Due process and presumed innocence? Not for a garda

When it comes to basic human rights for gardai, it’s one rule for them and another for everyone else says John O’Keeffe.

I could probably highlight a serious garda injustice every week.. On balance I, and this magazine, must highlight the cases where it is felt that not only was a grave disservice done to a garda or gardaí, but to the force as whole – and society. This following is a classic such case.

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Let’s get one thing out of the way first shall we? The “P” word – pepper-spray. It appears that both the Garda Síochána Ombudsman Commission (GSOC) and a section of a misguided and nervous public, seem to imagine that this part of a garda’s self-defence shield, is a weapon of mass destruction. It was ever so. When An Garda Síochána was first formed, some voices at the time expressed concern as to whether members of the fledgling service should even carry a baton.

Pepper-spray is certainly an inflammatory agent and should always be used according to protocols and guidelines. Its effects are well established, including immediate closing of the eyes. On average, the full effect lasts for a maximum of 45 minutes.

A study from The Journal of Investigative Ophthalmology and Visual Science found that single exposure of the eye to the spray is harmless and they also found no lasting decrease in visual strength from its application. Put simply, pepper spray neutralises a violent arrestee so that they may be brought to custody thus avoiding injury to themselves, the police officer or members of the wider public. Incapacitants are preferable to a baton in many cases – to avoid injuries.

Police forces around the world must follow strict protocols as to when and how pepper spray should be used. Once these are followed – as each situation dictates – then the arrest of a violent individual should always be a lawful one. But this is Ireland where not only may gardaí be brought to account once for its use, but twice if the “right” result isn’t forthcoming in the first instance.

Retired Judge Michael Patwell highlighted a pepper-spray case in question most recently. Gardaí Brendan Dowling and Fiona Sheehan were both charged with using “excessive force” when pepper-spraying a 16-year-old youth during an arrest in Cork in May 2012.

Perhaps we should know a little more about this teenager before rushing to judgment? He admitted in court under oath that he was drunk at the time and that he would happily lie to protect friends. He had 22 previous convictions, including assault, threatening and abusive behaviour and failing to follow Garda instructions. Indeed he had managed to accumulate six convictions since the incident in question. He had admitted to being the ring- leader of a “violent and sustained attack” by a gang of youths on the occasion of his arrest. His own mother described him as an “absolute gurrier of the highest order”. Now that you have a fuller picture of the sort of feral savage at play, I can advise you that he was pepper-sprayed by these gardaí after he began head-butting the window of a garda car. Surprising? Perhaps the only surprise was that the gardaí had as much restraint as they did in the light of the offender before them.

As is the way of such persons, the offender then complained to the GSOC and, subsequently the DPP directed that both Garda Dowling and Garda Sheehan be charged with assault causing harm to the teenager. Predictably, almost as soon as the hearing began, the State withdraw the charges as, as far as the judge was concerned, there there was no evidence he had heard, that showed that the gardaí had used their incapacitant spray outside the law.

Judge Patwell has highlighted one particularly worrying statement made after this case by the GSOC. “It is important to note, however, that there was no verdict, as the prosecution was withdrawn” they stated. He was of course very correct to be worried. The court held that there was no evidence of any criminal wrong doing by either garda in the use of pepper-spray and yet the GSOC issued a statement that ensures a cloud of suspicion still hangs over both officers, notwithstanding the judge’s statement at hearing.

A “verdict” was issued by any other name and yet the GSOC are happy enough to abandon that small jurisprudential matter of the presumption of innocence, by implying that since a strict ‘verdict’ was not handed down, the gardaí may still be guilty – not innocent as the fundamental cornerstone of our justice system demands – but guilty. You simply could not make it up. Furthermore, how the DPP could have decided that the gardaí in question had a case to answer in the first place, when the State subsequently gave the hearing little more than two hours before withdrawing, is anyone’s guess.

Now these officers must not only live with the remarks that have tainted them by the GSOC, but they must also await potential internal disciplinary proceedings – proceedings that will arguably also now be tainted by that which has gone before. Being a garda in 2014 means not just getting assaulted by the criminal community but by the DPP, the GSOC and seriously questionable internal disciplinary processes. Every other citizen only gets charged and tried once on the same matter – if you’re a garda, you can expect to be beaten up as many times as the system can get away with it.

This country has for some time now watched while its criminal justice system has hurtled down the slippery slope of a mindless “liberal” agenda. Caught in the stampede of righteous warriors and bleeding hearts have been the men and women of An Garda Síochána. In the unseemly rush to be seen to have institutions, such as our police force, that are not above the law, we have instead created a two-headed beast that now trample over the human rights of these serving officers.

One rule for them – another for everyone else. Citizen Sean or Mary enjoys all the rights that we would expect in a modern day democracy, yet Citizen Garda, becomes the sacrificial lamb for those with a moderate education and a serious dollop of bitterness. Read my lips – everyone is innocent until proven guilty. There is no nuanced version of this. It is very simple.

If only our own processes against those whom chose to protect and serve us, were the same.

John O’Keeffe is Director, School of Criminology & Policing Studies, City Colleges and Adjunct Teaching Fellow, Trinity College, Dublin

For full and in-depth coverage, see the current printed edition of Garda Review.

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