(Limerick East): I move “That the Bill be now read a Second Time.”
This Bill is the outcome of a comprehensive review of our criminal law and procedure. Its purpose is to give certain new powers to the Garda Síochána to enable them to investigate crime more effectively and to amend and update certain aspects of criminal law and procedure for the better administration of justice.
I think it can fairly be said that a review of this kind was timely and necessary. It has not been hastily carried out. As is well known, it has, in fact, been going on for quite some time. I am naturally pleased, however, that the Government, pursuant to the commitment in the Programme for Government, have been able to bring the review to a conclusion and to have the Bill drafted and presented to this House.
Before I proceed to deal with the detailed contents of the Bill, I think it would be appropriate for me to say something about the general background to the measure and about the particular circumstances that have led to its being brought forward.
Crime and its consequences, in one form or another, cast a shadow over much of our social life today and force us to reassess many of our traditional values and attitudes. If we are among the more fortunate members of society, crime may not have had too intrusive an effect on our lives to date — it may not have cost us much more than inconvenience or annoyance. There are many, however, who have not been so fortunate and who have had to pay a far higher price. Without wishing in any sense to introduce an emotive note into the debate, I think it is appropriate that I should make the point that violent crime, in particular, far too often has consequences that are nothing less than tragic. Indeed on an occasion like this it is only right that I should express sympathy with those people who have over the years — and especially in recent times — suffered as victims of crime. We should, I think, remember especially the members of the Garda Síochána who have lost their lives or been injured at the hands of criminals.
The problem of crime has been and continues to be studied world-wide. Questions about the causes of crime remain unresolved and there are even difficulties in defining what one means by "cause". For instance, in what sense can poverty be said to be a cause of crime when in fact the great majority of poor people are never in trouble with the law? Yet it is clear that poverty, unemployment and poor social conditions generally are factors that play an important part. A formidable challenge faces our society to work for solutions to these and other social problems so that people cannot say — at least with any sense of justification — that those who commit crime are forced to do so because of poverty and social conditions generally.
The Government have a major role to play in solving the economic and social problems of our society — in creating wealth, in minimising unemployment and in achieving a more equitable distribution of wealth. Pending the achievement of these aims, however, we have to live together as members of society and the only tolerable way in which we can do that, and continue to work to find solutions to the problems that face us, lies in ensuring that we succeed in maintaining a well-ordered society in which there is an acceptance of the rule of law. Increasing crime, more particularly serious crime but basically all criminal activity, disrupts the social order creating unrest, frustration and disharmony and it deflects our energy and our resources from matters that should be the principal focus of our attention.
Crime is, therefore, a serious social evil and it must be dealt with. Any suggestion that we should in any sense surrender to it, or postpone action to combat it, until such time as we have solved our economic and social problems would not, I am sure, be accepted by the great majority of the Irish people.
I have referred before — though not in this House — to the enormous economic burden that we have to bear directly as a result of crime. The figure of £250 million that I quoted on a previous occasion as being spent on crime-related services in the Votes under the control of my Department for this year is, if anything, on the conservative side. It does not include the cost of services being provided by, for example, the Department of Health on the drugs problem or the Department of Defence on security and assistance to the civil power arising out of the activities of subversive criminals.
There are other non-quantifiable but substantial costs such as loss of revenue from tourism. If, through the measures contained in this Bill and other measures, we can reduce the cost of crime, or even help to halt the increasing cost of it, we will be making an important contribution to our economic wellbeing as a nation and helping, in a very real sense, to provide more money for the creation of jobs.
It will be clear from what I have said that I do not for a moment suggest that social conditions and factors such as drug addiction do not have a major bearing on the growth of crime. But here today our task is to concentrate on just one facet of society's response to crime, namely, deterrence and detection. I believe that perhaps the single most important deterrent to criminal activity is the creation of conditions in which criminals will feel that there is a strong likelihood that they will be apprehended and punished for their crimes. Penalties by themselves, even stiff penalties, are not, I believe, likely to provide any significant deterrent unless there is a real prospect that that punishment will be imposed. Detection is vital. That is where the Garda come in. Naturally I am not implying that the Garda have no role in crime prevention as distinct from detection, but that too is not at issue just now. Detection, if it is to mean anything useful, must mean more than that the Garda should discover who committed the crime. Our legal procedures must be such as to ensure that as far as possible those who are guilty are convicted. I say "as far as possible" because the objective of ensuring that the guilty are convicted should not be achieved at the cost of putting the innocent at risk.
This Bill will, I believe, make an important contribution towards providing a more effective deterrent in the sense I have mentioned. It addresses itself to the principal areas that are causing concern in our existing law relating to the investigation of crime and the trial and conviction of offenders. But it does so in such a way that is, I am convinced, balanced and fair and poses no threat to our fundamental rights and liberties. That is an aspect that I will be referring to again in the course of my review of the contents of the Bill. First, I propose to deal with what is one of its major aims — to give the Garda increased powers to investigate serious crime.
For very many years—I think in fact until quite recent times — the Garda did not experience any real difficulties in securing the co-operation of people reasonably suspected of having committed serious offences to go to Garda stations. It was not that the Garda had any legal power to detain suspected persons while they investigated the offence, by questioning or otherwise — in fact, they had not and that was decided in a case in 1930 — but, by and large, they operated on the basis that, when suspected persons were in the station they were there "helping the police with their inquiries". Precisely what the legal position was about "invitations" to come to the station was clouded and might have differed from case to case depending on the circumstances. The suspect himself might in many cases have believed that he was there on a voluntary basis and that would not have been put to the test at all unless and until he attempted to leave.
And from the Garda viewpoint the practice seems to have been so widespread and to have continued over such a long period of time that many gardaí may well have believed that they had a legal power to detain persons. It was not until about 1977 that the principle that had been decided in the 1930 case I have already mentioned again came to the fore. However, real damage began to be caused to criminal investigation when the courts, in a number of subsequent decisions, rejected as inadmissible evidence such as confessions or incriminating statements obtained during periods when it was adjudged that the accused person had been unlawfully detained. These decisions were based on a principle laid down in a 1965 decision which was to the effect that evidence obtained in breach of an accused person's constitutional rights was inadmissible except, to use the Supreme Court's own words, in "extraordinary excusing circumstances". When I speak of damage being caused I am not to be taken as reflecting in any way on the courts, which were upholding the constitutional rights of accused persons not to be deprived of their liberty except where allowed by law.
The problem was, if anything, exacerbated, however, by subsequent decisions to the effect that where a person went to a Garda station voluntarily and the stage was reached where he came under suspicion for the offence, then he had to be told by the Garda that he was free to leave the station unless and until he was arrested. The House will appreciate the position of the Garda when it is considered that this new requirement could, in a particular case, involve interrupting a suspect who was freely making a statement containing an admission of guilt. From a Garda viewpoint it virtually destroyed the practical value of being able to invite persons to the station.
That is a brief history of the background to section 3 of the Bill which illustrates the problem that the Garda face today. While in most cases of serious crime they have power to arrest without warrant a person whom they suspect, with reasonable cause, of having committed the offence, the rule is that once he has been arrested he must be charged with an offence and brought before a court. He cannot be held in the station while the matter is being investigated though, of course, there is nothing in law which prevents the gardaí from questioning him between arrest and charge. The only exception to this rule is in the case of arrests late at night where there is a sitting of the court the next morning. In those cases, the courts have held that it is permissible to hold a person until the sitting of the court. If the gardaí contravene the law in this matter the effect is that the detention of the suspect becomes unlawful and any evidence obtained during or as a result of the illegality becomes inadmissible, as I have already said.
The inadequacies of the law in this whole area have had a serious effect on criminal investigation. Prosecutions have failed because evidence was not admissible. This has occured not just in relatively minor cases but even in cases involving murder in which there was evidence of the guilt of the accused resulting from confessions or other incriminating statements which nobody had ever suggested were other than completely voluntary.
We have to ask ourselves one simple question as a result of all this. Is it right that the police force of this country should be restricted in this way? Put another way, is it right that we, as a community, should force ourselves to take on the criminals with "one hand tied behind our backs"?
We might also ask whether, as a community, we are acting reasonably and giving adequate support to the Garda, in the very difficult circumstances that face them if we give the criminals such an advantage. We must, in this context, be mindful that the problem cannot be portrayed as simply a question of the Garda versus the criminals with the rest of society in the role of disinterested observers. It is we — the law-abiding citizens of the community — who are under attack and it is on our behalf that the Garda act.
It is my view that we must give the Garda the powers it is reasonable for them to have in a democratic society — no more and no less. Otherwise, we fail in our duty as legislators. And when you look closely at the position, as I have outlined it, and compare the powers that our police have with those available to police forces in most other democratic countries, I think that only one conclusion is possible.
The Constitution provides that no person can be deprived of his personal liberty save in accordance with law. What section 3 of the Bill proposes is that the law should allow persons suspected, on reasonable cause, of serious crimes to be detained but only where certain conditions are satisfied and then only for a limited period.
The Bill, therefore, gives no sweeping powers of detention to the police and, in relation to the powers it does give, there are reasonable safeguards built in to minimise the possibility of abuse. As I have said, the arresting garda must suspect, with reasonable cause, that the person concerned has committed a serious offence. But that is not all. Before detention can take place the member in charge of the station must have reasonable grounds for believing that the person's detention is necessary for the proper investigation of the offence. That is the double check.
The period of detention is limited to six hours and, even within that time, the person must be charged, if there is enough evidence, or released unless the detention conditions are applicable in relation to another offence. But the upper limit of six hours applies no matter how many offences are being investigated concurrently and let me say that, if there is any doubt about that being 100 per cent watertight, I will amend the Bill on Committee Stage. An extension for a further six hours at most can be authorised only by a chief superintendent or, in his absence, by the superintendent acting for him.
Because we have decided to limit the period of detention to six hours — or at most 12 if an extension is granted — special problems arise in relation to detention between the hours of midnight and 8 a.m. Under existing instructions, issued following the O Briain Report, which recommended additional safeguards, the Garda are obliged not to question a suspect in detention during these hours except in special circumstances. The general desirability of maintaining that position is obvious and has been accepted by successive Governments. But, in the context of a detention period as short as 6 or 12 hours, the position of the Garda would be impossible if they were to be prohibited from questioning a suspect in detention during this period notwithstanding that the time was running against them. Some solution had to be found that would preserve, as far as possible, the existing position but would recognise the reality that in special circumstances questioning of suspects would have to be allowed. These special circumstances would include cases where a suspect was arrested in the ‘small hours' at the scene of a crime or where a suspect genuinely wished to volunteer a statement during this period. The solution we adopted is to be found in subsection (6) of section 3 of the Bill.
What is proposed is that the member in charge of the station will give the detained person a written notice when he wishes to suspend questioning in order to afford the person reasonable time to rest. When giving the notice the Garda must at the same time explain its meaning and ask the person to sign it as an acknowledgment that he has received it. Certain other procedural safeguards are required relating principally to the recording in station records of particulars of the giving of the notice, the time it was given and so on. If it became necessary subsequently to resume questioning the person during the period between midnight and 8 a.m., the Garda could do so but only on serving a further notice on the person suspending the first notice, after which time would begin to count again as part of the permitted period of detention.
It is provided that only one notice suspending questioning may be served on a person during this particular period so that there is no possibility of the Garda adopting ‘stop-go' tactics or playing ‘cat and mouse' with a detained person.
Subsection (7) of section 3 proposes to deal with one other exception where, after an arrest, time will not count towards reckoning the permitted period of detention. Any time needed to obtain proper medical attention for a detained person — whether this arises before he is taken to the station in the first instance or whether it comes to notice while he is in the station — will not count. Difficulties have been experienced in a number of cases where suspects had gunshot wounds at the time of arrest and had to be hospitalised.
Section 4 is a very important section because it sets out in clear terms the rights that a detained person has in relation to having notification of his whereabouts sent to third parties. It deals also with his right of access to a solicitor. As far as access to a solicitor is concerned, the Bill is not conferring any new right on the suspect. The courts have already confirmed the existence of a right of "reasonable access" to a solicitor and the section recognises that. It does, however, provide the additional safeguard that the member of the Garda in charge of the station must ensure that the detained person is informed without delay of this right and, if requested to do so, must notify the solicitor as soon as practicable.
Indeed I envisage that the document now handed to an arrested person on his arrival at a Garda station will be revised to include a reference to his rights under this Bill and that, moreover, the contents of the document will be explained by the member in charge where this is necessary.
We are also recognising the right of the detained person to have one other person informed of his whereabouts and the same rule will apply in relation to notifying that person as applies in relation to notifying the solicitor. We have used, in relation to that other person, the term "reasonably named", so as to avoid imposing an obligation where the person names someone for purely frivolous reasons.
Special provision is being made for persons under 17 years of age, as will be apparent from subsection (2) of section 4. It is not that we anticipate very many persons of tender years being detained in Garda stations but the reality is that persons of 16 or 17 are frequently involved in crime, particularly car stealing and burglary. It is also true that a lot of the vandalism in residential areas is the work of young people.
Section 5 sets out the powers it is proposed that the Garda will have in relation to detained persons. They will be able to do most of the things that a police force needs to be able to do in order to investigate serious crime properly, such as to search, photograph and fingerprint suspects and make forensic tests for firearms and so on. However, we think it right that photographing and fingerprinting should not be done except on the authority of a superintendent and also that strip-searching should be prohibited except in two cases — where there is reasonable cause for suspicion that drugs or explosives may be concealed on the suspect's person — and then only on the authority of a superintendent. There is, in fact, no prohibition on strip-searching in existing law.
Not long after the Bill was published some criticism was expressed in one of the national newspapers of the proposal to allow the Garda to fingerprint detained persons. While I can readily appreciate the sensitivity some law-abiding people can feel about allowing matters of personal identification to become the subject of police records, we must recognise that if the Garda are to have any reasonable prospect of success in dealing with serious crime they must have these powers. We should remember too that fingerprints, as well as helping to convict the guilty, can clear the innocent. I am satisfied that we are doing all that it is possible to do by way of safeguards in providing — in quite explicit terms — that the Garda must destroy these records and every copy that exists if the person is not prosecuted or is acquitted. And, of course, the person concerned, his solicitor or other representative will have the right to witness the destruction. That is, I believe, as far as we could reasonably be expected to go, but if anyone has any further suggestions as to how we might improve the safeguards, I am willing to listen to them. In the circumstances it is quite unacceptable to suggest, as the newspaper did, that there will be no guarantee the Garda will not retain a set of fingerprints or a photograph on a "black file". It is easy to be critical where the absence of a power to fingerprint is not seen to have defeated the ends of justice in a particular case. However, if a case arose tomorrow in which a person who was believed to be a murderer was walking the streets a free man, and if it could be shown that this was essentially due to the fact that there was no lawful way of detaining him so that his fingerprints could be taken and compared with those found on the murder weapon. I have no doubt there would be a public outcry, and I venture to suggest, the newspaper would be among the first to criticise the Government for allowing such a situation to continue.
The only exception to the rule about destruction of photographs and fingerprints following an acquittal is that contained in subsection (5) of section 6. This provides that the Director of Public Prosecutions can apply to the District Court for an order for preservation of the records where they may be required for further criminal proceedings.
Before leaving the question of Garda powers, let me mention one or two other important provisions. Section 8 prohibits the re-arrest of a person for the same offence except in two cases: the first is where it is proposed to charge the person immediately with the offence. In that case, of course, there would be no period of detention permitted. The second is where new information comes to hand about the involvement of the person in the offence. In this case, however, a Garda superintendent must satisfy a district justice on oath and obtain a warrant for the arrest.
Detention is then permissible under the provisions of the Bill. Of course, if the Garda get information connecting a released person with an offence entirely different from that for which he was originally arrested, they will be free to make an arrest for that offence assuming that they have reasonable cause for suspecting that he has committed it.
Let me mention also at this juncture the provisions in section 25 dealing with proceedings after arrest. This section is to a large extent a re-enactment, with some desirable clarification, of an existing statutory provision — section 15 of the Criminal Justice Act, 1951. In case there should be any misunderstanding about what is involved here, I would like to point out that section 25 applies only to persons arrested on a warrant or arrested without warrant and then charged with an offence. It provides that in either case such a person must be brought before a district justice or, if a district justice is not immediately available, before a peace commissioner as soon as practicable.
We are also taking the opportunity of putting in statutory form what is the present law about bringing before a court persons arrested without warrant and charged late at night. The present rule is that persons arrested and charged late at night do not have to be brought before a court until the following morning, provided of course a court is due to sit that morning. We are simply maintaining this as part of the law and applying it to arrests on a warrant. We are not, I should stress, giving the Garda an additional detention period by a backdoor method, as one commentator has suggested. Since the persons concerned will have been charged with an offence, the criminal investigation, so far as concerns questioning them, will be finished as once they are charged they cannot be questioned further.
The final matter I should mention on this part of the Bill is that section 7 provides for the application of certain provisions of the Bill to persons detained in custody under section 30 of the Offences against the State Act. These are the provision relating to not counting any period during which medical treatment is necessary, the provision relating to access to a solicitor and notification to relatives of a suspect's detention, the requirement that the authority of a superintendent is necessary for the taking of photographs and fingerprints and the prohibition on stripsearching except in the circumstances I have already mentioned.
A period of detention after arrest is a necessary part of any police force's armoury in modern conditions. That is now recognised in most countries in the world. For example, the position in England in this regard was stated in 1981 by the Royal Commission on Criminal Procedure in paragraph 3.66 of its report to be as follows:
"..... The period of detention (upon arrest) may be used to dispel or conimis firm ..... reasonable suspicion by questioning the suspect or seeking further material evidence with his assistance. This has not always been the law or practice but now seems to be well established as one of the primary purposes of detention upon arrest."
That extract from the commission's report was quoted with approval by the English Court of Appeal in a judgment given in July last.
Mr. Justice Barra Ó Briain recognised the importance of such detention and in his report recommended a period of six hours detention with provision for extension. We are giving effect to that recommendation. It would be a mistake to think that this in any sense amounts to sanctioning a method of police investigation which is solely concerned with obtaining confessions or incriminating statements. It simply recognises the commonsense view that an essential part of any criminal investigation is talking to the principal suspect with a view to establishing what, if anything, he knows.
Mr. Justice Ó Briain said the following in his report:
It is both logic and common sense that a person investigating a matter should question those concerned in the subject under investigation, check their answers and if there are apparent discrepancies, come back to the person questioned for an explanation. The police work on suspicion and hearsay and on many other factors which are not legal evidence. The Courts, on the other hand, proceed entirely upon legal evidence. The "detention" period would give the Gardai an interval during which to do what is strictly police work.
It should also be borne in mind that, as well as providing a basis for confirming suspicion leading ultimately to the bringing of charges, a period of detention for questioning can result in an innocent person being cleared.
Many people have been looking to this Bill to do something positive about the very serious problem of offences committed by persons on bail. There is, I think, a widespread feeling that bail is too readily granted and that, where there is evidence that a person is likely to commit further offences while on bail, this is a factor that the court should be able to take into account in deciding whether to grant it. That is in fact the law in Britain at present.
There is, however, at least one important difference between this country and Britain in legal matters. We have a written Constitution to which our laws must conform. In Britain Parliament is supreme. In relation to the granting of bail, the position here is that there was a Supreme Court decision in 1966 to the effect that a court could not refuse bail on the grounds that the person concerned was likely to commit further offences if granted bail. The Supreme Court held that that would amount to a form of preventive detention and would be unconstitutional.
It seems therefore that, short of amending the Constitution, we must accept the present law in relation to the granting of bail and work within it. There is, however, nothing to prevent us from introducing measures which would act as a real deterrent to those who commit offences while on bail and this is the aim of sections 9, 10 and 11 of the Bill.
Section 9 will require the courts to impose consecutive sentences for offences committed on bail. The intention here is that a sentence for a bail offence will be consecutive on any sentence passed or about to be passed on a person for a previous offence. The previous offence can be any other offence and not necessarily the offence in respect of which bail was originally granted.
To make the provision effective so far as sentences passed in the District Court are concerned, we are increasing from 12 months to two years the aggregate term that a district justice can impose when passing two or more consecutive sentences. That is contained in section 10. In the higher courts, of course, there is no limit and a person could, therefore, be sentenced to two terms of five or even ten years in those courts to run consecutively.
The third provision relating to bail is the creation of a new offence of failing to surrender to bail — in other words, absconding. That is contained in section 11. It will be a summary offence carrying a sentence of up to 12 months imprisonment. However, any sentence imposed for this offence will have to be consecutive on any sentence passed for a prior offence in the same way as a sentence for an offence committed on bail.
These three provisions represent a very necessary tightening up in the bail area. Their aim is simple — to get the message across loud and clear to bail offenders that from now on they can expect much harsher punishment. I believe there will be a general welcome for these provisions which most people will regard as long overdue.
The Bill singles out certain aspects of the crime problem for special treatment and the reason for this is, quite simply, that the level of these activities is particularly high at present and, consequently, special steps need to be taken to deal with them. The areas in question relate to the stealing of cars — technically unauthorised taking — firearms offences, especially the growing trade in the supply of firearms, such as sawn-off shotguns, for criminal activity and the problem of dealing with possession of stolen property where theft or receiving cannot be proved.
Taking first the problem relating to the taking of cars, as I have said before, this is now a major social problem that is causing deaths, serious injuries and damage to property. There are frequent reports of people being terrorised by high-powered cars being driven at reckless speeds through the streets, or police cars being rammed and so on. Cars are not just taken by youngsters for so-called "joy-riding". Car-taking is a vital part in the organisation of armed robberies and other serious crimes. This offence has got to be stamped out. Section 12 of the Bill proposes to make the offence indictable and to increase the penalties. On conviction on indictment the penalty will be a maximum of five years imprisonment and a fine of up to £2,000. On summary conviction we are increasing the sentence from six months to 12 months and the fine from £50 to £800.
The fact that there is already a power of arrest without warrant for the offence and that it will henceforth carry a five year sentence means that the Garda will be able to detain suspects under the powers given by section 3. The Garda are confident that these measures will substantially improve the detection rate for this offence.
Section 13 increases the penalties for certain firearms offences. These are the most serious firearms offences known to our law. The penalty for possessing a firearm or ammunition with intent to endanger life or cause serious injury to property is going up from 14 years to life imprisonment, as is also the penalty for using a firearm to resist arrest or aid an escape. We are increasing from seven years to 14 years the penalty for possessing a firearm while taking a vehicle without authority and from ten years to 14 years the penalty for carrying a firearm with criminal intent. I should point out that these are all maximum sentences and not mandatory ones and that, in those cases where the maximum sentence is a life sentence, it will be open to the courts to impose a sentence of 20 or 25 years if it sees fit in an appropriate case.
We are making it an offence, under section 14, to withhold information regarding the source of supply of firearms or ammunition. The effect of it will be that a person found in illegal possession of a firearm or ammunition will be required to give a garda information as to how he came by it and as to any previous dealings with it. It will be an offence to fail, or refuse to give the information, punishable, on indictment, with up to five years' imprisonment. The garda will be obliged to warn the person in ordinary language of the consequences of failing or refusing to do so, and any information given will not be admissible against the person or his spouse in any civil or criminal proceedings.
It should be clear, therefore, from this provision that the principal objective is to enable the Garda to get at the source of supply of firearms and not to cause the person found in possession to incriminate himself or his spouse in relation to his possession of the firearm. Like the preceding provision this section is justified by the need to reduce the use of firearms in criminal activities but it endeavours to strike at those people who supply or hire guns for particular crimes.
Section 15 contains a provision on similar lines in relation to property reasonably believed to have been stolen. There is a lacuna in the law since about the early 1960s when a provision in the Criminal Justice Act, 1951, which sought to deal with the problem of unlawful possession of stolen property, was found to be unworkable. The Garda have been concerned of late that this gap should be closed off and we are now doing that.
I now turn to the sections in the Bill allowing the court of trial to draw inferences from the behaviour of an accused person in certain circumstances. These are sections 16, 17 and 18.
Section 16 will allow the court or jury to draw an inference — in practice it means an adverse inference — where the accused puts forward, as part of his defence at the trial, an explanation for some matter that he could reasonably have been expected to have mentioned to the Garda when being questioned or charged.
Some important qualifications must be mentioned. First, the jury will only be able to draw an inference where it would be proper for them to do so and the question of whether it would or would not be proper, in all the circumstances, is a matter upon which the trial judge will direct the jury.
Second, the accused must have been told at the time he was questioned or charged what the consequences of failing or refusing to mention some important fact might be. Third, the court or jury will not be able to convict an accused on the basis of an inference taken alone. Finally, if the accused remains silent, both at the pre-trial stage and at the trial itself, no inference can be drawn.
I think these are very important and sensible safeguards and that they remove any possible basis for suggesting that this provision could in any way operate unfairly against an accused.
The practical effect of this provision, so far as the conduct of a trial is concerned, is that the judge will be able to tell the jury that they may draw an adverse inference if it would be appropriate. At present the judge is not allowed to do so although he may tell the jury that the failure of the accused to mention some fact is something which they are entitled to take into account in determining the weight to be attached to his evidence. Most eminent lawyers, in particular the members of the English Criminal Law Revision Committee who first recommended the change, are on record as saying that the distinction between what the judge may say and what he may not is highly artificial and illogical. It has also been said that the difference would not, in all probability, be intelligible to the members of any ordinary jury. I fully share those views.
The change we are proposing accords fully with what most people would regard as common sense. Indeed, it has been recognised by the English Court of Appeal that juries probably do, as a matter of common sense, draw adverse inferences from the belated nature of an accused's defence or from his total failure to put forward any explanation, especially in circumstances where the evidence against him is "crying out" for some explanation. As a matter of strict logic, therefore, the implication of the present rules about what the judge may say would seem to be that, whenever he thinks the common sense of the jury might lead them to draw an adverse inference, he should warn them not to follow their common sense.
In allowing inferences to be drawn in the circumstances mentioned, we are not, of course, introducing any new or radical principle into the law. Already the law allows a court or jury to draw an inference from the silence or other reaction of the accused in the face of something said in his presence about the conduct in respect of which he is charged.
Some criticism has already been levelled at this provision on the ground that it represents a discarded British proposal. It is true that the proposal was not implemented in England and that a majority of the members of the Royal Commission on Criminal Procedure recommended against it. As against that, a minority of that commission supported it as did the full Criminal Law Revision Committee that I have referred to earlier. Indeed, we owe the draft of the provision in section 16 in large measure to the Criminal Law Revision Committee and I think it is only right that I should publicly acknowledge that. In our own country, the proposed change had the support of Mr. Justice Barra Ó Briain in his report. Very often Government Ministers — especially those putting forward proposals for law reform — find themselves criticised if the proposals happen to follow provisions already enacted in Britain. The charge is usually to the effect that we ought to be capable of making up our own minds on things and acting independently and not, as it is sometimes put, "slavishly following the British". Indeed, the charge is sometimes expressed in much more emotive terms. It seems to me to be ironic that, when we do show independence of thought, as in this case, the very opposite sort of criticism is made. Now we are told, in effect, that if the provision was not found to be good enough for London it ought not to be good enough for us. My answer to that sort of criticism is this: I am prepared to rest my case on the intrinsic merit of what I am putting forward to this House and to defend it on that basis and not on whether it has been accepted or rejected elsewhere.
Sections 17 and 18 relate to the drawing of inferences in particular situations, that is, where it would be reasonable to expect a suspect to account for objects or marks or for his presence in a particular place. The idea is that the suspect could be asked to account for a mark or stain on his clothing or for some object in his possession which the member of the Garda Síochána who arrested him reasonably believed might be attributable to his participation in the offence for which he was arrested. Likewise, he could be asked to account for his presence in a particular place at or about the time the offence was committed. The suspect would be under no obligation to give an account but, if he were subsequently charged, his failure or refusal to do so could give rise to the drawing of an adverse inference. In the particular situations covered by these sections an inference can be drawn even where the accused elects not to give evidence.
As regards trial procedures, sections 19 to 24 of the Bill propose to make certain important changes.
For some time now, many people have been convinced that some of our court procedures need to be revised in the light of the changes that have taken place since the procedures were introduced. There is a feeling that the balance has swung too far in favour of the accused and needs to be restored without in any way prejudicing his right to a fair trial. Some of the procedures were developed at a time when trials were conducted in a very different way and when the concept of what was fair to an accused was also vastly different. For example, before 1836 the right of an accused to legal representation in very serious cases was greatly restricted and he was not allowed any representation at all in minor cases. And even long after the changes made in that year, accused persons were often unrepresented even in serious cases. Today an accused is rarely unrepresented even in minor cases and he enjoys a constitutional right to legal aid at the taxpayer's expense if he cannot afford to pay for it himself.
Dealing first with those provisions that affect the position of an accused, section 19 will oblige an accused at a trial on indictment to give notice of his intention to put forward an alibi and, if he does not give the notice, he will not be allowed to put forward an alibi at his trial except with the leave of the court. In general ten days' notice will be required. The purpose of this provision is to ensure that an accused will not be able to "spring" on the prosecution at the last minute an alibi which the prosecution have not had time to check out. When it is borne in mind that under present law the prosecution is required to serve on the accused well in advance a copy of what is known as the book of evidence containing a list of the names and addresses of witnesses and statements of the evidence each of them posposes to give, I think that it will be generally accepted as right that we should make this change.
Section 22 abolishes the right of an accused to make an unsworn statement. The intention is that if the accused wishes to give evidence he will have to be sworn and be subject to cross-examination like other witnesses. Few people are likely to regard this change as other than wholly desirable. The right to make an unsworn statement dates from a time when an accused was, generally speaking, not allowed to give evidence on oath. That was changed in England in 1898 and here in 1924 but, curiously, the right to make an unsworn statement was maintained. It has already been abolished in England and we now intend to do likewise.
We propose also to introduce majority jury verdicts at criminal trials. There has been an increasing number of jury disagreements in recent times with more than a suspicion in some cases that there was an element of intimidation present. This particular reform will avoid the need for a retrial in a case in which not more than two of the 12 jurors disagree.
Section 24 contains the details of the provision. It proposes that a jury will have to have at least two hours for deliberation before a majority verdict can be accepted. Majority verdicts are being allowed both to convict and to acquit, but we think it is only fair that if a verdict of acquittal is by majority that fact should not be disclosed. Majority verdicts have long been the law in England and Scotland.
Finally, as regards the position of the accused, the rules relating to the order of closing speeches are being altered so that the speech for the defence will always come after any speech made for the prosecution. That provision is in section 23.
Two provisions that ought not to be in any way controversial are those contained in sections 20 and 21. Under section 20 it is proposed to allow both sides at a criminal trial to prove by written statements matters that up to now can only be proved by calling witnesses to give oral evidence. Certain conditions must, of course, be satisfied, the most important of which is that the other parties to the proceedings would have the opportunity to object to the written evidence and to this end it must be served on them beforehand. Section 21 will allow matters of a purely formal kind that up to now have to be proved by oral evidence to be formally admitted by the parties to the proceedings. There are, I believe, adequate procedural safeguards to protect an accused person. I believe that these two provisions will save valuable court time that is wasted at present in formally proving matters that are not really in dispute. I would hope that they will lead to some reduction in the cost of criminal trials.
As regards the final provisions of the Bill, the only ones requiring any special comment are perhaps those in sections 26 and 27.
Section 26 deals with the proposed tape recording of the questioning of suspects. What is being proposed is that the Minister will make regulations under the Act providing for tape recording, the details of which will be set out in the regulations. The Government have accepted in principle that tape recording of the questioning of persons in Garda custody should be introduced and the only thing to be decided now is how best this should be accomplished. Certain matters still have to be examined before it can be brought into operation, such as the type of equipment used, the modifications to Garda stations that need to be carried out, how it will operate in practice in the stations and what arrangements will be necessary to meet the requirements of the defence and the prosecution. I have set up a committee representing the Garda authorities and my Department and including a specialist in electronics to work out all the detailed requirements under these and other relevant headings and I expect that the committee will at an early date be in a position to organise a pilot scheme or schemes so as to enable all the practical implications to be fully evaluated. I envisage that these pilot schemes will be introduced in advance of the making of regulations. The committee will, I expect, examine what has been and is being done in other jurisdictions and in this way we will have the benefit of their practical experience. When the committee have reported we will lose no time in introducing a suitable system of tape recording.
It has been suggested that the powers to be given to the Garda in the Bill should be deferred until tape recording of questioning is introduced. I cannot agree with that. It would be ideal if it were possible to introduce tape recording simultaneously with the coming into force of the new powers in the Bill, but it simply is not possible. We know from the experience of other countries that a lot of work needs to be done before we reach that stage. As I have said, field trials or pilot schemes need to be carried out and there are technical, procedural and legal or quasi-legal questions to be considered. No country, so far as I am aware, has been able to introduce tape recording overnight. In Britain, for example, they have been considering it on and off for over 12 years and only last week the Home Secretary said, when the amended Police and Criminal Evidence Bill was published, that he thought it would take about four more years before it could be accomplished there. Indeed, the six pilot schemes that are to be undertaken there are not to commence until next year. I wish again to emphasise, however, that the Government are committed to introducing an appropriate system of tape recording and will do so without any avoidable delay.
We have thought it desirable to introduce a general power in the Bill to fingerprint persons convicted of indictable offences or those dealt with under the Probation Act and this is to be found in section 27. Many people will, perhaps, be surprised to learn that, notwithstanding that the use of fingerprints for forensic purposes has been with us since the turn of the century at least, the Garda still have no general power to fingerprint those convicted of serious offences. They rely on other provisions in the law which relates to persons undergoing imprisonment. The power in the Bill will apply only to those convicted of indictable offences or dealt with under the Probation Act for those offences. Indictable offences are intrinsically serious and, in my view, it is reasonable that persons convicted of them should be liable to be fingerprinted. Persons dealt with under the Probation Act are persons against whom the facts have been proved in court and I think it is right that they should also be included. Many persons, first dealt with in this way, reappear again and again in our criminal statistics. This provision will enable the Garda to build up their fingerprint records and in this way improve crime detection.
These, then, are the main comments that I want to offer on the substantive provisions of the Bill.
Before concluding, I want to say something about a matter that is not in the Bill, an omission, which I think, caused surprise to many people and disappointment to some. The Garda have no general power to obtain a warrant to search premises for evidence of serious crime. There are specific provisions in the law entitling them to obtain warrants to search premises, for example, for stolen goods or for drugs. If the Garda suspect that a stolen pot of jam is likely to be found in a person's house, they can obtain a warrant to search the house but, if they suspect that bloodstained clothing that would help to convict a murderer is there, they are powerless to go in without the consent of the owner or occupier. That is, I think, a position that people in general might find disturbing and difficult to defend.
On the other hand, a wide power of search and the intrusion on the privacy it involves could give rise to genuine fears. Groups that are, perhaps, most likely to see it this way are those who in the course of the practice of their professions develop special relationships of confidence with clients and who maintain records containing confidential material. The Government are not unmindful, in this context, of recent British experience in relation to a proposal to give a general power of search for a wide category of serious offences. Considerable controversy was engendered about the alleged lack of adequate safeguards to protect information held in confidence. The resultant amendments to the proposal — no doubt to assauge fears — may have greatly limited its effectiveness.
The Government are not in favour of having a general search provision but left for further consideration the possibility of having some kind of provision which would be a compromise between the rights of those anxious to ensure protection of confidential relationships and the interests of society in seeing that the Garda get adequate powers to secure evidence of serious crime.
I would like, therefore, to suggest for consideration by the House a provision that would be very restrictive in its scope. What I have in mind is one that would allow a Garda superintendent to obtain a warrant, on a sworn information before a district justice, to search premises but only where the justice was satisfied that there was evidence of or relating to specified serious offences, namely, murder, an offence involving grievous bodily harm — this would cover only two or three offences — kidnapping or rape. A search for evidence of these particular offences would, I think, be unlikely to involve confidential records. If it did, that would be unavoidable; but I think it would not be unreasonable to suggest that in any such case — which would be bound to be rare — the rights of the community in having those very serious crimes detected and punished should prevail over any other rights.
That is my suggestion. I would welcome reaction to it from inside and outside the House. It is a matter that we can return to on Committee Stage. Before I leave it though, I would like to mention one other relevant matter. Under existing enactments authorising the searching of premises there are no provisions of any kind protecting confidential information or records and, so far as I am aware, their absence has not generated any controversy up to now nor have they been thought to present any special threat to confidential relationships. Moreover, some of those enactments are of recent origin — for example, the Misuse of Drugs Act, 1977. Hopefully, the same commonsense approach that must have characterised acceptance of that provision will prevail here.
When this Bill was published it was accompanied by a statement relating to the Government's intention to set up a new procedure for dealing with complaints against the Garda. The statement said that the Government had decided, on my recommendation, that the provisions in the Bill giving increased powers to the Garda should not be brought into operation until a complaints procedure involving an assessment by an independent person or tribunal had been established.
At the time an attempt was made to read something sinister into the issuing of a separate statement about the complaints procedure and, in case there should be any bona fide confusion about that, or about the Government's intentions, I would like to set out the position fully for the record of this House.
There is a clear Government commitment to bring forward a new scheme for handling complaints against the Garda. There is also a promise not to bring into operation the new Garda powers until the complaints scheme has been set up. Nothing could be clearer or more binding on the Government than that. Precisely how the complaints scheme will operate has not yet been worked out in detail, but it will involve some form of independent assessment, either by one person or by a tribunal, of the way complaints against the Garda are investigated and dealt with. In a context where the bringing into force of new Garda powers is inextricably linked to a new complaints system, it would have been ideal if the complaints scheme could have formed part of the Bill. That was not possible, for a number of reasons.
First, the Bill is a Criminal Justice Bill dealing exclusively with criminal matters and it would not have been appropriate to have put into it matters, such as a complaints scheme, of a non-criminal kind. Second, some work still remains to be done on the detailed working out of the complaints procedure and there has yet to be consultation with the Garda authorities and their representative organisations. There is also another reason that was mentioned in the statement issued with the Bill. It may be possible to introduce the new complaints procedure on an administrative basis — that is, without the need for legislation — in the first instance at any rate. That has not yet been decided. But in any event both Houses will be given an opportunity of discussing the new procedure before it is brought into effect.
It should be apparent from what I have said that the Government are quite resolute in their approach to this matter and that there is no question of new powers being given to the Garda without the added safeguard of a proper complaints procedure. The Garda themselves recognise the validity of this approach and will, I am sure, be anxious to see the complaints procedure brought forward at an early date. I expect that it will be brought before the House before the Bill becomes law.
While there may be scope for argument over individual provisions, I am confident that the vast majority of Deputies will see the Bill as broadly the right response to the difficult circumstances of today. It is, I think, a measured and reasoned response. Its aim is to restore the balance as between the community and the criminal, while at the same time preserving everything that is of fundamental importance to our liberties. It maintains intact the cornerstones of our common law system of justice. I think the Bill is generally right in substance and in drafting, but I have already made it clear elsewhere — and I repeat it now for the record of the House — that I am prepared to listen to constructive suggestions and to consider reasonable amendments on Committee Stage.
It was recently suggested by a professor of law in one of our universities that this Bill will introduce the most repressive pre-trial system of criminal procedure of any democratic country that he knows of. That is not my information. The fact is that virtually all of what we are now proposing is already common practice in other democratic countries. In England, for example, the police can detain without charge for 48 hours, or even longer in the case of serious arrestable offences, and in Northern Ireland they can detain for up to 48 hours for all ordinary arrestable offences. In France, Germany, Italy and the Netherlands — to mention just a few of our European partners — the police can detain without judicial intervention for at least 24 hours.
As regards fingerprinting, the proposals in the Bill are fully in accord with the recommendations of the Royal Commission on Criminal Procedure in England which are now included in the Police and Criminal Evidence Bill there. That Bill will shortly be re-introduced. Fingerprinting without the consent of the suspect and without judicial approval is also allowed in some European countries.
It was also alleged that the Bill abolishes the Judges' Rules, the caution and the right of silence in the police station. These allegations are incorrect. The Judges' Rules and the caution remain exactly the same, that is to say, the Garda will continue to caution a person to the effect that he is not obliged to say anything. However, they are also being required under sections 16, 17 and 18 to inform the person in ordinary language of what the effect of failing or refusing to mention certain facts or account for certain objects or marks might be.
The proposals to allow inferences to be drawn cannot fairly be described as an abrogation of the right of silence during questioning, since the suspect is not obliged to answer any questions and, in relation to section 16, no inference can arise if he remains silent both during questioning and at the trial. People sometimes forget in this regard that in most of the civil law countries of Europe — France, Belgium, Germany, etc. — the system involves compulsory pre-trial questioning of accused persons by an examining magistrate. This can go on for very long periods — even amounting to 12 or 18 months in some countries — and often the suspect is detained in custody throughout. While technically the accused has the right to remain silent, the reality is that very few accused persons do, because it can have a prejudicial effect on their case. That is the accusatorial system. Our system, which is adversarial in nature, seems to me to offer a better deal to the accused.
Once he is formally charged with an offence — which under the Bill must happen within 12, or at most 20 hours, of arrest — he cannot be further questioned; bail can be denied, even in cases of murder, only in very limited circumstances; he enjoys a right to free legal aid if he cannot afford a lawyer; and there is a presumption of innocence in his favour.
Objection was also taken to the provisions relating to withholding of information regarding firearms and stolen property contained in sections 14 and 15 on the ground that they required "compulsory submission to questioning for intelligence gathering purposes". I think this is an understandable reaction, though in my opinion an exaggerated one. However, it fails to take account of the seriousness of the situation confronting us as regards the illegal supply of firearms for criminal activities and the traffic in stolen goods. Moreover, there are already analogous provisions in the law, both here and in England, where a person is required to answer questions under penalty and where, as in this Bill, incriminating admissions cannot be used against him in any subsequent proceedings.
The approach to the Bill exemplified by this sort of criticism will not, I think, be widely shared. Ordinary law-abiding citizens are now totally fed up with the activities of criminals — and especially with the "godfathers" and "barons"— who appear to have been able up to now to flout the law and accumulate wealth regardless of the hardship and misery they have caused. Thankfully, the Garda in recent times have had remarkable success, especially with drug racketeers, and I am sure it is the wish of every member of this House that this will continue. The people are fully behind the Garda in their efforts.
But it would be wrong to see this Bill solely in terms of its "crime-curbing" dimension. It is also, I believe, a worthwhile measure of criminal law reform. All the substantive provisions deal with the kind of reforms that would, I think, suggest themselves for adoption in the course of any major review. They are justified on their own merits. I would not bring the Bill before this House if I were not convinced of that.
Laws on their own, of course, will not solve crime, the causes of which are deep-rooted in our society. But, as I said at the beginning, we cannot sit around doing nothing until our social problems are solved. Utopia is not around the corner. The Garda, for their part, are also realistic in their attitude to law reform and recognise that it is by no means a complete answer. Nothing will ever supplant good local knowledge coupled with painstaking detective work. Improved detection is, therefore, essential and in this regard the Garda need the support of the public to come forward with information about the criminals and not to be tempted to resort to taking the law into their own hands.
It would be idealistic, not to say unrealistic, to think that our work in combating crime would ever be so successful that we would again have one of the lowest crime rates, one of the smallest prison populations and one of the smallest police forces of any developed country in the world. That is unlikely to happen, at any rate in the near future, and certainly one could not say that it would be likely to result from any one measure. At the same time every constructive effort is bound to be of assistance and this Bill certainly fits that description. I believe that, in conjunction with the other practical measures the Government are taking, it will have a major impact in stemming the increase in crime.
I commend the Bill to the House on this basis.
