Garda Complaints 2024 Act

Policing, Security and Community Safety Act 2024

Part 6 of the Policing, Security and Community Safety Act 2024 provides for the Police Ombudsman (as renamed and reorganised under Part 5) to have an expanded remit and streamlines the processes and procedures for the handling of complaints and the conduct of investigations to support timely, more transparent and effective resolution while safeguarding due process for all concerned. The expanded remit applies to both garda personnel with the inclusion of garda staff in the remit, and the matters that may be subject to its independent oversight and investigation.

The 2024 Act deals with the application of the Part. It excludes garda staff from the remit of complaints and investigations under this Part until such time as the Minister has made an order u designating civilian staff as garda staff. It also provides that nothing in the Part is to be taken to limit the Minister’s or the Government’s power to suspend or remove the Garda Commissioner or the Deputy Garda Commissioner or to limit the power of the Garda Commissioner to suspend, remove or dismiss a member as the case may be in accordance with the terms of those provisions.

The 2024 Act makes the necessary transitional arrangements for complaints received and investigations and other matters in train under the Act of 2005 before the repeal of that Act.

Key Definitions

An “abuse of power for sexual purpose” and the related definition of “serious harm” in relation to a person which has been extended to include that the person is the victim of a sexual offence or of an abuse of power for a sexual purpose. “sexual offence” is defined with reference to the Sex Offenders Act 2001;

Thee Police Ombudsman is to prepare a draft list of categories of complaints within defined parameters which are suitable for resolution by An Garda Síochána. This is to be done in consultation with the Garda Commissioner. The draft list when approved by the Minister is the “approved list”;

An “incident of concern” and the related definitions of “notifiable misconduct” and “misconduct” which define the scope of the obligation on the Garda Commissioner under section 200 to notify the Police Ombudsman of acts or omissions on the part of a member of garda personnel that are not the subject of a complaint from a member of the public or a mandatory referral of a matter concerning the death of, or serious harm to, a person. The act or omission must have occurred while the member was serving and must be either an allegation that the member may have committed a criminal offence or behaved in a manner that constitutes “notifiable misconduct”.

In order to constitute the latter two requirements must be met – the misconduct must be such as would justify conduct proceedings (defined in section 2) and must be of a type prescribed by the Minister having regard to certain specified factors. The definition of “misconduct” is intended to ensure that the Police Ombudsman is empowered to deal with incidents of concern which relate to acts or omissions occurring before the coming into operation of the 2024 Act but which do not become known until after the operative date;

A “relevant arrangement” is to be understood in the context of the obligation of the Garda Commissioner to establish and maintain efficient and effective arrangements for handling complaints that fall within a category of complaints that are specified in the “approved list” (see above), i.e. are suitable for resolution by An Garda Síochána.

Complaints

The 2024 Act sets out the persons who may make complaints. It provides that complaints may be made by relevant members of the public or persons acting on a relevant member of the public’s behalf. It also sets out the criteria applicable to persons who wish to make a complaint on another’s behalf. A child who is between 16 and 18 years may make a complaint on his or her own behalf. “relevant member of the public” is defined to exclude the serving Garda Commissioner, members of An Garda Síochána and members of garda staff in so far as the subject of the complaint is connected with his or her employment as such a member of garda staff.

Complaints concerning any act or omission of a member of garda personnel may be made to the Police Ombudsman or An Garda Síochána. Where a complaint is made to An Garda Síochána, it must be referred without delay to the Police Ombudsman. The Police Ombudsman and the Garda Commissioner are required to ensure that appropriate arrangements are in place for receiving, recording and acknowledging complaints and, in the case of the Garda Commissioner, for referring complaints to the Police Ombudsman, and in the case of the Police Ombudsman, for receiving such referred complaints.

Review of System

In so far as the Act on requires all complaints received by An Garda Síochána to be referred to the Police Ombudsman, provision is made for the Minister to review this requirement within 3 years (and periodically thereafter) taking account of certain specified matters. The Garda Commissioner, Police Ombudsman and the Policing and Community Safety Authority are to be consulted as part of the review.

A possible outcome of the review is that the Minister may specify, by order, that a category or categories of complaints already contained in the approved list of complaints deemed suitable for resolution by An Garda Síochána are not required to be referred in the first instance to the Police Ombudsman. Instead, the complaints within the category may be handled directly by An Garda Síochána in accordance with the arrangements established and maintained by the Garda Commissioner.

The 2024 Act sets a time limit of 12 months for the making of complaints from the date of the act or omission giving rise to the complaint. The Police Ombudsman may extend this time limit if he or she considers there is good reason to do so. The authorisation to extend must be recorded in writing. Provision is made for evidence of such authorisations to be provided by way of certificate in any legal proceedings.

Admissability

The 2024 Act requires the Police Ombudsman to determine the admissibility of complaints received directly or referred by An Garda Síochána. The Police Ombudsman is empowered to make appropriate inquiries for this purpose and to take any information obtained into account. In order to be admissible the complaint must in the first instance be made by an eligible complainant, within the time limit or any authorised extension thereof, and concern an act or omission by a person who was a member of garda personnel at the relevant time.

Notwithstanding meeting these requirements a complaint shall be inadmissible if one of six specified grounds applies to it including that it is frivolous, vexatious or made in bad faith, it lacks substance or sufficient information to warrant further action under this Part, it relates to the general direction or control of An Garda Síochána, it relates to a member of An Garda Síochána while he or she was not on duty (other than where the act or omission alleged would be likely, if proved, to bring discredit on An Garda Síochána), it relates to an act or omission by a member of garda staff who was not on duty, or it would not be reasonably practical to take any further action under the Part.

In addition to these grounds the Police Ombudsman is given discretion to determine a complaint to be inadmissible where he or she is satisfied that the subject matter is the same or substantially the same as the subject matter of a previous complaint determined under the 2024 Act or the Act of 2005. The admissibility of a complaint is not affected by whether the identity of the member of garda personnel is known. Also the fact that the member who is the subject of the complaint may have, in the intervening period, resigned or retired does not render the complaint inadmissible. It is made clear that the Police Ombudsman may determine a complaint to be partially admissible.

Where the Police Ombudsman determines that a complaint is inadmissible, he or she shall notify the complainant and include the reason for the determination. Where the Police Ombudsman determines that a complaint, which was originally received by An Garda Síochána and referred to the Police Ombudsman is inadmissible, the Police Ombudsman shall also notify the Garda Commissioner and include in the notification the reason for the determination. Provision is also made for the Police Ombudsman to notify the Garda Commissioner of any other complaint that has been determined to be inadmissible where the Police Ombudsman is of the opinion that there is good reason to do so.

Complaint Admitted

The 2024 Act sets out the actions that may be taken by the Police Ombudsman in respect of a complaint determined to be admissible under section 194. The Police Ombudsman may either determine that the admissible complaint is suitable for resolution by An Garda Síochána in accordance with the arrangements under section 197 or warrants an investigation under section 204 i.e. an investigation by a designated officer appointed by the Police Ombudsman.

The Police Ombudsman may determine that a complaint is suitable for resolution by An Garda Síochána where the complaint falls within a category of complaints that is included in the approved list and there are no special circumstances that would warrant an investigation by the Police Ombudsman. Provision is made for the Police Ombudsman to make appropriate inquiries for this purpose and to take any information obtained into account.

Where the Police Ombudsman determines that the admissible complaint is suitable for resolution by An Garda Síochána provision is made for the notification of the complainant of that determination and the referral of the complaint and any related information or documents to the Garda Commissioner. The notification is to be accompanied by information on the arrangements established by An Garda Síochána to resolve such complaints under section 197.

Where the Police Ombudsman determines that the admissible complaint warrants investigation provision is made for the notification of the complainant and the Garda Commissioner and, where known (or once they become known), the member of garda personnel concerned. The obligation to notify the member of garda personnel is subject to postponement where the Police Ombudsman considers that there is good reason to do so.

The postponement may only continue as long as there is good reason for it. The Garda Commissioner is to be informed where such notification is postponed and the reason for same. The Garda Commissioner is also to be notified where the reason for postponement has ceased and the notification has issued.

Less Serious Complaints

The 2024 Act provides for the preparation by the Police Ombudsman, in consultation with the Garda Commissioner, of a draft list of categories of complaints suitable for resolution by An Garda Síochána for submission to the Minister. The Act specifies the parameters for the categories that may be contained in the draft list by excluding categories of complaint where the act or omission complained of would constitute a criminal offence, constitute a breach of the standards of professional behaviour that would render the member of garda personnel liable to dismissal, or that concern the death of, or serious harm to, a person.

The Minister may approve the draft list, subject to any modifications, after which the Police Ombudsman is required to publish the approved list. The Minister, is required before approving the list to consider whether it complies with the parameters specified and whether the draft categories do not reach the degree of seriousness that would warrant investigation by the Police Ombudsman. Provision is made for the amendment of the list having regard to the experience of the Police Ombudsman and the Garda Commissioner in the operation of this Part.

Handling Arrangments

The 2024 Act requires the Garda Commissioner to establish and maintain efficient and effective arrangements for the handling of complaints included in the approved list of complaints suitable for resolution by An Garda Síochána prepared (the “relevant arrangements”). Prior consultation is required with the Police Ombudsman. An indicative list of the matters to be provided for is set out. It includes provision for the complaints to be dealt with in a transparent, timely, fair, objective and proportionate manner and at a divisional level where appropriate, resolution through such means as the provision of information, explanation, assurance or apology, the notification of relevant persons and the provision of information to keep relevant persons updated on progress, the circumstances in which a review of how a complaint was dealt with may be sought and the provision of advice, guidance or training to the member of garda personnel as appropriate, and the keeping of records.

The arrangements are to be kept under review and may, following consultation with the Police Ombudsman, be modified. Details of the arrangements including any modifications are to be published. The Garda Commissioner is required to report to the Police Ombudsman in relation to the operation of the arrangements and the Police Ombudsman may publish such reports in full or in part.

The 2024 Act provides for the handling by the Garda Commissioner of complaints that have been deemed as suitable for resolution by An Garda Síochána in accordance with the arrangements established under section

It is made clear that the complaint may be dealt with notwithstanding that the member of garda personnel may in the intervening period have resigned or retired. Provision is made for the complaint to be returned to the Police Ombudsman with his or her approval where, in the course of handling the complaint, it appears to the Garda Commissioner that by reason of its nature or gravity it is not suitable for resolution by An Garda Síochána.

Death Serious Harm & Incident of Concern

The 2024 Act requires the Garda Commissioner to refer to the Police Ombudsman without delay any matter that appears to the Garda Commissioner to indicate that the death of, or serious harm to, a person may be a result of an act or omission by a member of garda personnel. This obligation does not apply in respect of an act or omission by a member of garda staff while off duty.

The 2024 Act requires the Garda Commissioner where he or she becomes aware of an incident of concern, as defined, relating to a member of garda personnel to notify the Police Ombudsman of the incident as soon as practicable in accordance with protocols to be entered . The obligation on the Garda Commissioner to notify does not extend to matters that would be prejudicial to the security of the State or would endanger the life or safety of a person who has given information in confidence to a public body in relation to the enforcement or administration of the law. Where such circumstances arise the Garda Commissioner is obliged to inform the Independent Examiner of Security Legislation and the Police Ombudsman.

On receipt of a notification of an incident of concern the Police Ombudsman has a number of courses of action open to him or her. He or she may decide to take no further action, to request to be notified of the outcome of any garda investigation or to be kept informed of the progress of any garda investigation. In the case of an alleged offence, two further actions are open to the Police Ombudsman. He or she may decide to establish a joint investigation in conjunction with An Garda Síochána under section 205 or that the allegation warrants an investigation by the Police Ombudsman.

The Police Ombudsman is required to notify the Garda Commissioner of his or her determination without delay. It is made clear that An Garda Síochána may act to prevent the commission of any offence or misconduct notwithstanding that the notification of the incident of concern has been made and that the Police Ombudsman’s determination is awaited.

The 2024 Act provides for the investigation by the Police Ombudsman on his or her own initiative or at the request of the Minister, the Policing and Community Safety Authority, or the Garda Commissioner of a “relevant cause of concern” in the public interest. “relevant cause of concern” is defined in the section. It refers to a concern that a member of garda personnel may have committed an offence, or behaved in a manner that constitutes misconduct that would justify the bringing of conduct proceedings (defined in section 2).

Protected Disclosures

The 2024 Act provides for the handling of protected disclosures relating to An Garda Síochána made to the Police Ombudsman as a person prescribed under the Protected Disclosures Act 2014 or referred to him or her by the Protected Disclosures Commissioner under section 10D of that Act. The Police Ombudsman is to consider such disclosures in accordance with section 201 i.e. whether an investigation is required in the public interest.

Such an investigation may proceed notwithstanding that the worker who made the disclosure has withdrawn or abandoned it. Where the Police Ombudsman decides not to investigate he or she is to notify the worker concerned and, where relevant, the Protected Disclosures Commissioner of the decision and the reasons for same.

Investigations I

The 2024 Act provides for the investigation by the Police Ombudsman of matters giving rise to a concern that the serving Garda Commissioner may have committed an offence or behaved in a manner that would constitute serious misconduct. The process may be initiated by either the Police Ombudsman or the Minister where it appears that an investigation would be in the public interest. In the case of the Police Ombudsman, the consent of the Minister with the approval of the Government is required.

The consent may be refused for stated reasons. In the case of the Minister, Government approval is required. Where the investigation by the Police Ombudsman is to proceed provision is made for the Minister to issue a directive to a Deputy Garda Commissioner or an Assistant Commissioner to ensure measures are taken to preserve evidence and to facilitate the Police Ombudsman in obtaining that evidence.

The 2024 Act provides for the appointment of a designated officer to undertake investigations of admissible complaints and other enumerated matters where the Police Ombudsman is either required to undertake such investigations or has determined that such investigation is warranted. The appointment must be recorded in writing and evidence of same may be given by way of certificate in any legal proceedings.

It is made clear that an investigation may proceed notwithstanding that the member of garda personnel concerned may not be known or may, in the intervening period, have resigned or retired. Equally, the investigation may proceed notwithstanding that the subject matter may involve persons who are not members of garda personnel.

Investigations II

Where the investigation arises on foot of a matter other than a complaint provision is made for the notification of members of garda personnel that a designated officer has been appointed to undertake an investigation as such members would not otherwise be aware and also to notify the Garda Commissioner. Provision is made for postponement of the obligation to notify the member of garda personnel where there is good reason to do so.

The Police Ombudsman is empowered to direct that an investigation be suspended for specified reasons including that the matter is under investigation by another body, the matter is the subject of ongoing criminal or civil proceedings, or it would interfere with or conflict with the functions of another public body to commence the investigation at the relevant time.

The designated officer is to submit a report to the Police Ombudsman on the completion of an investigation but it is made clear that the officer may submit reports at any time during the investigation in respect of a part of the investigation or a member who is the subject of the investigation. This enables the designated officer to investigate criminal and non-criminal elements (where they arise) in parallel, if appropriate, and to bring to a conclusion some elements of an investigation at an earlier stage than others if practicable.

The 2024 Act provides for the establishment, in conjunction with the Garda Commissioner, of joint investigations in relation to incidents of concern that relate to the alleged commission of an offence. It provides that the Police Ombudsman shall appoint a designated officer to undertake the joint investigation in accordance with protocols under section 220.

Investigatory Powers

The 2024 Act provides that where a designated officer has been appointed under section 204 to undertake an investigation, any designated officer undertaking or assisting in the investigation concerned or any matters ancillary or consequential to it have all the powers, immunities and privileges conferred, and all the duties imposed, on any member of An Garda Síochána.

This is subject to certain modifications to address equivalency issues as follows: a reference to a member of An Garda Síochána (a member of any rank) in any enactment is to be construed as a reference to a designated officer, a reference to a member in charge of a Garda Síochána station under section 4 of the Criminal Justice Act 1984 or the related Custody Regulations is to be construed as a reference to a designated officer, while a reference in an enactment to member not below the rank of inspector is to be construed as a reference to a senior designated officer. A summary offence of obstructing a designated officer in the exercise of his or her powers or the carrying out of his or her duties is provided for.

The 2024 Act provides for an offence of knowingly giving false or misleading information to the Police Ombudsman or a member of An Garda Síochána in relation to a complaint or an investigation under this Part. It extends the offence to knowingly giving false or misleading information to a member of An Garda Síochána.

The 2024 Act makes clear that the Police Ombudsman has jurisdiction to investigate an offence under this Part and empowers a designated officer appointed by the Police Ombudsman for this purpose in like manner to a designated officer appointed under section 204.

Searches

The 2024 Act provides for the search of Garda Síochána premises by designated officers in the context of an investigation. Such a search may only be carried out under a warrant issued by a District Court judge. The application to the judge may be made by a designated officer on foot of an authorisation by the Police Ombudsman. A confidential consultation with the Garda Commissioner must take place prior to the issuing of an authorisation by the Police Ombudsman to enable the Commissioner, where relevant, to object to a search for reasons relating to the security of the State.

Where no objection is made the Police Ombudsman may issue the authorisation. Where an objection is made the matter is required to be notified to the Independent Examiner of Security Legislation without delay for his or her review 0 and recommendation to the Minister.

Where the Minister, having taken the recommendation into account, is satisfied that the search of the premises or part of the premises would not be prejudicial to the security of the State or is proportionate and necessary for the proper investigation of a matter concerning the death of, or serious harm to, a person as a result of garda operations or while in the care or custody of An Garda Síochána the Minister shall issue a directive specifying the premises or part thereof concerned. A copy of the directive is to be provided to the Police Ombudsman and the Garda Commissioner who may authorise the making of the application by the designated officer on foot of same. The authorisation and any directive are to be included in the information on oath provided by the designated officer to the judge. Where the Minister decides not to issue a directive the Police Ombudsman and the Garda Commissioner are to be informed.

The matters of which the judge must be satisfied before issuing a search warrant are specified as are the actions authorised by a search warrant and the powers of those executing the warrant. A summary offence of obstructing a designated officer acting under a warrant is provided for.

Requiring Information

The 2024 Act provides a designated officer with additional powers for the purpose of undertaking an investigation. The powers include requiring persons by notice in writing to provide any information or document or thing that is relevant to and required for the purposes of an investigation and to attend before a designated officer for that purpose. A person who is required to attend is obligated to answer fully and truthfully any questions put to him or her and may be required to sign a declaration of truth.

A person who fails or refuses to comply with a requirement without reasonable excuse is liable to summary conviction. Special procedures apply where the refusal is on the grounds of the security of the State. In such cases provision is made for the Independent Examiner of Security Legislation to review the matter and to make a recommendation to the Minister who will, taking account of the recommendation, decide whether or not to issue a direction.

It is made clear that nothing requires a person to provide any information, document or thing that would be exempt from production in proceedings in a court on the grounds of legal professional privilege. It also made clear that any statement or admission by a person on foot of a requirement under the section is not admissible as evidence in any criminal proceedings brought against the person. This is required to be explained to the person in ordinary language.

The 2024 Act makes provision for a determination by a judge of the District Court as to whether legal professional privilege applies in relation to a requirement to provide information, a document or thing to a designated officer under section 208. The application, which may be heard otherwise than in public, may be made by the Police Ombudsman or the person who has refused to comply on the grounds that legal professional privilege applies.

Action on Foot of Investigaition

The 2024 Act enables the Police Ombudsman to direct that the investigation of a complaint or other matter be discontinued in certain enumerated circumstances. Where such a direction is issued provision is made for relevant persons and bodies to be notified.

The 2024 Act concern the actions that Police Ombudsman may take on foot of a report of an investigation submitted by a designated officer. The 2024 Act provides for the referral by the Police Ombudsman to the Director of Public Prosecutions of a report which discloses an act or omission that may constitute an offence by a member of garda personnel.

The 2024 Act provides for the actions to be taken by the Police Ombudsman where a report of an investigation submitted by a designated officer discloses matters of concern other than those relating to offences. The Police Ombudsman has an expanded range of recommendations open to him or her. Provision is made for the referral of such reports, along with any recommendations, to the Minister, the Garda Commissioner or the Authority, as appropriate.

The 2024 Act requires the Police Ombudsman to keep certain parties informed of the progress and results of an investigation, subject to certain safeguards. The Police Ombudsman is required to do so on his or her own initiative or at the request of an interested party, who are enumerated.

Garda Assistance

The 2024 Act strengthens the obligation on the Garda Commissioner to provide the Police Ombudsman with such information and documents as the Police Ombudsman may request for the purposes of, or in connection with, the exercise of his or her functions. The path to be followed where the Garda Commissioner considers that the requested information or documents relate to the security of the State is set out.

The 2024 Act continues the practice of designated officers, under the direction of the Police Ombudsman, in connection with investigations that concern the death of a person, performing functions and assisting in relation to inquiries and inquests by a coroner into such deaths.

The 2024 Act requires the Garda Commissioner to ensure that members of garda personnel obtain and preserve evidence relating to matters that are the subject of a complaint, notification or referral to the Police Ombudsman under this Part. The obligation applies irrespective of whether a decision has been taken on the admissibility of a complaint. It restates Act of 2005 but extends the provision to members of garda staff.

The 2024 Act places a duty on members of garda personnel when directed to do so by a designated officer to account for any act done or omission made while on duty. Failure to comply renders the member liable to disciplinary sanction. Any statement or admission made on foot of a direction is not admissible as evidence in any criminal proceedings brought against the member concerned. The 2024 Act largely restates section 39 of the Act of 2005 in so far as it relates to the Garda Síochána Ombudsman Commission while extending the duty to include members of garda staff.

Charges

The 2024 Act extends the time limit imposed by the Petty Sessions (Ireland) Act 1851 for instituting summary proceedings in respect of an offence reported to the Director of Public Prosecutions under this Part from 6 months to 18 months from the date of an offence. In doing so it restates section 104 of the Act of 2005. Provision is also made for it to be presumed, unless the contrary is shown, that the offence concerned was reported by the Police Ombudsman to the Director of Public Prosecutions as required under this Part.

The 2024 Act makes it clear that a member of An Garda Síochána may charge a member of garda personnel with an offence or issue him or her with a fixed charge notice even though the act or omission concerned could be the subject of a complaint or investigation under this Part. However, where a complaint regarding the act or omission concerned has already been made, the member of garda personnel may not be charged unless by or with the consent of the Director of Public Prosecutions.

Protocol

The 2024 Act requires the Police Ombudsman and the Garda Commissioner to prepare written protocols to provide for a number of enumerated matters. The matters addressed in the protocols include matters relating to the operation of

“incidents of concern”,
the establishment and operation of joint investigations ,
the use of detention facilities at garda stations and the application of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987,
the provision of information and the sharing of information between the Police Ombudsman and the Garda Commissioner,
the provision of training in relation to the conduct of investigations and such other matters as would support the proper performance of the respective functions of the Police Ombudsman and the Garda Commissioner under the Part.

The protocols are to be kept under review and may be amended. Provision is made for protocols agreed under the Act of 2005 to be retained where they are compatible with the provisions of th3 2024 Act.

Review & Inquiry

The 2024 Act provides a right of review for complainants who are dissatisfied with determinations of the Police Ombudsman that a complaint is inadmissible or that an investigation be discontinued. A request for a review must be lodged within 28 days of receiving the notification of the determination concerned.

This period may be extended where the Police Ombudsman considers that there is good reason to do so. The means by which the notification of the determination is to be given to the person concerned are specified and include by electronic means where the person has so consented.

The 2024 Act provides for a judge-led inquiry into the conduct of the Police Ombudsman, Deputy Police Ombudsman and officers in undertaking an investigation and/or the policies, practices and procedures of the Police Ombudsman on a single occasion or generally in relation to investigations under the Part. It restates the Act of 2005 amending it to align with the 2024 Act but also to make a number of substantive changes including to provide a public interest test for the establishment of such an inquiry, to expressly include the conduct of the Police Ombudsman and the Deputy Ombudsman and all officers of the Police Ombudsman in addition to designated officers within the scope of an inquiry, and to include the policies, practices and procedures of the Police Ombudsman within the scope of an inquiry.