Judicial inquiry only way to tackle GSOC crisis

Eamon Gilmore: "Confident" no organ of the State has been authorised to carry out that surveillance.

Trust in the Garda and its accountability has been broken by the revelations this week, writes Mark Kelly

IN less than a week, a dramatic front page story in a Sunday newspaper has turned into a full-blown crisis of confidence in Garda accountability mechanisms.

Three powerful players sit at the apex of our current policing accountability system: The justice minister, the Garda Commissioner, and the Garda Síochána Ombudsman Commission. The quality of their interdependent relationship strongly influences the extent to which members of An Garda Síochána can be held to account. When that relationship is exposed as frayed and distrustful, public confidence in the effectiveness of our police complaints system suffers almost immediately.

Ireland is fortunate to have a Garda Síochána Ombudsman Commission that has legal powers independently to investigate police conduct. Such institutions remain rare worldwide and, where they do exist, their independence and integrity should be jealously guarded. In a mature, democratic society, any serious threat to an institution such as GSOC would be stoutly resisted.

Unfortunately, the revelation that GSOC has been exposed to electronic surveillance has not encouraged its accountability partners in the Department of Justice and Garda headquarters to rally to its defence. Instead, after appearing to carpet GSOC’s chief commissioner, Alan Shatter, the justice minister, told the Dáil that “no definitive evidence of unauthorised technical or electronic surveillance of their offices was found”.

It took an appearance by GSOC before the Oireachtas Committee on Public Service Oversight and Petitions to clarify that there is a very high likelihood that “government-grade” surveillance has happened and may still be happening.

Tánaiste Eamon Gilmore told the Dáil “he is confident” no organ of the State has been authorised to carry out that surveillance, but there has been no categorical assurance to that effect.

Two principal State agencies, Garda Síochána Special Branch and the Defence Forces Intelligence Branch, are empowered under the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 and the Criminal Justice (Surveillance) Act 2009 to conduct lawful surveillance. Both agencies fall under the ultimate authority of Mr Shatter. So why is he reticent to directly reassure the public that State snoopers have not been lawfully authorised to target GSOC?

If unlawful surveillance has been taking place, might “rogue elements” within An Garda Síochána be responsible? GSOC clearly thought this was a possibility when it opened a public interest investigation into the matter, but it found a very short evidential trail. Rather than acting to support his accountability partner by investigating further, the Garda Commissioner seems to have taken umbrage at the mere suggestion that one or more of the 13,000-plus people who report to him might have crossed a line.

Five days into the worst crisis in police accountability since the Morris Report, we are no nearer to the truth that will be required to restore public trust.

With due respect to the Oireachtas committee, it seems unlikely that further appearances before it will improve matters. This week’s session mixed insightful questioning from Independent TDs such as Lucinda Creighton and Mick Wallace with party political tailspin of the worst order.

What is needed is a short, sharp independent inquiry of a judicial nature. Inquiries such as the Commission of Investigation into the Catholic Archdiocese of Dublin (better known as the Murphy Report) show that the Commissions of Investigation Act 2004 can be used to good effect without running up massive legal bills.

A review of GSOC’s powers under the Garda Act 2005 should also be carried out. It is quite extraordinary that the Garda Commissioner himself cannot be investigated by GSOC, and it is striking that it is precluded from using the lawful surveillance powers that may have been deployed against it. The institutional relationship between the justice minister and Garda Commissioner is also ripe for reform. Ideally, An Garda Síochána should report to an independent Garda authority, rather than to an elected politician.

This is a grave crisis, but is also an opportunity to restore trust in the independent investigation of police complaints in this country. As we face into a weekend likely to feature further damaging revelations, it remains to be seen if GSOC’s accountability partners are prepared to rise to this challenge.

* Mark Kelly is director of the Irish Council for Civil Liberties

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