Irish security policing is ‘closed to public scrutiny’, says major ICCL report
Security policing in Ireland is “completely closed to public scrutiny”, with serious concerns as to the extent to which it complies with human rights law, a major report has found.
The research said Irish laws governing surveillance, interceptions, and data-retention are “opaque, piecemeal, and out-of-date” and that oversight structures are “muddled and complex”.
The report, by Alyson Kilpatrick, former human rights adviser to the Northern Ireland Policing Board, said the fact that An Garda Síochána is both the policing and the security service should make it easier to assess and monitor compliance with human rights obligations — but added “that is not the case in practice”.
It said surveillance and interference with privacy “must comply” with the Constitution, the European Convention of Human Rights, and the EU Charter of Fundamental Rights.
A new report from the Irish Council of Civil Liberties has strongly criticised the approach of An Garda Siochána to policing in several areas, including public order policing, as well as how Roma and Travellers are dealt with. pic.twitter.com/cPI630jtpR
— RTÉ News (@rtenews) September 14, 2018
The barrister said there is “no dispensation” for State security in human rights law, saying it applies in the same way to security policing as it does to community policing.
“The extent of compliance in state security policing is essentially a mystery, which is the greatest concern of all,” the report said.
It said that issues regarding the gardaí’s approach to the rights protected by Article 8 ECHR (the right to privacy) raised concerns about the respect paid to the ECHR.
“This does not bode well for security policing, which is completely closed to public scrutiny,” the report said.
Dr Kilpatrick said Mr Justice Nial Fennelly found that “no consideration whatsoever” was given by Garda management or by the Justice Department to the legality of systematically recording calls on non-999 phone lines in garda stations.
She said the problem was not just confined to the gardaí, and former chief justice John Murray found the “indiscriminate and unsupervised” manner in which gardaí, the Garda Síochána Ombudsman Commission , and other State agencies were currently entitled to require communication providers to retain and allow access to subscriber metadata was “wholly contrary” to the ECHR and EU law.
The report said the domestic legal framework governing surveillance, interceptions, and data-retention was “opaque, piecemeal, and out-of-date” and that governance arrangements were “muddled and complex”.
It said a “comprehensive review” was required, followed by, most probably, “a radical reconfiguration”.
She said legal definitions of State security were not exhaustive and that it was “impossible” to ascertain the parameters of it.
The report said the power to intercept communications, or ‘phone-tapping’, was not subject to judicial or independent authorisation and said a promised review of legislation had yet to be carried out.
It also said there were gaps in laws around covert surveillance and covert human intelligence sources, commonly referred to as informants, and undercover police activity.
“Given the extreme risk associated with undercover activities, it is particularly concerning that there is not a clear and robust policy,” the report said.
“Ireland is now very much out of step with Great Britain and Northern Ireland.”
The report said the EU Fundamental Rights Agency said intelligence services must be held accountable and by a range of actors, including parliament.
“In Ireland, state security is not subject to parliamentary oversight,” it said. “Every other member of the EU (save for Malta) provides parliamentary oversight.”
Questions over use of pepper spray
Gardaí policing protests operate under guidelines that are “entirely hidden” from the public, making it impossible to assess if their actions are appropriate and proportionate, according to a report published by the Irish Council for Civil Liberties (ICCL) yesterday.
Alyson Kilpatrick, a former human rights advisor to the Northern Ireland Policing Board, said there is also no legal definition of “breach of the peace” and she has been unable to find any guidelines for use of powers of arrest on the grounds of “likely to cause breach of the peace”.
“I do not suggest necessarily that the gardaí have anything to conceal [it’s impossible at this remove to assess] but there is certainly nothing to debate or to hold them to account for,” said Dr Kilpatrick.
“Many protests have given rise to concern among the public about tactics and potential political interference in policing operations but it remains shrouded in secrecy despite calls for public inquiry of certain operations.”
Dr Kilpatrick cited as examples the long-running Shell to Sea protests over the Corrib gas pipeline and, more recently, the Jobstown water protests.
She says the deployment of up to 10 gardaí at a time to carry out pre-dawn raids on the homes of protesters after Jobstown led to claims of political policing — a serious concern that merits further consideration.
“Trust in the police can be easily undermined, particularly when public order operations end in violence,” said Dr Kilpatrick.
“Scenes of police battling with protesters, for example, will be beamed across the country, drawing observers into a debate about the very legitimacy of the policing operation and the legitimacy of police themselves.
“The police will be compelled to justify their actions by reference to the law and human rights principles.
“Without a ready willingness to explain, provide justification, and answer questions, the police will be pitched against the community it is there to serve.”
“Unanswered questions will invite speculation and silence will result in conspiracy theories.”
Dr Kilpatrick also raised concerns about the use of the Garda Síochána National Surveillance Unit to gather intelligence in relation to those organising or attending a protest.
She noted that gardaí have called for it to be made illegal to photograph or film members of the force during policing of protests.
“That would be a retrograde step and would bring Garda into conflict with human rights standards,” said Dr Kilpatrick.
She was also critical of the failure to make public statistics on the use of batons, shields, tear gas, and other deterrents during protests.
“While an accurate assessment of the propriety of use cannot be made merely from statistics on the rate of use, the rate of use by gardaí certainly appears to be high and should prompt further consideration,” she said.
Doubt over custody death probe independence
“Serious doubt” hangs over the independence of investigations carried out by the Garda Síochána Ombudsman Commission (Gsoc), the Garda complaints body, into the deaths and injuries of civilians in custody or during contact with members of the force.
The report is critical of the fact that it is not mandatory that such incidents be referred to Gsoc, even if in practice they usually are. It says it is not appropriate that Gsoc, due to understaffing and underfunding, has to “lease-back” investigations to the gardaí.
“Essentially, those who are, or might be, implicated are connected to those investigating and cannot be said to be independent,” said report author Alyson Kilpatrick.
She also said Gsoc does not publish statistics on the number of complaints relating to treatment in, or conditions of, detention.
She describes the Garda Code of Ethics on arrest and detention of suspects as “more abstract than practical”.
“It represents a welcome commitment to ethical standards but it does not make clear how those ethical standards will apply operationally or how they interface with human rights obligations,” said Dr Kirkpatrick.
“If gardaí are to comply with their human rights obligations they must know what they are and how to apply them. That requires training. I am not convinced that training is adequate, up-to-date, delivered to all ranks and grades or effective.”
Detainees — in custody facilities and in transit — may have addiction issues, mental health problems, or suicidal ideation, which are often not adequately provided for.
“There is an obvious concern about the provision of medical services within Garda custody, which should be addressed as a matter of priority,” said the report.
Since 2014, the gardaí have adopted a protocol of allowing detainees to have a solicitor present during interview but the report says that without this being a statutory right, “the rigour with which that is pursued can vary greatly”.
Dr Kilpatrick said no external body has the power to carry out unannounced inspections of detention facilities in Garda stations, and while there are proposals to allow the Garda Inspectorate to do so, there is a stipulation that the Garda Commissioner would have to give permission first.
Dr Kilpatrick advocated an independent custody visiting scheme such as in the North, where custody visitors with no connection with the criminal justice system make unannounced visits, interview detainees, inspect detention records, and report concerns to the Policing Board.
‘Major deficiency’ in how gardaí handle hate crimes
The number of hate crimes reported to gardaí is “startlingly low” and points to major deficiencies in the way such crimes are identified and handled.
In 2012, 98 cases of hate crime were reported here. In the same year Scotland, with a similar population, recorded more than 6,000. In 2016, one in five incidents reported to an NGO were also reported to gardaí.
The report points out that there is no actual offence of hate crime in Irish law, nor any agreed definition, which may contribute to the massive under-reporting.
Racist hate crimes in particular appear to be massively under-reported.
Although the gardaí have adopted a definition which covers any crime motivated by hate based on race, age, ethnicity, religion, gender, disability, or sexual orientation, report author Alyson Kilpatrick said: “Because there is no statutory basis in Ireland for racism to be considered as an aggravating factor, racist motivation is less likely to be recorded on Pulse.”
She noted that the 2017 Garda Policing Plan has hate crime as a policing priority but said: “Anecdotal evidence suggests it is still not being recorded routinely and that gardaí are requiring independent evidence of corroboration of motivation.”
Best practice states it should be sufficient that the victim feels the attack was motivated by hate for the incident to be recorded as such.
Dr Kilpatrick notes the responses given by victims to NGOs as reasons why they were reluctant to report hate crime. They included lack of faith in the gardaí to take them seriously and fear of having their immigration status investigated.
She says it does not help that garda ethnic liaison and LGBT liaison officers are often seen to have “drawn the short straw”, being appointed to the roles without having any interest in them, doing the job on top of their other responsibilities, and are not available in that role at night or weekends.
Travellers and Roma in particular have very low levels of trust in gardaí, and relations with Travellers seem to be worsening, with complaints about the overuse of ‘stop and search’ powers and that gardaí investigating incidents at halting sites often arrive with an Armed Response Unit.
“While a number of initiatives are positive, they have been piecemeal, underresourced and not mainstreamed within the organisation,” said Ms Kilpatrick.
She called for the recording and analysis by gardaí of detailed data on hate crimes and for the establishment of specialist hate crime investigation units across the country.
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