13: A complaint of a criminal offence, resolved by criminal investigation

Background

A garda was charged with assault following a GSOC investigation into a complaint from a man who alleged he was assaulted while in garda custody. The garda was found not guilty. The complainant had told GSOC that as well as being assaulted, he was also told by the garda that if he (the complainant) made a complaint to GSOC, the garda member would claim that he was ‘attacked and spat at’ by the complainant. A criminal investigation was initiated by GSOC and, as is the case in all criminal investigations by GSOC, the investigation was conducted by GSOC investigators.

Action Taken

The investigator found that the custody area in the garda station was not covered by CCTV, but accounts were sought from garda members present at the time of the alleged assault. One garda said that the complainant was seen acting aggressively towards the garda member in charge[1]. The complainant was observed taking hold of the member in charge’s lapel and forming a fist with his other hand while in the cell. When the complainant failed to desist, a garda struck the complainant with a baton—both garda members then withdrew from the cell. A second incident of a similar nature occurred with the member in charge and the same garda later that day. The complainant was aggressive towards both gardaí and the member in charge again struck the complainant with a baton several times on the legs. Medical records noted soft tissue damage on the complainant’s wrist and face. The member in charge was asked by the GSOC investigator if the option of exiting the cell instead of using a baton was considered. The member in charge confirmed that this option was not considered. The complainant also alleged discourtesy in that he was called “whinger”, and abuse of authority in that he was allegedly told “if you make a complaint to GSOC, I will say you assaulted me”. These allegations were both denied by the member in charge concerned and there was no independent witnesses to support the allegations. The GSOC investigator recommended that a file be sent to the Director of Public Prosecutions (DPP), as the use of force in the circumstances described may constitute an assault, contrary to section 2 of the Non-Fatal Offences Against the Person Act, 1997. The member in charge had the option of stepping back from the complainant in the second encounter, and leaving the cell without the need to use any force but didn’t take that option.

Outcome

The DPP directed that the garda be prosecuted—the garda was tried and found not guilty.

[1] Member in charge (sometimes abbreviated to MiC) – The member of the Garda Síochána who is designated as being responsible for overseeing the application of the Custody Regulations, in relation to people in custody in the garda station. This can be a member of any rank.