State Solicitors to make call on criminal prosecutions

In a radical shake-up, the decision to prosecute crimes could be taken away from gardaí and given to an expanded State Solicitor team, or newly-created State prosecution service.

The Commission on the Future of Policing in Ireland report, published on 18 September, insists on a binary approach to police investigation and criminal prosecution, which it believes are two separate jobs, as is the case in comparable jurisdictions.

It calls for the immediate cessation of police prosecutions in court because gardaí “are not trained to the level of the opposing defence lawyer”. 

It says current practice is “enormously wasteful” of policing resources and takes gardaí away from their core duties. Switching out time-intensive prosecution duties will massively free up policing resources, the report says. 

It also suggests that the criminal justice system should have more distance between the police and the courts.

The Law Society has broadly welcomed the report, after contributing extensively to the consultation process. 

The Society’s submission urges greater clarity and simplification around policing oversight, pointing out that there are currently four bodies charged with this work. 

“Understanding the parameters of the role of each of these bodies in policing oversight is not a simple process,” the submission points out.

On governance, the Policing Authority and the Garda Inspectorate would merge into a new Policing and Community Safety Oversight Commission. 

‘System not working'

Chairman of the Law Society’s Criminal Law Committee Robert Purcell says that the system is not working as it currently operates.

Garda oversight has been the subject of debate and legislation for the 15 years he says, but it is difficult to know whether the proposed structural reform and amalgamation will be an improvement. “These proposals require further elaboration,” he pointed out.

The report suggests that the Department of Justice and Equality should focus on policy direction, rather than day-to-day management, and there should be more structured engagement with the Oireachtas Joint Committee. 

The Garda Síochána Ombudsman Commission could get a new name and a new remit to copper-fasten its independence and deliver an advanced police complaints system.

It should carry out all serious investigations independently, the report says, so that police will no longer investigate themselves.

A major theme of the report is that policing should be seen as a profession, with consequent rigorous training and development standards – a point that has its origins in the Law Society’s submission. 

Improved garda training would be run in partnership with higher education institutions, but graduate entrants would spend less time at the training college in Templemore. 

All serving members would be encouraged to reach ‘level eight’ honours degree level (equivalent to a university degree). 

Law Society recommendations

The Law Society has welcomed the adoption of some of its key recommendations, including:  

• Mandatory continuous professional development, 
• Codification of policing powers, vis-à-vis detention and arrest. However, the Society is disappointed that the role of solicitors in this important area is not expressly provided for in the report, 
• Community policing and the value of restorative justice initiatives – both championed by the Law Society, 
• A broader definition of restorative justice, beyond a youth justice strategy, is urged,
• A digital policing innovation centre and speedier adoption of technology, 
• A human-rights-based approach will give legal practitioners and citizens a higher degree of confidence in the transparency and accountability of such an integral public service. 

Commission chair Kathleen O’Toole, a former head of the Garda Inspectorate, has promised an “ethical police force”, and Robert Purcell welcomes the report’s mainstreaming of human rights.

Human rights training will be the starting point for every recruit, the report promises.

Purcell also welcomes the move to take away prosecution decisions  from An Garda Síochána: “This will assist in ensuring independence in that process,” he said.

He added that the recommendation that powers of arrest, search and detention be codified by legislation, with codes of practice embedded, should also include access to a lawyer.

The Law Society submission pointed to an “alarmingly low” rate of seven to eight per cent of police interviews being attended by solicitors. It attributes the exceptionally low threshold for legal-aid eligibility as one of the underlying factors.

The report also believes that gardaí should no longer attend at inquests because they are untrained for the task – this move towards general reform of inquests has also been welcomed by the Law Society’s Criminal Law Committee.

And, in future, deaths in garda custody would be subject to a mandatory inquest.

The commission, chaired by US-born policewoman Kathleen O’Toole, wants to broaden the definition of policing, while narrowing the job scope of practising members of the force. 

It wants immediate action to strip out Garda involvement in court security, remand prisoner transport, summons serving, attendance at minor traffic accidents, processing of passport applications, and the safeguarding of exam papers.

As an alternative, the Courts Service and Prison Service would take up the slack in their relevant areas, while garda immigration duties would also be moved to the Naturalisation and Immigration Service at the Department of Justice and Equality. 

Difficult negotiations

The commission’s report anticipates protracted and difficult negotiations with unions and representative associations to implement these changes.

The Garda Commissioner’s role would expand to include the control and oversight of all budgetary resources, and the commission envisages a quasi chief executive-style position.

The commissioner would personally select “a strong, appropriately qualified leadership team”, comprising both sworn and non-sworn personnel. 

Governance, oversight and accountability in the force would all be teased out into separate strands. 

“The structure of An Garda Síochána will be flatter with scope for local decision-making, new ideas and innovation,” the report says.

It wants an early roll-out of mobile technology, and a targeted severance package to cull those resistant to reform.

And a higher degree of visibility for gardaí in the community is front and centre of the new report, with a priority on public service. 

Policing will widen to encompass ‘harm prevention’ for vulnerable members of society, such as the homeless, elderly, and those with mental-health problems.

The report calls for new legislation to enable this widening-of-policing scope, so that other State agencies can contribute to general safety in the community. It sees a partnership role in policing for businesses, schools and voluntary organisations. 

Integrated information-sharing between responsible agencies is described as key, in particular for that small number of families and individuals who take up a disproportionate amount of State resources. 

The report specifies out-of-hours communication and co-operation between State agencies as vital. 

Finally, the report calls for a new framework for national security, headed by a National Security Coordinator, to pool intelligence and weigh up threats. 

The report can be viewed at www.policereform.ie.