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Commissioner’s speech at the Policing, Human Rights and Communities conference 2/5/19

Commissioner’s speech at the Policing, Human Rights and Communities conference hosted by the School of Law and Irish Centre for Human Rights in NUI Galway.

Minister, Ladies and Gentlemen

An Garda Síochána has a proud tradition in serving communities and protecting the State with over 16,000 Garda Personnel who are committed to delivering a functioning police and security service. This is the cornerstone of a democratic and progressive society. An Garda Síochána believes that effective and efficient policing depends on securing the confidence, support and cooperation of local communities and engaging with those communities. In order to ensure we achieve this, members of An Garda Síochána are guided by three simple Policing Principles which state that policing services must be provided:

  • Independent and impartially
  • In a manner that respects human rights
  • In a manner that supports the proper and effective administration of justice.

An Garda Síochána is committed to the development, implementation and monitoring strategy with the aim of providing ever better human rights protection by behaving ethically and professionally, treating everyone with respect and integrity and ensuring a human-rights focused police and security service.

The function of An Garda Síochána under the Garda Síochána Act 2005 is to provide policing and security services for the State with the objective of:

  • preserving peace and public order,
  • protecting life and property,
  • vindicating the human rights of each individual,
  • protecting the security of the State,
  • preventing crime,
  • bringing criminals to justice, including by detecting and investigating crime, and
  • regulating and controlling road traffic and improving road safety.

In addition, the European Convention on Human Rights Act 2003 provides that “every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.” The Garda Síochána as an organ of the State is obliged to perform its functions in a manner compatible with the State’s obligations under the ECHR.

Furthermore, section 42 of the Irish Human Rights and Equality Act 2014 sets out the obligation on all public bodies, in the performance of their functions, to protect the human rights of their members, staff and the persons to whom they provide services. This includes An Garda Síochána.

The Commission on the Future of Policing

The Commission on the Future of Policing Report was published in September 2018. I want to thank the Commission members, some of whom are here today, for their hard work and commitment, and to thank them for their contribution to policing in Ireland. 

The report states that human rights are the foundation and purpose of policing. It identifies that the purpose of policing is that society lives free from violence, abuse, crime and fear.

The report recommends that An Garda Síochána should have a Human Rights Unit and strategy in place with legal expertise that would implement and monitor strategy and continue to develop it with the aim of providing ever better human rights protection.

The report envisages the Human Rights Unit having responsibility for ensuring the organisation’s compliance with Ireland’s human rights obligations including domestic legal obligations, European law and international human rights law obligations. It could also support work with the Irish Human Rights and Equality Commission and other partnerships with the non-governmental sector.

The report also provides that because human rights is such a fundamental aspect of policing, the development of policies and strategies, planning and execution of operations; that expert advice must be available to leadership teams for these purposes.

A Policing Service for the Future Plan – Implementing the Report of the Commission

The Department of Justice and Equality published A Policing Service for the Future Implementing the report on the Commission on the Future of Policing in Ireland) and this provided a four year plan beginning January 2019 for the implementation of the CoFPI report. It includes the following:

  • Establishment of a Human Rights Framework
  • Delivery of Guidance and policy to protect the most vulnerable in the criminal justice system – assist Superintendents with the assessment of the most vulnerable in the criminal justice system
  • Re-establishment of Strategic Human Rights Advisory Committee (SHRAC)
  • Assessment of key policy, practices, and training materials to identify human rights issues
  • Revision and implementation of policies, practices and continue to provide training to ensure compliance with key human rights issues
  • Development of Strategy as set out in the Framework

Progress to date

In October 2018 The Garda Human Rights Section was established.  The Human Rights Section is currently staffed by Garda members who are presently undertaking training in this area. This office is managed by an Inspector, and a Chief Superintendent has overall command of the Section. Staff within this office have responsibility for providing human rights legal advice in all areas of An Garda Síochána.

An external independent Human Rights Advisor has been employed by An Garda Síochána to provide expert consultation on the development and embedding of human rights within An Garda Síochána.

When the Human Rights Section reaches full capacity it is envisaged that the office will conduct research and advise on human rights issues as regards all aspects of policing, to ensure the development of strategies and policies are human rights compliant, to ensure the Service is up to date with emerging human rights developments and action taken as appropriate

To date the office has completed extensive work on the development of the Human Rights Framework, Human Rights Screening Tool and ‘A Human Rights Based Approach to Policing – Operational Guidance Document’ following an internal and external consultation process.

The introduction of these policy documents formalises the human rights principles that are already operated by the service, the aim of which is to:-

  • ensure An Garda Síochána and Garda Personnel alike are fully aware of the human rights standards which must be respected and protected by An Garda Síochána and Garda Personnel in the performance of their duties;
  • ensure that Garda Personnel can safely and effectively carry out their statutory and common-law duties in a human rights compliant manner;
  • ensure that Garda Personnel accurately document all relevant information including the rationale for decisions and action taken/inaction, contemporaneously with every event in which they are engaged, which is essential in ensuring accountability as required;
  • ensure that the development of all policies, procedures and guidance is supported by a comprehensive framework of human rights standards for use in embedding relevant human rights principles throughout the documents and ensuring they are drafted in a human rights compliant manner;
  • ensure that training and training materials are supported by a comprehensive framework of human rights standards for use in embedding relevant human rights principles in the training environment;
  • provide a framework of human rights standards against which all policies, procedures, guidance, training, training material, decision making, operational orders and practice is to be measured when reviewing and monitoring human rights compliance;
  • implement the Public Sector Equality and Human Rights Duty under the Irish Human Rights and Equality Commission Act 2014 (section 42).

These documents reflect the policy of An Garda Síochána which identify that the vindication of human rights is a key policing objective, and is in fact the very basis of policing.

It is essential that in the performance of their duties, Garda personnel respect and protect human dignity and maintain and uphold the human rights of all persons.

With that in mind, all actions taken must be in accordance with the principles of legality, necessity, proportionality, accountability and non-discrimination. It is important to act with integrity towards members of the public and colleagues so that confidence in An Garda Síochána is further secured and enhanced. 

Garda personnel will also, as far as is practicable, carry out their functions in co-operation with, and with the aim of securing the support of the community.  It is important that we act with fairness, self-control, tolerance and impartiality when carrying out these duties.

Given the nature of police work, Gardaí also have the power and obligation on occasion to curtail human rights (for example through stop and search or arrest). Gardaí have these powers so as to ensure that the rights of others are protected. Proper exercise of these powers is not always straightforward particularly in light of the discretion which is vested in Gardaí. It is essential that Gardaí adhere to human rights based processes when exercising discretion, and that all actions taken are as limited as possible to meet the individual circumstances in line with the principles of legality, necessity, proportionality, accountability and non-discrimination.

A margin of discretion enables Gardaí to tailor their response to each particular situation, taking into account all the relevant factors of each case.  The appropriate use of discretion is particularly complicated because Gardaí must often act in complex, unclear and emotionally stressful situations. Decisions are made on the spot, in the heat of the moment, often within seconds and without preparation. It is when exercising discretion that human rights principles become particularly relevant. This discretion requires Gardaí to display an appropriate attitude and exercise a strong sense of responsibility. The principles of equal treatment and of proportionality, including taking the least intrusive measures or stopping if the injury/damage from Garda action would clearly outweigh its benefits, are of most relevance.

Any interference with a suspect’s human rights must be as limited as possible, all actions taken must be in accordance with the principles of legality, necessity, proportionality, accountability and non-discrimination.

In certain well-defined circumstances, Gardaí are under an obligation to take preventative operational measures to protect individuals whose lives are at risk from the criminal acts of others. Bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices, which must be made in terms of priorities and resources, such an obligation must be interpreted in a way, which does not impose an impossible or disproportionate burden.

For my own part, my own experience of human rights and policing was the implementation and embedding of human rights in the PSNI as a result of the Patten Report. One of the authors, Katherine O’Toole also brought her influence to bear on the Commission on the Future of Policing in Ireland.

I was subject to inspection by both David Anderson in reviewing the use of Counter Terrorism powers and by Alyson Kilpatrick across a wide range of thematic areas on behalf of the Northern Ireland Policing Board.

I was responsible for difficult areas of operational policing that involved the use of police powers to resolve real life dilemma. The application of human rights provided a route through. Particularly given the rich vein of jurisprudence that was available to provide guidance, but I always had a specialist HR lawyer to provide interpretation.

Conclusion

An Garda Síochána is committed to delivering an effective and efficient police service that is independent and impartial, ensuring that the human rights of each individual engaged during Garda interaction is fully vindicated. A human rights based approach to policing will enable the delivery of a police service that secures the confidence, support and co-operation of all communities.