The Garda Síochána Act 2005 replaced previous Garda Síochána complaint system. It established the Ombudsman Commission to consist of three members appointed by the President on the nomination of the government and approval of both Houses of the Oireachtas. One member is chairman, at least one is a woman and at least one is a man.
A higher court judge may be appointed to be chairman of the Ombudsman Commission. An appointee person may not be a member of House of the Oireachtas or local authority or have been a member of Garda Síochána.
The term of appointment of the Commission is for periods between 3 and 6 years. Members are eligible to report for reappointment for a second term.
The Ombudsman Commission is
to ensure that its functions are performed in an efficient and effective manner with full fairness to all persons involved in complaints and investigations concerning members of a Garda Síochána.
to promote public confidence in the process of resolving complaints
to receive and consider complaints made regarding conduct of members of the Garda Síochána to achieve guidelines for informal resolution and certain complaints report complaints to the DPP as appropriate.
to examine practices and procedures of an Garda Síochána
to conduct other investigations of matters concerning conduct of members of a Garda Síochána to examine.
The Garda Ombudsman Commission may enter arrangements with the Garda Síochána for the engagement of members of the Garda Síochána with services outside the State or with any other body. During a period of temporary service with the Ombudsman Commission members of an Garda Síochána are not subject to the direction and control of the Garda Síochána.
The Ombudsman is accountable to the House of the Oireachtas committees. The members must attend before the committee on written request. The Commission is not obliged to give an account of any matter that may become the subject of proceedings before a court or a tribunal in the State. There is provision for reference to the High Court to determine whether a matter is or is likely to be the subject of court or tribunal proceedings.
The Ombudsman Commission must publish an annual report and submit it to the Minister for Justice.
A complaint may be made regarding the conduct of a member of an Garda Síochána to the Ombudsman Commission by a person directly affected or by witnesses or on that person’s behalf if the member of the public consents in writing or orally or because of age, mental or physical condition is incapable of giving consent.
The complaint may be made directly to the Commission by stating giving or send it to any member of an Garda Síochána at a Garda station, the Garda Commissioner, a member of both the rank of superintendent for forwarding to the Ombudsman Commission.
Complaints must be made within 6 months of the relevant conduct or cause of complaint. The time m\\y be extended if there are good reasons for doing so. When a complaint is made it must be recorded and the complainant must be furnished with an acknowledgment of receipt. It must be forwarded to the Commission.
Where a complaint is made to a Garda station the member in charge must ensure the complaint is forwarded to the Garda Commissioner and that a copy of the complaint is given to the complainant . Similar obligations relate to complaints made to high ranking officers of an Garda Síochána.
If the Ombudsman Commission itself receives a complaint it must record the date and time of receipt, notify the complainant with a written acknowledgment and notify the Ombudsman Commissioner.
An initial determination is made as to whether the complaint is admissible. The complaint is admissible if
- it concerns the conduct of a member of the Garda Síochána,
- it is made by and behalf of a member of the public authorized as above,
- the conduct would constitute misbehaviour by the member and
- the complaint is made within the time concerned, and
- is not frivolous or vexatious.
Complaints relating to the general direction and conduct of a Garda Síochána and complaints relating to the conduct while the Garda is not on duty unless it would tend to bring discredit on the Garda Síochána, are not admissible.
A complaint may be made in relation to a member of a Garda Síochána on the understanding that he is no longer a member or has since retired or resigned.
Provided the complaint is admissible the Garda Ombudsman Commission notify the complainant and the Garda Commissioner.
The Ombudsman Commission may issue guidelines for the resolution of complaints by mediation and other informal means. This is not applied to complaints which constitute an offence, are unsuitable for mediation in accordance with guidelines or relate to certain death or serious harm.
Complaints may proceed by mediation only with the consent of the complainant and member of an Garda Síochána. A consent mediation is not to be taken as an admission of any allegation. The statements made and things done in the course of attempting to resolve a complaint in this matter is not to be communicated to the Garda Commissioner or others or used in any civil or legal proceeding.
If the complaint is resolved informally in this manner, the complaint will not appear on the Garda’s record. If a complaint is not resolved informally or if it warrants investigation, the Ombudsman may refer the complaint to the Garda Commissioner for the purpose of a disciplinary hearing, conduct an offence while it is not an offence or direct an investigation.
The Ombudsman may discontinue investigation if as a result of information received that it considers reflects frivolous and vexatious with knowledge that it false or misleading or having regard to all the circumstances it is not necessary or practicable to investigate the offence.
Where a complaint is referred to the Garda Commissioner the Garda Commissioner may appoint a member of an Garda Síochána to investigate the complaint under the disciplinary regulation. The Ombudsman Commission may decide in referring the complaint to the Garda Commissioner to supervise the investigation if it considers desirable and in the public interest to do so.
Where an investigation is to be supervised an officer of the Commission may be present during interviews and the Commission may investigate any aspect of the complaint further. The Ombudsman Commission is to receive a report on the investigation.
If they are dissatisfied with the result of an unsupervised investigation of disciplinary and proceedings instituted as a result, the complainant may request the Commission to review the matter further.
If the Ombudsman’s Commission investigate complaints about conduct which does not appear to constitute an offence it shall give the complainant and member of an Garda Síochána an opportunity to be heard in person or by legal representative. It may make rules governing the procedure in investigation. Upon conclusion it makes a report to the Garda Commissioner.
In making investigations, the Commission may require persons who have information or documents to provide that information. It may require the attendance of persons for such purpose. Persons summoned to attend must fully and truthfully answer the questions and sign a declaration of truth. Person may not be required to provide information designated of a class relating to the security of the State, except under Ministerial direction, which may specify all or part of the document to be disclosed or impose conditions on disclosure.
If person fails to respond to questions or a summons for documents, the Commission may apply to the Circuit Court for an court order as to whether there is any valid ground for withholding information on the basis of privilege or that disclosure may jeopardise the person’s safety or not be in the public interest. The court shall determine whether to what extent withholding is justified and may impose conditions on disclosure.
Designated officers of the Commission have exempted powers for the purpose of investigating complaints that appear to constitute offences. A designated officer has all the powers, immunities and privileges of a member of Garda Síochána in relation to the investigation of offences including entry and search, arrest without warrant, bringing of charges, issuing of summonses, search, detention and questioning and taking of samples. All powers of the Garda Síochána in legislation are deemed to refer to designated officers of the Commission in the context of investigations.
In the context of the treatment of detained person, the reference to a member in charge is a reference to the designated member of the Commission. References to members of an Garda Síochána not below the rank of inspector are taken to be references to members of the Commission.
Members of the Commission may search a Garda station in the same manner as other premises. The Ombudsman Commission may issue to a designated officer, power of search where there is reasonable cause to suspect that the member in question is guilty of an offence and there are reasonable grounds for suspecting that evidence relating to the commission of the offence is to be found in the station or any person there.
Before issuing an authorisation to search a Garda station designated as one which may not be searched for reasons relating to the security of the State, the Ombudsman Commission must notify the Garda Commissioner and Minister of the intention to issue the authorisation. If the Garda Commissioner objects on grounds relating to the security of the State, it shall request the Minister to consider the objection.
If the Minister is satisfied having considered the objection on any submission by the Ombudsman Commission concerning the objection that the search would not be prejudicial to the security of the State or that the search is necessary for the proper investigation of a matter concerning death or serious harm to a person as a result of Garda operations or while in the care of the custody of Garda Síochána, the Minister may issue directions specifying the part of a document storage facility which may be searched.
A High Court judge is to be designated to undertake functions under the legislation. The functions include keeping under review, the operation of claims of privilege from investigation on the basis of State security and reporting to the Taoiseach. The judge has powers to investigate cases in which directions based on the state security are involved and may have access to the documents concerned. The Taoiseach shall publish the report to the House of the Oireachtas, unless after consulting the judge, he believes that the publication will be prejudicial to the security of the State and on certain other matters.
On completing an investigation, the officer of the Commission reports to the Commission. If the Commission having considered the report, believes that the conduct may constitute an offence it sends the report of investigation to the DPP and may furnish the DPP with further information. The DPP must inform the Commission of a decision to prosecute or not and must keep the Commission informed of the progress of.
Now withstanding non-prosecution by the DPP the Commission may conduct or continue to conduct an investigation in relation to a matter notwithstanding that this covers the same subject matter.
The Garda Commissioner must refer to the Commission, any matter which appears to the Commissioner to indicate that the conduct of a member of an Garda Síochána may have resulted in the death or serious harm to a person. The Commission must investigate any referred matter or any matter that appears to the Commission to indicate that the conduct of a Garda Síochána may have resulted in the death or serious injury to a person. The provisions regarding complaints and investigations apply.
The Ombudsman Commission may if it considers it desirable in the public interest without receiving a complaint, investigate any matter in which appears that a member of an Garda Síochána may have committed an offence or behaved in the manner which would justify disciplinary proceedings.
The following must be informed of the progress and the results of investigations. Complainant, Garda Síochána who has conduct the subject matter of the complaint, Garda Commissioner and such other persons that the Commission considers has sufficient interest in the matter. Information need not be furnished which would in the opinion of the Commission prejudice a criminal investigation or prosecution, jeopardise a person’s safety or not be in the public interest.
The existence of the Commission powers and procedures does not prevent prosecutions in the normal course by a Garda Síochána or others. If a complaint has been made concerning the conduct the Garda Síochána, it may not be charged except by consent of the DPP.
The Minister for Justice may request the Ombudsman Commission to investigate any practice policy and procedure of an Garda Síochána and report to the Minister. The Garda Síochána must cooperate with the Ombudsman Commission and furnish such documents as are required for the purpose of its report.
Legislation establishes the Garda Síochána inspectorate. The inspectorate consists of three members appointed by the government. One of whom is a chief inspector. One shall be a woman and one shall be a man.
A person may not be appointed a member unless the person is suitable for appointment by reason of service as a senior officer, a retired officer in the police force of another state or having otherwise obtained the relevant experience, qualifications, training and expertise which in the opinion of the government is appropriate to the functions of the inspectorate. The person should not be eligible if he is or has been a member of Garda Síochána.
The Garda inspectorate appointment is for a period and the members are eligible for reappointment.
The objectives of the inspectorate.
The function of the inspectorate is to carry out at the request or with the consent of the Minister inspections and inquiries in relation to any aspect of the operation and administration of Garda Síochána and submit reports and advise the Minister. The reports are to be laid before the House of Oireachtas unless to the extent they contain matters prejudicial to national security or which might facilitate the commission of an offence, prejudice a criminal investigation or the safety of any person. There are protocols by which the Garde must cooperate with the inspectorate.