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Watchdog has flaws – but let's remember why it was set up

SIX days ago, details of a suspected bugging operation at GSOC's Dublin headquarters sensationally came into the public domain courtesy of a Sunday newspaper report.

Most of us casually presume, in this ubiquitous, post-Snowden digital age, that our private conversations and correspondence are more than capable of being compromised at the click of a mouse.

But the mere prospect that the garda watchdog's head office may have been bugged was – and remains – an utterly chilling one.

Who or what would seek to compromise GSOC and why would they do so?

It is only human to ask if it is criminals, gardai whose alleged misconduct is being probed, a whistleblower, an external entity or the apparatus of the State?

The revelations blindsided the Government and Garda Commissioner Martin Callinan, not least because GSOC – which has been at loggerheads with An Garda Siochana since it opened its doors in 2007 – had not informed Justice Minister Alan Shatter that it had conducted the security checks last year.

The reasons why GSOC conducted the surveillance review and the outcome of its investigation – inconclusive as it turns out – deserve urgent yet cautious scrutiny.

The fact that GSOC discontinued its investigation because there was no definitive evidence of unauthorised surveillance provides no comfort either way: it is the fact that it had cause to believe it was under surveillance that matters.

But instead of acknowledging the potentially enormous consequences of GSOC being bugged, Mr Shatter conducted an instant trial, of sorts, that found GSOC in the dock and summarily convicted, it seems, of bruising Shatter's ego.

And what about the Garda Commissioner whose force has stood accused of thwarting, since its inception, the effective operation of GSOC, a safeguard for citizens set up in the wake of damning allegations of corruption against gardai in Donegal?

Having taken gross offence at the mere inference that members of the gardai may have been responsible for the suspected security breach, Commissioner Callinan was able to declare – within days – that no garda was involved with any surveillance of GSOC or any of its commissioners.

The speed with which he was able to reach this unequivocal conclusion is itself troubling and possibly the fastest criminal investigation ever conducted by the force.

GSOC, and the manner in which it has conducted itself in this and past controversies, is not without its flaws and prior history.

Gardai have complained that the agency is heavy handed.

And GSOC's handling, in 2007, of the investigation into the death of a senior murder detective who died tragically by suicide at Harcourt Square in Dublin, did not garnish much support for the fledgling watchdog.

Should GSOC chair Simon O'Brien have notified Shatter earlier or at all?

The question of whether and when GSOC was legally obliged to inform the minister about its special investigation turns on several sections of the Garda Siochana Act 2005.

Section 80 (5) of the law states that the Ombudsman Commission may make any other reports that it considers appropriate for drawing to the minister's attention matters that have come to its notice and that, in its opinion, should, because of their gravity or other exceptional circumstances, be the subject of a special report to the minister.

The use of the word "may" rather than "shall" confers discretion on GSOC to report.

The public interest investigation initiated – and ultimately discontinued by GSOC – was launched pursuant to Section 102 (4) of the 2005 act.

This allows the agency, without receiving any complaint, to investigate any matter that appears to it to indicate that a member of the Garda Siochana may have committed an offence, or behaved in a manner that would justify disciplinary proceedings.

Section 103 of the Act imposes a duty on GSOC to keep certain persons – including the minister and the commissioner – informed of certain investigations including those conducted, as in this case, under Section 102.

But the Commission does not have to provide information if its disclosure would prejudice a criminal investigation, jeopardise a person's safety, or for any other reason not in the public interest.

Mr O'Brien apologised this week for not reporting GSOC's investigation more widely, as he appealed for understanding as to why it conducted the investigation.

GSOC said it wanted to "maintain public confidence" as it failed to secure the full confidence of the Government and gardai.

Shatter's confidence in GSOC (appointed by the president) is, in many respects, completely irrelevant.

But his perceived undermining of GSOC and unflinching support of the gardai is deeply damaging to public confidence in all three parties.

Relations between GSOC and the gardai – the latter almost always backed by Shatter – have deteriorated to the point where it is questionable whether it should exist at all.

But it is worth recalling why we need a body such as GSOC.

When High Court Judge Frederick Morris published his report into garda corruption, he did not confine his observations to alleged wrongdoing by gardai in the North West.

"The tribunal has been staggered by the amount of indiscipline and insubordination it has found in the garda force," said the judge.

"There is a small but disproportionately influential core of mischief-making members who will not obey orders, who will not follow procedures, who will not tell the truth and who have no respect for their officers."

The Morris Tribunal formed the backdrop for a large-scale programme of garda reform which placed GSOC at its core and promised a new era in policing.

But the bright new dawn has turned into a murky long night of knives where the biggest victim, once again, is the public interest.

Irish Independent