Michael Clifford: Elaborate garda disciplinary 'maze' impedes even minimal sanction

It is inconceivable that Gsoc would not recommend a major overhaul of the ‘maze’ that is the Garda discipline process, writes Michael Clifford.

Judge Mary Ellen Ring

HOW difficult is it to discipline a member of An Garda Síochána?

Does the system have anything to do with the dysfunction in the police service?

The issue arose recently at the launch of an Irish Council for Civil Liberties submission to the Policing Commission. One of the speakers at the event was Judge Mary Ellen Ring, chair of the Garda Ombudsman Commission (Gsoc).

She displayed, on a projector, an image (see above) that she described as a “maze”, and which is reproduced here.

“As a child, if you remember the maze thing,” she said. “This is how the (Garda Síochána) act says we must function.”

The diagram in question is a road map that must be followed in dealing with any complaint against a member of the force, including disciplinary action against anybody found to have transgressed.

“If we go out of any of these boxes, we’re told we can’t. We are (trying) to put forward ways of making sense of the maze, which you, the community and the gardaí, have to navigate.”

She made the comparison with private sector companies, mentioning Dunnes Stores. “Dunnes has to deal with complaints. It manages its personnel, it manages its complaints. Why have we not got a robust service that can deal with complaints to the satisfaction of the community?”

One can only hope that Judge Ring’s point is drilled into the discussions, by the commission, on the shape of a new police force. A recurring theme in the scandals, which has bedevilled An Garda Síochána, is the lack of discipline throughout the organisation.

Arguably, much of this is attributable to the maze that must be negotiated to discipline a member who is simply not doing his or her job.

This issue was first touched on by the Morris Tribunal, 13 years ago, in the inquiry’s fifth report. Morris investigated widespread corruption and malpractice in the force in the Donegal area.

Referring to the general state of the force, which led to the problems in Donegal, Judge Frederick Morris stated: “Members of the gardaí, against whom any wrong is alleged, have the dubious, and often exploited, benefit of procedures that compare with those in a murder trial.

“Garda discipline should be about accounting for how one has served the people of Ireland and about the truth. In ordinary employment, the criminal trial model is almost never available. Instead, people are given the right to be notified of allegations and the right to respond to them, before a decision is made.”

Morris’s comparison with a murder trial is instructive. The penalty, on conviction of the most grievous crime imaginable, is loss of liberty for the rest of one’s life, nominally, at least.

Such a scenario requires the greatest protections to avoid a miscarriage of justice.

By comparison, the “crime” involved in some garda disciplinary actions involves something serious, like mislaying a file, or, perhaps through negligence, a failure to process an investigation within the statutory time allowed.

These are matters concerning one’s capacity or willingness to do the job that one is employed to do.

There is no crime, there is no sanction imposed by the State, there is no prison sentence for anybody found to have transgressed. Yet, the process by which an errant employee is made accountable is laboured, complicated, and has one eye fixed on the court system, in the event of an outcome deemed by the member to be unsatisfactory.

Typically, a member might be suspected of having transgressed. Say he neglected to investigate a relatively serious incident.

In the first instance, his district officer must prepare a report. This is then adjudicated on at divisional level to determine if a disciplinary process should begin. An officer senior to the member being investigated is then appointed to investigate.

He or she investigates and determines if the member has a specific case to answer for breaching discipline. If so, another officer is appointed to determine what the breach is and what sanction should apply.

Apart from complicating what in every other walk of life is a straightforward process, the garda disciplinary maze takes up a huge amount of time and resources. This in a police service that we are constantly told is stretched.

The maze was referenced, recently, in the interim report of the Disclosures Tribunal into allegations made by Garda Keith Harrison. “Those gardaí accused of ill-discipline should be subject to correction by senior officers, without the need to resort to the elaborate structures that constitute what is, in effect, a private trial, using procedures akin to our criminal courts,” Judge Peter Charleton wrote.

“A simplified structure is called for. Private industry uses a system of simply taking a statement of what is wrong, passing it to the employee, and considering any response offered.”

He pointed out how the system, again unlike practically every other employment scenario, blocks any attempt to impose what is often a relatively minor sanction on an errant member.

“The discipline process, as it currently exists, is far too easily impeded by court applications. Citizens have a right to access the court and gardaí are no different. They are different, however, in the elaborate nature of the disciplinary code and in the consequent invitation that it poses to resort to legal challenge, in what should primarily be a disciplinary structure. Such challenges are far too easily commenced under our system. Once commenced, years of delay result.”

The Commission on the Future of Policing was established last year, in the wake of a succession of garda-related scandals. Its brief is to prepare a blueprint for the future, by learning from the mistakes of the past.

The Morris Tribunal produced a series of reports, which should be mandatory reading for anybody interested in the future of policing.

Currently, the Disclosures Tribunal is examining another raft of garda scandals and its insights should also be fed into the commission’s deliberations. As shown above, both have identified a basic problem to which the source of so much trouble can be traced.

Gsoc is at the coalface of dealing with garda discipline. Its chair is quite obviously frustrated at a system that, to a large extent, makes Gsoc’s job all-but impossible in places.

In light of that alone, and apart from its own independent investigations, it is inconceivable that the commission will not recommend a major overhaul of the maze.

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