Garda Síochána (Complaints) Act 1986

1 Interpretation.

1.—(1) In this Act, save where the context otherwise requires—

“the Act of 1925” means the Police Forces Amalgamation Act, 1925;

“admissible complaint” means a complaint to which section 4 (3) (c) of this Act applies and “admissible” shall be construed accordingly;

“the Appeal Board” means the Garda Síochána Complaints Appeal Board established by section 10 of this Act;

“the Board” means the Garda Síochána Complaints Board established by section 3 of this Act;

“breach of discipline” means conduct specified in the Fourth Schedule to this Act and includes, other than in a case where paragraph (e) of section 7 (9) of this Act applies, non-compliance with paragraph (d) of the said section 7 (9) and also conduct constituting an offence in respect of which, after the date on which a complaint relating to that conduct was made, there is a conviction by a court of the member concerned and “in breach of discipline” shall be construed accordingly;

“the chief executive” has the meaning assigned to it by paragraph 4 (2) of the First Schedule to this Act;

“the Commissioner” means the Commissioner of the Garda Síochána;

“complainant” means a person who makes a complaint orally, or sends or gives a complaint in writing, to the Board or to a member of the Garda Síochána and, in the case of a complaint so made, sent or given by a person through his solicitor or a parent, guardian or other person includes, where the context so requires, the solicitor of the person or a parent, guardian or other person, as the case may be;

“complaint” means a complaint under section 4 (1) (a) of this Act;

“conduct” means conduct (whether consisting of the doing of an act or the making of an omission) on or after the establishment day;

“establishment day” means the day appointed under section 2 of this Act to be the establishment day for the purposes of this Act;

“investigating officer” means a member of the Garda Síochána appointed under section 6 of this Act to investigate an admissible complaint;

“legal representative” means a barrister or a solicitor;

“member” means a member of the Garda Síochána other than the Commissioner or a deputy commissioner, if and whenever he is exercising or performing any power or duty of the Commissioner during his absence or incapacity, pursuant to an authorisation of the Minister under section 8 (2) of the Act of 1925;

“member of the public” means a person other than a member of the Garda Síochána;

“the Minister” means the Minister for Justice;

“orally” does not include an oral communication transmitted by electronic means;

“tribunal” means a tribunal appointed under section 8 of this Act.

(2) Functions of the Commissioner under this Act may be performed by any member of the Garda Síochána authorised in that behalf by the Commissioner and references in this Act to the Commissioner shall be construed accordingly.

2 Establishment day.

2.—The Minister shall by order appoint a day to be the establishment day for the purposes of this Act.

3 The Garda Síochána Complaints Board.

3.—(1) There shall, by virtue of this section, be established on the establishment day a board, to be known as the Garda Síochána Complaints Board and in this Act referred to as the Board, to perform the functions assigned to it by this Act.

(2) The provisions of the First Schedule to this Act shall have effect in relation to the Board.

4 Complaints to Board.

4.—(1) (a) A member of the public who is directly affected by, or who witnesses, any conduct of a member and who wishes to have a complaint concerning that conduct considered by the Board shall himself or through his solicitor or, in the case of a person under the age of seventeen years, through a parent or guardian or, in the case of a person who is mentally handicapped or mentally ill, through a parent or guardian or some other person interested in his welfare make a complaint in relation thereto orally, or send or give it in writing, to the Board at the office of the Board, to a member at a Garda Síochána station or to a member above the rank of chief superintendent at a place other than a Garda Síochána station within six months of the date of the conduct.

(b) A complainant who makes a complaint to a member under paragraph (a) of this subsection shall be presumed, for the purpose of that paragraph, to wish to have his complaint considered by the Board unless, at the time of the making of the complaint, he himself or the person through whom he makes the complaint requests otherwise in writing.

(2) (a) On receipt of a complaint by the Board, an officer of the Board shall record it forthwith, together with the date and time of its receipt, furnish an acknowledgment in writing of its receipt to the complainant and notify the Commissioner of the complaint (unless it appears to the officer that the notifications under paragraph (b) or (c) of subsection (3) of this section in relation to the complaint will have been effected within 24 hours of the receipt of the complaint).

(b) On receipt of a complaint by a member at a Garda Síochána station—

(i) he shall record it forthwith, together with the date and time of its receipt, and furnish an acknowledgment in writing of its receipt to the complainant, and

(ii) the member in charge of the station at the time the complaint was received there shall notify, or cause to be notified, the chief executive and the Commissioner of the complaint as soon as may be after such receipt and send to each of them a copy of the complaint or, if the complaint was not in writing, a copy of the record of it.

(c) On receipt of a complaint by a member of the Garda Síochána above the rank of chief superintendent at a place other than a Garda Síochána station, he shall—

(i) record it forthwith, together with the date and time of its receipt, and furnish an acknowledgment in writing of its receipt to the complainant, and

(ii) notify the chief executive of the complaint as soon as may be after such receipt and send to him a copy of the complaint or, if the complaint was not in writing, a copy of the record of it.

(3) (a) On receipt by the Board of a complaint or of a notification under subsection (2) of this section, the chief executive shall consider whether the complaint is admissible and the complaint shall be admissible if the following conditions are satisfied—

(i) the complainant was a member of the public,

(ii) the complainant was directly affected by or witnessed the conduct alleged in the complaint,

(iii) the said conduct would constitute an offence or be conduct specified in the Fourth Schedule to this Act,

(iv) the date on which the said conduct was alleged to have occurred was on or after the establishment day and within six months before the date on which the complaint was made,

(v) the application of this Act to the said conduct did not, by virtue of section 15 of this Act, stand excluded on the date on which the complaint was made, and

(vi) the complaint is not frivolous or vexatious.

(b) If the chief executive is of opinion that a complaint is not admissible, he shall so notify in writing the complainant and the Commissioner and shall indicate in the notification the condition specified in paragraph (a) of this subsection that, in his opinion, is not satisfied as respects the complaint and shall, subject to paragraph (c) of this subsection, take no further action in the matter.

(c) If the chief executive is of opinion that a complaint is admissible, or the Board decides that a complaint to which paragraph (b) of this subsection applies is admissible, the chief executive shall, as soon as may be, so notify in writing the complainant and the Commissioner and, if the complaint was made, sent or given to the Board, send to the Commissioner a copy of the complaint, or, if the complaint was not in writing, a copy of the record of it.

(4) On receipt by the Commissioner of a notification under subsection (3) (c) of this section, he shall, as soon as may be, notify in writing the member concerned that a complaint (the nature of which shall be specified in the notification) has been made against him by a specified person.

(5) It shall be the duty of the Commissioner and of any member (whether authorised under section 1 (2) of this Act or not), on becoming aware of a complaint, to take any lawful measures that appear to him to be necessary or expedient for the purpose of obtaining or preserving evidence of or relating to the conduct complained of and, in a case where the Commissioner proposes to take any such measures, he may postpone notification of the complaint to the member concerned under subsection (4) of this section until the measures have been taken.

(6) Nothing in this Act shall preclude the charging of a member with an offence notwithstanding that the conduct to which the offence relates could be the subject of a complaint; however, where a complaint has been made, sent or given under subsection (1) of this section in relation to the conduct of a member, the member shall not be charged with an offence relating to such conduct except by or with the consent of the Director of Public Prosecutions.

5 Informal resolution of complaints.

5.—(1) On receipt by the Commissioner of a notification under section 4 (3) (c) of this Act, he shall, subject to the provisions of this Act—

(a) having made such inquiries (if any) as appear to him to be necessary, consider whether the complaint is suitable for informal resolution, and

(b) if he considers that the complaint is suitable for informal resolution, so inform the Board and undertake the resolution of the complaint in accordance with the provisions of this section.

(2) Where a complaint is resolved under this section a record shall be kept of the resolution arrived at and of the manner of such resolution and a copy thereof shall be sent to the Board.

(3) A complaint shall not be resolved under this section if—

(a) the conduct alleged in the complaint constitutes an offence and either the member concerned has been charged with it or, if he has not been so charged, it is one which would, if there was sufficient evidence of the commission of it by the member, be likely, in the opinion of the Commissioner, to lead to the member being charged with it, or

(b) the complainant or the member concerned does not consent in writing to the resolution of the complaint under this section.

(4) The Board may prescribe procedures to be observed in the resolution of complaints under this section.

(5) Where before, during or after the resolution of a complaint under this section, the Board is of opinion that the complaint is or was not suitable for such resolution, it shall, as soon as may be, request the Commissioner in writing to have the complaint investigated under section 6 of this Act and that section shall thereupon apply and have effect accordingly in relation to the complaint and, if the complaint has been resolved under this section, it shall be deemed for the purposes of this Act not to have been so resolved; and the Board shall, as soon as may be, notify in writing the complainant and the member concerned of such a request.

(6) (a) Subject to paragraph (b) of this subsection, a statement made by the complainant or the member concerned in connection with or for the purpose of the resolution of a complaint under this section shall not be admissible in evidence in any proceedings whatsoever.

(b) A statement which consists of or includes an admission relating to any matter other than the complaint which falls to be resolved under this section is not rendered inadmissible by paragraph (a) of this subsection.

6 Investigation of complaints.

6.— (1) (a) The Commissioner shall appoint a member of the Garda Síochána (in this Act referred to as an investigating officer)—

(i) not below the rank of superintendent, or

(ii) if he considers that the circumstances so warrant, of the rank of inspector,

to investigate an admissible complaint (other than a complaint resolved under section 5 of this Act) and a person so appointed shall carry out the investigation either, as he thinks fit, alone or with the assistance of such other members as he may determine.

(b) Where it appears to an investigating officer that the conduct alleged in a complaint may constitute an offence, the law and practice applicable to the investigation of offences shall, subject to section 4 (6) of this Act, apply in relation to the investigation.

(c) The Board may prescribe general principles to be observed in the appointment of investigating officers under paragraph (a) of this subsection.

(2) (a) An investigating officer shall complete an investigation under this section as soon as may be and, if he is unable to do so within the period of days from the date of his appointment, he shall—

(i) as soon as may be after the expiration of that period, furnish an interim report in writing thereon to the chief executive, and

(ii) as soon as may be after the receipt by him of a request from the chief executive therefor, furnish, until the completion of the investigation, such further interim reports in writing thereon to the chief executive as the chief executive may request.

(b) An investigating officer shall, as soon as may be after the completion of an investigation by him under this section, furnish a report in writing thereon to the chief executive and, whenever so requested by the chief executive, shall, as soon as may be after the making of such request, furnish a supplementary report in writing thereon to the chief executive.

(c) The investigating officer shall, when furnishing a report or reports as aforesaid to the chief executive, send a copy thereof to the Commissioner.

(3) (a) The Board shall supervise generally the investigation of complaints under this section and, subject to subsection (7) (a) of this section, may give such directions to an investigating officer in relation to an investigation by him under this section as appear to it to be necessary or expedient.

(b) The Board may delegate to the chief executive its functions under paragraph (a) of this subsection.

(c) An investigating officer shall comply with any directions given to him under this subsection.

(4) The chief executive shall, as soon as may be, submit to the Board every interim report of the investigation furnished to him under paragraph (a) of subsection (2) of this section and the report or reports of the investigation made to him under paragraph (b) of the said subsection (2) together with his comments in writing thereon and a recommendation in writing by him of the action (if any) that might appropriately be taken by the Board in relation to the complaint concerned.

(5) (a) Notwithstanding anything in this Act, the Board may, at any time, request the chief executive to investigate, or cause to be investigated, a complaint if the Board considers that the public interest requires that the complaint should be so investigated or that the investigation of the complaint under this Act has not been or is not being properly carried out and, where such a request is made, any investigation under any other provision of this Act of the complaint concerned shall thereupon cease.

(b) Subsection (1) (b) of this section shall apply to an investigation under this subsection as if the reference in the said subsection (1) (b) to an investigating officer was a reference to the chief executive and any person caused by him to investigate the complaint concerned.

(c) The chief executive shall submit a report in writing to the Board on the result of any investigation carried out in pursuance of a request under paragraph (a) of this subsection.

(6) (a) Where civil proceedings or criminal proceedings are instituted and have not been finally determined and the Board considers that in those proceedings it is likely that the court will determine an issue relevant to or concerning the conduct alleged in a complaint, the Board may postpone the taking of any action or further action under this Act in relation to the complaint until the civil proceedings or criminal proceedings, as the case may be, have been finally determined.

(b) If the Board considers that the conduct alleged in a complaint has been investigated by a court in civil proceedings and a determination of the issues which are, in substance, the issues involved in the complaint has been made by the court in those proceedings, when finally determined, in favour of the member concerned, no action or further action shall be taken by the Board under this Act in relation to the complaint.

(c) Proceedings shall not be regarded as finally determined for the purposes of paragraph (a) or (b) of this subsection until any appeal (including an appeal by way of case stated), rehearing or retrial in relation to those proceedings has been determined.

(7) Where the conduct alleged in a complaint constitutes an offence—

(a) if the complaint is being investigated under subsection (1) (a) of this section, a direction shall not be given under subsection (3) (a) of this section in relation to the investigation without the consent of the Director of Public Prosecutions, and

(b) if the complaint is being investigated under subsection (5) of this section, the chief executive shall consult with the Director of Public Prosecutions in relation to the manner in which the investigation is carried out.

(8) (a) Subject to paragraph (d) of this subsection, if in the course of an investigation under this section the investigating officer is of opinion that the disclosure in any report of information that would otherwise be appropriate for inclusion in that report would be liable to affect the security of the State or to constitute a serious and unjustifiable infringement of the rights of some other person, he shall refer the matter to the Commissioner.

(b) Subject to paragraph (d) of this subsection, where a matter is referred to the Commissioner under paragraph (a) of this subsection, if the Commissioner, having made such inquiries (if any) as he considers necessary, agrees with the opinion of the investigating officer in regard to the information in question or any portion of it, he shall report the matter to the Minister and, if or in so far as the Minister agrees with that opinion and so directs, the relevant information shall not be included in any report of the investigating officer.