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Keeping The Scales of Justice Balanced
Peter McVerry SJ has worked with homeless young people for the last 30 years
Two critical elements of the Criminal Justice System have been in the news recently. The First Annual Report of the Inspector of Prisons(i) was published and the Minister for Justice announced the "most radical reform of the Gardai" since 1924, and promised new legislation giving the Gardai more powers.
1. Inspecting the Prisons
1.1 The struggle to inspect the prisons
A number of reports on the prisons in Ireland, as far back as the Whitaker Report in 1985, recommended the appointment of an independent Inspector of Prisons. The Council of Europe Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment of Prisoners (a title mercifully shortened to C.P.T.) visits each European country at regular intervals to report on the conditions in their prisons.
In 1993, the C.P.T., following a visit to Ireland, recommended the appointment of an independent body, such as Visiting Committees or a Judge with responsibility to carry out such inspections and with authority to receive and take action on prisoners\' complaints. The Government, in its response to the C.P.T. recommendation, stated that it proposed the creation of an independent Inspectorate and promised that it would be in existence by 1999. However, it was 2002 before the Inspector of Prisons was finally appointed. (An Inspector of Prisons for England and Wales had been appointed in 1980 and in Scotland in 1981.)
In 2003, the C.P.T. again visited Ireland and this time the newly appointed Inspector of Prisons had a meeting with them.
"I explained to them that while they were promised (in 1993) that I would exist, that in fact I was \'a façade\'. I was quite satisfied that neither the Department of Justice, Equality and Law Reform, or the Prison Service Senior Personnel in Headquarters welcomed my appointment although they undoubtedly paid ‘lip service’ to the idea."
Clearly, he did not exactly feel wanted!
1.2 An unwelcome appointment
The Inspector of Prisons began work in a borrowed office. Six months later, he was informed that he could take possession of his new offices. "Although", he says, "this is correct, it must be stated that some of the office furniture had not been delivered and there was no equipment installed such as telephones, fax machines, PC\'s, email\'s, cleaners, etc." The Inspector, nevertheless, continued to work and the office was operational in mid-March 2003, one year, almost, after his appointment.
However, things got worse!
"I was told that there was no funding provided in the budget for my office and no budgetary arrangements were set up for its existence. However money would be made available from "the huge budget" provided for the Irish Prison Service. Later I was told that I could not spend a penny piece or employ anyone without the consent of the Prison Authorities. I WAS APPALLED (his emphasis). The smarminess was replaced by ignorant arrogance."
This is not normally the language of a report by a Government appointee!
He continues: "The Prison Service and the Department of Justice, Equality and Law Reform have been slow to provide any information to the Inspectorate. The fact that they wanted me to take six months off to read myself into the job and wanted me to go on a tour of Western Australia and possibly New Zealand shows their peculiar mindset. While many interpretations will be put on these offers, I took them as meaning that I was not to do any real work."
He found it difficult to get any real information from the Prison Service. He was denied information "which is available to the Public Press, the Irish Penal Reform Trust, the Prison Officers\' Association and the Chaplains." For example, he was concerned that we have a higher prison officer/prisoner ratio level than any other country in the world. "The Department informed me (by telephone naturally) that they would not give me any information regarding overtime earnings by prison staff because it was not within my remit."
And so he demands:
"As a matter of urgency, I request the Minister to establish as soon as possible the Inspectorate as a statutory and independent unit….I want the Act expedited and I want to be consulted regarding its contents. I want total independence to be guaranteed and that my report be published within a calendar month or another specified time of my delivering it to the Minister. It should be published as it is written. The only deletions should be with the consent of the Inspector and only on grounds of security….. the Inspector should be able fully to monitor the Prison Service urgently, now that the ineffectual Visiting Committee is further emasculated."
1.3 A damning report
The Inspector of Prisons, at the end of his first year of office, issued a damning report on the state of Irish Prisons.
On post-release support: He reports that 30 years ago, a delegation from the Visiting Committee in St. Patrick\'s went to see the Minister for Social Welfare. Their concern was that prisoners were being released with little money, not even enough to secure a bed in a hostel until their dole money came through. The Inspector raised this point with the Prison Authorities. He was informed that they have appointed a Deputy Director to investigate the whole matter and to bring up solutions.
"It is fantastic that after thirty years or more, the whole matter is now \'being investigated\'…..It is a scandal….The Department of Social Community and Family Affairs may well have been correct in saying it requires an Act of the Oireachtas. However, there is so much of a shambles in relation to the prisons that one would almost despair of an Act to cover all the problems….the fact is that we as a State are prepared to spend in the region of €1,300 a week to retain an offender in prison but are unwilling to offer any adequate financial support on release. The question to be asked is who really benefits from the ‘huge annual budget’ spent on our prisons each year? Some felt that the administration was top heavy with expensive excursions to foreign lands."
On the drug situation: "the drug situation in the prison system needs to be adequately addressed. Some efforts were being made but there was no serious attempt to address the underlying causes. In fact, \'clean\' prisoners are exposed to drugs and become addicts in prison."
On sex offenders: "As a group, sex offenders are amongst the most marginalised amongst the prison population. The number is increasing and yet there is no real attempt to help them address their problem."
On corruption: "Some of the Chaplains complain about the power of the Prison
Officers\' Association and the fact that the Governor does not have the power to govern. (This is also a matter of grave concern to the Inspector). There are also serious allegations of corruption but the Inspector has not had time to investigate these allegations but hopes to do so in the future."
On homelessness: "For some, homelessness is a reality to be faced after a long and painful prison sentence…it will be remembered that 11 women refused to leave prison for Christmas because they had \'nowhere to go\'"
On racism: "There is undoubtedly racism in the Irish Prison Service but a lot of the management and staff are not fully aware of it."
On fire safety, he found serious concerns and noted that some (at least) of the prisons would not pass a Fire Safety Inspection.
On prisoners with psychiatric problems, the Inspector found services wholly unacceptable. "There are two prisons in the town of Portlaoise. There is also a county hospital and a psychiatric hospital in the same town. However, the psychiatric hospital will have nothing whatsoever to do with the prisoners. They are not normally resident in the Midland Health Board and therefore the psychiatric hospital will not care for them. If a Judge sitting in Portlaoise requires a psychiatric report on a prisoner, that person has to be taken by three prison officers to the Central Mental Hospital in Dundrum where he will be assessed. A psychiatrist there has to write out a report. The prisoner has to be brought back to his prison of origin. There is a large amount of overtime involved as a result of this bureaucratic nonsense. It is about time that these matters were looked at realistically. It is my strong recommendation that this obscene behaviour be eradicated….(prisoners with psychiatric problems) should certainly not be dumped by an uncaring society into a prison to cause further deterioration to an already inadequate system. There is no doubt that there is a great deal of disability in prison…I am concerned that in prison people\'s human rights are being denied by an uncaring society implemented by feuding Government Departments."
1.4 The value of independence
The need for an independent inspectorate of prisons is unquestionable in the light of both the tone and findings of this report. Since Ireland presides over one of the world\'s most expensive prison services it is imperative that entrenched interests are made accountable for the services they provide and that there is transparency in how they use the considerable resources at their disposal.
In appointing Mr. Justice Kinlen, the Government may have thought they had appointed someone who would be amenable to their suggestions. I suspect that they are not looking forward to the next four years of his term of office. However, I am awaiting with eager anticipation his next four reports - if they are published!
2. The Reform of the Gardai
2.1 New powers
The Minister recently announced that he was considering new legislation that would give the Gardai more powers to fight crime. While some of his proposals are uncontroversial, two in particular have been the focus of criticism by those who are concerned about the potential for abuse of human rights.
1. The possibility of setting up a DNA database to be used in the fight against crime and the new powers given to the Gardai to take samples of saliva without the consent of the suspect, using whatever force may be necessary to obtain it. While DNA sampling has proved enormously beneficial in the fight against crime and in proving the innocence of suspects in some cases, many are concerned about the potential for abuse if a DNA database is accessible to Gardai.
2. The Gardai are to be given the power to detain suspects for questioning for up to 24 hours. (At present, they can detain suspects for a maximum of 12 hours). Concerns have consistently been expressed about the lack of basic safeguards against abuse of police questioning powers. Those detained do not have a right to have a solicitor present (as in many other countries) and indeed the Gardai would generally refuse to allow a solicitor to be present during questioning even if the solicitor and the suspect both requested it. The videotaping of the questioning of a suspect, which has been promised for almost ten years now and which would appear to be a simple enough matter to implement, is not widely available. Many confessions allegedly made by suspects while in custody are subsequently contested in court and some - such as the confession of Dean Lyons to a murder he did not commit - were shown to be patently false. The cases of the Birmingham Six and the Guildford Four in England, where innocent people were convicted and served long sentences on the basis of confessions that were false, led to the introduction of safeguards that do not exist here.
2.2 New accountability
However, to be fair, the Minister also recently announced "the most fundamental shake up" of the structures and accountability of the Gardai to have been considered since 1924. These new structures of accountability, he says, would ensure that the new powers the Gardai are being given would not be abused. He revealed his
proposals in outline, saying that further consultation would be required before the details would be decided. However, even the little detail he provided left considerable concern that the "radical" reform of the structures would be anything but radical and that the new structures of accountability would be largely cosmetic, except in the most serious cases.
He announced six key reforms:
1. A redefinition of the relationship between the Gardai and the Government. The Garda Commissioner is to be accountable to the Dail for financial matters. On all other issues, the Minister remains accountable to the Dail.
2.The strengthening of Garda accountability.
3.Enhanced cooperation between the gardai and local authorities.
4.Greater capability to tackle crime by releasing gardai from static security duties at Government offices and other buildings.
5.The establishment of a Garda reserve force.
6.The setting up of a new independent inspectorate to investigate complaints against the gardai.
2.3 An independent inspectorate of the Gardai?
While the Minister states that the independent inspectorate will have all the powers of the Police Ombudsman in Northern Ireland, what he has announced to date shows that it will fall very far short of that target. The Police Ombudsman in Northern Ireland has won over 80% support from that community, across the whole political divide. It has achieved that for two reasons:
(i) Firstly the transparency with which the appointment of Ombudsman was made. The post was advertised widely, both at home and abroad, candidates were interviewed at length and finally the person considered the most suitable was chosen.
(ii) The independence of the Ombudsman is not in doubt. With a staff of 120 and over 40 trained investigators, every complaint, from the most trivial to the most serious, is investigated independently of the police service.
It is clear from what the Minister has already said that both of these aspects of the proposed Inspectorate of the Gardai in the Republic will be a seriously watered down version of the Northern Ireland Police Ombudsman’s office.
The three-person inspectorate will be a political appointment. Already the Minister has indicated that the chairperson is likely to be a sitting High Court Judge (though I presume they will screen the applicants carefully to ensure that a Justice Kinlen-type will be eliminated!) and that one of the other appointments is likely to be a former senior Garda. Already the independence of the inspectorate is being perceived as compromised. A former senior Garda, with perhaps forty years of experience of policing and presumably a strong loyalty to the force, comes to the position with views strongly influenced by his years of employment with the gardai. That is not to say that such a person may not be objective, and they may in fact be the best person for the job, but the perception - and maybe the reality - is that they will not be independent in their consideration of complaints against their former colleagues. The very fact that the three-person inspectorate will be political appointees will suggest that they have been chosen carefully (!) and may not be too keen to provoke the disapproval of those who have appointed them (particularly those who have been given a new lease of life in their retirement).
The Minister has already stated that the staff of the new office of inspectorate will be considerably less than the number of staff in the Ombudsman office in Northern Ireland (where the population is considerable smaller than in the Republic). They will not, therefore, be able to undertake an investigation into all complaints. Only the most serious complaints will be investigated independently. Less serious complaints (and we have yet to learn what is considered "less serious" and who makes that decision) will continue to be investigated by the gardai themselves, under the supervision of the inspectorate. Clearly "rudeness" on the part of a garda will be considered a minor complaint and clearly the conduct of gardai such as is alleged in Donegal will be considered a serious complaint. But the assault of young people in custody or the ill-treatment of suspects during interrogation are not yet defined as either minor or serious. My own view is that this attempt at reform is primarily about control of costs rather than a serious attempt to make the gardai accountable.
This view is furthered strengthened by the proposal for a Garda Reserve Force (getting extra resources on the cheap) and by the fact that the Garda Commissioner is only accountable to the Dail for financial matters. If this view is correct (and we must wait and see the detail), then only complaints that are serious enough to warrant a tribunal, if not dealt with summarily and adequately, will be investigated independently. The garda inspectorate may be more about saving money on tribunals than reforming the structures of the Gardai.
The details of all these reforms have still to be worked out. No doubt the views of the gardai themselves will be extremely significant when it comes to details. The fact that none of the garda representative associations have come out fighting against these proposed reforms (something they have never been slow to do in the past when they feel that their power or autonomy have been criticised) seriously worries me.
2.4 The absence of a culture of change
Recently a new report by consultants Deloitte and Touche into Garda Management Structures has been leaked into the public domain(ii). The Garda Siochana declined to publish the report - as is their normal practice - which may itself say volumes about their openness to scrutiny and criticism. The "Garda Siochana Structures Review Project", was set up to see how well the Force was managed, and it found that it wasn\'t. "The organisation is administered rather than managed", it states. It noted a lack of specialist skills in areas of planning, change management, human resources, management accounting and communication. The structure at head office, it says, is not sufficiently responsive to the needs of the public. There was very little performance evaluation. For example, it found that "in comparing the 2000 and 2001 annual policing plans, it is difficult to ascertain to what extent the 2000 measures were achieved, or on what basis the 2001 measures were determined."
But while management structures were scrutinised and reommendations made, it is their findings on the absence of any culture of change within the Gardai, which are perhaps the most worrying.
"The recommendations put forward," it says, "will require considerable change in the mindset firstly of management and subsequently among all garda ranks...However, we found no real evidence that there is a change imperative across the organisation."
3. A Concluding Thought
The prisons and the Gardai perform essential functions for Irish society. They are given considerable power and resources. Therefore it is both reasonable and fair that these bodies are made accountable for how they exercise these powers and utilise public resources.
The extracts from the Inspector of Prisons amply demonstrated the value of having an independent body reviewing the prisons. In the context of the McBrearty and Abbeylara Tribunals, the conduct of Gardai during the “Reclaim the Streets” march and during the subsequent investigation, and the revelation that € 6 million has been paid in the last five years in compensation to some 70 victims of Garda assault and wrongful arrest, it is reasonable to question giving further powers to the Gardai, without a major reform of the structures of accountability. I am left to wonder what might be contained in a report by a truly independent inspectorate of the Gardai.
i All quotes from the Inspector of Prisons Report which was published by the Minister for Justice, Equality and Law Reform on 2 July 2003. The full report is available on www.justice.ie.
ii Partly sourced from articles in the Sunday Business Post and Sunday Tribune 31 August 2003.