Radical re-orientation of policing cannot be delivered by Gardaí or Department of Justice alone

25 May 2016

Speaking in the Dáil on Statements on Report of the O’Higgins Commission of Investigation

CHECK AGAINST DELIVERY 

I want first to join with others in thanking Mr Justice Kevin O’Higgins for this report. In the words of the Tánaiste and Minister for Justice, Judge O’Higgins has produced a thorough and thoughtful report which deserves the most careful consideration. 

I also agree with the Tánaiste that we mustn’t lose sight of one central fact: the report identifies a number of cases where victims of crime were not well served by the Garda Síochána. That is, as she put it, as unacceptable as it is disheartening. It is not, however, surprising.

Some time ago now, I had an involvement with events leading to the setting up of the Morris Tribunal, in which Judge Morris concluded that there was corruption among a small number of Gardaí in Donegal.

He said that the situation could not have flourished and gone unchecked if the leadership of the Donegal division hadn’t behaved ‘negligently and slothfully’.

And he warned that there was no reason to think what had been uncovered in Donegal was confined to that county.

Now, Judge O’Higgins was not investigating serious corruption on anything like the Donegal scale. But he did uncover serious shortcomings in the standards of professionalism that we – and especially the victims of crime – are entitled to expect from the Garda Síochána.

And again the same point arises. There doesn’t seem to be any reason to think Cavan/Monaghan is unique. The only difference seems to be that Cavan/Monaghan had a whistleblower.

While the events investigated by Judge O’Higgins are more recent, some of them go back almost a decade. It is also almost exactly a decade ago that I, as Labour Party spokesman on Justice, published our party’s policing policy document, which we called “Better Policing for Safer Communities: A Programme for Partnership and Accountability”.

In that document of June 2006 I wrote that, when the Garda Síochána was founded in 1922, Ireland was a rural, close-knit society. The crime rate was low and anti-social behaviour was sparse. Policing was simpler back then and it remained relatively uncomplicated for most of the twentieth century.

But, with the rapid transformation from a rural farming society to an affluent urban society, it was inevitable that severe social and policing problems would arise. Now, we have more crime, more drug and alcohol abuse, more public order offences and more anti-social behaviour, making life a misery for so many citizens.

And we now face a situation where human life has become incredibly cheap as armed drug gangs wage war on each other and innocent lives are put at risk. 

Whole communities – including some of our most marginalized communities – have suffered in their quality of life due to lawlessness, vandalism and anti-social behaviour. 

Criminal and anti-social behaviour inflicts misery, in particular on our inadequately policed urban communities. 

I wrote back then that there was not sufficient appreciation, at political and senior Garda level, of the corrosive effect of crime and lawlessness on these besieged communities. Sadly, I think this is still the case. 

Labour argued a decade ago that “Ireland’s policing structures, having remained virtually unchanged since the foundation of the State, are now far removed from what is internationally recognised as best practice”. 

It has taken a series of reports from the Garda Inspectorate, almost a decade later, to confirm our diagnosis. 

We said back then – and I repeat now – that the need for a radical shake-up of existing controls and oversight mechanisms within the Gardaí is beyond question.

And I repeat another conclusion from a decade ago, that the Garda Síochána continues to be overly defensive about itself, too slow to admit to serious structural and procedural problems within the force, and even slower to do anything about them. 

The real risk now is that the relationship between the Gardaí and local communities, which has been problematic for some time, will continue to deteriorate. And the more a Garda is hindered from participating in the community, the more isolated will the police become. There will be less understanding of public sentiment, less exercising of discretion, more public irritation, less sympathy for the police and an increase in downright hostility and further isolation.

I believe it is vital to rebuild confidence in the relationship between police and community. We need, in short, to reconnect police and community.

An important part of our response must be a redoubled commitment to real community policing. And I don’t mean by that assigning just a small cohort of Gardaí exclusively to community policing duties.

Real community policing is not an add-on to the ‘proper’ police force. It should be intrinsic to a genuine local community partnership approach of all Gardaí, and it should pervade the entirety of their work.

We believe that neighbourhood policing should be at the core of police work, and that the structure of the entire police service, the staffing arrangements and the deployment of resources should be organised accordingly. 

If you position community policing as the core function of the Garda Síochána and the core function of every Garda station, then this has implications for structure, for management, for culture and for training.

It would radically change the organisation and the way it thinks about itself. It would define the interface between the individual citizen and the local Community Garda as the prime focus of activity, to which the rest of the organisation becomes a support system.

I repeat our central point. If the community is not engaged with, if there is not real and substantial participation by the community and if the community does not have an ownership stake in policing, then we will suffer an ongoing and increasing disjunction between our policing service and a growing number of our citizens.

Just as importantly, back in 2006 we also called for community-oriented policing delivered by a service that was accountable to the community it served. And, we said, that accountability must extend to the very top of our policing structures.

That is why Labour’s long-held commitment to real community policing was always clearly and inextricably linked with our commitment to establishing an Independent Garda Authority.

The community policing approach requires devolution of power within the Gardaí, the decentralisation of authority to Gardaí on the beat and a far greater emphasis on collaboration between Gardaí and community.

It seemed clear enough to us 10 years ago – and I think it is even clearer now – that such a radical re-orientation of the Garda Síochána cannot be delivered either by the Gardaí themselves or by the Department of Justice.

Transparent and accountable policing, in partnership with communities, is not achievable without civilian oversight. The Garda authorities overseeing themselves cannot provide this and the Minister and Department could not do it either. 

And so that is why I and the Labour Party have been so committed to an independent Garda Authority, representative of civic society, to stand between the Commissioner and his officers, on the one hand, and the Minister and Department, on the other.

Because, unless power is devolved within police structures and through civilian involvement and engagement as well as through oversight of policing, then the Gardaí will remain both centralist and distant from the community. 

While the details of the individual cases of wrongdoing dealt with in the O’Higgins Report are of great concern, what must most concern us as public representatives and legislators is the need to have structures in place for the future, to make sure the Garda Síochána behaves professionally and accountably. 

That was very far from the case when the previous Government came into office. We were faced with a breakdown of public trust in the ability of the Gardaí to properly police themselves and their own members. 

We inherited a system involving a ‘confidential recipient’ that was shown to be manifestly unfit for purpose. As the Tánaiste put it, the system to deal with reports by members of wrongdoing within the Force served no-one particularly well: not the people making the reports, not the people the subject of those reports, not the Garda Síochána and, above all, not the public.

We were faced with an absolutely poisonous relationship between the Department of Justice and the Garda Síochána, on the one hand, and the Garda Ombudsman Commission, on the other. 

And we were faced with persistent allegations of Garda malpractice and with claims that these allegations were not adequately investigated.

We took swift and decisive action, to restore public confidence.

  • We appointed a series of statutory inquiries.
  • We appointed a new Garda Commissioner following the first open, international competition in the history of the State.
  • I and my colleagues delivered on an extensive programme of reform, including legislation to protect whistleblowers and to extend freedom of information.

The Protected Disclosures Act enhanced the protection available to whistleblowers across the board and it provides a new mechanism for disclosures relating to the Garda Síochána. Now, a Garda member may make a protected disclosure directly to the Garda Ombudsman Commission, which has all the powers needed to investigate any complaint.

We committed to the reform of Garda oversight and accountability, including delivering on the long-standing Labour Party policy of establishing an independent Garda authority.

There were overwhelmingly positive changes to our policing landscape made under the last Government. I acknowledge the commitment and the abilities of former colleague Frances Fitzgerald in delivering so much so quickly.

But I remain to be convinced that her Department and the Force will do all that needs to be done to ensure that Garda resources are deployed efficiently and effectively. For example, modern policing requires personnel to be deployed in frontline policing services. The Garda Inspectorate has called for this. They say that real civilianisation reforms would release an additional 1,000 Gardaí for frontline duty. 

This means that all obstacles to the employment of qualified civilian personnel must be removed, in order to free up Gardaí to police our communities. 

Indeed, in the current circumstances I believe it should be an immediate task for the new Policing Authority to ensure there is a rigorous programme of civilianisation of all jobs which do not require Garda powers, training or experience. Exceptions should be made only when it can be demonstrated that there is a compelling reason for a Garda to occupy the position.

I think that commitment to, and implementation of, a real programme of civilianisation will be a touchstone of officialdom’s commitment to the Garda Inspectorate’s reform programme. 

For our part, we fully support the Garda Inspectorate recommendations on reform of organisational structure, governance and culture, workforce modernisation and technology.

As regards Sergeant McCabe, he has now been confirmed as a dedicated and committed Garda, who brought to public attention cases where the public were not well served by the Gardaí.

The concerns he highlighted were legitimate and the bulk of the conclusions of the O’Higgins Report fully justify the belief that the people were not getting the policing service they deserve – and that oversight of our policing was entirely inadequate. 

The report describes poor policing, incompetence and wrongdoing. It also describes institutional hostility to anyone who identified these problems. 

I am happy that the reforms we insisted on in Government go a major part of the way towards addressing those defects. But there remains a lot more to be done. There is a whole series of recommendations for change made by the Garda Inspectorate and under the Haddington Road Agreement.

It remains to be seen whether the force and the Department will deliver on these. 

I welcome a great deal of what Garda Commissioner Nóirín O’Sulliavn said in her statement earlier today. I welcome her clear acceptance of the core fact that the O’Higgins report presents inescapable lessons for the Garda Síochána, based on its shortcomings in a number of critical areas including its dealings with whistleblowers. I welcome her commitment to radical and permanent change.

I am less happy with the continued insistence that there are ‘clear constraints’ around the question of making public comment about the Commissioner’s approach to Sergeant McCabe and his evidence at the O’Higgins Commission. 

I would query, first, the fine distinction the Commissioner and her advisers are seeking to make between what she did and did not instruct her lawyers to do. The Commissioner seems to me – and I would suspect, to a great many laymen and women – to be trying to make a distinction without a difference. 

It is highly artificial to say that the case against Sergeant McCabe was that he had a grudge against a senior officer which coloured his motives and that his evidence against that officer should not therefore be accepted as credible – but that, notwithstanding this serious claim, Sergeant McCabe’s character and integrity were not put in issue. I’m not sure that many lawyers would understand this argument. 

Second, I remain convinced that the law does not prevent the Garda Commissioner from clarifying the instructions she gave her legal team at the Commission. For what it’s worth, I note from the transcript extracts published in the Irish Examiner that I have the same interpretation of the Act as does Michael McDowell SC, who I recall in a previous capacity being responsible for drafting the legislation and for steering it through this House.

Our interpretation is that, while the law does prohibit the disclosure of evidence given by a witness, it is clearly the case that lawyers are not witnesses and their statements to a commission are not evidence. 

So the prohibition in section 11 of the Act does not apply. There is no provision in the Act that restricts a person from commenting on the statements of lawyers before a commission.

And in particular there is no bar on a party explaining the statements of their own lawyers, made under the instructions of their clients. 

I see someone has been briefing the journalists that there is such a broad definition of ‘evidence’ in the legislation that it would also cover exchanges between the lawyers and the judge.

Again, it is perfectly plain from the body of the Act – for example section 14, which spells out the form and manner in which evidence is to be given – that ‘evidence’ includes only statements made by a witness, either orally or on affidavit and either on oath or affirmation.

The only reason for the extended definition of evidence in the Act is to allow for opinion evidence as well as factual evidence to be given by witnesses, which is a departure from strict rules that would apply in a court. But it has nothing whatsoever to do with including as well the submissions made by lawyers – unless you agree with Humpty Dumpty when he told Alice that “When I use a word, it means just what I choose it to mean”.

It is I think plain from the report itself that Judge O’Higgins tried at the outset and throughout the hearings to stress that his hearings were inquisitorial and not adversarial. He says at paragraph 2.02 that: “This non-adversarial method was generally followed by all legal teams, although there were a few isolated aberrations from this approach”.

So, what we’re dealing with here seems to be one of these ‘aberrations’, where lawyers were instructed by their client to cross-examine a witness with the intention of undermining his credibility.

But the serious problem is that this adversarial approach seems to have been adopted when the public stance of the Commissioner to Sergeant McCabe was very different. She told a Dáil committee that Sergeant McCabe had the full support of Garda management. 

It is even more serious if the lawyers’ instructions had been changed mid-stream, but only when a tape recording turned up that completely undermined the story their clients were going to tell. 

The reason the exchanges between lawyers and the judge arose in the first place is that matters had reached a stage where the judge wanted absolute clarity about the case those lawyers were seeking to make. And it seems clear that those lawyers were initially quite clear about their client’s instructions. They said they were instructed to seek to undermine Sergeant McCabe’s evidence by questioning his motives, his credibility and his integrity. 

The lawyers were instructed to do this in the context of introducing evidence of a conversation. Except that, when Sergeant McCabe produced his own recording of that conversation, the plan was dropped and the lawyers now said the sergeant’s integrity was not in issue – indeed it never had been in issue.

What would have happened if McCabe had not recorded that conversation? And how did this false admission of malice find itself into the instructions given to the Commissioner’s lawyers? 

We need to be blunt about this. If this issue is not properly resolved, the suspicion will be that there was a plan prepared by Garda witnesses to put sworn testimony on the record that was materially false and misleading, that this plan was dropped when it was discovered the false evidence would not stand up, and that the Garda Commissioner and her lawyers were unwitting parties to this plan. 

This is an extraordinarily serious matter and it deserves to be treated seriously, and not to be brushed under the carpet of Commission confidentiality, or lawyer-client privilege.

The Garda Commissioner’s decision to request the Minister to refer this issue to the Garda Ombudsman is, I think, a recognition that the matter needs to be investigated and to be resolved to public satisfaction. 

But, if the authorities do not change their attitude to legal privilege, will GSOC not run into exactly the same difficulties? Will the two senior Garda officers not say that their dealings with the Garda Commissioner’s lawyers about their proposed evidence to the O’Higgins Commission are covered by the same legal professional privilege that Commissioner O’Sullivan is relying on today? 

On the issue of privilege, I accept that the Commissioner is as entitled as anyone else to have a lawyer-client relationship. 

But of course legal professional privilege is not absolute. It belongs to the client and not to the lawyer and it can always be waived by the client. 

And, most importantly, we as public representatives must insist that there is a difference between a holder of public office and a private citizen.

The private citizen is entitled always to have regard only to their own private interests.

But the public office holder holds a position in public trust and their only legitimate concern can only ever be the public interest. 

So, while public bodies can have legitimate reasons for relying on legal privilege, they can never confuse their own personal or institutional interests with the public interest. 

Generally speaking, I agree with the Garda Commissioner that, in relation to communications with her legal team, it is important that privilege is protected so as not to adversely impact on the workings of the Garda Síochána and its entitlement to seek and obtain legal advice on a confidential basis.

But I do not believe that privilege can or should be used as a shield to prevent an investigation into an alleged scheme by public servants to plant false or misleading evidence on the record of a sworn inquiry.

I make no bones about asserting quite plainly and unequivocally that the holder of a public office should not be entitled to shelter behind legal professional privilege if that is contrary to the public interest. 

In this case, where a vitally important public office is concerned, the public interest demands a public explanation. 

Finally, I want to take this opportunity to make it clear that neither I nor any of my Labour Party colleagues ever had any reason to question Alan Shatter’s ability or integrity in Government. We were satisfied when he, quite properly and fairly, apologised and withdrew the claim he had previously made in the Dáil that the whistleblowers had not co-operated with Garda investigations. 

It is true that I and Labour colleagues were, along with at least some of our Fine Gael colleagues in Government, unhappy to see revealed what Judge O’Higgins refers to in his report as institutional ‘instinctive hostility towards whistleblowers’.

This culminated in the whistleblowers being referred to in a Dáil committee by the Garda Commissioner as ‘disgusting’ – a description he was very slow to retract. 

But we were not party to the events that led to the resignations of either Commissioner Callinan or Minister Shatter.

And the reality is of course that the O’Higgins Report is not a report into Alan Shatter or his dismissal by Enda Kenny. Judge O’Higgins was given terms of reference that asked him to investigate 12 distinct matters: just one of these related to the actions of Alan Shatter. 

A further reality is that Sergeant McCabe had been banging his head against a brick wall until his claims were made public and until the O’Higgins Commission was tasked with examining them thoroughly. 

I fully accept – and indeed I never thought or claimed otherwise – that there was no impropriety or malpractice on the part of either the Minister for Justice or the Garda Commissioner. It nonetheless remains the case that the McCabe allegations were not properly investigated on their beat. 

In conclusion, Sergeant McCabe has now been confirmed as a dedicated and committed Garda, with many legitimate concerns. The conclusions of the O’Higgins Report show we were not getting the policing service the people deserve, and that oversight of our policing was inadequate.

Garda Commissioner O’Sullivan accepts that dissent is not disloyalty, that the service must learn from this experiences and, most importantly, that whistleblowers are part of the solution to the problems facing the service. 

The reforms we insisted on in Government will endure for the public benefit.

The Garda Síochána is entitled to the support of the Government and all public representatives. But citizens are entitled to expect that we make sure that Gardaí behave both professionally and accountably. 

In a democracy like ours, people expect and are entitled to live in peaceful, law-abiding communities. Effective and efficient policing is a basic requirement for that. To sustain effective and acceptable policing, the links between communities and the Gardaí are of fundamental importance.

The job of the Minister, the Commissioner and the Policing Authority now is to establish a new partnership, and to get police and communities back working together, with a common sense of purpose.

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