The Garda Síochána Act 2005 replaced the 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 the 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 existence of the Commission’s 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 of the Garda Síochána, it may not be charged except by consent of the DPP.
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 the 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 the 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 may 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 acknowledgement 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.
Complaints Covered 2015 Act
The 2015 Act extends the general time limit for making a complaint to GSOC from six to twelve months. This does not alter the current position under, which is open to GSOC to extend the time limit if it considers that there are good reasons for doing so.
The 2015 Act broadens the scope for the Minister to refer a matter to GSOC for investigation in the public interest. This will now be possible in relation to any matter that gives rise to a concern that a Garda member may have committed an offence or behaved in a manner that would justify disciplinary proceedings.
The 2015 Act confirms that GSOC can carry out certain investigations where—
- the identity of the member of the Garda Síochána concerned may not be known when the investigation is undertaken, or
- the offence or behaviour concerned may also involve or have involved a person who is not a member of the Garda Síochána.
These are issues which have been identified as ones which could usefully be clarified.
Garda Commissioner & GSOC
The 2015 Act brings the Garda Commissioner within the scope of GSOC investigations, for the first time. It enables GSOC to investigate, if it appears to it desirable in the public interest to do so and subject to the consent of the Minister, any matter that gives rise to a concern that the Garda Commissioner may have committed an offence or behaved in a manner that would constitute serious misconduct.
The Minister, if he or she considers it desirable in the public interest to do so, may request the Ombudsman Commission to investigate any matter that gives rise to a concern that the Garda Commissioner may have done, and the Commission is required to investigate that matter. If the Minister refuses to consent to an investigation which GSOC has sought to initiate in respect of the Commissioner, he or she will be required,, to provide reasons for that refusal.
GSOC has the necessary powers to undertake an investigation involving the Commissioner. Information to be provided by the Garda Síochána to GSOC for the purposes of an investigation will be supplied as soon as practicable.
Acting at Own Initiative -2015 Act
The 2015 Act allows GSOC, for the first time, to carry out such an examination on its own initiative. Formerly it could only do this when requested by the Minister.
The GSOC is to notify the Garda Commissioner of a pending examination, the reasons for the examination and the practice, policy or procedure to be examined. GSOC must provide a report to the Minister in relation to the examination and supply a copy of the report to the Garda Commissioner. The Minister is to lay the report before both Houses of the Oireachtas. This requirement is subject to the possible exclusion of certain matters.
The Garda Síochána Inspectorate is empowered to conduct, on its own initiative or at the request of the Minister, inspections or inquiries in relation to any particular aspects of the operation and administration of the Garda Síochána. Formerly, GSOC could only conduct such an inspection or inquiry with the prior consent of the Minister.
Receipt of Complaint
If the Ombudsman Commission itself receives a complaint, it must record the date and time of receipt, notify the complainant with a written acknowledgement 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 on 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 may discontinue the investigation if, as a result of information received that it considers reflects frivolous and vexatious with knowledge that it is false or misleading or having regard to all the circumstances, it is not necessary or practicable to investigate the offence.
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.
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 are 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.
Informal Resolution 2015
The 2015 Ac made provision to facilitate the informal resolution of complaints against Garda members and to permit the Authority to request the Garda Síochána Ombudsmen Commission and Garda Síochána Inspectorate to investigate and carry out inspections in relation to matters concerning policing services.
Included among the objectives of the Garda Síochána Ombudsmen Commission is the promotion and encouragement of the use of mediation and other forms of informal means of resolving certain types of complaints against Garda members.
The Garda Síochána Ombudsmen Commission is obliged to consult with the Garda Commissioner in relation to issuing guidelines relating to mediation and other informal means of complaint resolution.
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 to refer the complaint to the Garda Commissioner to supervise the investigation if it considers it 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 investigates complaints about conduct which does not appear to constitute an offence, it shall give the complainant and member of a Garda Síochána an opportunity to be heard in person or by a legal representative. It may make rules governing the procedure in the 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 a person fails to respond to questions or a summons for documents, the Commission may apply to the Circuit Court for a 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 a 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.
Role of Judge
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.
Report of Investigation
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.
Notwithstanding 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 a 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 it appears that a member of a Garda Síochána may have committed an offence or behaved in a manner which would justify disciplinary proceedings.
The following must be informed of the progress and the results of investigations. Complainant Garda Síochána, whose conduct is the subject matter of the complaint, Garda Commissioner and such other persons that the Commission considers have 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 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 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.
Policing Authority & GSOC
The Policing Authority may request GSOC to investigate any matter relating to policing services that gives rise to a concern that a member of the Garda Síochána may have committed an offence or behaved in a manner that would justify disciplinary proceedings.
The Authority may, subject to the consent of the Minister, request GSOC to investigate certain matters relating to the conduct of the Garda Commissioner. Where the Minister does not consent to the request, he must give reasons for refusing to do so.
The GSOC must keep the Authority informed of the progress and results of an investigation within its remit. The time for instituting a summary proceedings offence, reported to the DPP by GSOC is increased to 18 months.
The Authority may request GSOC to examine practices, policies and procedures in the Garda Síochána, in respect of policing service.
2015 Extended Remit
The main purpose of the Garda Siochana (Amendment) Act 2015 is to amend the Garda Síochána Act 2005 to expand the remit and powers of the Garda Síochána Ombudsman Commission (GSOC), which is the independent body responsible for receiving and dealing with complaints made by members of the public concerning the conduct of members of the Garda Síochána. Amendments are also being made to further legislation in respect of the exercise of certain police powers by GSOC.
The 2015 Act provides primarily for:
- the inclusion, for the first time, of the Garda Commissioner within the investigative remit of GSOC;
- the conferral of additional police powers on GSOC for criminal investigation purposes;
- greater autonomy for GSOC in examining Garda practices, policies and procedures; and
- the ability of the Garda Síochána Inspectorate to carry out inspections on its own initiative without the need for the prior approval of the Minister for Justice and Equality.
Communications Interceotion & Surveillance
The 2015 Act amends the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993 to enable GSOC to undertake the interception of communications for the purposes of a criminal investigation. The approach adopted is that a GSOC investigating officer will have the powers that would be available to the Garda Síochána in the same circumstances. This will only be the situation where a criminal offence is being investigated by GSOC under the Principal Act. In addition, the conditions and safeguards contained in the 1993 Act will operate.
The 2015 Act amends the Criminal Justice (Surveillance) Act 2009 to enable GSOC to carry out surveillance where it is necessary in connection with a criminal investigation concerning an arrestable offence. In this area, GSOC will be in the same position as the Garda Síochána for the purposes of conducting a criminal investigation.