Introduction
From time to time, the public order policing methods of the Garda Síochána (Ireland’s police service) have generated concerns about the use of excessive force and/or bias in favour of government and powerful economic interests. Following its review of the Garda’s controversial policing of two public protest events, in 2014 and 2018 respectively, the Irish Policing Authority requested the independent Garda Inspectorate to conduct a forward-looking examination of the effectiveness of the Garda’s policing of public order. The Inspectorate’s report, published a few weeks ago, detected some areas of good practice and professionalism. However, its findings also convey a sense that the Garda is failing to meet international standards and is seriously lagging behind relevant comparators in Scotland and Northern Ireland.
Sensitivities of public order policing
Public order policing spans a broad diversity of situations from actual or threatened breach of the peace involving a few people, to major public gatherings involving thousands of people with the potential for (or reality of) violence. Public protest events present a particular challenge. The freedom to protest in public, even where it causes disruption, is vital to the functional health of a constitutional and peaceful democracy. It provides an essential facility for the organised expression of the strength of public feeling on a subject that has excited widespread anger or opposition. Equally, it is often the only practicable outlet through which vulnerable minority communities can air grievances in the hope of securing some recognition and redress.
Through its guarantee of the rights to freedom of expression, assembly and association, the European Convention of Human Rights underpins the freedom to protest as a fundamental hallmark of a democracy based on respect for human rights and the rule of law. The European Court of Human Rights has made it clear, time and again, that this includes the right to voice opinions and criticisms disagreeable to government and sectional interests. The State is under an obligation to guarantee and protect the effective and practical exercise of those rights, even in the context of protests targeted against State interests. Moreover, if disorder breaks out, the police must avoid unnecessary and excessive use of force. They must act with restraint and proportionately.
The policing of public protests can be particularly sensitive where they concern government policy or the interests of other powerful economic or sectional groups. Heavy-handed methods aimed at suppressing such protests will project the appearance, and possibly the reality, of political policing in favour of ‘the establishment’ and against minority communities and interests. Equally, the mere allocation of what appears to be disproportionate policing resources to protect powerful political and/or economic interests from the effects of civil protest against their policies and actions can have a similar effect. It can send out the message that the police are an instrument of the powerful to suppress opposition from economically poor and marginalised communities.
These tensions are especially acute in a jurisdiction, such as Ireland, which is policed by a single, centrally organised and managed police force. In that environment, there will always be a suspicion that the policing of certain public protests is driven by the political and material interests of the national government or of sectional interests that are sufficiently powerful to bring pressure to bear on the government. Controversial examples in Ireland over the past few decades have included: the ‘An Cosán’ water charges’ protest, the North Frederick Street ‘Take Back the City’ protest (involving gardaí in balaclavas assisting in the removal of housing protestors from private property), the ‘Shell to Sea’ protest (against the Shell Oil company’s construction of a gas pipeline and refinery in a rural part of County Mayo) and a ‘Reclaim the Streets’ protest (an anti-globalisation protest that was met with excessive force by gardaí). The first two of these were cited as the trigger for the Policing Authority’s request to the Garda Inspectorate to conduct the review of public order policing.
Governance and policy
The Garda Inspectorate’s review focused on the Garda’s organisation and capacity to respond effectively and efficiently to the demands of public order policing, as distinct from the manner in which they handled specific events.
For the most part, the primary weaknesses in the Garda approach, identified by the Inspectorate, can be traced to inconsistent governance and application of Garda policy. This, in turn, can be linked to a tendency to rely too heavily on informal arrangements and understandings, at the expense of compliance with transparent policies and procedures modelled on international best practice. While the Inspectorate did not say so, it is easy to see how such an approach can result in the partisan, heavy-handed and/or inept policing of some events or protests relative to others. The potential to undermine the confidence of disaffected communities or, indeed, the wider public, is clear.
The Inspectorate found significant weaknesses in strategic planning which impacts on the Garda capacity to respond to serious public order breakdown. A major systemic problem is the absence of a public order ‘Strategic Threat and Risk Assessment’ (STRA) of a type that is standard across international comparators. A STRA is central to institutional capacity to cope effectively, efficiently, transparently and in a human rights’ compliant manner with public order events. Typically, it will encompass an examination of wider issues around police organisational readiness, contingency planning and emerging protestor tactics. It should provide an informed, robust and transparent base for determining the most appropriate operating model for public order policing in terms of, for example, capacity, capability and training. It should also provide a clear strategic link with public procurement of equipment, welfare and legal support in public order policing.
The absence of a public order STRA might help explain repetitive Garda failures in the policing of sensitive public order events. Certainly, it is a major concern that the Garda have been delivering one of their most central, and potentially divisive, functions without a tailored STRA. It is hardly surprising that the Inspectorate commented that, “[t]h absence of a STRA is a significant organisational risk and the Garda Síochána should urgently develop a formalised public order strategic assessment of threat and risk.”
Transparency and Accountability
Weaknesses in transparency and accountability are recurring themes in the Inspectorate’s findings. That, of course, reflects more widespread, deep-rooted and familiar features of the Garda institutional culture. A major concern in the public order context is the relative lack of published data on the use of force, and the manner in which the limited publicly available data is actually published. In contrast with comparator police forces, the Garda do not publish comprehensive data on the use of force. Nor are they required to do so. The limited data that is available concerns the discharge of firearms and the use of tasers which the Garda is obliged to notify to the Garda Síochána Ombudsman Commission (independent police complaints body). The Commission, in turn, has been publishing this data. It has also been publishing data on the Garda use of pepper spray, but it seems that it is about to stop doing that from 2019 as the data is being supplied to it under a non-statutory obligation.
By contrast, comparator jurisdictions publish comprehensive data on most or all aspects of coercive police actions; from stop and search to the use of lethal force. Such data is vital to facilitate effective scrutiny and accountability in respect of these powers, as the manner and extent of their exercise have major implications for the liberty, privacy, person and life of the individual, the policing of communities and, ultimately, the health of our democracy. The relative lack of such published data in Ireland is a signal mark of the enduring lack of transparency in the policing of the State. The adverse knock-on effects on the operation of the police accountability and democratic scrutiny mechanisms are obvious.
A related concern is that there is no internal Garda governance group monitoring the use of force in public order (or any) situations. Again, this contrasts with other comparator jurisdictions, and can be interpreted as a measure of the lack of Garda management’s appreciation of the broader issues posed by the use of force in restoring/maintaining public order. Understandably, the Inspectorate considers the absence of an internal monitoring mechanism as “a significant gap in governance”. It also identifies the pressing need for broader and deeper external monitoring of trends in the Garda use of force. It recommends that this should be delivered as part of the performance monitoring activities of the Policing Authority. Although the Inspectorate does not mention it, this should also be the subject of direct democratic scrutiny through, for example, the Oireachtas Justice Committee.
A general lack of transparency also affects other aspects of the Garda public order remit. Most of the Garda policy documents on public order are treated as confidential. The same applies to the policy documents on the use of the individual weapons. This, of course, is in keeping with a long-standing Garda obsession with secrecy over operational policy documents, even those on the use of police powers and operational procedures. For the most part, there is no compelling reason why they should be treated as confidential. Quite the contrary, maintaining secrecy in such matters would appear to be inconsistent with the values underpinning a democracy based on respect for human rights and the rule of law.
Despite some improvement in recent years, Garda practice in this area is still seriously at odds with international best practice. With respect to public order policing, the Inspectorate suggests that the Garda should take a more transparent approach by publishing its policy documents on its external website; excluding only operationally sensitive material.
Transparency is also lacking in the selection of members for training and service in Garda public order units. The Inspectorate found that there are no processes to quality-assure selection of members for training, and that inconsistent approaches are used for selection across Garda divisions. It recommends the adoption of standardised and transparent selection procedures, complemented with a specific strategy to combat the gross under-representation of females selected for training.
These weaknesses are compounded in the arrangements for deployment of members for public order duties (members do not serve full time in public order units). The Inspectorate found that the arrangements rely too heavily on informal personal contact. While the Inspectorate did not say so, this preference for the informal personal approach, over formal transparent procedures, is (arguably) an inherent feature of the internal Garda working method. It might also be considered a significant contributor to much internal and external dissatisfaction or controversies associated with the Garda.
Lack of transparency usually presents a serious obstacle to the delivery of effective accountability. The dispersal of decision-making powers in the same matter across several persons and/or units can have the same effect. This is a problem for accountability in public order policing. The Inspectorate found that structures and responsibilities for the governance of public order are spread across too many functions with limited strategic coordination, resulting in diffused accountability. It recommends the designation of a single Assistant Commissioner with responsibility for leading on public order governance and compliance. This should be complemented by the designation of a single Chief Superintendent within operational support services with responsibility for overseeing public order standards, training, capacity and capability across the whole country. It is incredible that it should be necessary to make such recommendations in 2019 in respect of a centralised national police force that was established in 1925 as the sole police force for the State.
Human rights
It is 15 years since the Garda committed itself to putting respect for human rights at the heart of its activities in the wake of the searing and profound criticisms from the Morris Tribunal of Inquiry. Yet, the Garda has been criticised regularly since then for failing to deliver meaningfully on that promise. The Inspectorate, too, has found it necessary to draw attention to significant human rights deficiencies in public order policing.
In particular, the Inspectorate emphasises the need for a greater focus on human rights and the Garda Code of Ethics in the command policy, procedures and guidance. It also recommends a mandatory recertification process for all public order commanders to ensure that they maintain operational competence, professional knowledge and a current understanding of relevant human rights issues. Equally, the selection for service in operational public order units should be contingent on the individuals having completed up-to-date refresher training in the use of force, and their having signed the Garda Code of Ethics.
It is a concern that such basic, and easily remediable, human rights failings should persist. A further concern is that even where policy does reflect best international standards, it may not be implemented in practice. So, for example, decisions by individual gardaí, on matters such as when to use a particular type of force in an operational situation, should be taken in accordance with the ‘Garda Decision Making Model’ (GDMM). This will have been an integral part of basic Garda training and is of vital importance as, ultimately, each individual member of the Garda is responsible for his or her own decisions in such situations. Yet, the Inspectorate found that knowledge and use of the GDMM is limited!
The Inspectorate’s report identifies room for improvement in human rights compliance in public order operations. It found that the national rules for the mobilisation of Garda Public Order units are not applied consistently in time and place. This creates a significant risk of side-lining less aggressive alternatives such as peaceful crowd management or high visibility policing.
Garda planning for the policing of public order events could also benefit from a more structured approach to engagement with the parties involved. In particular, the Inspectorate recommends greater use of community impact assessments to identify community concerns and tensions, and greater use of crisis negotiators to engage with harder-to-reach groups. Garda sergeants and public order commanders should also have ready access to human rights legal advice when planning events.
Clearly, the Garda still have some way to go before they catch up with international best practice in human rights compliant policing of public order.
Organisational Learning
It is reasonable to expect that a national police organisation will have an internal process for investigating and reviewing why a particular police operation generated serious public concern, and what lessons can be learned to improve future police performance. The Garda, for example, conducted an internal review of their handling of the An Cosán and North Frederick Street protests. Disappointingly, however, the results of those reviews were not published. Even more disappointing is the Inspectorate’s finding that only limited progress has been made in the implementation of the recommendations emanating from those reviews on a range of issues, including: Garda policy, training, operational planning, tactical advice, communications and the management and conduct of post incident investigations
More broadly, the Inspectorate found that Garda organisational learning can best be described as ad hoc. Although the Inspectorate did not say so, nothing much has changed since the reports of the Morris Tribunal of Inquiry. Considerable effort seems to be put into conveying the public impression of reform, but the organisation still seems stubbornly resistant to translating that into practice in its operational policing methods.
Conclusion
The Garda’s status as the sole, centrally managed, police service in the State places it in a sensitive position in the policing of public protest events. The use of heavy-handed or disproportionate methods against generally peaceful protestors will raise fears of partisan political policing. It is vitally important for the health of our democracy, therefore, that Garda policies, procedures and practices are set up and applied to avert even the appearance of that risk. While the Inspectorate did not say so, its findings suggest that they fall significantly short of that standard.
Finally, it is worth acknowledging the significance of the process which has resulted in the Inspectorate’s report on this topic. This is the first occasion on which the Policing Authority, as distinct from the Minister for Justice, has requested the Inspectorate to conduct an examination of an aspect of Garda policing practice. If, as would appear to be the case, this reflects a commitment by the Authority to engage robustly on areas of policing that are giving cause for concern, it is very much to be welcomed. It remains to be seen whether the Policing Authority can use the report to secure meaningful positive change on the ground.