I move amendment No. 17:
In page 6, between lines 7 and 8, to insert a new subsection as follows:
"(12) All questioning carried out during a period of detention authorised by this section shall be carried out in the presence of a District Justice or a Peace Commissioner".
As I have already stated, and the Minister knows from his diligent reading of my Second Stage speech, I am against the concept of detention as it is applied in this Bill. Before going on to say why I think we should restrict the concept of detention in the way I suggest, let me say that I would not necessarily be against the whole prospect of detention in all circumstances. For example, if the Minister were to say to the House that he needed the power of detention to allow the Garda Síochána some time to investigate a crime and that that detention was not associated with the questioning of the suspect in a Garda station in an unsupervised fashion, I could find myself quite in sympathy with that. There you are balancing the loss of liberty of the subject for a relatively short period against the potential advantages. This is one of the reasons, as the Minister has stated, that we require detention.
In so far as detention will enable the gardaí, during that short period when the person is detained, to investigate by interviewing other people concerning crime and taking him out of circulation, if you like, for a short period of time, this kind of arrangement would be satisfactory if it were demonstrated that it was necessary. It may not be necessary of itself, but if it were necessary, I would not be terribly worried about it. My objection to the prospect of detention arises not from the prospect of detention itself, or the effect which that would have on the liberty of the individual who is detained. My objection to it is the effect that it is going to have on the Garda Síochána and on the community. This is why I am against detention. I think that it is going to be a wholly corrupting influence. In making this statement, I must explain exactly what I mean by it. The Minister will recall that on the Second Stage I indicated that it is going to have the effect of turning the Garda force in on itself — a Garda force which at present is centred far too much in the Garda station and in the squad car. It is going to be turned in on itself even more. It will spend an even greater percentage of its time in the Garda station questioning suspects, instead of being out in the community preventing crime from happening. This is what the people need — the prevention of crime, in the first instance, rather than its detection once it has happened. That is almost irrelevent as far as people are concerned. The presence of more gardaí on the beat and in the communities is what will achieve this.
My main objection to detention is that it is going to make a force whose ethos in recent years has been to separate themselves from the community even more separate from the community. This is where the problem will arise. It is going to develop a "them" and "us" situation. It will foster this problem and it will create this problem where it does not already exist. It is the effect that detention is going to have on the members of the Garda Síochána rather than the effect on the individuals concerned which is my main concern.
I should like to repeat what I said on Second Stage relevant to this. The Fine Gael Party have no mandate to introduce this legislation; the Minister has no mandate to introduce this legislation and the Labour Party and the Fianna Fáil Party have no mandate to introduce it. No party in this House have a mandate to do so. As I also said on the Second Stage that does not end the matter. We all have to do things from time to time for which we do not have a mandate. Things happen which are exceptional, which are an emergency and we must respond. I well remember the occasion of the 1973 oil crisis during the course of which certain powers had to be taken which did not fall within the mandate of the then Minister or the then Government, but they had to respond to the situation.
However, when you are proposing something which is a major departure from the existing pattern of society, it can only be done if an emergency situation has arisen since a mandate that was sought from the people, or, alternatively, that it was included in the mandate that was put before the people. The Fianna Fáil Party never indicated to the people that they wanted to introduce a period of detention and questioning by the Garda Síochána. Neither did Fine Gael or the Labour Party.
The Minister well knows that the process of consultation within the Fine Gael Party on this has been wholly inadequate. It is for that reason that I consider, but only in regard to section 4, that I have no obligation whatsoever to support the Fine Gael Party in this regard. If I had been offered my seat in the House on the basis of the Fine Gael Party having this as part of their policy, I might not have accepted that seat, if I felt strongly enough about it.
What kind of a mandate do this Government have with regard to the question of detention? At column 181, volume 105, No. 2, of the Official Report I indicated in my Second Stage speech what I consider to be the situation. The Fine Gael and Labour Parties in their programme for Government between 1981 and 1986 included a commitment to include the implementation of the Ó Briain Report. There was no question of the addendum to the Ó Briain Report or the chairman's additional comments on the Ó Briain Report, just the Ó Briain Report. I stand over that. If the Minister introduces legislation, or legislation plus regulations which implement the Ó Briain Report, he has my full support. The chairman's addendum is not part of the Ó Briain Report. If we wanted to introduce part of the Ó Briain Report, including the chairman's addendum, we should have clearly stated it. We did not do so. In my opinion, we do not have a mandate to introduce this kind of legislation unless we can show that there has been a change in the climate of such an overwhelming nature that this kind of legislation is seen to be necessary.
It does not rest there, because this matter was considered by the Fine Gael Party and by the present Taoiseach prior to the last election. In a wide-ranging address which the Taoiseach gave to the Fine Gael Ard Fheis in October, 1982, he dealt with the question of amending the criminal law. The Taoiseach, Deputy FitzGerald said that on being elected — because at that stage an election was looking inevitable — the Fine Gael Party would reform the criminal law, that they would introduce a provision whereby people detained would have questions put to them in the presence of a district justice or a quasi-judicial person, such as a peace commissioner, and that the answers so given would be a subject of record which could be referred to at their subsequent trial. I stand over that.
If the Minister comes in with an amendment like that I will stand over it, and in so far as is possible to do so with the facilities at my disposal, amendment No. 17 seeks to do that. That is the background as far as the Fine Gael Party are concerned. I have been unable to find any reference in Fianna Fáil literature to any period of detention or its introduction, but in respect to the party of which I have the honour of being, at least temporarily, a member, I can find a reference and I find that reference wholly satisfactory and in sympathy with the amendment as put forward by me this evening.
It is necessary that we should examine a number of things with regard to the period of detention and why the question should be before a judicial or quasi-judicial person. The Ó Briain Report was to recommend certain safeguards for persons in custody and for members of the Garda Síochána. That report was drawn up and a series of recommendations made. There were a number of recommendations but they identified the problem identified by the Minister earlier today concerning the lack of powers of the Garda Síochána to detain people that they were not going to immediately charge with an offence. Having established that, they did not make any recommendation because two of the three members felt it was not within their terms of reference. The chairman in an addendum did make certain recommendations, but that is what it was, and addendum. They did not stop there because they recognised that the Offences Against the State Act was in operation and that certain people were being detained, and were being questioned, under section 30 of the Offences Against the State Act and that that was going to continue irrespective of what they recommended. They made a series of recommendations. To put in context the level of the commitment of this Bill to the introduction of the Ó Briain Report, one should examine to what extent that has been implemented by this Bill. From paragraph 46 of the Ó Briain Report, it deals with recommendations. Paragraph 46 says:
The practice of taking people whom it is desired to question into a Garda station "to help the police with their inquiries" should be discontinued. We so recommended.
The only reason they recommended that, I understand, was because of the problems outlined by the Minister earlier. Paragraph 47 says:
Where a person is arrested and brought to a Garda station he should have assigned to him, on arrival in the station, a member of the force who is not connected with the investigation or other police action which led to the arrest. For convenience this Garda is hereinafter referred to as the "Custodial Guardian". It would be the duty of the Custodial Guardian to ensure that the person is treated humanely and in strict accordance with the Garda Regulations while he is in custody.
There is no custodial guardian in this Bill. There is a half-hearted attempt at suggesting that the member in charge of the Garda station is in some way a custodial guardian, but the functions and powers allocated to the member in charge of the Garda station differ fundamentally from what was recommended in the Ó Briain Report. For example, in paragraph 57 of the Ó Briain Report it is recommended that the custodial guardian should be entitled to attend throughout questioning of an arrested person. In this Bill I do not see any provision entitling the member in charge of a station to be present throughout the questioning. I would venture to suggest that because he is the member in charge of a station, he will be far too busy ever to attend questioning, and by allocating as the person with some responsibility in the matter, the person in charge of the station, we are guaranteeing that that person will not be in a position to attend throughout the questioning of the arrested person. But that is not all.
Paragraph 55 of the Ó Briain Report, like the other paragraphs, finishes with "we so recommend", and deals with what the rights of the arrested person should be. It says:
If an arrested person has asked for a named solicitor, a reasonable time should elapse to allow for the attendance of the solicitor. The duration of a "reasonable time" must necessarily depend on the circumstances, but we regard a period of not less than one hour and not more than two hours as reasonable in most cases. Questioning in the absence of a solicitor should not commence until that "reasonable time" has elapsed.
That is not included in the Bill. It is not included that any questioning of the person arrested should be delayed pending the arrival of the solicitor. That is not all. Paragraph 55 goes on further and says:
The solicitor should be granted access to his client immediately on arrival at the station, the consultation to be out of hearing of the gardaí but subject to such requirements as to safe custody as may be necessary. The solicitor should be entitled, as of right, to attend any subsequent interrogation as an observer.
That is what is in the Ó Briain Report. That is what I am committed to as a member of Fine Gael and that is what I will support. That is not in the Bill. There is a wishy-washy bit about the attendance of a solicitor, but what rights the solicitor has when he arrives is left totally up in the air. He is entitled to access to a solicitor, but how long is the solicitor entitled to speak to him? Whether the solicitor is entitled to be there for the subsequent questioning is not put into the legislation. I would suggest that in the absence of a specific recommendation that a solicitor should be present during the interrogation, questioning or whatever you want to call it. The solicitor will not be permitted to be there, and another very important element of the Ó Briain Report will have been set aside.
If the Minister came in here with the Ó Briain Report I would not have this amendment down. I am quite happy to have the solicitor there, subject to certain safeguards with regard to the question of getting solicitors. What I have down in the amendment is an alternative to that. What I have down is that questioning should be carried out before a district justice or a peace commissioner because that is what we said before the last general election.
In addition to that there is paragraph 60, and I am omitting a great deal because the Minister will be able to do much in his regulations. The Minister will be able to conform to a number of the recommendations of the Ó Briain Report with the regulations which he will be introducing. I am talking about the things the regulations will not cover adequately. Paragraph 60 states:
On the first occasion an accused appears in the District Court, the Prosecution should be required by the District Justice to say whether any statement or confession made by the accused will be relied upon.
That is not in the Bill.
If the answer is in the affirmative the Justice should enquire of the accused whether or not such confession or statement was made freely.
That is not in the Bill.
If the answer is that the confession or statement was not made freely, the accused should be permitted, but not compelled, to elaborate, particularly with regard to any alledged ill-treatment. The proceedings in the District Court should be duly recorded, and the record (including the original of any statement) should later be available to the trial Court.
That is not in the Bill. Surely it is reasonable and proper, a good safeguard and in accordance with the Ó Briain Report — to which I am committed as a result of membership of my party — that in going before the District Court these sensible precautions should be taken. Let nobody consider that I am against people being found guilty. I want to see anybody who is guilty of a crime convicted, but I do not want to see him convicted at the expense of corrupting the due process of law. If the choice is between somebody not being punished at all and the corruption of the process of law, then I am in favour of that person not being convicted. The Minister cannot say that the has introduced the Ó Briain Report. He has not introduced that report. Because he has not introduced the Ó Briain Report it is necessary for me to move this amendment.
During my Second Stage speech I went in great detail into the problems that arose with regard to the accusations made against members of the Garda Síochána around 1977. I do not intend to repeat them and it is not necessary to do so, but I will repeat the conclustion. The conclusion was that if the allegations were correct we, as politicians, had failed miserably in our duty. If the allegations were incorrect, we had failed even more miserably in our duty because we had not vindicated the good name of the Garda Síochána. Most educated people believe that abuse of power took place during that period. I am not saying whether it did or not, but most educated people believe that it happened and we did not vindicate the good name of the Garda Síochána, the Ó Briain Report did not vindicate the good name of the Garda Síochána even though he said he was going to do so, and no Minister has done so. I must excuse the last two holders of the office because the length of time that has elapsed since the allegations were made is so long that there is no point in resurrecting them at this stage. However, they show what level of objectivity and of discipline there is in the political process, that allegations could be believed on such a widescale basis and should never be the subject of a proper investigation in public. I am not saying they were not subject to a proper investigation in private, but I know nothing about that and the people out there who believe that the Garda abused those powers know nothing about it either. That is why I am in favour of the most rigorous scrutiny of the Garda Síochána in any questioning which they might carry out. It is for my protection, for the protection of the people out there and for the protection of the Garda Síochána.
I must be the only politician in the Oireachtas who never asked a Minister to appoint a peace commissioner, and the Minister can judge whether that is a true statement. I never asked a Minister of any administration to appoint a peace commissioner. I never considered it to be a badge of sufficient honour.