Existing watchdog bodies should conduct latest Garda review
Six weeks ago, it was an external examination by an independent expert.
That vague idea, proposed by the Independent Alliance, didn’t progress.
Now, it has been dusted down and polished up to a glossy shine — beefed up into a ‘root and branch’ review.
This review, said Taoiseach Enda Kenny, would be “thorough, comprehensive, and independent”.
It has been likened to the Patten commission in the North, which, it should be pointed out, was set up against an entirely different background.
The exact purpose, and necessity, of this new review, is far from clear.
Is it a political gesture to try and turn the heat down on an escalating, and ever-morphing, policing and political crisis?
Who will conduct this ‘root and branch’ review?
If it is going to be truly independent — involving people with no involvement in policing or the criminal justice system here — it is likely going to have to start from scratch in terms of knowledge.
That means identifying, compiling, reading, and analysing an amount of inspection and inquiry reports, and other documentation, that could cover the pitch in the Aviva.
How will it digest all the various recommendations and establish for itself the status of their implementation?
The body would most likely take submissions, and consult and hold hearings with a wide range of bodies — such as existing watchdog bodies and Garda staff associations, not to mention various victims organisations, research groups, and academics.
All of that could keep the review team going for a full year.
In order to propose a new policing system, is it going to examine policing bodies and structures abroad?
It should be borne in mind that most countries, including Britain, France, and the US, have their own serious problems in this area.
What will happen to the voluminous report of the independent reviewers? Will it be implemented and who will do that?
There are arguments for a Patten-type commission, and leading experts, including Professor Dermot Walsh, now of Kent University, argued for such a body in 2014.
However, the Irish policing structure is already heavily loaded with layers of governance, supervision, inspection, and investigation — and existing teams of experts.
We have the Policing Authority. We have the Garda Inspectorate. We have the Garda Ombudsman. We also have the Oireachtas justice committee and the public accounts committee.
A cultural audit is currently being tendered by An Garda Síochána to be conducted repeatedly over a five-year period, supervised, according to Justice Minister Frances Fitzgerald, by the authority.
The authority will also, she says, be involved in an independent investigation of the breath test scandal.
An Garda Síochána last year published a five-year Modernisation and Renewal Programme.
Both the Inspectorate and GSOC, existing since 2006, have produced research documents and conducted investigations that have taken years, in some cases many years, to carry out.
The Inspectorate has produced a dozen or so reports, including on management structures, roads policing, frontline supervision, and Garda handling of child sexual abuse cases.
It produced two massive research documents in recent years: The 490-page Crime Investigation report in October 2014 and the 442-page Changing Policing in Ireland report in November 2015, involving hundreds of recommendations.
These are incredibly detailed blueprints, covering everything from garda culture, recording of crime statistics, management structures, deployment of resources, and technological investment.
Repeated concerns have been expressed regarding the implementation of many of the recommendations.
The Inspectorate has three reports forthcoming: An update on the child sex abuse report, one on local policing, and another regarding entry routes to the Garda.
GSOC, for its part, has published reports on Garda informants and surveillance, controversial deaths, and policing of protests, as well as criminal prosecutions of Garda members.
It has neared completion on a five-year report on the Garda investigation of Ian Bailey, is still investigating a long-running probe into penalty points, and is also investigating a serious matter relating to Sgt Maurice McCabe and the O’Higgins commission.
As well as the research expertise of the Inspectorate and the investigative knowledge of GSOC, the board of the Policing Authority was set up to include experts from various areas of civilian life.
The Policing Authority was not given the power that was originally envisaged — including that of making the commissioner accountable to it (she reports to it). That power of accountability remains with the justice minister.
There are issues that a Patten-style commission could identify in a ‘root and branch’ investigation, including the need for extra powers for oversight bodies (such as statutory powers to force the implementation of recommendations and making the commissioner accountable to the Authority) and perhaps merging the Inspectorate with the Policing Authority.
Rather than setting up an entirely new structure, it would arguably make more sense, and be far more efficient, to ask the leaders of the three main watchdog bodies — the Authority, GSOC, and the Inspectorate — to come together and conduct this ‘root and branch’ review.
The heads of those three groups — Josephine Feehily (Authority), former US senior police office Bob Olson (Inspectorate), and Judge Mary Ellen Ring (GSOC) — could utilise their existing staffs and, if need be, recruit additional staff or seek external expertise for the review.
In addition to Mr Olson, independent foreign expertise is present in the form of former British officer Mark Toland (ex-Inspectorate, now GSOC) and former PSNI chief superintendent Pauline Shields (Inspectorate).
“They know their stuff,” said one policing source. “They could quickly pull together everything that has been done. They could identify gaps and propose how the remaining gaps should be done.
“From a logistical standpoint, they would not be starting from scratch and know this area well, all too well.”
Hopefully, this new ‘root and branch’ review will have more substance than shine.
Existing structures of policing oversight
The authority sits between the department and the Garda Síochána and is supposed to take the politics out of policing.
The commissioner retains operational control, but the authority can question, in public, the actions of the organisation and can request documentation and reports.
When legislation setting up the authority was published, it was given considerably weaker powers than originally intended.
This included making the commissioner merely obliged to report to the authority, but did not make the commissioner accountable to it — a relationship which remained with the minister for justice.
It can recommend the removal of the commissioner and has responsibility for appointment to ranks of superintendent, chief superintendent and assistant commissioner.
Last January, the authority produced its first document, the ‘Code of Ethics for the Garda Síochána’, appropriately enough given recent events. The authority has issued statements with stinging criticism of the Garda Síochána and the commissioner, most recently after the breath test and penalty points scandals.
The eight-person authority is supported by 21 staff including a Legal Policy and Research Division and a Policing Strategy and Performance Division.
This unit, which sits within the Department of Justice, has been doing much of the work an external Patten-style commission would most likely do, for many years.
With just three leaders and a small staff, the inspectorate has produced extremely detailed and comprehensive reports — a dozen or so since 2006.
It is down one of its three inspectors since January, who won’t be replaced until June. It has only one full-time researcher.
The inspectorate has examined management structures, garda ‘barricade’ incidents, roads policing, missing persons, resource allocation, examination of child abuse, frontline supervision and penalty points.
But its last two reports were the two behemoths on policing: the 490-page ‘Crime Investigation’ report in October 2014 and the 442-page ‘Changing Policing in Ireland’ report in November 2015.
It has three inquiries underway/due for completion.
Like the inspectorate, Gsoc has also been there since 1996. It has had a difficult, and sometimes tempestuous, relationship with Garda bosses and associations.
It has had persistent problems in getting access to documents in sensitive cases quickly or at all.
Gsoc conducts a range of investigations, including criminal investigations and investigations where a death or serious injury has resulted from possible garda action.
Gsoc has published a raft of policy or inspection reports — covering everything from garda surveillance operations, garda informants, controversial deaths, the policing of protests, the leaking of information and penalty points.
It is about to publish a five-year investigation report regarding Ian Bailey and is investigating issues arising out of the O’Higgins inquiry.
On the back of penalty point probes, the Guerin report, the O’Higgins report, the first Fennelly report and the O’Neill report, the Disclosure Tribunal is now underway into an alleged smear campaign against Sergeant Maurice McCabe.
A second Fennelly report is due into the recording of phone calls at garda stations.
There are five statutory inquiries due to be set up into serious cases examined by the Independent Review Mechanism.
The Public Accounts Committee had a pivotal role in McCabe/Callinan crisis and the meeting between its chairman at the time John McGuinness and Martin Callinan is part of the Charleton inquiry.
The committee conducted hearings with oversight bodies and produced its ‘Garda Oversight’ report last October, which fed into a move by the Tánaiste to strengthen the powers of Gsoc.
The committees have a particular power in that the Garda oversight bodies and, to a lesser extent, the commissioner, are answerable to it.
This committee will hold one of its most crucial hearings today when it hears from Nóirín O’Sullivan.
It will be key to determining the views of Fine Gael and Fianna Fáil, and, in turn, the position of the commissioner.
A system must first be in place in order for it to fail
Have you been summoned to court to answer an alleged road traffic offence? Perhaps you were stopped at the side of the road and a fixed charge penalty notice was supposed to be issued.
If the notice was issued containing a provision to pay a fine to avoid a substantially greater fine in court and, far more serious, increased penalty points, why didn’t you pay the fine? You didn’t pay because you never got the notice in the post giving you that opportunity in order to avoid appearing in court.
This scenario is played out virtually every day in district courts across the country, where people claim to have never received the notice. Some are believed and the prosecution is struck out. Some are not and suffer.
This has been occurring for years with many district court judges, in sheer exasperation, complaining to State prosecutors that the ‘system’ — I use this word loosely — is flawed.
But the current Fixed Charge Notice scandal engulfing gardaí is different. The numbers are eye-watering — 14,700 people.
If, as one District Court Judge suggested, it costs the taxpayer €1,000 to summons a person to court, 14,700 incorrect summons have so far cost the State in excess of €1.4m to prepare and serve. That’s a cost to us. Added to this are the fines imposed in each of these 14,700 cases. Then there is the cost of a solicitor, knock-on hikes in insurance and so on. No to mention thousands of potential civil actions. The bill is potentially staggering.
Note the attempt by Garda management to spread the blame last week. When the gardaí at the bottom level mess up, they’re on their own. But when management is responsible for the mess, they diffuse blame and talk about “systems failure across the country” with the sort of honeyed management-speak that would make David Brent proud.
Necessarily implicit in the statement that there has been a ‘systems failure’ across the country is the assertion that the problem is countrywide.
However, this excuse collapses upon close inspection. An obvious question presents itself: what possible motive would an individual garda have in fudging their returns?
None. Why? Because he/she would know that he would surely be found out and when that happened he would be hung, drawn and quartered.
Other troubling questions arise. Implicit also in the statement that the breath test debacle was a countrywide phenomenon is another unexplained conundrum: in order for close to a million breath tests to be invented across the country, thousands of gardaí across the land would have had to be involved in a gigantic conspiracy.
The chances of keeping a conspiracy involving two or three people is no better than average; the chances of keeping secret a conspiracy involving thousands of gardaí over six years is so remote as to be laughable.
So what do we credulous taxpayers conclude? Simply that the numbers being presented at district level throughout the land, allowing for random errors, are largely correct.
It is what happens to those numbers, after they have passed up the food-chain to Garda HQ that is troubling.
‘Systems failure’. An interesting phrase. It necessarily suggests that a system is actually in place. Most systems in the corporate world are assessed frequently with countervailing redundancy systems set up to monitor the information which comes into the business and to make sure it is correct.
That’s how actual businesses operate: they need to be able to rely on their figures. If your figures are wrong, you won’t be in business very long.
What system was in place at Garda HQ? Clearly, none. That is evident because if there was a system, these gargantuan numbers would have been discovered within one month, not six years.
So why isn’t there a system? This too is easy to understand and is even more troubling. Having a system which shows flaws in your numbers rather takes the shine from your halo at year’s end. This suggests that Garda management is operating a system that does not permit bad news from below. We only want to hear good news, record numbers of speeding tickets issued, drunk drivers arrested etc.
This system — the only system at play at HQ — makes it clear to everyone that bad news is not welcome.
But HQ will never put these directives in writing. You never put this stuff in writing. People get found out when they put stuff in writing.
But it is known to everyone who works in the organisation, just like you know what you can say in your workplace and what you cannot. Nobody told you that, nobody pulled you aside and told you explicitly that what you had said or done was considered heresy.
But you knew because you had internalised the values within your job. Without being told, you absolutely knew what was allowed and what was considered ‘stepping over the line’.
It is precisely the same with the gardaí. In such a way they can claim they have done nothing wrong; that they will weed out the wrongdoers, wherever they may be, however long it will take.
They can also claim that they ‘did not know’ about these problems.
But this defence is only open to the Commissioner if she can show what redundancy systems she had put in place and had regularly monitored to make sure that these herculean figures were not recorded in error.
She cannot because none were operating. That is the real scandal of this episode: not that it happened, but that no systems were in place to make sure that it couldn’t happen.
Such a system, assessed on a monthly basis, would have spotted the grave errors immediately. The fact that this wasn’t considered a necessity is hardly surprising, not when the only game in town is a numbers racket played at public expense.
