The new Garda Síochána Bill will have to do more than create an ombudsman Commission if it is to confront the problems facing the force, writes Carol Coulter, Legal Affairs Correspondent
'The gardaí don't seem to know what their job is," Judge Anthony Murphy told The Irish Times this week. "They've lost their way. Their job is, first, to prevent crime, secondly, to investigate crime in accordance with the book of rules and, thirdly, to send the results to the DPP. Whether or not the person is convicted should be of no material interest to the gardaí," he said.
The retired Cork Circuit Court judge was speaking in the wake of the Prime Time programme that highlighted a number of apparent breakdowns in discipline arising from some recent cases involving the force.
But many commentators feel the problems go back further, and arise from the leaking through into general policing methods and attitudes established when the gardaí were fighting political subversion.
"At that time the gardaí got the idea they were above the law," Prof Dermot Walsh of the University of Limerick, and an expert of policing and criminal justice, told The Irish Times. "It percolated through into ordinary policing practices and was responsible for the Kerry babies and other cases."
The methods he refers to were best exemplified in the Sallins train robbery case, now almost 30 years old. The Cork-Dublin mail train was robbed outside Sallins, and a considerable amount of money taken, at a time when the IRA and other republican paramilitary organisations were funding their campaigns through bank and other robberies.
Six men, all associated with the Irish Republican Socialist Party, were arrested and charged. All proclaimed their innocence, and the only evidence against them were statements they had allegedly made in custody. Later linguistic analysis found they could not have been the authors of the statements. The District Court initially threw out the charges, but eventually four were recharged, and appeared before the Special Criminal Court.
All claimed to have been beaten up by the gardaí. One of them, Osgur Breatnach, was hospitalised. Ten doctors, including the Portlaoise prison doctor, gave evidence that their injuries were consistent with assault. Yet the Special Criminal Court (one of whose three judges was frequently asleep and died not long after) accepted the gardaí's evidence that they had beaten themselves up, and they were convicted. Their convictions were later overturned by the Court of Criminal Appeal, but it never questioned the finding of fact that they had beaten themselves up.
In 1992 the Government granted a presidential pardon to one of them, Nicky Kelly, and stated that the other three, Osgur Breatnach, Brian McNally and John Fitzpatrick, had been completely exonerated. They were later awarded substantial compensation. But the issue of how the statements were obtained was never confronted.
Prof Walsh, who has written about the Sallins case and other miscarriages of justice in Ireland, told The Irish Times: "The gardaí were allowed to engage in those activities because the State, and a lot of ordinary people, did not want to undermine or demoralise them in their fight against subversion."
This view has also been put forward by defence solicitor, Mr Garret Sheehan, who told UCD law students over a year ago that during the IRA campaign the force was given the message that society wanted certain results, and did not care how it got them.
Mr Justin Keating, who was Minister for Industry and Commerce at the time of the Sallins case, agrees. "I'm satisfied that the nods and winks that were given to the gardaí at that time gave rise to the culture we see today," he told The Irish Times.
In his submission to the Minister for Justice on the forthcoming Garda Síochána Bill, Prof Walsh puts forward the view that the gardaí should not be responsible for state security at all, but that this should be the responsibility of an entirely separate body, as it is in Britain, with MI5 and MI6.
While this could give rise to its own set of problems, these could be countered by mechanisms for accountability and control which have recently been introduced for those bodies in Britain, he said.
"The gardaí have other responsibilities towards society apart from the security of the state, and they have been shielded from scrutiny on these because of their special role with regard to security," he told The Irish Times.
It is certainly the case that dubious confessions to crimes have been obtained by the gardaí from people that had no connection with subversive crime, or, in some cases, with serious crime at all. The most notorious of these cases is that of Dean Lyons, the homeless drug addict, who confessed to the murder of two women psychiatric patients in Grangegorman in 1997. Later a man convicted of other murders, Mark Nash, confessed to those murders in a statement that contained details never revealed to the public.
There has never been an explanation from the gardaí as to how the Dean Lyons confession came about, and he has since died.
Another man on the margins of society, Fred Flannery, was the prime suspect and charged with the murder of Denis O'Driscoll in Cork in 1994. But the case collapsed when it emerged that evidence had been withheld, not only from the defence, but from the prosecution.
The Garda's violent response to the Reclaim the Streets demonstration in 2002, combined with the section of a recent report from the National Crime Council on public order, which revealed that the policing style in working-class suburbs was much more hostile and aggressive than that in more middle-class areas closer to the city centre, all suggest that large swathes of the population are, in certain circumstances seen as problematic by many members of the Garda Síochána.
Prof Walsh considers that the relationship between the force and the community it serves needs to be closely re-examined, and measures implemented to reforge a new one which takes account of the changed nature of Irish society. In his submission he argues for the formation of a National Police Forum, and for local police-community forums with wide community representation and a specific statutory input into policing policy. District police commanders, who would liaise with such bodies, would have considerable autonomy under his proposals. This would allow the gardaí to have a much closer and more mutually supportive relationship with the communities they serve.
He also advocates changes in recruitment and training, with multiple-level entry (allowing for the recruitment of, for example, trained lawyers or accountants) and the education of student gardaí in universities where they would meet, and be taught by, non-gardaí.
A proper complaints procedure is an essential part of this. It now seems that the Minister is prepared to give the inspectorate (to be called an Ombudsman Commission) more teeth than originally envisaged by the Heads of Bill, and this will be widely welcomed.
Its investigators will have full police powers, similar to those of the Northern Ireland Police Ombudsman, and it will have the power to initiate investigations without receiving a complaint.
But the composition of the three-person body will be closely watched, particularly for the possibility that it might include a former Garda officer.
"The inclusion of a Garda presence would be fatal to the capacity of the body to be seen to be independent," said Prof Walsh in his submission, a view shared by criminal solicitor Mr Michael Farrell, who is also a member of the Human Rights Commission.
He is also concerned that the investigators working for the Ombudsman Commission should not be former gardaí. "The Garda Síochána is such a small force, they would inevitably know people," he said.
He said that police officers from other common law jurisdictions, like Canada, Australia or New Zealand, should be in the supervisory positions.
They could then train other investigators, who would not have to be drawn from the gardaí, but could come from organisations like the Revenue Commissioners.
The new Bill offers an opportunity to put right much of what is widely perceived to be wrong with the Garda Síochána. It is important that the opportunity is not missed.