Garda accountability – has anything changed?
22nd February 2021
Accountability has been described as “the hallmark of modern democratic governance”. It creates a sense of trust and confidence among the public, promotes legitimacy, and improves state performance. Without it, the public is at the mercy of unchecked exercises of power. Failing accountability within An Garda Síochána has become a reoccurring theme highlighted by the recent tragic death of George Nkencho. The Garda Síochána Ombudsman Commission (GSOC), charged with dealing with public complaints regarding Garda conduct, has recently been criticised by Mr Nkencho’s family, who label their investigation as “flawed” and “defective”. As such, they have called for a full public inquiry into his shooting. Would such measures be necessary in an accountability system that is fit for purpose? The unfortunate shortcomings of the Garda Síochána Act 2005, which attempted to overhaul police accountability in Ireland, has created an environment in which accountability is discouraged.
The 2005 Act’s inadequacy is rooted in the restructuring of the Garda chain of command. Under this Act, the Garda Commissioner retained control over the force but was made reportable to the Minister for Justice in an attempt to improve accountability. This centralised control over the Gardaí is counterproductive as it creates a politicised form of governance over the police, where malpractice allegations reflect poorly on the government. As such, in an effort to protect their reputation, ministers have frequently opted to deal with matters internally rather than in a transparent, public manner. In an effort to remedy this situation, a new Garda Síochána Board is to be established to act as a barrier between the Minister for Justice and Garda Commissioner – to which the Commissioner will be made accountable. However, its impact will be limited, as the Commissioner will still be required to keep the Minister informed on any significant policing matters.
Other attempts within the 2005 Act to improve accountability can be seen in the establishment of a number of “independent” bodies. The Policing Authority, established as a Garda oversight body in 2016, noted that “having multiple oversight bodies with overlapping functions has led to ambiguity surrounding oversight responsibility”. One such body, overlapping with the Policing Authority, is the Garda Síochána Inspectorate. The Inspectorate was formed under the 2005 Act to produce regular reports on the functioning of the police to be put before the Dáil. Crucially, though, to the detriment of report reliability, the Minister for Justice may exclude any information from a report in the interest of national security. This national security “trump card” is problematic and open to abuse. Furthermore, these reports are not permitted to express any opinions on a policy from the government, severely limiting the Inspectorate’s ability to act independently.
It was also under the 2005 Act that the controversial GSOC, the body charged with the Nchenko case, was established, acting as a body to which individuals could lodge complaints about police misconduct. Complaints may be resolved informally, investigated by the Gardaí or else investigated by GSOC themselves. GSOC’s ability to carry out quality investigations are limited due to underfunding, forcing them to frequently refer matters to the Gardaí to deal with internally due to lack of staff. However, since being authorised the addition of 42 new staff in 2018, investigation figures have barely improved. In 2019, 1,153 complaints made to GSOC were admitted for investigation. 35% of these investigations were carried out by the Gardaí unsupervised (down from 42% in 2017). While it should be noted that some of these complaints may be unfounded, of the 1,153 made only 96 resulted in some form of sanction. Sanctions are imposed by the Garda Commissioner and may consist of advice being given to the officer, a warning, a caution, reduction in pay, a fine, or a reprimand. The two most common sanctions used were a reduction in pay and advice. Only 5 of these sanctions were reprimands which may consists of a suspension. This means that only 8.32% of investigated complaints resulted in a sanction and 0.43% resulting in a reprimand. Such low sanction figures may be influenced by the fact that if an investigation finds evidence of a “potential” breach, it is the Garda Síochána that makes a decision on whether or not there has been “actual” breach. If the infringement is serious enough, GSOC may send the case directly to the DPP. These sanction figures really hammer home the idea that if a Garda breaks the rules, he or she will likely get away with it. Furthermore, when sanctions are imposed, the form they take does little to prevent further abuses due to a lack of any retraining dimension.
“The unfortunate shortcomings of the Garda Síochána Act 2005, which attempted to overhaul police accountability in Ireland, has created an environment in which accountability is discouraged.”
The Commission on the Future of Policing in Ireland (COFPI) 2018 report recognised the issues mentioned and proposed solutions – which, as of yet, have still not been adopted. Notably, the report recommends the establishment of the Independent Office of the Police Ombudsman to supersede GSOC. The report stresses that this office needs to be fully independent from the Gardaí, and fully funded, to prevent instances of “Gardaí investigating Gardaí”. Furthermore, it recommends that the Policing Authority and the Garda Inspectorate be superseded by a new Policing and Community Safety Oversight Commission to provide further accountability in the delivery of professional policing, coupled with an increased emphasis placed on human rights in the delivery of this policing.
My fear is that if these reforms are adopted by the government and put into legislation, it will be in a watered-down format and inadequately resourced. Despite consistent issues with the Garda conduct, the numerous oversight bodies that are in place remain underfunded and statutorily ill-equipped to deal with Garda misconduct. Such failures should not be taken lightly. Failing to hold Gardaí accountable is a slippery slope. No one should be above the law – and even more, higher moral standards should be held by those who seek to enforce the law. This is not only important for the cultivation and maintenance of justice, but because failing accountability procedures delegitimises the police in the eyes of the public, resulting in lower levels of compliance. As such, it is not only the public who are negatively impacted by failing accountability, but the Gardaí themselves. To achieve Ireland’s fundamental human rights obligations required by various international treaties and Article 40 of our Constitution, Garda accountability needs to be reformed, fast, with a clear human rights approach at the forefront of such reform. The government should not continue to wait around until there is another breach serious enough to kick them into action.
Featured photo by Sean MacEntee on Flickr