Garda watchdog handing half of its cases back to gardaí to investigate
Solicitors, complainants and former GSOC staff voice frustration at slow investigations with few resulting sanctions.
IN 2005, KAYLEIGH Payne went to Mullingar Garda Station and reported she had been raped and harassed. She was 18 at the time. No garda ever followed up, Payne – now 36 – said.
Fifteen years later, in 2020, she decided to find out whether there was something she could do about it.
It turned out, she said, that the garda she spoke to never logged her report in the Pulse system which tracks cases.
“It was such a vulnerable thing to go into the guards with. I thought I was doing the right thing and unfortunately it was completely disregarded.”
In October 2020, Payne filled a complaint with the Garda Síochána Ombudsman Commission (GSOC).
GSOC handles complaints from the public relating to police misconduct. Some over-policed communities are very familiar with GSOC. Many only become aware of the Ombudsman when things go wrong with the gardaí and there’s nowhere else to turn.
Payne’s case was deemed serious enough for GSOC to launch an independent investigation.
When she followed up with the garda station in 2020, the gardaí did investigate her allegations. However, Payne continues to wait for the outcome of GSOC’s investigation into the lack of initial action by gardaí.
Over two and a half years after lodging her complaint, Payne says her case is in limbo and she has lost faith in GSOC to ever resolve how her report of the alleged crime was not acted upon.
In several months of investigating how GSOC handles public complaints, Noteworthy uncovered a process that is slow, lacking in transparency and enforcement powers.
- Around 50% of GSOC cases are sent to the gardaí to investigate every year
- An Garda Síochána can decide “there is no breach, take no action and provide no rationale” when GSOC finds evidence of gardaí breaching discipline regulations
- No appeal mechanism, even for serious criminal allegations against gardaí
- Allegations to GSOC rarely result in sanctions or prosecution - 2% led to sanctions and 0.5% led to files being sent to the DPP from 2018 to 2021
- Some former GSOC staff do not recommend people take complaints to the body saying that they’re unlikely to be dealt with effectively
This opinion of some of its former staff was put to GSOC but the body could not provide comment in time for publication.
Earlier today, we also revealed most complaints handed to gardaí for investigation exceed time limits. Targets were missed in at least 70% of such investigations last year. Read more about this here>>
Failing victims due to lack of power
GSOC hit the headlines this week and is facing an independent review after a since-resigned GSOC officer attended a party celebrating Gerard ‘The Monk’ Hutch’s recent not-guilty murder verdict.
It began operating in 2007 following the scandal of the Morris Tribunal, a public inquiry into complaints related to gardaí in Donegal. This found the previous oversight body, the Garda Síochána Complaints Board, was “woefully inadequate”.
Three Ombudsman Commissioners oversee staff who assess complaints and undertake investigations. The majority are disciplinary in nature, some are criminal.
It is independent, although a survey by GSOC in 2019 found that a third of people thought it was part of An Garda Síochána (AGS).
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Critics say it fails victims of police misconduct. However, GSOC is also constrained by a law that gives it limited investigative power and no power to direct garda operations or impose sanctions for misdeeds identified by investigations.
GSOC has stated that this leads to a “feeling of futility”.
Legislation – the Policing, Security and Community Safety Bill – currently in front of the Oireachtas aims to reform police oversight. The mammoth Bill follows the Commission on the Future of Policing in 2018 which found “the system for managing [GSOC] complaints should be overhauled”.
No update for over a year
Kayleigh Payne is critical of the management of her case.
GSOC determined her complaint met the criteria for an investigation. She was assigned an investigating officer and gave a phone statement in February 2021.
Three months later, in May 2021, GSOC sent her a short update.
In October 2021, a year after logging her complaint, Payne received a final update on her case: “An investigation report has been submitted to the Senior Management for review.”
Despite following up, Payne has heard nothing since then.
Payne has been loath to continue to follow up because of a second experience with GSOC.
This came about after she felt the gardaí didn’t take a report of harassment seriously. She once again turned to GSOC. The alleged online harassment was by a family member of the man she accused of rape and it allegedly occurred in 2020.
A case was opened in March 2021. While her first experience of interacting with GSOC was positive, her second experience was “awful”.
She told Noteworthy she wasn’t allowed to bring her husband to a meeting with GSOC, even though people are allowed to bring someone as support. Payne felt the investigators were aggressive and their tone was accusatory. She left the meeting shaken.
When Payne’s allegation was put to GSOC, a spokesperson said “GSOC do not comment on the detail of individual cases”. They added: “In instances where customer’s experience of our service falls short of this, we welcome their feedback.”
Payne’s two complaints are still open and she has had no communication from GSOC since March 2022.
GSOC again did not comment in relation to this lack of communication, but did say that it strives “to provide a quality customer service experience and a human rights compliant service to all of our customers in line with our customer charter and our code of ethics which are underpinned by the Civil Service Code of Standards and Behaviour”.
Half of complaints eliminated
Once a complaint is received, GSOC reviews it. If it meets the narrow statutory criteria, GSOC will investigate. In 2022, this criteria was met in 904 (50%) of 1,826 complaints received.
These criteria are a problem, say policing experts, and prevent GSOC operating effectively. The late academic and activist for police reform Dr Vicky Conway wrote:
GSOC is limited to determining whether a crime or a breach of discipline occurred and not whether policies or training, for instance, were insufficient.
The Commission on the Future of Policing criticised what it called a “punitive approach”. For example, a months-long investigation might take place for a minor discourtesy when a simple apology was sought.
The definition of ‘breach of discipline’ is also narrow and may not cover some human rights violations or violations of the Garda Síochána Code.
Gardaí investigating gardaí
Payne’s cases were both categorised as a breach of discipline investigation and conducted by GSOC investigators. This is one of the four pathways a case being investigated can take.
At the outset, GSOC must decide if an allegation seems criminal or disciplinary. Disciplinary complaints are either investigated by the gardaí with or without supervision from GSOC, or directly by GSOC. If criminal, GSOC always investigates.
“If the complaint contains very serious allegations… GSOC will conduct a fully-independent investigation,” according to a spokesperson. This includes domestic and sexual violence as well as failure to investigate deaths.
Investigations are sent to the gardaí for “broadly, lower-level” disciplinary matters, “such as discourtesy or neglect of duty”, the spokesperson said.
In 2022, over 50% of cases were sent back to the gardaí to investigate. This data was released to Noteworthy through Freedom of Information (FOI).
This is supposed to stop GSOC becoming overwhelmed by less serious complaints. But it has been widely condemned as compromising its independence.
In 2017, the UN Committee Against Torture noted concern that the process “amounts to the police investigating itself”. In a report in February, the Council of Europe wrote that garda investigations result “in very uneven penalties for similar infractions”.
Former Commissioner Mary Ellen Ring, in an interview with The Irish Times, called the high number of complaints investigated by gardaí “shocking” but added that GSOC had no option due to a lack of investigators and resources.
In a submission to the Department of Justice, GSOC said this “system had not delivered the desired results” and stated:
We believe that the concept of gardaí conducting investigations on our behalf is questionable in terms of independence and effectiveness.
The perception that gardaí investigations are not independent prevents some communities from going to GSOC at all.
It would be very unlikely that a Traveller would go to GSOC “except in very extreme circumstances”, claimed Breda O’Donoghue of the Traveller Visibility Group. Fear of repercussions from gardaí “would hinder Travellers from going any further”.
Gardaí are notified when a complaint is made against them. O’Donoghue said there’s a perception that if a Traveller complains to GSOC, gardaí would make that Traveller’s life difficult.
Solicitor Ciarán Mulholland, who specialises in criminal and public interest human rights law, echoed that clients often fear this.
“Any person who believes that [they] have been subject to repercussions as a result of making a complaint to GSOC should inform GSOC of that as the appropriate authority to further investigate that activity,” a garda spokesperson told Noteworthy.
When asked if it is doing anything to address this fear among marginalised communities, GSOC did not provide a comment in time for publication.
However, in one of its earliest annual reports, in 2009, GSOC said through its outreach programme it “put considerable effort into countering the possibility that sections of society might be marginalised in such a way as to render them unwilling or incapable of using the GSOC service”.
The body stated “this could arise through… fear that complaining might ‘make matters worse’ or through a lack of awareness of the complaint system”. One of the actions in its current strategy is expansion of its outreach programme “to ‘hard to reach’ and vulnerable groups”.
In theory, superintendents from other districts are independent, but retired Garda Inspector Tony Gallagher said that in practice they will know the garda at the centre of the investigation “in almost every case”.
When this was put to the gardaí, a spokesperson said: “Such investigations are conducted by trained Garda investigators who are well aware of the importance of such investigations being conducted professionally and in line with the Garda Decisions Making Model, which has its centre the Garda Code of Ethics, and constitutional and human rights.”
‘What any member’ would do
Payne isn’t the only person that Noteworthy spoke to who has lost faith in the process.
Leea Berry is another GSOC complainant. She didn’t have a bad experience, it was just entirely useless, she said.
Berry was working as a dominatrix in Dublin in June 2018 when her premises was raided by the gardaí. For weeks after the raid, a garda who had been present parked down the street and walked past her premises, according to Berry, who captured this on CCTV.
She claims that she found the garda’s behaviour intimidating.
In September 2019, she brought this to the Garda watchdog. Over the next year, there was sporadic communication with the GSOC investigating officer. She gave her statement of events to GSOC at a meeting, which her partner also attended.
She felt that, as a sex worker, she was treated with extra suspicion. Like Payne, she felt she had to prove she hadn’t done anything wrong.
In October 2021, two years after making the complaint, Berry was informed GSOC’s “investigation report has been forwarded to the Garda Commission for consideration”.
Then, in April 2022, the verdict came back – the garda was not in breach of regulations.
The case ended.
Complaints ‘go nowhere’
Lack of meaningful action resulting from an investigation was a major issue raised to Noteworthy by expert solicitors, people who took cases and former GSOC staff.
A GSOC spokesperson said that it has “no operational authority whatsoever over” An Garda Síochána.
It is up to the gardaí to impose sanctions in disciplinary cases and the Director of Public Prosecutions (DPP) to prosecute for criminal case files sent to them.
In 2022, the Garda Commissioner sanctioned gardaí in 62 disciplinary cases, according to data Noteworthy received via FOI. GSOC stated some of these cases may have been opened before last year.
GSOC was unable to tell Noteworthy what percentage of cases this represents. A spokesperson said their “Case Management System is not capable of extracting that subset of data” but that it was working to fix it.
However, 2% of all allegations closed in the four years from 2018 to 2021 led to sanctions, according to calculations by Noteworthy from GSOC annual reports.
When we put this to the gardaí, a spokesperson said that “GSOC would be in a better position to comment on the percentage of cases in which they recommend disciplinary action against a member of An Garda Síochána”. GSOC did not respond to this query in time for publication.
Last year, GSOC sent 27 investigations to the DPP. The DPP directed prosecution relating to eight of them. No prosecution charges were directed from 12 investigations and seven are pending.
Less than 1% of allegations closed (65) from 2018 to 2021 had files sent to the DPP by GSOC, according to Noteworthy’s calculations.
The DPP directed the prosecution of under a third of these (21 allegations). That is 0.2% of all allegations closed by GSOC (almost 13,700) during that time.
As illustrated, a large number of allegations are not investigated as they fail to meet GSOC’s strict criteria. There can be a number of allegations per complaint.
In addition, the most common outcome of allegations that do get investigated is that the investigation is discontinued. This occurred in more than 60% of investigated allegations closed over the past five years, up to the end of 2022.
“This is mostly because independent evidence is not available,” according to GSOC.
“I would question the effectiveness of it,” said the Traveller Visibility Group’s O’Donoghue, who added:
There’s a bit of naming and shaming and a slap on the wrist but that’s all that happens.
The solicitor Ciarán Mulholland has “no confidence or faith in GSOC”. He files complaints to get them on the record but doesn’t think it’s effective. They go nowhere, he said.
“I have had no complaints upheld,” he told Noteworthy, saying none led to a finding of wrong-doing against a garda. Last year, Mulholland’s office filed about 30 complaints.
This has been an issue since GSOC’s inception. The Shell to Sea protests led to over 120 complaints to GSOC about garda handling of protesters, from 2007 onwards. GSOC referred seven cases to the DPP. None were prosecuted.
In the case of Dara Quigley, the DPP did not prosecute the garda who made a widely-viewed recording of CCTV footage of Quigley walking naked in a distressed state down a Dublin street in 2017. The garda in question resigned before disciplinary proceedings concluded.
Quigley died by suicide days afterwards. “We would have hoped to feel that there was some accountability and transparency,” said Quigley’s mother, as reported by The Irish Times.
A ‘toothless tiger’
After GSOC had completed their investigation, Leea Berry was confused as to why the Garda Commissioner had to consider her case.
GSOC is statutorily required to send investigative reports to the Garda Commissioner and it is the gardaí themselves who decide if members have broken disciplinary rules. GSOC is an investigative body only and can’t make findings against a garda or impose sanctions.
Importantly, GSOC has no power to recommend gardaí reinvestigate a crime if it finds it was incompetently investigated.
This was highlighted in a GSOC submission which used the example of a woman who said her assault allegation hadn’t been investigated properly and took a GSOC complaint.
This case led to a breach of discipline verdict and a reduction of pay for a gardaí involved. GSOC said the woman wasn’t happy with the outcome “because her reason for complaining had been to try to get the alleged assault investigated”. GSOC didn’t have the power to recommend this.
“GSOC is a toothless tiger – what can it do?” asked solicitor Mulholland, speaking about GSOC findings.
Berry had no idea what was in the investigative file that GSOC sent to the Commissioner. “It’s really unclear, it’s not like you get a tonne of detail,” Berry said.
GSOC promises that “when the investigation is over, the investigator will tell you the results and will give you a report detailing the findings, if appropriate”. This didn’t happen in Berry’s case.
“There are instances when a report will not be issued,” a GSOC spokesperson told Noteworthy, “but correspondence indicating the closure of the case is issued as standard”.
The letters GSOC sends are very legalistic and often don’t give much information with “very generic” responses, according to solicitor Mulholland.
Most [legal] practitioners can’t navigate the criminal justice system when it comes to a complaint and dealing with GSOC.
It is “not user friendly” for ordinary citizens, Mulholland added.
We asked GSOC how it is addressing this issue and a spokesperson acknowledged “that the processes in place for complaint handling underpinned by the current legislation are complex due to the nature of the requirements under that legislation.
“We expect that the level of complexity of the processes under the new draft legislation… will enable us to make our processes more user friendly.”
‘Unduly long time’
Berry waited three years for the results of her case. Two years later, Payne is still waiting.
Other high profile investigations have taken a similarly long time. The investigation into the shooting by gardaí of George Nkencho began in December 2020 and still hasn’t concluded.
There are no time limits on cases conducted by GSOC investigators but there are agreed time limits on garda-led investigations. These are usually not met.
We reported earlier that targets were missed in at least 70% of cases handed to and completed by gardaí last year.
In 2022, the median length of criminal investigations was 12 months. For garda-led disciplinary cases, this was 11 months for supervised and over eight months for unsupervised investigations.
The median is the point in the middle of a dataset. GSOC stated that it uses the median the average “can be skewed by one very long-running, or very short, case”.
It took twice as long to complete criminal investigations in 2021 and 2022 compared to previous years. In their latest annual report, GSOC said “there are multiple factors behind this increase”, including the “complexity of cases”, the pandemic and resourcing.
GSOC investigators follow different procedures for criminal and disciplinary matters, they have different powers and the two investigation-types can’t take place at the same time.
“This is a huge part of what makes its processes so unwieldy: if during an investigation for one, it appears the other has occurred, the whole process has to start again,” wrote the late Dr Vicky Conway.
This is a common occurrence, GSOC said, in response to a Noteworthy FOI request.
GSOC itself said that this means its investigations take an “unduly long time” to complete.
For criminal investigations, GSOC staff have powers equivalent to the gardaí. This is not the case for disciplinary investigations.
Difficulty in obtaining information from the gardaí has been “a significant obstacle to the timeliness” of investigations, GSOC wrote in February 2023.
It added that “cooperation by AGS with requests for documentation has improved in recent years”. However, it also “called for a strengthening of the obligations placed” on gardaí to cooperate in the new legislation before the Oireachtas.
A Garda spokesperson said it “endeavours, at all times, to meet information requests” from GSOC and cooperate “in a timely manner” but that this “is subject to competing operational demands”.
AGS “does not comment on proposed legislation, other than any submissions made on behalf of An Garda Síochána during the statutory consultation period”, the spokesperson added.
In 2021, GSOC figures show that it took an average of 21 days to get requested information from gardaí and there was a 95% compliance rate.
Internal issues also contribute significantly to delays, former GSOC staff told Noteworthy. They described juggling large numbers of cases which lead to delays.
In correspondence relating to a criminal investigation, shown to Noteworthy by a complainant, a senior GSOC officer wrote that the slow pace was partly because the investigating officer was dealing with more than 40 other cases.
This was acknowledged in GSOC’s latest annual report which stated:
“Our investigators and caseworkers are working so far outside the recognised international standards of caseload that there is a real risk that our ability to provide the service that the Oireachtas has mandated will be compromised.”
Staffing issues are also a factor. The same report noted:
Our current staffing complement, both in terms of numbers and skillset, falls well short of what is required.
“Staff turnover, including loss of experienced staff due to retirement or mobility, has not only exposed existing staff to increased workloads but also to work-related stress and burnout.”
Many have highlighted that resource issues will endanger the upcoming reforms. Unless sufficient staff are recruited, GSOC has said it “may no longer be capable of processing” its current caseload, let alone “any of the additional responsibilities that the proposed legislation will dictate”.
Gardaí themselves are also frustrated by lengthy investigations. Gardaí are left with complaints hanging over them for a long time and may face penalties while their cases are pending, retired Garda Inspector Tony Gallagher said.
‘Total lack of transparency’
Investigations work differently in Northern Ireland.
Criminal defence solicitor Katie Dowling worked in Belfast before joining a firm in Dublin. It was an adjustment, she said “to come down to a system where there is a total lack of transparency”. The shutters go down as soon as the case goes to GSOC, she said.
In Northern Ireland, complainants get more information, she said. “The outcome of the complaints weren’t always satisfactory but the clients felt that they were being listened to.”
In 2016, GSOC said that “even if the GSOC investigator has highlighted evidence of a breach, the Garda Síochána may decide that there is no breach, take no action and provide no rationale to GSOC”.
This is different to Northern Ireland where the Police Ombudsman must be informed when the police decline to take its recommendations and has more power to object.
There is no GSOC appeal mechanism.
The closest thing to an appeal is the right for a complainant to have their case “reviewed” to check that procedures were followed. But this only applies to investigations that were carried out by gardaí without GSOC supervision.
The ineffectiveness of this system leads solicitors to use other accountability mechanisms in parallel.
Mulholland advises clients to file a GSOC complaint to “have it on the record” but “wouldn’t have any confidence” it will go anywhere.
He therefore advises some clients to seek accountability by filing a civil suit against the gardaí, Garda Commissioner or the Attorney General.
Because of the cost of this, it “means there’s people there that are denied access to justice”, added Mulholland.
Change is coming but criticisms remain
The Policing, Security and Community Safety Bill currently before the Oireachtas proposes huge reform of police oversight.
Some of the proposed reforms would bring Ireland in line with the Police Ombudsman for Northern Ireland (PONI), the “gold standard” of police oversight.
The most obvious change is that the ‘Garda Síochána Ombudsman Commission’ will be renamed the ‘Office of the Police Ombudsman’ to highlight its independence from the gardaí.
The three current Commissioners will be replaced by one Ombudsman in order to create a publicly identifiable head, like in Northern Ireland.
For the investigative process, the requirement that criminal and disciplinary investigations take place sequentially will be removed and it is proposed that the Ombudsman will have powers equivalent to the gardaí for all investigations. This brings the new watchdog closer in line with PONI.
All complaints about gardaí conduct will be referred to the new Ombudsman. However, some categories of complaint will still be dealt with by gardaí under the new Bill. These are to be decided with the Minister for Justice weighing in on which types of cases are handled this way. GSOC has strongly criticised this.
The Garda Commissioner will still be responsible for implementing disciplinary sanctions with no Ombudsman involvement and the new Ombudsman will still not be able to recommend allegations made to gardaí are reinvestigated.
‘I don’t trust it’
Without any update after March 2022, Kayleigh Payne said she has lost hope in the process. “I don’t trust it,” she said.
She felt that “the very last experience that I had talking to the GSOC team face-to-face was awful for me and I had no hope that they could do anything anyway. I just thought, ‘Why am I killing myself here?’
“That’s not what the Ombudsman should make you feel like.”
How is GSOC dealing with the public’s complaints?
Part one finds most GSOC complaints investigated by gardaí miss targets
Have a listen to The Explainer x Noteworthy podcast on our findings
Investigative Reporter: Alice Chambers • Editor: Maria Delaney
This investigation was part-funded by you, our readers. The remainder was funded through support from the Irish Council for Civil Liberties (ICCL). The investigation was fully editorially independent as outlined in our Fairness Policy.
What’s next? We also want to examine whether the coroner process of investigating tragic deaths is failing families. Support our work here.