The smearing of Maurice McCabe has been labelled a frightening abuse of power by the state’s public bodies. Public figures like Enda Kenny, Frances Fitzgerald and Nóirín O’Sullivan have had their futures questioned in recent weeks as new allegations have come to light in the police scandal that has dragged on for more than a decade. The reality, unfortunately, is that this case was not an isolated incident and the stepping down of certain figureheads may do much to stem the media attention but won’t fix the issue at the heart of the matter. This extraordinary smear campaign is a consequence of systemic failings within the police system and an inadequate oversight body that has never been able to get off the ground. Unless the procedures for investigating police misconduct are radically reformed, police officers guilty of corruption and abusive conduct will continue to be held unaccountable.
Castle street Garda Station-photo credit Paolo Trabattoni (Flickr)
Not surprisingly, the lack of confidence in the capacity for the Garda Síochána Ombudsman Commission (GSOC) to successfully investigate complaints has peaked in recent months but the body has been the subject of sustained criticism since its creation in 2007. GSOC itself has laid out in its 2016 report to the Oireachtas Commission that it is under-resourced and overly reliant on the co-operation of the Gardaí.
GSOC is purely an investigative agency. We do not have the power to prosecute, nor do we have the power to decide whether there has been a breach of discipline and apply sanctions if appropriate. These powers are with the office of the DPP and the Garda Síochána respectively.
The latest reforms do not go far enough in ensuring the independence of GSOC when investigating complaints. GSOC has explicitly stated that its capacity to fulfil its role is dependent on its access to the Garda PULSE and computerised information bases. GSOC have to request access to specific PULSE files on a case by case basis from an Garda Síochána which has repeatedly caused a delay in bringing cases to court. Back in 2014 during the Maurice McCabe whistleblower investigation GSOC requested PULSE files on up to 3,000 terminated penalty point cases yet the files were not handed over to investigators for between 8 and 9 months. With such a dependence on Garda co-operation for the supply of video, electronic and any other evidence central to investigations it would be injudicious to say that GSOC are the independent body that they were intended to be under the remit of the Garda Síochána Act 2005.
Furthermore, the body has no power to enforce their recommendations on formal complaints cases. GSOC investigators submit their recommendations to Garda supervisors who then have the final say which essentially flies in the face of a competent and effective oversight system. These concerns are laid out in their September 2016 report:
In particular, we believe that the concept of the Garda Ombudsman having no power, at the end of a supervised investigation or one undertaken by a GSOC investigator, to seek a rationale should the Garda Síochána deciding officer go against our recommendation, is questionable in terms of effective oversight.
An additional constituent of our Garda complaints procedures that needs an urgent overhaul is the shortage of resources awarded to GSOC. They are severely restricted by the lack of funding and manpower at their disposal, which pale in comparison to the resources available to the Gardaí. in April 2015 independent Minister Mick Wallace made very damning remarks about the insufficient resources while addressing justice minster Frances Fitzgerald in Dáil Eireann. Minister Wallace remarked that GSOC do not have the potential to be the body that they were meant to be before adding:
“of course we all realise that they were structured in the first place not to succeed and sadly that remains the case”.
Mick Wallace discussing new appointments and resources of GSOC with Minister Frances Fitzgerald
The current conditions that GSOC is working under inevitably leave the commission overly dependent on the body that they have a statutory responsibility to examine. Though a 13% increase in funding in 2015 was designed to “strengthen the role and remit of the commission” according to Justice Minister Frances Fitzgerald, the truth is there is a chasm in the difference between the appearance of independence and reality.