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Murdoch's Term of the Week: Garda, Complaints Against

The Garda Síochána Ombudsman Commission, which is an independent body with responsibility for investigating complaints, was established by statute in 2005. This week's TOTW examines this often controversial area.

 

Garda, Complaints Against:

A system of investigation and adjudication of complaints made by the public about the conduct of members of the Garda Síochána is provided for in the Garda Síochána Act 2005. The legislation established the Garda Síochána Ombudsman Commission, which is an independent body with responsibility for receiving, investigating and reporting on complaints.

A complaint of misbehaviour may be made to the Ombudsman Commission in written or oral form by a member of the public who is directly affected by, or is a witness to the conduct in question or it may be made by a person acting on behalf of another and with their consent (ibid s.83). A complaint may also be made to the Garda Commissioner or to any Garda, who must then forward it to the Commission in accordance with the requirements of s.85 of the 2005 Act. A complaint must be made within six months of the date of the conduct (ibid s.84(1)). However, that deadline may be extended by the Commission if it considers that there are good reasons for doing so (ibid s.84(2)).

The Garda Commissioner must be notified by the Commission of the receipt of all complaints (ibid ss.85 & 86). Once it receives a complaint, the Commission is required to determine whether or not the complaint is admissible in accordance with the terms of s.87. The Commission is empowered to issue guidelines providing for the resolution of certain admissible complaints by mediation or other informal means (ibid s.90). Before a dispute can be submitted to mediation, the consent of the complainant and Garda in question must be acquired (ibid s.90). However, where a complaint is not resolved by informal means, or is unsuitable for such, the Commission may refer the complaint to the Garda Commissioner, or the Commission may investigate the matter itself or designate an officer to do so (ibid s.92). Where a complaint concerns the death of a person or serious harm caused to a person as a result of Garda operations, the Commission must designate an officer to investigate and report on that complaint (ibid s.91).

Where a complaint is referred by the Commission to the Garda Commissioner, the Commissioner must appoint a member of the Gardaí to investigate the complaint under the Disciplinary Regulations, and any such investigation may be supervised by the Commission (ibid s.94).

Where the Commission decides to investigate a complaint concerning conduct which does not constitute an offence, it must afford the complainant and Garda an opportunity to present their case (ibid s.95). In carrying out such an investigation, the Commission may require persons to provide it with information or documents and it may require that person to attend before it for that purpose (ibid s.96). Officers of the Commission have more extensive powers when investigating complaints that appear to involve the commission of an offence (ibid s.98).

The rules applicable to the making of a PROTECTED DISCLOSURE (qv ) by a Garda are provided for in s.102A of the 2005 Act as inserted Protected Disclosures Act 2014 s.19 .

The functions of the Garda Síochána Ombudsman Commission were previously discharged by the Garda Síochána Complaints Board. In relation to the Board, it has been held that the Complaints Board does not carry out a quasi-judicial function; its function is to reach an opinion on questions of fact after assessing evidence and considering the recommendations of its Chief Executive: McCormack v Garda Complaints Board [1997 HC] 2 ILRM 321; [1997 HC] 2 IR 489. The Board does not give reasons for its decisions. As there is no appeal, the reasons for its decisions are not required to make effective a statutory right of appeal (ibid McCormack case).

If a complaint is vexatious it remains vexatious whether there is an opposing statement or not: Kelly v Garda Síochána Complaints Board [2002 HC] (FL4918). In relation to the predecessor of the Commission, it has been held that the exercise by the Complaints Board of its functions cannot be challenged on the ground that it formed the wrong opinion, as the merits of a decision cannot be challenged; the failure of the Board to state the reasons for its decision is not unjust or unfair: Stanley v Garda Síochána Complaints Board [2000 HC] 2 ILRM 121.

Natural justice requires that the text of a complaint, or an accurate statement thereof and any material made available to the decision maker, must also be made available to the garda and that he be given an opportunity to respond to same: Dooner v Garda Síochána Complaints Board [2000 HC] ITLR (14th Aug). In a particular case, it was held that the complainant was not prejudiced by procedural irregularities in a garda investigation of his complaint: Trent v Commissioner of Garda Síochána [1999 HC] ITLR (5th Apr). Also remarks made by the chairman of the Board, relating to the investigation stage of a complaint, were held not to disclose bias or prejudgment in relation to the adjudication stage which had not yet begun: Corcoran v Garda Síochána Complaints Board [2004 HC] - Irish Times 6th Feb 2004. See Skeffington v Rooney [1997 SC] 2 ILRM 56 and 1 IR 22; Flood v Garda Síochána Complaints Board [1997 HC] 3 IR 321 and [1999 SC] 4 IR 560; Landers v Garda Síochána Complaints Board [1997 HC] 3 IR 347; McCarthy v Garda Síochána Complaints Tribunal [2002 SC] 2 ILRM 341. See Garda Síochána (Complaints) (Tribunal Procedure) Rules 1988 (SI No 96 of 1988); Appeal Board Procedure Rules 1988 (SI No 192 of 1988).

The decision in judgment in Kelly v Commissioner of An Garda Síochána [2015] IEHC 19 sets out the limits of the liability of the Garda Commissioner and the Minister for Justice.

See "The thin blue line" by Ben Mannering in Law Society Gazette (June 2015) 30. See also “Sed quis custodiet ipsos custodies” by Caroline Carney SC in Bar Review (Oct/Nov 2002) 335. See GARDA SIOCHANA OMBUDSMAN COMMISSION.

 

 

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