Limerick East): As I was saying before Question Time, I should like to thank Deputies on all sides of the House for their contributions to this debate and for the responsible and constructive approach they adopted to the Bill. By and large those who spoke supported the Bill and I welcome that. It is apparent also that Deputies appreciate the seriousness of the crime problem confronting us and the urgent need to take measures to deal with it.
I indicated in my introductory statement that I am ready to consider any reasonable proposals aimed at improving the Bill. That is still my attitude. I should make it clear, however, that the Government consider that the Bill is broadly the right approach and that its general thrust is fundamentally right in principle. But we shall be looking at the provisions again in their entirety before Committee Stage and there may be scope for some amendments. Naturally, I will take into account very seriously the views expressed in this House while, at the same time, paying due attention to views expressed by people who are not Members of this House who have also contributed to the external debate which was going on contemporaneously with this one.
Many of the points made during the debate relate to matters of detail. I would hope to deal with them also on Committee Stage. Others relate to matters that come within the ambit of my Department generally but are not within the scope of the Bill. I dealt with those already this morning. I shall try to deal with as many of them as possible, however briefly, in the course of my reply but since the debate has been a very long one I could not possibly respond now to every point. There will be ample opportunity for Deputies to make specific points on Committee Stage and I shall be happy to deal with them then.
I will begin by responding to some of the points made about the proposed power of detention and related provisions — sections 3 to 8. The need to give the Garda a power of detention for serious crime has been widely recognised, although some Deputies expressed misgivings about the adequacy of the safeguards being provided. Perhaps the most important suggestion made was that a system of custodial guardians should be introduced along the lines recommended in the Ó Briain Report.
The Government considered this idea very carefully before the Bill was finalised but decided against it. The main options seemed to be between having guardians drawn from the Garda — sergeants or inspectors — and having independent lay persons to do the job.
There are substantial practical difficulties associated with having independent lay persons for a task such as this. It must be doubted whether it would be possible, for example, to get people of the right degree of competence and responsibility to take on what would be a very tedious job to be done in very uncongenial surroundings. Some sort of special paid service would have to be created if enough people were going to be available at all hours of the day and night. In the present very difficult economic climate that is, I think, asking rather a lot. But it is not simply a question of cost.
There is also the matter of whether, if the system were to be credible, questioning could be permitted at all in the absence of a guardian. The period immediately following the arrest of the suspect — perhaps the first hour — may be a crucial one for obtaining a statement from the suspect about his involvement in the crime or for obtaining other evidence or apprehending accomplices. If the Garda had to delay questioning during this vital period to await the arrival at the station of a guardian who might have to be summoned from his sleep in the middle of the night, investigations could be seriously hampered.
During this debate, and in the course of the public debate on the Bill outside this House, the idea of having some identifiable member of the force responsible for the well-being of the detained person and for seeing to it that he was informed of and was accorded his rights, came up more than once. There are arguments in favour of this but there are also real practical difficulties. I intend to look at it again however, to see whether something along those lines could be worked out.
Although I said in my introductory remarks that the period of detention of six hours — or 12 with an extension — applies no matter how many offences are being investigated simultaneously, the idea seems to persist that, once a person has been detained for an offence, the Garda can keep thinking up new offences and so extending the period of detention. It has even been suggested that the Bill permits unlimited detention.
This interpretation of the effect of section 3 is not in accord with reality. The clear intention is to permit detention for a maximum of 12 hours — excluding a period between midnight to 8 a.m. where questioning does not take place. However, I shall have the drafting re-examined, and if there seems to be any real possibility of ambiguity, I am entirely willing to introduce an amendment at committee stage to put the matter beyond doubt.
Another suggestion was that a person may be rearrested and subjected to further periods of detention for different offences arising from the same set of circumstances. For example, a person suspected of robbery in which a stolen car was used could be detained first for the stolen car. He would then be released and re-arrested for the robbery. There is no question of this. All the offences involved in a particular incident that are known to the Garda must be investigated at the same time. They cannot adopt a piecemeal approach and thus prolong the detention period.
But we cannot prohibit rearrest and detention for an offence which is not connected with that incident. Here again, I am willing to have the drafting looked at to remove any abiguity but I must emphasise one point. Any attempt to draft legislation of this kind in a way that would exclude extreme or perverse interpretations would in fact be dangerous. If one set out to exclude the extreme or perverse interpretations in one case, the courts may be forced to admit the possibility of such an interpretation in other cases on the principle that when the Oireachtas wants to exclude such an interpretation it says so. We cannot — and I suggest should not — attempt to legislate as if the courts were not there to stand between the citizen and an oppressive application of the law.
The point was also made that there was nothing in the Bill to preclude the use of section 30 of the Offences against the State Act and section 3 of the Bill in succession for the same offence so that a person could be detained initially for up to 48 hours under section 30 and then released and rearrested and held for up to 20 hours.
While, on the face of it, this might seem to be a theoretical possibility merely because it is not specifically prohibited, personally I do not accept it in the sense that it would clearly be an abuse and there is no possibility that the courts could deem it to be a reasonable application of the law. However, I propose to look at it again though with the reservations I have mentioned earlier about the positive dangers of attempting to spell out every last detail as if the courts could not be trusted to act in accordance with reason.
Deputies Shatter and Molony in particular made a number of points about the exercise by a suspect of his right of access to a solicitor. Section 4 provides that a detained person must be informed "without delay" of his right to consult a solicitor and that, if he so requests, the solicitor must be notified "as soon as practicable". The term "as soon as practicable" has been criticised on the grounds that it would permit the Garda to delay notifying the solicitor.
I do not accept that that is correct. "As soon as practicable" recognises that it may not be possible to contact a solicitor at a particular time. If there are no difficulties about contacting him, then the obligation arises immediately. This is a well-recognised phrase of a kind which the courts are frequently called upon to apply in various sets of circumstances.
It was also said that the Bill does not say how much time may elapse before a detained person may see a solicitor and that it is not clear whether a solicitor may remain with the person during the course of questioning.
The right of access to a solicitor as defined by the courts is a right of reasonable access and, in this regard, the courts have said that what is reasonable must be considered having regard to all the circumstances of each individual case. It is not intended that the solicitor should be allowed to remain during the course of questioning.
It was suggested by Deputy Shatter that provision should be made for a code of practice regarding the treatment of detained persons and the questioning of suspects. Some Deputies also suggested that there should be a duty on the Garda to keep a written record relating to detention, a copy of which would be given to a person who is released without charge.
I do not think there would be any objection in principle to the idea of a written record to be given to a person on release but there could be considerable practical difficulties and we could find ourselves building up a system involving costly paperwork that would have very little, if any, real value. As far as a code of practice is concerned, it is certain that there will have to be a code of practice but it is another matter to say that it should have some kind of statutory force. We cannot overlook the point that there appears to be a great deal of truth in the complaints made by the Garda that already — and even with the increased powers in the Bill — they will be operating under more rigid constraints than almost any police force they know of. The laws — including court decisions — impose very extensive restrictions on the admissibility of evidence even when its relevance and accuracy are not in question. It would be a big step to introduce the concept of a statutory code of practice if the implication was — as it would seem to be — that a departure from that code could lead to the exclusion of relevant evidence that was not obtained by any oppressive means.
Deputy Woods said that we should consider whether the application of the Bill to all offences carrying five years' imprisonment is not too wide. Could we, for example, remove some less serious offences from the scope of the Bill?
The Government gave very careful consideration to this point. We looked at the question of having a list of offences to which the provisions of the Bill would apply. However, there were serious practical drawbacks about having such a list. For one thing, it would have added to the complications the Garda already have to face arising from the number of lists they have to operate with at present for different purposes. In addition, there are so many very serious offences that come within the five year formula — and all of them would have had to be covered — that the list would have been extremely long and complicated. The five-year formula is straightforward and avoids these difficulties. There is hardly an offence within it that ought not to be within the scope of the Bill.
References have been made in this context to some offences carrying five years' imprisonment, such as petty larceny and shoplifting. If we were to isolate a few offences of that kind, one could undoubtedly make a point but even then, I would suggest, not a conclusive one, because these offences are very often part of a pattern which raises the matter to a different level of seriousness. There is no practicable method that I can see of "breaking up" larceny — as far as this Bill is concerned — into minor and serious offences. The only place that distinction can be made is in the court which can assess the facts. I do not see how one can operate a system where the larceny of a very large sum of money is treated differently under law from the larceny of a small sum, unless we changed the Larceny Act and divide seriousness of offences in relation to the amount of money taken.
Deputy Woods suggested that there should be a duty imposed on the Garda to destroy all copies and records of photographs and fingerprints. That is already explicitly provided for in section 6 (1) and I do not see that it can be made more explicit.
Deputy Woods and Deputy Shatter also suggested that the taking and retention of fingerprints of persons who are given the benefit of the Probation Act was contrary to the spirit of that Act.
I am afraid I have to disagree with that. The Probation Act is widely used in our courts and even people who have several previous convictions are sometimes dealt with under it. The application of the Act means that the accused person is proved to have committed the offence and the reality is that such a person may commit other crimes. Consequently, the Garda need to be able to fingerprint such a person so as to assist subsequent detections. Once they have been found to have committed an offence, I cannot agree that they have any ground for complaint at the fact that the Garda will have a record.
It has also been suggested that there should be an overall time limit on the retention of records in relation to a convicted person who has served his sentence or who has not been in trouble with the law for a substantial number of years. Again, I cannot agree. At present there is no time limit and fingerprints of convicted persons are retained indefinitely. However, I would emphasise that access to fingerprint records is strictly confined to the Garda Síochána and that such records provide essential information in criminal investigations.
The suggestion was made during the course of the debate by several Deputies that stripsearching should not be prohibited where there was suspicion that items such as weapons, stolen money, etc. were concealed — in other words, it should not be confined, as the Bill proposes, to drugs and explosives.
I can see the force of this argument but we must also keep in mind that stripsearching is inherently distasteful and, I believe, it should only be done where the need is very strong. I would be against any extension of what is in the Bill relating to personal searches unless what is there is found by experience to be inadequate.
Some Deputies suggested that the Bill would allow female suspects to be strip-searched by male gardaí. The Minister of State at my Department felt compelled — quite rightly in my view — to issue a statement to rebut this allegation. The Garda Code already explicitly prohibits any search whatsoever of a female by a male garda and no instance of a breach of that instruction has ever come to my notice. Accordingly, I do not see a need to include a specific provision in the Bill to the effect that a search of a person must be conducted by a garda of the same sex. For much the same reason as I mentioned earlier about the dangers of trying to exclude extreme interpretations, I am firmly against such a provision, precisely because it would be absurd to suggest that such a search would not be a serious abuse of power. We should remember that the Bill does not give power to strip search or body search. These powers exist already in the case of drugs legislation and searches for explosives. This Bill gives power to search, but not to strip search or body search.
Some concern has been expressed about the provisions in section 14 and section 15, which make it an offence for a person found in unlawful possession of a firearm or ammunition or in possession of stolen property to fail or refuse, without reasonable excuse, to give an account of how he came by the weapon or stolen property as the case may be. It has been said that these provisions could be used to require information from "anybody with anything in his hand or pocket" or from social or youth workers. This sort of comment is quite misleading.
Let me take section 14, dealing with firearms and ammunition first. Is it not clear that what is in question here is a person found in unlawful possession of firearms or ammunition? I have to stress that because it seems to be overlooked that a serious offence may already have been committed before the section can apply. Consequently, we are not dealing here with innocent people going about their business. The object of the section is to get information about the suppliers of these weapons because, as everybody knows, there is a trade in the supply of weapons, such as sawn-off shotguns, for use in crime. It is unreasonable, having regard to the death and destruction that is being caused, to require a man with a revolver, who has no licence for it and, therefore, no business having it, to say where he got the gun? I think not, especially when we are providing that the information requested cannot be used against him or his spouse.
As regards section 15, which is to the same effect but relates to stolen property, the garda who finds the person in possession of the property must have reasonable grounds for believing that an offence consisting of stealing or some related offence has been committed. The provision does not empower the Garda to stop and search people for stolen property. We are dealing only with a situation where a garda finds a person in possession of property. The garda must have reasonable grounds for believing that that property is part of property that is believed to have been stolen. He must then inform the person of his belief and he must tell him in ordinary language what the effect of not giving the information might be. Moreover, the offence is not committed if the person has a "reasonable excuse" for withholding the information. There is also the safeguard that any information given cannot be used in evidence against the person or his spouse.
It has also been suggested that any person living in an area with high levels of crime who is found in possession of property or money is liable to be detained for up to 20 hours. I think that it is sufficient to say about that suggestion that it is without foundation.
Some concern has been expressed that the new power of detention and the provisions dealing with withholding information about firearms and stolen property will have an adverse effect on the relations between the Garda and the community. I do not believe that this will be the case and for two reasons. First, there are substantial safeguards to ensure that they cannot be used indiscriminately or arbitrarily. Second, the existence of recognised but strictly limited and controlled powers as now proposed should in fact lessen the pressures on gardaí to enter a grey area where it was not always clear whether the suspects were being detained unlawfully or not. It is quite clear that this Bill gives no power to the Garda to go out arresting persons on so-called "fishing expeditions". Some people seem to have misunderstood how the power of detention will operate and I would like to take this opportunity to stress one or two important features.
First, the Bill does not provide for any new powers of arrest. Before the powers of detention and the related provisions in the Bill can be used several conditions must be satisfied. There must be a valid arrest under existing law. The arresting garda must suspect that the person arrested has committed a serious offence and there must be reasonable cause for his suspicion. It is well established that under existing law an arrested person must also be told the reason for his arrest and this is why we have not included a provision to that effect in the Bill. The reasonableness or otherwise of the garda's suspicion on which the arrest is founded and the circumstances surrounding the arrest are open to review by the courts. In other words, the question of what constitutes reasonable cause is an objective test based on all the circumstances and not a purely subjective one confined to the mind of the garda alone.
When the arrested person is brought to the Garda station the member in charge, who is usually of sergeant rank, must have reasonable grounds for believing that detention is necessary for the proper investigation of the offence. Again, the reasonableness of the grounds of his belief would be open to review by the courts if the matter became an issue. If he believed that there were no reasonable grounds for detention, the arrested person would have to be released. So he will have to satisfy himself on the point.
With regard to the suggestion that the new powers might be applied in respect of petty offenders with subsequent damage to the Garda/community relations, there would not, in normal circumstances, be legal authority for detention in such cases because there would not be reasonable grounds for believing that detention would be necessary for the proper investigation of such offences. In the great majority of such cases evidence would already be available to enable charges to be brought straightaway or to proceed by way of summons. I would stress that it is well established law that if a statute says that a garda has to have reasonable grounds for suspicion, it does not mean simply that he says or even genuinely believes he has reasonable grounds. These grounds must exist objectively. We also know that, as a practical matter, the Garda are already hard pressed in dealing with serious crime and they have neither the time nor the accommodation for detaining petty offenders.
I believe that, by helping to remove the hardened criminals from certain areas, these provisions will do a valuable service to the law-abiding people living there and that most people will see them in that light.
Sections 16 to 18 of the Bill which allow a court or jury to draw inferences from the silence of an accused in certain circumstances, have come in for criticism — strongly put in a number of instances. Let me acknowledge at once that I do not wish the remarks I am going to make to be taken as in any sense faulting any Deputies for their outspoken views. I think it is fair to say that some of the vitally important features of the provisions — features which will operate as essential safeguards — have been ignored or else have been "glossed over".
Deputy Molony asked me to say why these provisions are considered necessary. What I am going to say is directed at section 16 but it will also apply, with some modifications, to sections 17 and 18. One of the objectives of the section is to eliminate the existing artificial distinction between what can and cannot be said by the trial judge in relation to the silence of the accused when being questioned or charged and to enable the judge, and consequently the prosecution, to comment in a commonsense way on the fact that a person seeks in court to offer an explanation for his behaviour that he could reasonably have been expected to have offered earlier but failed to do so.
In my view it is impossible to defend the distinction which the law makes between what the judge can say and what he cannot. It flies in the face of common sense and, if we never had a crime problem in this country, we would want to make this change at the earliest opportunity. As I said in my introductory remarks, the judge can tell the jury that the failure of the accused to mention to the police a fact that he relies on in his defence is a matter they can take into account in determining the weight to be attached to his evidence but must not invite them to infer from it that his defence is false and that therefore he is guilty. For the judge to invite the jury to draw such an inference is a misdirection even if their common sense tells them that that is the only logical inference. Many eminent lawyers — among them Professor Glanville Williams and the late Sir Rupert Cross — have concluded that this puts the judge in the position of having to talk "gobbledegook" to the jury. Nobody can, I think, defend legal provisions that produce that kind of result.
That apart, I do not think that in present day circumstances — considering all the advantages an accused has — it could possibly be regarded as unfair to an accused to draw an appropriate inference from his putting forward an exculpatory explanation which he chooses to give at the trial if he could have given it to the police. Some people think we should go even further and require accused persons to put forward a book of defence pleadings or that we should completely abolish the right to silence, making it compulsory for an accused to give evidence at his trial. I am not implying that that would be justified, but it is a view that a number of reasonable people hold.
It has been said — quite wrongly, I suggest — that the effect of section 16 will be to require a person being questioned by the police to respond to unfounded allegations and that such a person would, in the absence of legal advice, have to decide essentially legal points about what might or might not be material to his defence. It was said that to put the accused in such a position in a police station, bearing in mind that he might be a relatively unintelligent person, is fundamentally unfair.
This kind of comment ignores some of the essential safeguards of the section and incidentally ignores also the fundamental role of the courts. An inference can only be drawn from a failure to mention a fact which
in the circumstances existing at the time (the accused) could reasonably have been expected to mention ......
The court or the jury will decide whether it would have been reasonable to expect the person being questioned or charged to have mentioned the fact at the time. Common sense indicates that they would take into account, in deciding these matters, whether the accused was confused or of low intelligence or whether, because of lack of legal advice early on or otherwise, he could not reasonably have been expected to mention the fact at issue. As regards the issue of unfounded allegations, I find difficulty in understanding how such an issue could arise at all in court but if it did I cannot see how any court or jury could ever think it was reasonable to expect a person to disclose something in response to unfounded allegations.
But that is not the only safeguard. Even if the accused had failed to mention something he could reasonably have been expected to mention and which he now mentions in court, the court or jury may draw only such inferences "as appear proper". A trial is presided over by an experienced lawyer — the judge — and it will be for him to guide the jury. There may have been reasons for silence consistent with innocence and that fact can be and no doubt will be emphasised. The accused may be unable — because of confusion, as has been said — to remember some fact which could clear him. He might wish to conceal some embarrassing fact about where he was at the time or he may want to protect a member of his family. But, of course, if one pushes that kind of argument, it could be suggested that a person may confess to a crime for the same reason. The law as enacted by Parliament cannot do more than set down the principles and procedures — it cannot itself administer justice which is and must be a function of the courts. And it will be for the court — or the jury with the help of the judge's directions — to decide whether, having regard to all the circumstances, it would be proper to draw an adverse inference.
Deputy O'Dea questioned the provision in subsection (3) of section 16 which relates to the admissibility in evidence of the silence or other reaction of the accused in certain circumstances. This provision and similar provisions in sections 17 and 18 are designed simply to preserve the existing law. This allows evidence to be given of an accused person's reaction, say, to the news of a murder, if it is relevant, and whether he is in police custody or not. Under existing law an adverse inference may be drawn in such circumstances. There is no change here in the Bill.
This morning Deputy Keating referred also to this section and made the point, which is certainly worthy of examination, that at times it might be appropriate that an accused could inform the presiding judge confidentially of a matter such as is raised in these sections. It presents a difficulty in that justice must be seen to be done in open court. Under our system I am not sure if it is possible to provide an amendment which would allow the confidential imparting of information to a judge. Certainly the matter is worthy of examination and I will look at it.
Deputy O'Kennedy raised the question of what effect certain provisions in the Bill — particularly those relating to inferences — would have on the Judges' Rules. The Bill does not abolish the Judges' Rules but the effect of sections 14 to 18 will be to change the caution that the suspect has to be given by gardaí. Before I deal with the change, I should perhaps indicate something of the background to the rules.
These rules are essentially administrative directions issued by the English judges for the guidance of the police in the early part of this century and they have been adopted by our courts. They relate to questioning persons in custody and suspects generally and they specify the caution that the police should administer. They also specify when the caution should be administered. They do not have the force of law but, if they are contravened, the trial judge has a discretion to exclude from evidence any statement obtained.
On the enactment of sections 16 to 18, the Garda will be obliged to inform the person being questioned or charged in ordinary language what the effect of them is, that is to say, that adverse inferences might be drawn under section 16 from his failure to mention some fact that he subsequently relies on in his defence or, under sections 17 or 18, from his failure or refusal to account for the presence of a particular object, substance or mark in his possession or on his person, or for his own presence in a particular place.
As regards the inferences that may be drawn under section 16, the person will not be legally obliged to mention any particular matter and he will be told that that is his right, as at present. But he will also be told that if there is any fact that he intends to rely on in his defence in court it would be advisable for him to mention it as otherwise his evidence might be less likely to be believed and this could have a bad effect on his case in general. And as regards sections 17 and 18, he will be similarly advised of the possible consequences of failing or refusing to account for objects, marks, etc. It is intended that suitable forms of words will be worked out.
Sections 14 and 15 differ substantially from sections 16 to 18 in that they impose a legal requirement on the person being questioned to give information about illegally held weapons or stolen property so that effectively his right to remain silent about those specific matters will no longer apply. Of course, it is provided that any information he does give cannot be used against him.
The point I wish to make about the inference sections is that the new formula will not be inconsistent with telling a suspect that he has a right to remain silent. That will still be true. It is only in the strictly limited cases of illegally held weapons and stolen property that a suspect will be required to give information under the Bill.
Most Deputies — even those who criticised the sections of the Bill dealing with detention or inferences — expressed themselves to be generally satisfied with most of the other provisions of the Bill. Those in relation to bail, alibis and majority verdicts seemed to have been particularly welcomed. However, there were some points made that I think I should respond to.
This morning Deputy De Rossa referred to four different aspects of the Bill on which he was in fundamental disagreement. I have dealt with most of them already with the exception of the increased jurisdiction of the District Court. In that section of Deputy De Rossa's speech there was a misunderstanding of what is actually being proposed in the Bill. The jurisdiction of the court being increased to impose sentences of two years would apply only to consecutive sentences. It is not a general increase in the jurisdiction of the District Court which seems to be the interpretation the Deputy took from the Bill.
Deputy Kelly indicated surprise at the approach in the Bill to the problem of offences committed while on bail. What he suggested was that we should change the law relating to the granting of bail so that bail could be refused where there was evidence that the accused was likely to commit further offences while on bail. This approach would meet the decision of the Supreme Court in the O'Callaghan case head on. He went on to say that if the Supreme Court rejected the legislation we should have a referendum to decide the issue.
I need hardly say that the views of Deputy Kelly in such an issue must command respect and it seems to me, at all events, that the case he made out for saying that preventive detention is already known to the law is a persuasive one. However, I think that there would be a serious danger that the kind of legislation he recommends would in fact be rejected by the Supreme Court and, having regard to the history of the matter, the Government decided that, on balance, it was better to attempt the approach in the Bill. Of course, if the bail problem were to persist the possibility of having a referendum on the question could not be ruled out.
Deputy Woods questioned the necessity for section 25 which relates to bringing a person charged with an offence before a district justice or peace commissioner. He asked for clarification. As I said in my introductory statement, section 15 of the Criminal Justice Act, 1951 — which is being amended — applies only to persons arrested on a warrant. We are extending it to persons who are arrested without warrant and charged with an offence. In both cases such persons have been charged with an offence. Section 25 provides for the bringing of such persons before a district justice or peace commissioner. We are also taking the opportunity of putting in statutory form the common law relating to persons charged late at night. Such persons do not have to be brought before a court until the following morning and we are simply maintaining this.
Several Deputies have made the point that, as section 26 stands, it is not obligatory on the Minister to make regulations for electronic recording. I accept this view at least as being arguable though I would see it as being very close to a legal obligation and possibly an enforceable obligation if there were any culpable failure to act on it. I want to make it quite clear that the only reason that the section says "may" rather than "shall" is that there is a clear and serious need to have the system thoroughly worked out on the basis of pilot schemes and study of what has been learned elsewhere, and so on. We all of us recognise a clear need to proceed on these lines but we have to deal with the practical problems.
Deputy Shatter proposed that it should be obligatory on the Garda to explain to the court at the trial the reasons for any failure to record questioning and to provide that the court or jury could draw appropriate inferences from the explanation.
I do not see the need for a statutory provision in this regard. When electronic recording of questioning is introduced generally it will obviously be open to the defence to raise the question why tape recording was not carried out in a particular case. If there is not a good reason, the court or jury will be able to draw its own conclusions.
Until the committee examining the introduction of tape recording has considered the point and reported to me on it I would not want to do anything that would prejudice the admissibility in evidence of statements that had not been tape recorded. There will always be reasons why tape recording will be impossible in particular cases and we could never achieve a situation in which a recording could be made of everything that happens between a suspect and a garda from the moment of arrest.
Deputy Kelly raised the question of tampering with tapes. That used to be one of the principal arguments against bringing in tape recording. However, I am advised that devices are now available that would "give the game away" if there is any tampering, such as a built-in timing mechanism on the tapes and an audio track with a high pitched tone that is not audible on a play-back. These are matters that the committee will be looking at in other jurisdictions.
Deputy Kelly also spoke at some length about the need to reverse the effect of the Supreme Court decision in the O'Shea case. That was to the effect that the DPP can appeal an acquittal in the Central Criminal Court to the Supreme Court. I would not necessarily disagree with any of what he says and I may move an amendment on Committee Stage to achieve this. However I need more time to consider the matter, but I shall let the Deputy know if I decide not to move an amendment at some stage so that he may have an opportunity to do so himself.
Deputy Kelly and one or two other Deputies made the interesting suggestion that a time limit might be put on the operation of certain provisions of the Bill on the lines of emergency legislation and that provision might be made for the suspension of any particular section if abuses became apparent.
I would not entirely dismiss this idea but I can see objections to it. I think that all, or virtually all, the provisions of the Bill — I am referring to the central ones such as detention, the bail provisions, the inferences sections and improved trial procedures — are necessary to enable the Garda and the courts to do their job properly. They are not, as I said before, solely related to the current crime problem which may be a temporary phenomenon. For that reason, they are not reforms that lend themselves to an "on-off" approach. The Garda, no less than any other police force, need a power of detention and I cannot foresee a time when they will not need it. It would be wrong to give a contrary impression.
Moreover, court procedures will develop as a result of the changes we are making in this Bill in rules of evidence and in practice and procedure. It would not be desirable to alter these again after a short period of time. The law needs to be settled. However, this is a point for further reflection and I will think about it between now and Committee Stage.
A number of speakers recommended the creation of various new offences in the Bill. Deputy Woods suggested that dishonest handling of stolen goods should be made an offence and Deputy David Andrews thought that pickpocketing and handbag snatching should be dealt with specifically in the Bill. Deputy Brady thought that there was a case to be made for making loitering an offence for which the Garda could arrest without warrant on suspicion. In fact, this Bill does not set out to create new offences except where this is necessary in order to strengthen the hands of the Garda in enforcing existing law. These proposals for new offences are really appropriate for other legislation.
As regards dishonest handling, I accept that there is a case for amending the present law in some such way as Deputy Woods suggested. I have proposals before the Government in a separate measure that will cover various forms of handling stolen goods other than receiving, but any comprehensive changes in the law relating to receiving must await a review of the Larceny Acts which cannot be undertaken quickly.
As to pickpocketing and handbag snatching, such activities are offences under existing law — the offence being "larceny from the person" carrying 14 years penal servitude. It would be difficult to justify increasing this sentence.
On the question of loitering, I am aware that residents in some housing estates are being annoyed by groups of young people congregating or loitering at certain points in these estates. I am advised that since the young people concerned are not committing any specific offence merely by hanging around there is no action that the Garda can take against them. However, this is a complex legal and social problem and one that cannot really be tackled in this Bill which, I would suggest, covers a fair amount of ground as it is.
It would be wrong to see the Bill as a panacea for all our ills. It was not put forward in that context but in the context of providing a very important element in an overall package of provisions to combat crime and lawlessness. To extend that even further, to seek in the Bill provisions for problems in communities which are not particularly problems of crime and vandalism, is to go beyond what is intended in the Bill. I do not think that the social problems of society can be solved in a Criminal Justice Bill and certainly there is no attempt by me to imply that this Bill will provide a cure for the various social ills which Deputies have mentioned. I have always put it in the context of a very important set up provisions in the Bill which will amend the law, provide a new legal framework and give extra powers to the police, but which in itself is not being put forward as a solution to the crime problem and is certainly not put forward as a solution to the various slings and arrows of outrageous fortune which afflict individuals and communities. It would be wrong to interpret the Bill in that way. It is not being presented in that way. It is a Bill which I believe will play a very significant role in combating crime but certainly it is not presented as a cure-all or a panacea of any sort.
The debate was a very wide ranging one and many points were made about crime and law enforcement generally. I propose now to respond to the main ones.
A number of Deputies voiced their concern regarding the serious drug problem and I fully share this concern. As I have already pointed out, the Garda have had considerable success against the drug racketeers in recent months and I can assure the House that there will be no let-up in their efforts. The Minister for Health has primary responsibility in relation to the Misuse of Drugs Act and I will invite his attention to the various suggestions that have been made.
Several Deputies referred to the desirability of making parents answerable in some way for offences committed by juveniles.
There is already provision in section 99 of the Children Act, 1908, whereby a court may order a parent to pay a fine, damages or costs in respect of an offence committed by a child or young person.
The new Children Bill in course of preparation by the Minister for Health will provide the opportunity for a debate on such issues. They are outside the scope of this Bill. Other provisions relating to children, which were mentioned by Deputy Woods, such as residential care and provision of places of detention for juvenile offenders, can also be raised in the context of the Children Bill.
The suggestion has been made that sittings of the District Court might be held at night to enable a saving to be made in time and expense of Garda witnesses attending court outside their normal hours.
The question of establishing a night court in Dublin was examined by a committee comprising the President of the District Court and representatives of the Garda, the Office of the Director of Public Prosecutions and the Department of Justice. The committee concluded that if a night court were to be established it would need to sit for several hours from, say, 11 p.m. onwards because of the substantial numbers of persons arrested after that hour. Additional district justices and District Court staff would be necessary. Additional Garda staff would also be needed in the Bridewell to cater for the new arrangements.
The committee estimated that the annual staffing costs associated with the provision of a night court would substantially exceed the cost of Garda overtime under the present system and the existing arrangements give better value for money. As in all things of this nature, society is changing rapidly and an appropriate response in one year might not necessarily be the appropriate response subsequently. I make that comment as information for Deputies in the House rather than in any attempt to exclude any options in this area.
Many Deputies referred to the need to develop to the maximum extent our forensic science capability. I share the view that forensic science plays an important role in criminal investigation and I am fully convinced of its value. However, I would not want it to be thought that the Garda are lacking in this area. In fact, they assure me that they are very well served indeed, by international standards. I intend to ensure that the resources and equipment necessary for this valuable service will continue to be made available and that its requirements will be regularly reviewed.
Deputy Gerard Brady raised some interesting points concerning the establishment of neighbourhood or community watch groups with a view to the prevention of crime. I agree with this approach. I am satisfied that the most effective way of reducing crime is for the Garda and the community to work together and it is the general intention to encourage and promote community co-operation with the Garda Síochána. I am aware, as Deputy Brady has pointed out, that a neighbourhood or community watch system has developed in other countries and particularly in some parts of the United States. The present position here is that the Garda authorities are actively considering the matter and I look forward to the outcome in due course.
Several Deputies referred to the desirability of having proposals for an independent procedure for dealing with complaints against the Garda brought before the House for consideration side by side with the provisions conferring increased powers on the Garda. I would like to reiterate the commitment I have already given that the new powers will not come into operation until a procedure ensuring an independent assessment of the investigation of complaints against the Garda has been established. Work is proceeding on this as a matter of urgency and I hope to have it before the House at an early date.
A number of points were made about recruitment to the Garda Síochána. It is one thing for a Deputy to mention such things in passing but I think I would be trespassing excessively on the patience of the Leas-Cheann Comhairle if I were to respond to those observations in the course of this debate. There will be other opportunities in the near future.
However, I would like to make a brief comment on radio communications. A modern sophisticated national radio communications system, which will cost in excess of £10 million, is at present being provided for the Garda Síochána. This system will be of major benefit to the Garda in the fight against crime, as it will provide for immediate contact between Garda stations and enable gardaí on outdoor patrols to be in constant touch with their stations. Installation of the system in areas outside the Dublin area is already well under way and will be completed by early 1984. Tenders have been received for the supply of the Dublin system which will include a new modern computer-aided control centre and these are under examination at present. It is hoped that it will be possible to place a contract by the middle of this year. The Garda have been involved in the planning and design of the whole system so that it will be tailor-made to meet Garda requirements.
In this connection there is a misinterpretation of the published Estimates. It was intended that equipment necessary for the radio communications network would be funded by a leasing arrangement over a number of years. At the end of this year I found that there were some funds at hand in my Department and I decided to dispense with the leasing arrangement and to purchase outright at the end of 1983 the required equipment. Consequently, the sum of money which was intended for leasing radio equipment in the published Book of Estimates shows a reduction, but the reason for the reduction is that the equipment was bought outright at the end of 1983 and consequently there is no need for provision for leasing in the Estimates. In conclusion, I hope that I have covered most of the important points made in the debate. The Bill has the general support of the House, but as I said, I will be looking closely at it between now and Committee Stage to improve it wherever possible.
The Bill is not a remedy for all ills. I am fully aware of the importance of other factors such as improved social, environmental and economic conditions, especially for young people. I appreciate also the contribution that closer Garda community relations can make in bringing about a better and more law-abiding society. This Bill is only one step, though an important one, in the fight against crime. Nevertheless, the Bill and the other measures we are taking will, I believe, bring about a significant improvement in the present situation.
Again I thank all Deputies who contributed. It has been a most interesting debate and in it I can take the opinions of Deputies on board both in the context of this legislation and in the wider context because Deputies made major contributions in areas which are under the auspices of my Department. I am very glad that such wide-ranging and in-depth contributions were made and I will take them into account when formulating other measures to combat crime and vandalism and to give greater access to justice and to bring about the kind of society which we all want. So far it has been a successful debate. I am still approaching it in an open-minded way. I am open to persuasion as to appropriate amendments on Committee Stage. I think it will be possible to carry on with this Bill in an atmosphere of Deputies on all sides of the House having an input into the legislation and having an influence over the amendments and other policy decisions which were made subsequently by me and by the Government.
