí are involved, and if they are known within their areas they achieve an acceptance by the public which makes them suitable people to investigate complaints against other members of the force.
Another point I would like to make is in relation to the question of complaints generally. I believe it is necessary to have a complaints machinery but I also believe that the gardaí should be protected against the frivolous, foolish or unjustified complaint. The point has been made that this Bill should include provision for a criminal offence against a person who makes a malicious complaint against the gardaí. That suggestion has been answered by some people who say that such is not necessary because the board have the opportunity to judge as  to whether a complaint is frivolous and there are the provisions of the Defamation Act, 1961, which could leave a person open to an action for defamation if a foolish complaint were made.
I do not believe that the provision there goes far enough. While there are many incidences where one can be critical of the gardaí in their operations, I believe they deserve protection against malicious complaints. I am disappointed that the Garda Síochána (Complaints) Bill, 1985 does not include a section which creates a criminal offence in respect of a person who makes a malicious complaint. The point has been made that the inclusion of such a provision would act as a disincentive to people to make valid complaints. I do not accept that. There should be a criminal offence in respect of making a malicious complaint. I hope the Minister will consider that between now and Committee Stage.
I want to return to the question of the Garda Síochána Disciplinary Regulations of 1971 and to raise the question of how these regulations will operate once the Garda Síochána (Complaints) Bill, 1985 becomes law. It seems that the regulations of 1971 provide the existing procedure in respect of which all complaints by the public or, indeed, internal complaints, will be adjudicated. Those regulations provide for the establishment of an appointing officer who will appoint an investigating officer who will investigate the alleged breach of discipline.
Under the 1971 regulations it is the duty of the investigating officer to report to the appointing officer. It is a matter for the appointing officer to decide whether the matter should be proceeded with. If the appointing officer believes the matter should be proceeded with he then reports the matter to the Commissioner of the Garda who causes an inquiry to be held. That inquiry is presided over by a chief superintendent sitting alone or by a chief superintendent sitting with two superintendents.
One of the defects of that procedure is, of course, the lack of the independent element. Members of the public who  make complaints against the Garda and see how this procedure operates in giving evidence before such a tribunal feel very much like a witness appearing at a court in hell with the devil being the judge. That is the kind of public perception that exists in so far as the 1971 regulations operate. In so far as we change from the 1971 regulations with a substantial Garda involvement, to the Garda Síochána (Complaints) Bill, 1985, with a substantial lay person involvement, I welcome it.
Before commenting on the Bill, I want to express disappointment at certain views which have been expressed by members of the Garda or their associations in relation to this Bill. I refer, in particular, to the views of the AGSI president, Dan Ryan, in addressing an open meeting of Limerick members on 21 June 1985 as reported in the Garda News of June 1985 when he said:
In particular that section which requires members to answer questions and produce documents in certain circumstances is one, not only that I did not envisage, but one which I could never accept.
Later in the course of the same address he said:
No one, least of all, I, deny the need for the gardaí to be accountable for their actions. But I contend that at present they are amply accountable for those actions — as recent events have proven beyond doubt. We have a most stringent Disciplinary Code which enables the Commissioner to do practically anything he wants to a member.
Indeed we have in one sense, arguably, a difficult and stringent disciplinary code. One reason why I welcome the departure from the disciplinary code is the peculiar role of the Commissioner within the 1971 regulations. We have regulations which, on the one hand, establish the procedure by which an appointing officer appoints an investigating officer who, sets up a tribunal and who adjudicates as to whether a member is guilty or not. It is not that tribunal who decide on the penmy  understanding that the question of penalty is a matter for the Commissioner. That is unsatisfactory.
I resent the public disappointment that has been expressed by some of the Garda representative bodies. I want to quote further from a statement made by Michael Murray, General Secretary of the AGSI in the same issue of the Garda News when he was addressing Donegal members on 24 June, 1985 when he said:
There is now a subtle campaign to exclude Garda representatives from having a say in important matters affecting the welfare of their members. The Minister launched it when he excluded us from the Review of Garda Training. Some of his backbenchers recently supported it — for example, on June 6 last, Mr. Maurice Manning, TD, told the Minister in the Dáil that he should not become “the tool of any Garda organisation or pressure group”. “The general public”, he said “would have greater respect for the Garda organisations, and they would have greater credibility with the public, if they spoke a little less often and moderated the tone in which they couch many of their demands and many of their attacks.” Apart from the insulting condescension of this attack and the fact that the same could be said for most politicians neither he, Mr. Noonan or this Government can hope to silence the justifiable and intense anger felt by my members at the terms of this Bill and the overall manner in which the leaders of this community are treating their police force. This is one occasion when not only will the Garda organisations not remain silent but it would be their eternal disgrace if they did.
I resent that kind the language coming from a member of the Garda. Here we have the secretary of the AGSI making what can be called nothing other than a clear political attack upon the Minister and the Government of the day because he disagrees with the initial contents of the Garda Síochána (Complaints) Bill.  Comments of that nature by a member of a responsible association do nothing to create public regard for, or indeed public confidence in, the Garda or the association Mr. Murray mentions.
The Bill of 1985 includes in the Fourth Schedule matters in respect of which complaints may be made under section 4 (3) of the Bill. It is rather interesting — I do not know whether this is due to the influence of the AGSI within the Department of Justice — that when one examines the schedule to the 1971 regulations one finds the matters which are deemed to be breaches of discipline. One of the matters which is a breach of discipline specified in article 15 of the schedule to the 1971 regulations is as follows:
Prohibited spare time activities, that is to say — (a) identifying actively or publicly with a political party; (b) behaving, in relation to political matters, in such a manner and in such circumstances to give rise to reasonable apprehension among members of the public in relation to impartiality in the discharge of duties; (c) engaging in any activity which, though not mentioned in sub-paragraph (a) or (b), is prohibited by the commissioner as being likely to interfere with proper discharge of duties, as likely to give rise to reasonable apprehension among members of the public in relation to impartiality in the discharge of duties or as being, for good and stated reasons, inappropriate for members of the Garda Síochána to engage in.
Interestingly, the Fourth Schedule of the Bill we are now discussing contains many of the things specified in the schedule to the 1971 regulations but does not contain this particular prohibition. I will be putting down an amendment at Committee Stage to see that article 15 of the schedule to the 1971 regulations is included in the Fourth Schedule to the 1985 Bill.
The Fourth Schedule makes no mention of gardaí dis-involving themselves in political activity. I make this point, in view of what I can only regard as the gauntlet thrown down by Mr. Michael Murray to the former Minister and to this  Government, a Government who have provided the Garda with the mechanism within the Criminal Justice Bill. I want to throw down the gauntlet to Mr. Murray and ask him if his association would be happy with the inclusion in the Fourth Schedule of the Bill to the prohibition of that type of spare time activity. I believe the comments made by Mr. Murray on 24 June, 1985 are comments which, for a member of the Garda Síochána, are tantamount to meddling in political matters. An attack by the leader of a Garda association on the Minister for Justice of the day and, indeed, on the Government of the day, must be regarded as meddling in political affairs. I sincerely hope that we will see less of that type of activity from individual gardaí but, above all, from members of Garda representative associations.
My comments in relation to the Bill will be brief because I believe this is essentially a Committee Stage Bill. Section 3 establishes the board. The first Schedule to the Bill will have effect in relation to the board. The Government have got it right as far as the constitution of the Garda Síochána Complaints Board is concerned. A board of nine members the chairman of which will be either a solicitor or barrister of ten year's standing gives to the new board the type of leadership which is essential. The person who will be chairman of this board is somebody who will have to have the same qualifications as a member of the Judiciary would have to have under existing law. I welcome the inclusion in this board of three solicitors or barristers of ten year's standing. This board have extremely important functions to carry out and it is very important that the tribunals, which may be constituted by the board have people with sufficient legal expertise and experience. I welcome the presence of a representative of the Garda Commissioner on the board for the reasons that there should be co-operation between the complaints board and the Garda Síochána. One only has to examine the comment on the John Stalker situation to realise that if that kind of  co-operation does not exist all kinds of problems can arise. I welcome the provision of article 2 (4) (c) of the regulations that no other member of the Garda Síochána should be on the board. The commissioner's presence or his representative is sufficient.
I also welcome the provisions of article 4.7 and article 4.8 of the First Schedule which deal with the remuneration of members of the board and the power to remove them. This is a point that I believe has not been stressed sufficiently. With regard to remuneration I would like to ask the Minister if there is a suggestion that members of the board should be full time members or whether they should be part time members. This is something I am not altogether sure about. I am not sure whether this board will operate like An Bord Pleanála. Will it be a full time board? Will its members be fully involved on a full time basis or will they operate on a part time basis only? It is my hope that the members of this board will be full time operatives within this board. The work which the complaints board and the complaints tribunal will have to carry out will be such as to require full time involvement. I would like the Minister to confirm if such will be the case.
I welcome, in particular, article 2.8 of the First Schedule which states:
The Government may remove from office any member of the board who, in the opinion of the Government, has become incapable through ill health of effectively performing his functions or has committed stated misbehaviour.
This limits the circumstances within which members of the board may be removed. One of the unfortunate developments in recent times has been the fact that we have seen the unfortunate removal from office of one Garda Commissioner for no apparent reason. I refer to Garda Commissioner Garvey who performed excellent work. More recently we have seen the removal of another Garda Commissioner for reasons which were stated at the time and upon which I will not comment now. There is certainly a public perception that Governments can  remove Garda commissioners. I would hate to see the perception by the public that the Government of the day can remove members of the tribunal.
It is extremely important that the Garda Complaints Tribunal be seen to operate in an impartial manner. By the First Schedule to this Bill the tribunal have been given all the powers, functions and privileges of the High Court. In so far as the removal of their members is concerned they have been given somewhat similar protection as members of the Judiciary. The public perception should be such and not that members of the board may be removed by a foolish Government for foolish reasons. In the past, though not in the life of this Government, we have seen far too much interference by Ministers of the day in relation to Garda matters, the kind of interference which has never been properly answered and the kind of interference which I hope in the future will be properly answered. In that regard there are many unanswered questions which have not merely affected Ministers or Governments of the day but which, unfortunately, have had effect on the whole operation of Anglo-Irish relations on other matters which stem beyond the normal day to day operation of Government. I would hope that so far as complaints against members of the Garda are concerned, those complaints will be dealt with by a board which is protected, seen to be impartial and which will discharge its duties properly. I welcome the First Schedule of this Bill in providing that type of board.
Section 14 of the Bill deals with the situation in relation to members of the appeal board who are nominated to this House, who are Members of the Dáil or the European Parliament. I am not happy if the section is drafted in accordance with recent drafting practice in the Houses of the Oireachtas in relation to this situation. This House have had to put down amendments in relation to the Dentists Act, the Nurses Act and more recently in relation to the Combat Poverty Act to deal with this matter but it seems that the  parliamentary draftsmen have not learned by a number of mistakes they have made on other occasions. I refer this section to the Minister as I do not believe that it complies with the situation that has been legislated for in the legislation I have mentioned.
Section 4 provides for the making of complaints to the board. This section of the Bill is somewhat cumbersome and lengthy. If I may depart from the Bill for a moment, that may reflect our attitude as a people. It is interesting to read nineteenth century judgments of members of the old Irish High Court and the old Irish Court of Appeal. There one can find short, succint and easily readable judgments. If one reads judgments of the High Court and the Supreme Court one will find that they are very lengthy and difficult to grasp. The situation with regard to legislation is similar.
Our predecessors in the early days of this State and, indeed, in the Imperial Parliament, particularly at the end of the nineteenth century, were able to produce legislation which set out in a very simple form what they wanted to do. One could understand it, it was implementable and, by and large, stood the test of time. Now we seem to be moving to the era in which legislation has become complex. Nowhere is it more complex or nowhere, to my mind, is there so much unneccessary verbiage as in section 4 of the Bill. We can try to amend it. It seems a pity that two full pages are taken up simply to deal with the question of the making of complaints to the board. I do not know why slightly different procedures are prescribed for making complaints to the board, on the one hand or for making complaints to a member of the Garda Síochána on the other hand or for making complaints perculiarly, to a member of the Garda Síochána above the rank of chief superintendent at a place other than the Garda barracks. I do not know if that is meant to encompass a situation where somebody might meet the Assistant Commissioner of the Garda at Fairyhouse races or Ballinrobe races, or indeed while out fishing on Lough Mask  where one might meet a deputy commissioner who was in another boat and, in the silence of the lake, make a complaint about a particular garda. I cannot see why a similar procedure, in simple language, is not prescribed for the making of all of these complaints. Perhaps the Minister of State might comment on that when he is summing up. Perhaps the mandarins in the Department of Justice have their own reasons which we will never hear of. Perhaps the Minister has his own better reasons which we might learn something about.
I regard Section 4 (3) as being a little restrictive. That is the section which deals with the admissibility of complaints. It may be no harm to read into the record what is an admissible complaint. It is a complaint which complies with the following conditions: first, that the complainant was a member of the public. I presume, therefore, that a complaint by a member who is not of the public, that is, a member of the Garda Síochána, is a complaint to which the 1971 regulations, in so far as they exist, apply and to which this Bill, if enacted, will not apply. Secondly, the complainant must be directly affected by or witness to the conduct alleged in the complaint. That is reasonable but it could be fleshed out a little more. What does “witnessed conduct” mean? It means one must visually see conduct. Therefore, it would mean that a blind person would have difficulty in making a complaint under this Bill.
Thirdly, the said conduct would constitute an offence or be conduct specified in the Fourth Schedule to this Act. I referred to that earlier in relation to political involvement by members of the Garda Síochána. That is excluded. We have the peculiar situation that if a member of the Garda Síochána believes that a fellow member of the Garda Síochána is attending a Fine Gael meeting, or a Fianna Fáil meeting, he may make a complaint and that member may be disciplined under the Garda Síochána (Discipline) Regulations, 1971. But if I, as a mere member of the public, wish to make a complaint that a member of the Garda  is attending a Fine Gael meeting or a Fianna Fáil meeting or any other kind of political meeting, it would appear that I am not entitled to do so because it is not envisaged in the Fourth Schedule of the Bill.
Of course, it may be argued that for a member of the Garda Síochána to attend a political meeting is an abuse of authority, or is corrupt or improper practice. I do not think that argument would stand up, particularly when one compares that Schedule with what is included in the schedule to the 1971 regulations. I make this point for the reasons I have already stated in relation to senior members of the force but I make it more specifically in relation to members of all ranks, because this is one area where we are increasingly seeing a departure from accepted practice. Without putting a tooth in it, we are increasingly seeing involvement by members of the Garda in all political parties. It is absolutely unacceptable to find members of the Garda Síochána canvassing in elections in ordinary clothes. That is happening in relation to all political parties. It is not happening on a wide scale but I know members of the Garda Síochána who have canvassed for Fianna Fáil, Fine Gael and other politicans who operate in the Twenty-six Counties. There should be a specific inclusion in the Fourth Schedule of the Bill to deal with that. If the Minister is not prepared to do that he might indicate why.
The fourth matter I want to refer to dealing with the admissibility of complaints is the date on which the said conduct is alleged to have occurred — on or after the establishment day and within six months before the date on which the complaint was made. In other words, somebody has six months within which to make a complaint. That is both reasonable and unreasonable. It is a little like the provisions of the summary jurisdiction Act or the Petty Sessions Act which provide that a summons in relation to summary matters should be issued within six months. We can say that is reasonable. Interestingly, the State, in creating statutory offences which can be tried on a summary basis, tend to extend that now  to a year or to two years. There are instances where it may be reasonable to make a complaint after six months. The board should have the power, if they think fit, to extend that time or if the board should not have that power, then perhaps the Circuit Court or High Court or some competent body should have the power to extend the six months period in reasonable cases.
The six month rule prima facie is reasonable. I do not like extending these rules. On the other hand, there can be exceptional circumstances. Situations can arise where an injustice can be done. Indeed we had a case within the past year when we had no Garda complaints machinery in operation. That was the Kerry Babies Case. The Seanad and Dáil set up a public tribunal of inquiry. Would it have been possible within six months to make a complaint in relation to some of the things which allegedly happened at that time? It would not. So unless we give an indication of where the six month rule can be extended, we may have many more inquiries of that nature. That is something which I, as a member of the public and as a legislator, do not want to see happening. Section 4 (3) (a) (iv) needs to be looked at and the six month period should be extended in certain circumstances.
Subsection 3(a)(v) states that: “the application of this Act to the said conduct did not, by virtue of section 14 of this Act, stand excluded on the date on which the complaint was made”. That is a reasonable provision. If the complaint is frivolous or vexatious, it is right that the board should have power to exclude such a complaint from consideration.
Section 5 of the Bill is an important section. It gives statutory power to deal informally with complaints. It is unfortunate that many people within the Garda who have power to deal with other members on a disciplinary basis are fearful of dealing with these matters on an informal basis. Article 7 of the Garda Síochána (Discipline) Regulations, 1971 provides:
Nothing in these regulations shall  affect the right of the Commissioner or any other member of the Force whose duties include the supervision of another member to deal informally (whether by advice, admonition or warning as the circumstances may require) with a breach of discipline of a minor nature.
My experience, as somebody who has defended many members of the Garda Síochána before tribunals set up under these regulations, is that members who have a function in relation to discipline over other members too infrequently make use of Article 7 of the regulations. That failure on the part of members of the Garda may arise because of worry on their part, or because of insecurity or for any number of reasons. It reflects a failure to use Article 7 and a lack of confidence in certain Garda officers. Article 7 and section 5 of the Bill should be used on a much more frequent basis.
I am not suggesting that matters which should be dealt with formally should be dealt with informally. If something is suitable for being dealt with informally then it should be so dealt with. Many matters which could be dealt with in that way are not. Much of the time of Garda officers and State money are used in the holding of inquiries into matters of a very minor nature. One of the most appalling experiences I had was attending an inquiry where the issue was the amount of turf burned in a Garda station. A member was charged with breach of regulations in relation to burning too much turf. The suggestion may have been that the turf was being burned very quickly but it was not a matter which should have been the case of a full sworn inquiry. I welcome the enactment, in statutory form, of the provisions of section 5. I hope it is a provision which will be used frequently.
Section 6 deals with the investigation of complaints. It is the section which has caused a certain amount of opposition namely the right of a commissioner to appoint an investigating officer. It is reasonable that the investigative process envisaged by this Bill should be carried  out by members of the Garda. That relates to the manner of their training and commitment and by and large, to their experience in such matters. Above all, it relates to the fact that members may be investigating or dealing with matters which touch upon breaches of the criminal law. It would be inappropriate for such matters to be investigated by lay people. In regard to the appointment of an investigating officer he should not have a direct professional relationship with the member who is to be investigated. My experience of the 1971 regulations would lead me to believe that, by and large, the investigating officer appointed under those regulations is somebody who had a direct professional relationship with the member concerned. It was usually an inspector in the same division or in the same district.
One of the defects in the 1971 regulations was that the presenting officer usually was the member's own superintendent. That is one of the unsatisfactory aspects of the operation of the 1971 regulations. A member could be charged with a breach of discipline and find that it was being investigated by a member he knew. Frequently he could find the case against him being presented by his own superintendent. The word is “presented”, not prosecuted, and rightly so. Even in a criminal matter, where the duty of the prosecutor is to present the facts, the defendant always feels that he is being persecuted. That applies in relation to gardaí where facts which relate to alleged breaches of discipline by them are presented by their own commanding officer. That certainly does nothing for the morale of the force. That is the practice as I have experienced it and is one which should be departed from.
I do not disagree with the concept of investigation by members of the Garda of other members but I hope that the investigation, in so far as it takes place by virtue of the operation of section 6, will be carried out by somebody who does not have a professional relationship with the member concerned. What we are talking about here is a Garda force who  are acceptable to our society. We are talking about getting the balance right between protecting the Garda on the one hand and protecting the public on the other. We are talking about maintaining a level of morale within our Garda force which will achieve all of these things. That will not be achieved if a member against whom allegations of breaches of discipline are made is investigated by somebody who is his supervising officer.
Section 7 of the Bill deals with the function of the board on the completion of its investigation. This is a cumbersome section. It is an all-encompassing section in that it does what it sets out to do but it does so in a manner that is lengthy and cumbersome. The board, as the section states, may refer a matter to the DPP where there is a breach of the criminal law. One of the initial objections made to this Bill by the Association of Garda Sergeants and Inspectors was — I will read from the editorial in the Garda News of June 1985 which says:
For a number of reasons the National Executive felt it had no option but to seek major changes in the Bill, but preferably its total withdrawal. The Association had favoured some independent element in Garda complaints procedures, but only if certain basic conditions were met. The Bill does not meet the most important of those conditions namely, free legal aid and the removal of the risk of double jeopardy.
It is double jeopardy we are talking about and section 7 would appear to eliminate that risk. A member cannot be charged on both a breach of discipline and a breach of the criminal law. In so far as there is a removal of that it is to be welcomed.
The other aspect of section 7 which has caused some concern is subsection (9) which deals with the onus which is placed on a member in respect of supplying certain information. Initially objections were raised in relation to this section on the basis that the normal right of silence which an accused person had would be removed. We are not talking about investigation of a criminal matter. We are  talking about investigation of a breach of discipline and investigation of a complaint by a member of the public. We are specifically talking about matters other than criminal matters and section 7 spells that out clearly. In other words, we are talking about matters which are germane to the operation of a member of the Garda as such. Therefore, it is right that the member should have imposed upon him the impositions which are contained in section 7 (9) which states:
Where a direction under this subsection for an investigation is given, the investigating officer concerned may, for the purposes of the investigation, require a member other than a member who is the spouse of the member concerned to answer a question, furnish information, or produce a document or thing relevant to the further investigation of the complaint concerned.
Paragraph (d) of the subsection reads:
It shall be the duty of the member to comply with a requirement of an investigating officer under paragraph (c) of this subsection, but the answer given, the information furnished, or the document or thing produced, in pursuance of the requirement shall not be admissible in evidence against the member or his spouse in any proceedings whatsoever other than proceedings against the member for or in relation to a breach of discipline.
That gets the balance right in ensuring that there is an obligation on the member, on the one hand, to be open in relation to the allegation which is made under the Complaints Bill and, on the other, to protect the member in relation to any charge which may be brought against him under the criminal law.
Section 8 of the Bill deals with the establishment of the tribunal, and that is more particularly dealt with in the Second Schedule to the Bill. Section 9 of the Bill deals with the procedure consequent upon the referral of a matter to the tribunal. I welcome the section in so far as it departs from the 1971 regulations. My understanding of these regulations is that  upon the holding of an inquiry and upon the determination by that inquiry of a breach of discipline or otherwise, a report is submitted to the commissioner who in turn determines the penalty. That is unsatisfactory. Under the Bill the entire matter is left to the tribunal. That is welcome. Imposing a penalty for a breach of discipline is best done by the person who has heard the evidence. The Bill sets out in subsection (4) the disciplinary actions which may be taken. These are dismissal from the Garda Síochána; a requirement to retire or resign as an alternative to dismissal; a reduction to such other rank in the Garda Síochána as the tribunal may determine; a reduction in pay of such amount and for such period as the tribunal may determine; a reprimand and, lastly, a caution. It is right that this is a matter which should be determined by the tribunal and not by the commissioner.
I welcome section 10 of the Bill and the Third Schedule which deals with the establishment of the Garda Síochána Complaints Appeal Board. I welcome the Bill. It brings to fruition the commitment given to us and to the Labour Party prior to the last general election in relation to the establishment of an independent complaints procedure. The Bill gets the balance right between protecting the public and giving them an assurance that the gardaí will act in a manner which is within the law and that, if they do not, the public have a reasonable hope of independent redress. It also protects the gardaí against the double jeopardy of frivolous and unrealistic complaints and unfounded allegations. Overall, this Bill gets the balance right. It is a technical and detailed Bill and as such I hope the House will be given ample time in which to discuss Committee Stage.
Mr. McGonagle Mr. McGonagle
Mr. McGonagle: I congratulate Senator Durcan, for doing on Second Stage, something which might well have been done on Committee Stage. He made a very fine speech and I congratulate him on his knowledge of the police complaints machinery as laid down in the Bill. I say that as the former chairman of the police  complaints machinery in Northern Ireland which I set up with my colleagues there. I will talk to him later privately about his conception of double jeopardy because I think he is still a little confused.
We should pay attention to the public perception of this matter. As communicators we should endeavour to educate the people we represent, the public at large, as to how a complaints procedure developed, and where the idea came from. Were the police misbehaving? Were they guilty of corruption? What were they guilty of which made this machinery necessary? It was not for any of these reasons that the complaints machinery in Europe, America, Australia, New Zealand or Canada was set up.
The fundamental basis of complaints against the apparatus of the State — the police form part of that — springs from the aftermath of World War II. The traumatic experiences suffered by the people in Europe under the Nazi and Fascist tyranny, made people think about human rights, civil liberties and the perception that the State is the master of the people. In Western democracies and in civilised countries the state is the servant of the people. That is where the concept arose. Any part of the apparatus of the state is properly understood only if it is ready to be challenged from time to time. That is where the police complaints machinery concept fits into the arena of human rights. It is the same with the Ombudsman machinery. The police complaints machinery is a more refined version of machinery but the Ombudsman principle is there.
The people must understand that. They must not think that the Garda were misbehaving and that as a result, this machinery had to be set up. Public perception is a sensitive thing. If people are not properly educated about this they will have misgivings about it in much the same way as they have about the police investigating their own complaints.
Our law enforcement officers are entrusted with enforcing the laws which the people have made. The lawmakers have the police force to enforce the law  to the best of their ability. It must be remembered, however, that they are human beings who can make mistakes.
What are we talking about? There are two areas where people can misbehave as members of a police force — they can breach the criminal law and breach the disciplinary code laid down by the police force. Independent inquiries are carried out in both areas. The DPP carries out investigations into breaches of the criminal area and breaches of the disciplinary code are investigated by members of the force.
This Bill is overburdened with legal professionals. The board may find a breach of discipline and then the tribunal sits. The board cannot find a person guilty. It only “may” find a person guilty. The tribunal finds a person guilty. If one looks at the number of barristers who sit on the board and then at the tribunal one will see that my point is valid. There is no breach of law involved in cases of breach of discipline. Any layman can see a breach of a disciplinary code because all he has to do is read the code, determine the facts and make a decision.
In the Northern legislation, there is no overburdening of the legal profession as we have here. I am not going to offer any amendment. I am going to say: “Yes, let us go on and try it. Let us see how it works”. I believe that that is the first criticism I should make with the experience I have. I welcome and commend the Bill. It is necessary. It is not so much a Bill to balance the Criminal Justice Act, some parts of which do not go into operation until this Bill goes through. If there never had been a Criminal Justice Act, a complaints' machinery was necessary in any civilised democratic country for the reason I have given, the fundamental human right protection envisaged in the western non-totalitarian countries. It is not a question of balancing some other Act of Parliament. That would be a very silly and superficial reason and not a good one. The reason I have given is more deep rooted, fundamental, right and proper.
Our law enforcement officers carry out the law to the best of their ability but if  some of their colleagues deviate from the norms of conduct an investigation is mounted. People in the civil liberties areas have been calling for years that in such cases there be independent investigation, not investigation where there is overlooking, scrutinising and seeing the files after the police have carried out the investigation. No, they want independent investigations. That cannot be completely met. In my experience as chairman of the complaint's machinery against the RUC in Northern Ireland I came finally to the conclusion that part of the way we could go by way of introducing an independent element is by way of what is in this Bill. The chief executive officer of the board is the independent element. As in the North and Britain, he will investigate the more serious complaints against the police force, after, of course, having excluded, through the board machinery, the frivolous, the vexatious, the anonymous and all the rest. That is where the independent element comes in because I very firmly came to the conclusion that an independent lay investigation just was not on for reasons I will probably have to give.
Seanad Éireann 113 Garda Síochána (Complaints) Bill, 1985: Second Stage (Resumed).