Independent TD for Wexford

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Analysis of Garda Report on cancellation of Penalty Points

Response to Assistant Commissioner’s Internal Review (“the Internal Review”) and Garda Professional Standards Unit report (“GPSU Report”) regarding the Penalty Points Controversy & Garda Malpractice

*FCN = Fixed Charge Notice

Mick Wallace TD, Luke Ming Flanagan TD, Clare Daly TD, Joan Collins TD

_________________________________________________________________________

1. Preliminary Point re Failure of Investigation to Reach Standard of Natural and Constitutional Justice & letter of 22ndApril 2013

We would like to first outline our difficulties with regard to the structure and approach of this investigation which seriously damages the credibility of these two reports and their conclusions. We alerted the Cabinet to our concerns in a letter to them dated 22ndApril, to which we have yet to receive any response. Briefly, this investigation failed to adhere to the two basic standards of natural and constitutional justice;

  1. It offends the first constitutional principle – “the Rule Against bias” by having Senior Gardaí investigate the practices of other Senior Gardaí and
  2. It offends the second constitutional principle “Hear the Other Side” by having conducted a six month review without ever coming near the whistleblowers to interview them or giving them the opportunity to put forward their case.

Indeed the Internal Review was immediately discredited by the statement of the Garda Commissioner way back on the 7th December which clearly demonstrated that he had already at this stage pre-judged the outcome of the internal review. It is with this serious qualification in mind that we offer some initial comments, which we will later expand upon in more detailed submissions to the Justice Committee.

2. Response to Reports I – Policy

 

At the outset, we wish to set out again our position on discretion which has always been that discretion is necessary and desirable in certain circumstances.  Minister Shatter has repeatedly attempted to skew the terms of this debate by misrepresenting our position as being in favour of the abolishment of general Garda discretion and often citing his preferred example of the sick child being brought to hospital.  In order for a system of justice to exist, individual discretion must always be balanced by consistency and uniformity in order to ensure fairness when the law is applied.

We believe the exercise of discretion in relation to FCN cancellations must be;

A. Lawful, and

B. In order to avoid abuse, cronyism and clientelism, the exercise of discretion by any civil servant must, in terms of policy, be subject to the following;

1. Transparent systems, in the form of a formal and recorded system of application for FCN cancellations with a clearly set-out process that is accessible to all and not just those who can name a Senior Garda among their circle of friends.

2. A publicised list of acceptable reasons for discretionary FCN terminations which is widely known among both the public and among Senior Gardaí

3. Fair, consistent and evidenced-based decision-making

4. Availability of a system of appeal

5. Accountability in the form of monitoring and oversight systems which require a visible paper trail, a regular system of auditing and supervision, and solid, integrated and searchable computer systems.

Both the Internal Review and the GPSU Report have conceded and are in agreement that none of the above systems are in place.

In addition to the examples set out in Sections 5, 6 and 7 of this document to support this statement, the following findings are relevant;

  1. The Internal Review found 2 major findings of non-compliance relating to the keeping of files/records and the cancellation of points in another district.  This was despite the requirement set out in the HQ directive 48/2006 that any FCN terminations were to be carried out in strict compliance with policy.
  2. The GPSU report also admits that no auditing has ever taken place (in direct contravention with 2005 Cancellation Policy) and there is no system for auditing in place – i.e. no designated body, no clear system, and no requirement as to frequency.
  3. The GPSU report confirms that the PULSE system was changed to insert new reasons but no HQ directive was ever issued to explain and give examples of when one should use these reasons and in particular the “Discretionary Other Option.”
  4. No figures are provided in the Internal Review or the GPSU report in relation to the fundamental flaw identified by GPSU whereby the ‘mandatory comment box’ can be circumvented by inserting blank spaces instead of termination reasons into this box. It appears from the GPSU report that requirement to insert identification details as to both the Garda/Station Number and the specific offence in this comment box can also be by-passed, removing any possible traceability or record from the system and exposing the system to abuse.
  5. The GPSU report reveals that the two computer systems which are used by the Gardaí – Fixed Charge Processing System and PULSE system are at odds with each other as they contain two different lists of acceptable reasons for cancellation. In addition these two lists are different from the Garda Cancellation Policy which is set out in the Fixed Charge Manual, 3rd Edition 2005 (p. 77 of Report) and does not provide for any “catch-all” category such as “humanitarian reasons” nor indeed does it provide for “bereavement.”
  6. GPSU admit the incompleteness of their own report and recommend at page 50 that a report be produced to provide information on the terminated offences that have no information placed in the Comment Box.  Will the Minister commit to this report given that it has been recommended by GPSU?
  7. GPSU recommend at page 51 that ‘permission to terminate’ be removed entirely from all operators of PULSE system and the technical ability to perform the terminations could be centralised to one location with only those at the central location (FCPO) having access to terminate.
  8. The GPSU report admits that there is no system of appeals when an FCN is issued in Ireland. This is in stark contrast to the existence of; the Parking and Traffic Adjudicators Tribunal and the Traffic Penalty Tribunal in England and Wales, and the Northern Ireland Traffic Penalty Tribunal.  These three examples are statutory bodies independent from the body who issued the relevant Penalty Charge Notice which is being appealed and they make decisions based on evidence in a transparent manner, usually in an open forum.
  9. The GPSU report also admits that it is only since July 2010 that access to terminate notices has been restricted to Inspector rank or higher and prior to this, the GPSU refers to an ‘anomaly’ that existed whereby any Garda Member who accessed the system under their own registered number could effectively cancel an FCN by using the registered number of a Cancelling Authority. This is more than an ‘anomaly’ and was in direct contravention of the terms of HQ directive 48/2006 which expressly set out that only Superintendents/Inspectors acting on their behalf will record cancelled fixed charge offences. Therefore, it appears there was a practice where Garda Members were using the registered number of a Cancelling Authority without their knowledge. Neither report gives any indication as to how widespread or problematic this abuse of the system was, and we have no indication as to whether any investigation or disciplinary proceedings ever took place in this regard. However we can only assume that this practice was widespread in order to warrant the suspension of the whole service on a nationwide basis for a year.
  10. In order to conduct this examination, it is significant that the GPSU admit (p. 4 and p. 37) they first had to examine in excess of 24 relevant documents in order to establish what the current Garda policy actually is in relation to the cancellation of fixed charge processing system notices; 10 relevant HQ instructions, 3 versions of the Fixed Charge Manual, 7 relevant bulletins (both PULSE and Fixed Charge Processing System).
  11. Indeed the GPSU examination reveals that the latest edition of the Fixed Charge Manual (2005 version) contained out-of-date transitional instructions which were only removed in February of this year as a result of this investigation but have actually been out of date since 2006.  No copy of these transitional instructions was contained in the appendix so we do not know what they contained. 
  12. It is clearly unsatisfactory that An Garda Síochana’s own Professional Standards Unit had to go to such lengths to first establish what their policy is. This confusion and bewilderment of the GPSU surrounding what their own policy actually is, means that it would be impossible to expect that a fair, uniform and consistent application of this policy by Garda Superintendents is currently taking place. Indeed the GPSU’s own conclusions confirm this position by recommending that “relevant documents need to be amalgamated and the overall policy document updated to incorporate PULSE and legislative changes and HQ directive instructions.”

3. Response to Reports II – Legality

1. The Minister has shown a lack of concern at the probable unlawfulness of Garda discretion in terms of Fixed Charge Notice Cancellations – he refused to seek an Opinion of an independent Senior Counsel or even the AG’s office on the legality of any Garda discretion in the area of FCN cancellations, the current Cancellation Policy as set out in the Fixed Charge Manual 2005, 3rd Edition, and also on the legality of the practice of An Garda Síochana in implementing it.

2.         This is despite the protestations of Robert Pierse, the country’s foremost authority on Road Traffic Law and Professor Dermot Walsh, author of ‘The Irish Police; A Legal and Constitutional Perspective’ that Garda discretion in relation to FCN cancellation is unlawful.

3.         Both reports instead choose to rely on a Junior Counsel’s qualified and flawed opinion from 2006 – an Opinion which in any event was based on an older 2004 version of the Garda Cancellation Policy.

4.         The Opinion gives qualified approval to the 2004 version of the Cancellation Policy with the following conditions attached; guidelines to be issued regarding when discretion should be issued, guidelines to be drawn up with DPP’s office, a review to be carried out when a District Officer is petitioned to cancel an FCN, decision of District Officer to be based on evidence, basis or rationale on which discretion given is to be recorded formally, presumably to allow for an audit. Both Garda reports have confirmed that these procedures were never followed in some cases and are not being in others.

5.         The Minister for Justice does not seem interested in even investigating the legality of Garda discretion in relation to Fixed Charge Notices, much less in remedying any possible legislative gap.

6.         In this regard and in quite a cynical and underhand manner, the Minister and the two reports he commissioned have failed to mention a very important piece of legislation when discussing the legality of Garda discretion in relation to penalty points. Section 35 of the Road Traffic Act 2010 is on the statute books but the Minister has not yet commenced it so it is not in operation. Section 35 of the Road Traffic Act 2010 would replace Section 103 of the 1961 Act which sets out that “A fixed Charge Notice SHALL issue.” As “shall” in legislation always means that there is no discretion, the legislation is mandatory. However, the Opinion prefers to emphasise the following phrases – a notice contains terms in respect of a person “liable to be prosecuted” and also Section 103(18) which sets out time periods in which a prosecution “may be brought”. The only reason that there is conditionality in these phrases is to allow for the possibility that the fine may be paid, and so no summons would ever issue.

7.         The new Section 35 changes the terms of the legislation to MAY which indicates discretion. This indicates an awareness on the part of the State that as it currently stands, Garda discretion is unlawful and Section 35 is an attempt to fix that. However reference to the section is deliberately and disingenuously left out by the Minister in his statements to the House on penalty points when responding to a parliamentary question about the legal basis for Garda discretion in relation to Fixed Charge Notice cancellations.

8.         HQ directive 48/2006 requires strict compliance with the Cancellation policy set out in the 2005 edition of the Fixed Charge Manual – this Manual does not include humanitarian grounds – thus all cancellations on that grounds since 2005 are outside the terms of the policy which HQ directive 48/2006 requires to be strictly complied with.

9.         In the last week or so, a new argument has emerged from Government lines to the effect that FCN discretion cannot be illegal as the alternative would mean to open the floodgates and to clog up the Courts. To say that discretion is currently illegal when exercised to cancel FCNs is not the same thing as saying that discretion is illegal in all other aspects of criminal law where there is discretion to prosecute. The relevant legislation is Section 103 of the Road Traffic Act 1961 and is specific to the issuing of FCNs and only applies to the 28/56 days during which a fine may be paid and no prosecution can then take place. It is only after the 56 days that a summons issues and the matter then becomes prosecutorial and the DPP’s guidelines apply. All of the FCN cancellations discussed in both the Internal Review and the GPSU report (and all of policy documents and HQ directives referred to) relate only to the 56 day time period before a summons issuesThe Junior Counsel’s own opinion admits this, and sets out that the “purpose of this legislation is to create a system of Fixed Penalties whereby a person can avoid the initiation of a prosecution”.

10.       The advice from the AG’s office was outsourced to a Junior Counsel in 2006 who gave a very qualified approval to an earlier 2004 version of the Garda FCN Cancellation Policy (see p. 58 GPSU plus appendix D as set out in the Fixed Charge Manual) – this advice placed great emphasis on the inclusion of the “catch all humanitarian clause” in the 2004 Cancellation Policy as this was what entitled the Gardaí to a wide discretion.  However the GPSU report admits that this policy grounds was removed and that the current 2005 Cancellation Policy does not contain any reference to “humanitarian reasons.” Neither the AG’s office nor any Junior Counsel has examined or approved the current policy and it is another significant flaw that neither the GPSU report nor the Internal Review sought a Senior Counsel’s opinion or the AG’s opinion on the current policy during the course of this 6 month process.

11.       In light of the absence of any legal basis and the fact that the A G s 2006 advice on an older 2004 version of the Cancellation Policy was not followed, the mess the Gardaí Headquarters admit their own policy is in, the 2 inconsistent computer systems used by the Gardaí which contain different lists of the acceptable reasons for FCN cancellation and which do not share information, it is clear that whole policy, process and practice of An Garda Síochana in the area of FCN cancellations is by their own admission and according to their own Internal Review and GPSU report non-compliant, dysfunctional and flawed at every possible level.

4. Treatment of Whistleblowers & Time Line

It is our opinion that the Minister and the Garda Commissioner both failed in their legislative and moral duty to protect the whistleblower Gardaí who have since been subjected to prolonged intimidation by Senior Members of An Garda Síochana. As Transparency International has pointed out, they should not have had to bring this issue to anyone other than the Garda Confidential Recipient, and this should be examined by the Garda Inspectorate.  Indeed the Minister should be mindful of the provisions of the Prevention of Corruption (Amendment) Act 2010 which prohibits penalisation of Whistleblowers, particularly in light of his derisory comments on the release of this report.

In relation to Chapter 9 – Fatal Accidents, the Whistleblowers would wholly dispute the conclusions of the Garda Internal Review in this regard which were arrived at without their input and without hearing their details.

There are serious discrepancies between the timeline of events provided by the Minister and the Garda Commissioner, and the copies of correspondence provided to us by the whistleblowers from both the Confidential Recipient and the Office of the Taoiseach. According to the Minister, the whistleblower allegations were received by his Department in September 2012. He first had sight of them in early October and they were sent on to the Commissioner on October 19th 2012. Commissioner Callinan then appointed John O’Mahoney to investigate the matter on October 31st 2012. However, the whistleblowers have provided us with copies of correspondence they received from both the Confidential Recipient and the Office of the Taoiseach much earlier than September. For example, we have seen correspondence from the Taoiseach’s office to one of the whistleblowers, dated July 25th 2012, stating that the Taoiseach had forwarded the contents of the whistleblower’s email to the Minister for Justice “for his attention and consideration”.

5. Analysis of Inconsistencies re Internal Review & GPSU Report

5.1 Internal Review

Initial observations regarding inconsistencies and issues in relation to the Internal Review are as follows;

  1. 1.    The Internal Review lists as one of its two main issues of concern that there are many cases where no written record or file exists, but somehow concludes nonetheless at 10.1 that these terminations were conducted in good faith.
  1. Despite the admission that there is an unequivocal policy requirement for written petitions to cancel FCNs, and decisions must be based on evidence, at page 46 the termination of three FCNs for a District Court Judge is excused and justified by way of “verbal petition.”
  2. Furthermore at page 44 of the Internal Review in relation to Family Members/Friends of Gardaí, it is admitted that it is difficult to categorically identify whether a petitioner is in any way connected to either the Terminating Officer or another Garda yet the conclusion is reached that – on the face of it – “allegations of widespread terminating for family and friends are incorrect.”
  3. Having identified major failings in the absence of written records and files and retention of audit material, we are expected to accept that satisfactory investigations have been concluded regarding the relevant cancellations. For example at page 23, it is stated that although 60 FCN terminations were uncovered where no audit file was available, each one “can be accounted for.” Needless to say, no further detail nor any evidence or supporting documentation is produced in the appendices to support any of their conclusions or justifications, and again the whistleblowers were not interviewed in relation to any of these investigations.
  4. Great emphasis is placed at page 44 on the fact that the Pulse system is incorruptible in that Pulse records can never be erased or destroyed – however it is admitted at page 24 and page 28 the investigations of the Internal Review are based on a manual audit of files only – it must be said that a manual audit is not as reliable as a computer audit as files can be falsified or created at a subsequent date. The Internal Review also admits that an Internal audit of the FCPS system and of the Pulse system (p. 20) would have been impossible as before 28th March 2012, no reasons were recorded in sufficient detail on either system to allow an audit to be conducted.
  5. 72 terminations of the 672 randomly-selected FCN terminations were made by members terminating FCNs outside their District which is in direct contravention of the Cancellation Policy yet the conclusion of the internal review was that these were not considered to amount to breaches of discipline.
  6. Despite their refusal to interview the whistleblowers in relation to the detail of the allegations in their dossier, the Assistant Commissioner, the Minister and the Garda Commissioner have been scathing in their references to what they see as the whistleblowers’ exaggerated and groundless claims. They expect us in turn to accept their dismissal of those same allegations without providing us with any evidence or supporting documentation. Indeed none of the Appendices are provided with the Internal Review and the excuse of Data Protection legislation would only justify the exclusion (or redaction) of 3 (F-H) of the 8 documents (A-J). Similarly in the GPSU report, none of the HQ directives, Pulse releases or Pulse Bulletins, nor the foreword re ‘transitional procedures’ (obsolete since 2006 but only removed 3 months ago in Feb 2013) are provided in the Appendix despite significant reliance on their contents in the body of the report. 

Although it was clear from the outset that the focus of the Internal Review was limited to a narrow disproving and minimising of the specific allegations set out in the dossier, the wider scope of the GPSU report has revealed even graver issues.

5.2       GPSU Report

1. According to the GPSU report, the current Cancellation Policy is set out in the Full User Manual, 2005 (page 75 -78 of GPSU).  This policy requires a review and examination of each individual application and evidence to be presented before a decision will be made to cancel an FCN.  The policy sets out that application for cancellation will be made in writing to a Cancelling Authority (CA) and the CA will retain on file for auditing purposes the specific reason for the cancellation. The Policy sets out Section A Statutory exemptions (no discretion here – required exemptions under the legislation) and then Section B Garda Síochana exemptions (discretion here) – Doctors re parking in urgent cases, the vehicle is stolen, person is resident outside jurisdiction, diplomatic immunity, FCNs re tax may be cancelled if application had been made for tax disc or it was lost, stolen or accidentally removed and in this case documentary evidence must be produced.  The last exemption is for hire drive agreement.  However these reasons are not reflected in the list of reasons on the FCPS or the Pulse System, and the lists of reasons on the FCPS and the Pulse System are also different from each other.

 

2.From 2006 until March 28th 2012, cancellation reasons on the Fixed Charge Processing System were limited to 7 (scanning, vehicle defect, system error, juvenile diversion programme, stolen vehicle, diplomatic corps, cancelled). Since March 28th 2012 and likely as a direct result of this investigation, this list was expanded to include data entry, detection details, disabled parking pass, discretionary under three headings – family bereavement, medical emergency and other, duplicate notice, image unsuitable, legislative defect, seat belt detection – medical evidence. Some of these are available to cancel on both the Pulse system and the FCPS, and some of these are available to cancel on the FCPS only. It seems that the FCPS is only available to the Fixed Charge Processing Office in Thurles.  There is no basis in the Cancellation policy for the addition of, for example family bereavement.  

 

3.Pulse has a portal into the FCPS so some of the information on the FCPS can be viewed through Pulse but not all of it.  It seems that all Gardaí can view Pulse (but not the more detailed information on the FCPS such as correspondence) even though only District Officers (Superintendents and Inspectors Acting as District Officers) are permitted to terminate an FCN.  In addition the information on the ‘mandatory’ comment box on Pulse does not transfer to and is not shared with the FCPS.

6. Examples of systems failures in the FCPS and Pulse computer systems that were identified by GPSU in their report.

  1. The fact that all  Inspectors automatically have access to the FCPS to carry out FCN terminations even though only Inspectors acting as District Officers are permitted to cancel FCNs under the Cancellation Policy
  2. Up to December 2012, management reports generated by the FCPS system in relation to Terminated Offences were incomplete and stopped at page 16.
  3. In any event, these incomplete management reports are only available to District Officers and not accessible at all by their Superiors – the 25 Divisional Officers so there is no facility for oversight by Divisional Officers
  4. The mandatory comment box on the Pulse system can be bypassed and no information need be inserted in relation to the identity of relevant Garda Station/Termination reason/Incident.
  5. There is no mandatory comment box on the Fixed Charge Processing System at all so the rationale for a decision or its evidential basis cannot be recorded – a box is ticked in the list of technical reasons but the system does not require any extra details.
  6. No HQ directive has been issued with instructions and guidelines regarding 3 recent changes to the Pulse system
  7. 7.   The Pulse system and the FCPS system have two different lists of acceptable reasons for FCN terminations, neither of which reflect the Cancellation Policy.
  8. The Pulse system and the FCPS system do not reflect each other or share information for example the information in the mandatory comment box in PULSE does not transfer for the FCPS
  9. There is no audit feature on the FCPS comment box so the GPSU admit that no statistics are available on compliance with this requirement
  10. In addition to this, the requirement in the Cancellation Policy to keep manual files locally in a District Office recording correspondence and reasons for terminations was not followed.

Thus, even if any attempt at an audit had ever been made, it would have been impossible because of incomplete information, absence of a paper trail, non-integrated systems and other systems failures evident above.

7. GPSU Conclusions and Recommendations

The GPSU conclusions and recommendations are fundamentally at odds with the impression the Minister is trying to impart which is that nothing of significance arises and, according to Minister Varadkar, that the integrity of the FCN system is proved intact by these reports. The GPSU has recommended radical changes to the entire system of FCN cancellations, for example:

  1. That an entirely new and consolidated Fixed Charge Manual should be developed and communicated to An Garda Síochana (to include all relevant HQ directives, and PULSE releases, and legislative changes). Unusually, the GPSU have set a time limit of 3 months on the production and communication of this report to the organisation – “3 month following acceptance of this report”.
  2. That ‘Humanitarian Grounds’ be included as a ‘Termination Reason’ within PULSE and be reintroduced to the current version of the Cancellation Policy. ‘Humanitarian Grounds’ as a ‘Termination Reason’ is not contained in the current Fixed Charge Manual, 2005 edition (although it had been in the 2004 edition). Thus, the current practice of discretion on ‘humanitarian grounds’ has no basis in either official Garda policy or law, and this is an implicit acknowledgment by the GPSU of this fact.  This is because the current official Garda Policy sets out that “the notice can only be cancelled for the reasons outlined herein” and humanitarian grounds is not one of them, therefore the FCN cancellations that have taken place on these grounds are unlawful on several levels.
  3. Guidelines would need to be introduced if contemplating the reintroduction of ‘Humanitarian Grounds’ to Official Garda Policy to ensure consistency and uniformity among Senior Gardaí around the type of circumstances that would qualify as ‘Humanitarian Grounds’.
  4. That District Officers be stripped of the ability to cancel FCNs on the PULSE system and that only a central authority (the Fixed Charge Processing Office in Thurles) should retain the capacity to cancel FCNs on the PULSE system.  This is a fundamental change to the current system, which we contend would not be recommended unless there was serious dysfunction evident from the GPSU’s investigations.
  5. That the definition of Cancelling Authority be severely restricted so that only Superintendents or Inspectors who are acting as District Officers (there are approximately 100 District Officers) can make decisions as to whether to terminate FCNs (i.e. not all Superintendents and Inspectors as is currently possible on the PULSE system).
  6. Where there is a conflict of interest, the District Officer should be required to absent themselves from consideration on whether to terminate FCNs.
  7. That District Officers should be limited to only cancelling FCNs for offences within their own geographical District (and should not have the capacity to cancel FCNs issued in another District by one of the Gardaí attached to their own District) – this is already provided for in HQ directive 45/2009, so it is a tacit acknowledgment of non-compliance
  8. All cancellation requests to each District Officer should be in written form.  A file should be kept by the District Officer locally (or in the Fixed Charge Processing Office in Thurles), recording the cancellation request, supporting documentation, the decision made by a District Officer and the rationale for that decision. Again, this recommendation is odd as all of this is already required under the Cancellation Policy, as set out in most recent Fixed Charge Manual 3rd Edition 2005.  We can only infer that this recommendation clearly means that current practice is not in line with the Cancellation Policy. In several instances in these recommendations, the GPSU is disguising what are actually findings of non-compliance with their own Cancellation Policy and directives as recommendations for changes in future policy.
  9. An audit process should be developed to ensure correct monitoring and compliance with Garda policy – the GPSU expressly admit that there are currently no auditing or monitoring systems in place. This recommendation is also odd as the Cancellation policy already requires an audit process.  However, there is an explicit admission by the GPSU that no audit has ever taken place since the requirement was set out in the Cancellation Policy (2005, 3rd Edition).
  10. The GPSU suggest that an independent body should be responsible for these audits, for example the Garda Internal Audit Section (this is in contrast with the Internal Review suggestion that an annual audit be commenced but undertaken internally by the Assistant Commissioner). Clearly, an independent body such as the GSOC would allow for more accountability.
  11. Divisional Officers should be able to see FCN termination figures in their monthly reports from their District Officers, and Divisional Officers should include FCN termination figures as part of their Divisional Audits. This would allow for improved monitoring and oversight.  This also implies that there is currently very little supervision or oversight.  
  12. Currently, the monthly reports in relation to Terminated Offences that are made available to District Officers are destroyed automatically on the system after 3 months – the GPSU recommends that they be made available at least for a longer period or on a self-serve basis, so that an auditor can run a report on the date range that is required. This, again, would allow for improved monitoring, supervision and oversight.
  13. That the previous history of an offender and previous reasons given for FCN cancellations is made available on the system.

 

8. Conclusion –

In an effort to improve the optics in light of these dismal findings and to deflect attention from grave issues of Garda malpractice, a number of disingenuous and diversionary tactics have been resorted to:

1.  The Minister’s carefully-worded reaction has been that he is relieved that no evidence has been found to suggest any criminality or corruption in the cancellation of Fixed Charge Notices. In fact, no criminality was ever alleged, nor was it ever alleged that that any Garda was accepting payment or bribery in return for the cancellation.

2.  The Internal Review found that 859 of the sample 2198 terminations covered by the dossier (40%) were improper or are subject to on-going disciplinary investigation. However the Internal Review executive summary subtracts the 661 breaches that are the subject of disciplinary proceedings from the total figure of 2198 before calculating their statistics, i.e. beginning with a figure of 1537 [2198 minus 661] which allows for an impressive figure of 87% correctly terminated FCNs to be reached. This is akin to saying that the crime figures for this year are reduced – but we removed the figures for murder before we began our calculations.

3.  Notwithstanding this political spin, it cannot be denied that these findings of systemic failure and dysfunction on every possible level have grave implications for the integrity, effectiveness, and fairness of the entire penalty points system, the effectiveness and enforcement of Road Traffic Legislation, and in a broader sense, the consistency and uniformity of the application of the rule of law in the State.

4.  It should also be noted that the Minister has yet to publicly and clearly commit to the 12 fundamental changes relating to Garda Cancellation Policy and Practice recommended in the GPSU report – the Minister instead chose to select his own 7 principles from the GPSU report and the Internal Review and has committed in his statement on the Department of Justice website only to his own 7 principles.

5.  This finding of almost 1 in 2 inappropriate FCN terminations of those contained in the Whistleblowers’ dossier is at odds with the Minister’s unfair portrayal of the whistleblowers, and indeed ourselves, as exaggerators and cranks. The reports from internal Garda sources that figures for discretionary FCN cancellations have plummeted over the last six months, further contradicts the scenario that the Internal Review and the Minister are trying to convey; that this whole issue is due to a few bad apples who are now being dealt with – internally, of course, in Garda Disciplinary proceedings.

6.  The gravity and frequency of the issues of Garda malpractice and systemic failure identified even by these flawed and biased investigations, places the onus firmly on the Minister to conduct a wholesale review of national patterns, and a breakdown of reasons (or indeed the absence of reasons) for FCN cancellations. We ask the question if this limited and constitutionally unsound investigation has made such wide and far-reaching recommendations to both the policy and processes of FCN cancellations, what would the result of an impartial Special Independent Inquiry be?

7.  The findings demand further thorough and independent investigation by way of Special Inquiry under Section 42 of the Garda Síochana Act 2005, as amended. This is the only way to restore public trust and confidence in An Garda Síochana, and we intend to continue our campaign until a Special Inquiry is appointed.

8.  Finally, we confirm that we will be making detailed submissions to the Justice Committee and requesting that they seek the opinion of Senior Counsel. We intend to introduce a Private Members Bill to the Dail in July relating to the structure of policing in Ireland, and addressing weaknesses we see in the powers and independence of the Garda Síochana Ombudsman Commission, and to address what Professor Dermot Walsh has referred to as the “unhealthy and incestuous relationship” that exists between the Irish government and the management of An Garda Síochana.

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