Dermot Walsh

For the past 11 years the Garda Síochána Ombudsman Commission (Gsoc) has been entrusted with the primary responsibility of investigating complaints of corruption, abuse and neglect by members of the Garda in the discharge of their duties.

It is a key component of broader Garda accountability structures that are now so complex and diffuse that gardaí could be forgiven for believing they are overburdened with onerous, overlapping and ultimately futile, procedures that sap their resources and capacity to tackle crime.

Yet victims of alleged Garda corruption, abuse or neglect often have a very different experience of Gsoc, especially where their complaints have generated a high level of public concern. This is reflected in two major Gsoc reports, one of which was published this week and the other four months ago.

The first of these concerns allegations of serious Garda corruption in the investigation of Ian Bailey for the murder of Sophie Toscan du Plantier in west Cork in 1996. Even though a senior official in the DPP’s office had detailed instances of Garda illegality and other concerns in the case in 2002, the Gsoc investigation found no basis for criminal or disciplinary charges against any member of the Garda.

Frustratingly, the report does little to establish where the full truth lies in the contested allegations. There is also a revealing willingness to accept the unexplained removal of evidence and critical internal Garda records of the investigation as the likely result of poor administration. An alternative explanation might have been evidence of a Garda cover-up.

The second of the recent Gsoc reports concerns the death of Shane O’Farrell, a young law graduate, who was knocked off his bicycle and killed by a “hit and run” driver in August 2011. The driver of the vehicle had many previous convictions for drugs, theft and driving offences and could have been in custody at the time of the collision had it not been for Garda and other criminal process failures.

Seven years later, the O’Farrell family are still seeking the full truth and accountability for these failings. As with Bailey, the Gsoc investigation and report has not provided them, or the public, with the answers so badly needed to restore confidence in the State, criminal justice and the rule of law.

Gsoc’s apparent weakness can be attributed partly to under-resourcing and limited powers. Some commentators have identified further factors, such as: overreliance on gardaí investigating complaints against gardaí, an unduly deferential approach by Gsoc investigators when questioning gardaí, a tendency to accept Garda accounts in preference to those of complainants, and Garda obstructionism. There is plenty of evidence for most of these in the Gsoc reports on the Bailey and O’Farrell cases.

It must also be said, however, that further systemic factors seriously compromise Gsoc’s capacity to establish the truth and deliver accountability and transparency for complainants.

Unlike a court, Gsoc does not make a final determination on the disputed facts in a complaint. Its role is merely to determine whether there is sufficient evidence to warrant referring the case to the DPP or the Garda Commissioner for possible criminal or disciplinary charges.

A positive outcome for the complainant at this point does no more than trigger a series of judicial and/or administrative processes which often deprive the complainant of the fruits of his or her initial success many years later. A negative outcome conveys the impression, often unfairly, that there is no truth to the allegations.

A further drawback is that Gsoc will not question acts or omissions that fall within the scope of Garda operational discretion. So, for example, Gsoc will not second-guess a Garda decision to arrest one person, or a decision not to arrest another person, in a situation where arrest was an option. This can be particularly frustrating for complainants where they allege Garda bias or neglect in the exercise of operational discretion. They will internalise Gsoc’s rejection of their complaints in such matters as evidence of a bias in favour of the Garda.

Another significant limitation of the Gsoc process is that it is focused on an investigation of the acts or omissions of an individual member or members of the Garda. The root cause of the grievance, however, may be in the law, the criminal process or even broader Garda policy or organisational factors. If that is the case, Gsoc will normally reject the complaint to the dismay of the complainant. There is no scope to uphold a complaint where the failure in question cannot be attributed to culpability on the part of a current identifiable member of the Garda.

A more obvious limitation is that Gsoc’s remit is confined to the Garda. It cannot probe suspicions of inter-agency neglect or cover-up across the Garda, prosecution, courts and/or prison service.

Despite the reforms over the past decade or so, it would seem that the Garda complaints process is still not working effectively for complainants. It is highly unlikely that further tinkering will turn it around. A radical rethink of the current cumbersome, limited and time-consuming procedure is necessary to render it fit for purpose. This must also encompass the development of a complaints mechanism that can take a holistic approach to the investigation of alleged failings across the policing and criminal justice agencies. Until that becomes a reality, it would seem that a commission of investigation is still the only viable option for establishing the full facts and delivering accountability in major cases such as Ian Bailey and Shane O’Farrell.

• Dermot Walsh is professor of law at the University of Kent and the author of leading texts on Irish policing and criminal procedure. This article first appeared in The Irish Times.