Introduction
Internal corruption of various types has been a high profile and persistent problem for the Garda Síochána for decades. The shelves are stacked with the findings (and recommendations) of voluminous reports on individual instances and systemic forms of corruption. Despite all the official commitments and programmes of action for reform, the contents of a Garda Inspectorate report on Countering the Threat of Internal Corruption in the Garda (published on 25 March 2021) suggest that there has been little actual progress.
Legislative changes enacted in late 2015 gave the Garda Inspectorate the power to embark on inspections on its own initiative. Prior to that, it could only commence an inspection on the request, or with the consent, of the Minister for Justice. It may be considered significant that the Inspectorate selected internal Garda corruption for its first self-initiated inspection which it commenced in June 2019. What is not in doubt is the comprehensive and incisive nature of its analysis of the weaknesses in Garda strategy for combating the problem.
The purpose of the inspection was not to identify specific incidents of corruption within the Garda. Instead it aimed “to examine the effectiveness of the Garda Síochána at preventing, detecting and mitigating against the threat of internal corruption.” Nevertheless, several of the topics and recommendations will have a depressingly familiar ring. This Note will focus on a few of them.
Abuse of position
Gardaí, like most police officers worldwide, have potential to use their positions for corrupt personal gain. So, for example, there is a risk that they will abuse their powers for sexual purposes in their dealings with vulnerable people. Their ready access to confidential information can be used for personal financial gain in covert relationships with outside parties (including journalists). Equally, they might be tempted to leak compromising information to targeted criminals in return for financial gain. They might even use their ‘inside’ position to pursue their own criminal relationships. The use and abuse of covert human intelligence sources (informants) by individual gardaí was exposed as a grave issue within the Garda by the Morris Tribunal of Inquiry twenty years ago.
Despite the known risks and the persistent high-profile revelations in these matters, the Inspectorate found that Garda management needs to be more proactive in their response. It also found that there are “significant gaps in the guidance related to several key priority areas”.
On addressing the risk of abuse of power for sexual gain, for example, the Inspectorate recommends that the Garda should develop and implement a policy and detailed guidelines and raise awareness of the issue within and outside the organisation. Much the same is recommended with respect to the management of conflicts of interest and other potentially compromising relationships.
It is a poor reflection on senior Garda management over the years that such basic and banal recommendations need to be made in 2021. It is submitted that a more profound culture shift will be required to deliver meaningful change in these areas.
Abuse of discretion
One of the distinctive features of Irish policing is the extent to which gardaí have wide discretion to institute criminal proceedings against individuals. This brings with it the risk of such power being used in an unfairly discriminatory manner. Equally, it might be used to privilege favoured individuals by opting not to pursue prosecutions against them for unprofessional or corrupt purposes. Indeed, one of the most prominent Garda controversies in recent years concerned allegations that penalty points for road traffic offences were routinely quashed for gardaí, close associates and favoured individuals. Similarly, there were concerns that the statutory exemption from penalty points for emergency personnel were being granted in a self-serving manner by some gardaí for some gardaí. Nevertheless, such issues have come to the fore again in the Inspectorate’s report.
Having examined a sample of District Court prosecution files, the Inspectorate identified significant gaps in the supervision and management of Garda members and a high volume of prosecution cases that were discontinued at court. These include offences that carried a serious threat to public safety, such as driving while intoxicated and public order offences.
One of the more prominent reasons for discontinued cases was the non-attendance in court of the Garda member responsible for the case. Obviously, there may be innocent explanations for such non-attendances. Equally, however, some may be the result of a corrupt intent to have the prosecution thrown out. In this context the Inspectorate noted significant gaps in the supervision and management of Garda members.
A similar picture emerged with respect to the handling of applications for statutory exemptions from penalty points. The Inspectorate found that they lacked detail and supporting verification by applicants. Once again, it found that they were not always subject to robust scrutiny by supervisors.
The Inspectorate’s recommendations for addressing these matters do not inspire confidence that change will be realised on the ground. On the Garda-led prosecutions, it recommends the introduction of comprehensive guidelines and strengthening of supervision. On the applications for cancelling fixed penalty notices for a Garda member, it recommends that all relevant factors should be considered and that the exceptional circumstances test be applied more rigorously. If this did not work before, it is difficult to see how it will work more effectively in the future. Perhaps consideration should be given to removing these functions from the Garda entirely.
Anti-Corruption Unit
The absence of an internal Anti-Corruption Unit has marked the Garda out from most comparable police services. As far back as the 1980s when I visited large police forces in the USA and continental Europe, I found that most of them had internal units tasked with identifying, rooting out and preventing a wide range of corrupt practices and relationships. Some even purported to use undercover ‘sting’ operations to that end.
Given the extensive allegations and exposure of wide-ranging corruption within the Garda over the past few decades, it is incredible that it took until 2019 (two months before the Inspectorate commenced its inspection on corruption) to commit to the establishment of an internal anti-corruption unit. The unit itself only went operational in December 2020.
Investigating external complaints alleging Garda corruption comes within the remit of the independent Garda Ombudsman Commission (GSOC). The Inspectorate recommends that the new Anti-Corruption Unit should have primary organisational responsibility for the prevention, detection and investigation of internal corruption that is not investigated by GSOC. It also recommends that the Unit should have a strong intelligence function allowing it to collate and develop intelligence from a range of internal and external sources. It should have its own dedicated investigative capability and an overview of all disciplinary and crime related enquiries.
The Anti-Corruption Unit, as envisaged by the Inspectorate, has potential to root out and prevent many of the corrupt policing practices and relationships that are widely believed to prevail in some localities and among some members of the Garda. Whether that potential can be realised will depend heavily on the resourcing of the Unit, commitment from senior management and buy-in from the Garda representative bodies. It will also help if the Unit publishes regular informative reports on its performance.
‘Whistleblowing’
The treatment of internal Garda ‘whistleblowers’ has been one of the most disturbing and controversial features in recent years. Directly or indirectly it has led to the premature resignations or retirements of two Garda Commissioners and a Minister for Justice. Despite statutory reforms aimed at providing protections for ‘whistleblowers’ and enhancing the procedures for investigating their allegations, it would appear that little has changed in substance.
The Inspectorate found that many gardaí “continue to have significant reservations about speaking up and reporting wrongdoing”. The Garda intend to create confidential lines and systems for anonymous reporting, but these are still not yet in place. As a result of the statutory reforms in 2014, GSOC can receive and investigate confidential “disclosures” from Garda ‘whistleblowers’. At the end of 2019, 55 such disclosures were ongoing within GSOC.
The Inspectorate recommends that the Garda implement a strategy to encourage reporting of wrongdoing and build understanding and confidence in the process. Given the history, it seems unlikely that that vague recommendation will be implemented in any meaningful manner.
Garda vetting
Investigation, detection and punishment are essential components of a robust anti-corruption strategy within the Garda, but they not sufficient in themselves. It is much better to prevent corruption in the first place. Obviously, strict supervision has a key role to play here, but so also does the prior (and ongoing) vetting of Garda personnel.
The Garda, of course, provides a vital vetting service to other employers in respect of prospective employees who will have access to children or other vulnerable persons. Surprisingly, however, it would appear that the Garda are not as advanced as they could be in vetting their own prospective and current personnel for corruption potential.
The Inspectorate found that the Garda lacks “a comprehensive principles-based vetting code of practice”. It also found that the vetting of in-service personnel is limited. The Inspectorate recommendations include: an approach that can facilitate vetting tailored to the specific role of the member concerned; comprehensive criminal record checks (including foreign convictions); and financial, social media and prior employment checks. Once again, it is a concern that these aspects have not been standard practice in the Garda for many years.
The Inspectorate also highlights the importance of monitoring usage of internal Garda information systems (primarily PULSE) in the investigation and prevention of internal corruption. Unlike other police services, the Garda PULSE system does not have the capacity for proactive real-time monitoring to detect suspicious activities. Equally, internal investigation into suspected serious criminal activity on the part of a Garda member outside of their work environment does not automatically result in an audit of their PULSE user history to check for other victims or the misuse of police computer systems. These are identified as matters that need to be addressed and which should be the responsibility of the Anti-Corruption Unit.
Organisational Learning
Another striking weakness in the Garda internal corruption strategy concerns failures of organisational learning. Much, for example, can be learned from GSOC investigations of external complaints against gardaí, even in situations where individual complaints are not upheld. For several years, GSOC has passed on recommendations from its investigations to Garda management on steps that could be taken to avoid certain types of complaint being lodged in the future. It would appear, however, that Garda management often ignore these recommendations. Similarly, it would appear that corruption and fraud cases are not routinely profiled within the Garda to identify patterns and common underlying causes. This failure was highlighted as far back as 2001 by a Council of Europe anti-corruption body in its first annual report on Ireland.
A strategic approach
Overall, the Inspectorate found that the strategic governance of counter-corruption within the Garda Síochána is underdeveloped. There is no strategic analysis of corruption threats. Leadership responsibilities in tackling corruption are spread across a number of functional areas. This impedes the Garda capacity to prevent corruption in its diverse forms.
To get to grips with the problem, the Inspectorate emphasises the need for the Garda to do more than simply react to instances of corruption as they occur. It must take a proactive and holistic approach to identifying and tackling corruption. The Anti-Corruption Unit should play a vital role to this end, and it should be managed and resourced accordingly. Equally, a senior Garda leader should be appointed with overall responsibility for combating corruption. This should include the development of a strategic assessment of corruption threats and the setting out of a counter-corruption control strategy that establishes priorities for action.
Of course, the insidious effects of Garda corruption are not confined within the Garda itself. They pollute the wider criminal justice process. Yet, the Inspectorate found that there is no common understanding of the threat posed by corruption. Moreover, cooperation between criminal justice agencies is often uncoordinated, with no formal process in place to share information. The Inspectorate recommends greater cross-sectoral cooperation and the development of a multi-agency counter-corruption strategy. As with so much in the Inspectorate’s report, it is disturbing that it should have to make such basic recommendations after a prolonged period of inquiries, policy reviews and ‘reform’ within the criminal justice sector.
Conclusion
The Garda Inspectorate is one of the few success stories in the Garda reform process that seems to have been ongoing in one form or another since 2005. Its many reports are outstanding for, among other things, identifying clearly the manner and extent to which aspects of Garda organisation, management, processes and methods fall below best standards in other comparable police services. Its report on combating internal corruption is no exception.
It is not so easy to heap the same praise on the report’s recommendations. For the most part they are little more than calls for the adoption of improved policies, guidelines, supervision etc. It is almost as if the Inspectorate is exasperated that such measures are not already standard and operational. Equally, they may reflect a resignation that the prospects for effective remedial action are not high. The shelf is also weighted down with comprehensive and incisive Inspectorate reports and recommendations that have not been implemented as envisaged.