Amendment Nos. 10 and 11 are being discussed together.
Criminal Justice Bill, 1983: Committee Stage (Resumed).
SECTION 3.
Debate resumed on amendment No. 10:
In page 4, subsection (6) (a), to delete lines 33 to 57 and in page 5 to delete lines 1 to 14, and substitute the following paragraphs—
"(a) If a person is being detained pursuant to this section in a Garda Síochána station, between midnight and 8.00 a.m. no questioning of that person for the purpose of investigating an offence shall take place during such period unless the member in charge certifies in writing that he has reasonable grounds for believing that—
(i) such questioning is necessary during that period for the proper investigation of the offence; or
(ii) such questioning is necessary during that period in order to safeguard against serious threat to person or property; or
(iii) such questioning is necessary during that period in order to prevent the destruction of Material Evidence;
or
unless the person detained consents in writing to the suspension of questioning.
(b) A certificate under paragraph (a) shall be given to the detainee before any such questioning commences, and it shall specify the time at which it is given.
(c) When a detainee is given a certificate under paragraph (a) the person giving it to him shall explain orally the meaning and effect of the certificate.
If a person is detained pursuant to this section in a Garda Síochána station, between midnight and 8.00 a.m. and no questioning of that person takes place during such period, the period for which he is so detained shall be excluded in reckoning a period of detention permitted by this section.".
(—Deputy Woods.)
Before Questions I was referring to section 3 (6) (a), (b) and (c) and I made the point that there was not much regard for the point of view of the innocent person. I said we could take it from what was discussed that the section would prove unworkable. It proved difficult to draft and this was admitted by the Minister and Deputy Woods, and it will be difficult to enforce. It is my belief that there would be an inherently coercive atmosphere in police custody in the case of an innocent person being questioned. I also referred to the situation where a person would be incommunicado in an interrogation situation in a police-dominated atmosphere. While there would not be physical violence, nevertheless it would be an inherently coercive situation that would put strong pressures on the accused which could lead to self-doubt and probably an ultimate confession.
I wish to refer to the case of The People versus Lynch, 1982, in that regard. In a period of interrogation of six hours and continuing interrogation there would be a concentration solely on the establishment of guilt of the suspect and this could lead to a breakdown in self-confidence especially where a person might be vulnerable in that respect. This measure would favour the more sophisticated suspect who could withstand greater than average pressure.
A perfect example is the case I mentioned, The People versus Lynch, 1982, Irish Reports, page 64.
I will quote:
The case points out the fact that police interrogation is fraught with the danger that an innocent suspect, while isolated physically and socially from his or her familiar setting, may well come to doubt his or her innocence. The facts of the Lynch case were as follows. The accused had been invited to a police station to help the police with their inquiries into a murder which he had reported to them. The impression was created by the police that he was not free to leave. After furnishing the police with a non-criminatory account of his movements before and during the time of the murder he was kept in secretive police custody for a period of 18 hours. During most of this time he was subjected to intensive interrogation about the murder——
Limerick East): On a point of order, is that from the same document from which the Deputy quoted previously?
No.
(Limerick East): As a matter of information, will the Deputy give the source?
In fact, it is from the same person, Tom Cooney, faculty of law, University College Dublin. The following is the quotation from The Irish Times of 1 December 1983:
During most of this time he was subjected to intensive interrogation about the murder. His wife's telephone inquiries were not communicated to him, nor was she given any reliable information as to what was happening to him. He was transferred from one station to another station where his wife was refused permission to see him. He was given a newspaper which contained an erroneous account of the murder. His confession was more or less consistent with this account, and at variance with independent, exculpatory evidence adduced at his trial. On May 27, 1977, he was found guilty of murder and he was sentenced to penal servitude for life. On December 16, 1980, the Supreme Court allowed his appeal and quashed the conviction, on the ground that the circumstances in which his confession was procured had been oppressive. The court noted that the accused's confession was inconsistent with the independent evidence as to the time and manner of the victim's death.
It might be thought that the proposals in the Bill do not envision the sort of police excess which resulted in Lynch's wrong conviction, but, since the Bill would allow the use of substantial pressures over six or more hours, suspects who are ignorant of their rights, unused to police practices, unassertive and easily dominated, or otherwise psychologically vulnerable are much more likely to be on the wrong end of police interrogation. In this regard the Bill's safeguards are more illusory than real. Deliberately to risk punishing innocent individuals, whatever the resulting social benefit, is morally wrong. [It can be seen that] this principle may crumble under the destructive pressure of in-custody interrogation.
Is the Deputy telling a story, reading a chapter or quoting from an article?
The case I am referring to is The People v Lynch (1982) Irish Reports, page 64.
Has the Deputy much more to quote?
If the matter is relevant surely it does not make any difference how long it takes the Deputy to read it. I had to listen to the present Ceann Comhairle read for days and weeks when I introduced a Bill on mental health. The debate on that Bill went on for months. That is not happening here. Members are making relevant and sensible contributions.
I was asking Deputy Skelly if he would be much longer.
It is only reasonable that the Deputy should be given an opportunity to make his point.
I am giving the Deputy every opportunity.
The case I have referred to concerns so many of the points raised in the debate on the section. They are all relevant. It is remarkable how the case refers to so many of the different points, including moving from one station to another, and an innocent person getting tied up in an oppressive atmosphere.
On a point of order, will the Chair tell me what we are dealing with? Are we dealing with the section in general.
We are dealing with amendments Nos. 10 and 11.
With respect, I am not sure that Deputy Skelly is aware of that.
With respect, I am so aware. The Deputy may not be aware of that.
We have an abundance of Cinn Comhairle today.
It appears that some Members think they harness all the knowledge about everything that is going on. The quotation concludes:
It might be thought that the proposals in the Bill do not envision the sort of police excess which resulted in Lynch's wrongful conviction. But, since the Bill would allow the use of substantial pressures over six or more hours, suspects who are ignorant of their right, unused to police practices, unassertive and easily dominated, or otherwise psychologically vulnerable, are much more likely to be on the wrong end of police interrogation. In this regard the Bill's safeguards are more illusory than real. Deliberately to risk punishing innocent individuals, whatever the resulting social benefit, is morally wrong. This principle may crumble under the destructive pressure of in-custody interrogation. The Bill scouts this principle by regularising such interrogation, despite the demonstrated inability of interrogation to contribute to the control of crime.
I am sorry if reading that quotation was painful to some Members who have sat in the House yesterday and today and are likely to be here for the remainder of the day. I have had to listen to speeches that lasted 25 minutes and I thought they were irrelevant. It was more reminiscent of a General of the KGB. I am trying to speak on behalf of the innocent. I should like to remind all Members that there is a huge body of opinion, respectable organisations and groups of concerned individuals, who are worried about this. As a representative of some of those people I want to be given permission to express my views about the Bill. If the House wishes to run through the sections Members are anxious to get into the Bill, and the repressive measures, without discussion I must object and insist on saying my piece concerning such sections.
I should also like to point out that in this section the persons detained do not have any choice in the matter of whether the period of six hours continues into a second six-hour period. That is entirely at the option of the Garda. The section allows an extended period of six hours bringing the total period of detention to 18 hours and that is also at the option of the Garda without any reference to what the accused may consider to be proper for his or her own welfare. We must take into consideration the point made by Deputy Doyle earlier, that there may be people who are ill or suffering from an illness which is not apparent, or who would not be able to withstand this oppressive atmosphere and interrogation set-up or would crack easily under such circumstances. There should be safeguards within our system against that. We should not hand over easily these powers without being sure how those safeguards will work and then wait for a period of from three to five years to find out whether they have worked.
Under section 3 (6) (b) and (c) continual notices can be given. There does not seem to be a provision preventing successive notices being given. I thought because of that, that the section would be open to abuse.
I did not in any way mean to offend Deputy Skelly in what I said but having listened to the points he made it seemed to me that he was speaking generally on section 3. I must ask at this stage if he was speaking for or against the amendment put forward by Dr. Woods. I understand we are meant to be discussing that amendment. I am anxious to know that because there are quite a number of points I wish to raise about section 3 but I felt it would not be in order to do so.
We are debating amendments Nos. 10 and 11.
But we are not discussing section 3.
The point is that agreement could not be reached on either of the amendments. It was admitted that the amendment put forward by Dr. Woods would not necessarily fit the bill any more than the Minister's would. It was agreed that there was a difficulty in the drafting. I am opposed to detention, totally and completely. I would be glad if it was gone out of the Bill. The Minister made the point earlier that there might be a difficulty in extending the first six-hour period into a second six-hour period. I said I would be delighted if that would be the case. Indeed I would be more delighted if the first six-hour period were removed altogether.
I understand Deputy Skelly's point. I am sure there are Deputies who have specific things to say about this amendment. I should prefer to see us devoting more time generally to section 3 rather than to be wandering around different aspects of the section. We could get through the work much more expeditiously if we dealt specifically with the amendments and then had a full discussion on the section, which is what Deputy Skelly obviously wants to do, as do other Deputies.
I do not agree with Deputy Skelly on many issues but I agree wholeheartedly with him in regard to this. Both amendments No. 10 and 11 are technical. They deal with the garda in charge of a station offering to a detained person the right to continue with the questioning if the person wishes — the garda in charge decides whether the questioning should continue, in his opinion. I take it that the garda in charge would not be engaged in the questioning and would have to make up his mind from the information given to him by the gardaí who had been doing the questioning. It seems to me that the person detained should have the right to request that the questioning should be stopped because it seems to me that the provision with regard to arrest is questionable.
On an earlier amendment the Minister indicated that movement from station to station would be done only during 12 hours of detention and therefore that the rest period would not come into it, but in reply to a subsequent query the Minister seemed to suggest that movement between stations could take place during a rest period. This section deals only with the termination of questioning, not with whether forensic tests can be done during the rest period or whether the person can be moved from station to station during the rest period.
The section is very unsatisfactory and I am not happy with the Minister's explanation that it only appears to go against the norm, that in practice the norm will be respected, that questioning will not take place normally unless there are special circumstances. The whole thrust of the Bill is against the norm because it introduces wide ranging powers for the Garda. Therefore I do not support the amendments.
We have had a reasoned discussion of this and the Minister knows how we feel. We attempted to turn the situation around and ensure there would not be questioning except in certain circumstances and that the person concerned would have the option to say whether questioning could go on after midnight or that it would be stopped. We will look at this before Report Stage and I am prepared to accept that the Minister will have a look at it to see if it is possible to improve the section on Report Stage.
In relation to tiredness and the condition of the person, there are difficulties because the garda in charge of the person would have to know something about his physical and mental condition in order to know whether he would be too tired to go on with questioning. I presume the person can request that certain people would visit him during the rest period. I am aware of a case under the Offences Against the State Act of a person being arrested at 21.45 hours, 9.45 p.m., and taken to the Bridewell at about 22.00 hours. He requested a doctor and solicitor about 15 minutes later. The doctor came at 23.00 hours. The person was then questioned for some time and it was 1.30 a.m. when the solicitor visited him. At 3.30 a.m. his wife called and at around 4.15 a.m. he tried to sleep in his cell but found that he could not — people are not conditioned to sleep in the kind of cells we have. Then another couple of things happened and questioning started at 8.45.
Deputy Skelly tried to convey that unusual circumstances exist when persons find themselves in that situation, when things which we regard as normal, are not normal, when persons are in such a confined restricted position, when they are frightened. The number of people in such circumstances, against whom no charge will be made, people who are innocent, is very high.
It is to protect people who may be innocent that we are anxious that this amendment or one like it would be accepted. The Minister's amendment, No. 11, is welcome and we support it because it goes part of the way to meet the situation. If the Minister assures us that he will look at it before Report Stage, I will withdraw our amendment.
(Limerick East): I thank the Deputy for withdrawing the amendment. This is a safeguarding section. It will not be the norm that people will be questioned between midnight and 8 a.m. If there were serious reasons for doing so the circumstances will not be adverse to the person being detained. My amendment provides that in certain circumstances the consent of the detainee would be required. If, for instance, the period of questioning was to end at 1 a.m. or 2 a.m., it might suit the detainee to continue the questioning after midnight so that he could go home rather than have to be in the Garda station right through the night until 8 a.m. after which there could be another hour or two hours of questioning.
Some specific questions were asked. Deputy De Rossa asked about the rest period being interrupted for forensic tests. That would not arise in a rest period. There would not be any problem about visits from a solicitor or a wife or a parent or other relative. If somebody is arrested around midnight and a solicitor is informed but he would not arrive until after midnight, of course he would be admitted if that is what the detainee wanted. Deputy De Rossa returned to the idea of people being moved from station to station during the rest period. That could arise only when the garda would be moving a person from a small station to a well equipped station when an arrest would take place very near midnight. I could envisage a situation where somebody would be arrested in a country village, brought to their local Garda station and be there for a short period while arrangements were being made to transfer him to a suitable larger station. There has been a survey of stations which would be suitable — in Carlow-Kildare it would be Naas, Carlow-Baltinglass and Kildare, in Clare it would be Ennistymon, Ennis it would be Killaloe, Kilrush and Shannon, in Laois-Offaly it would be Portlaoise and Abbeyleix, Birr and Tullamore. I am reading these casually because this gives the flavour. There will be a number of subdivisional and divisional stations within a county or two counties, and somebody could be transferred from one to the other.
Deputy Skelly asked if people could be given notices suspending questioning at 12 midnight, be questioned at 2 a.m., given another notice and questioning going on like this all night long. If the period of rest is interrupted for serious reasons, then time runs after that. This cat and mouse suggestion cannot happen under this section.
What I was trying to achieve here was the provisions for detention within the section, an initial six hours and a second six hours, on the authorisation of a chief superintendent. A particular problem arises between the hours of 12 midnight and 8 a.m. The Garda instruction at the moment is that persons are not to be questioned during that period unless there are exceptional circumstances, because this would be oppressive. If it were held to be oppressive in court any evidence gained during that period would be inadmissible. We must do something about the period between midnight and 8 a.m., because there are times of the day when somebody could be arrested and the Garda powers to question him would be reduced to four hours, with a break in between. This would be a very short period and would prove ineffective.
I do not think Deputies need have doubt about the nature of this section because it is obviously a safeguard section. If a Minister were looking for a 20-hour detention period it would be easier to come here and look for ten hours plus ten hours rather than go through these complications. The Government decided on a maximum period of 12 hours — six plus six. The period between midnight and 8 a.m. proved difficult and this section is to safeguard the rights of the detainee. This is in line with the practice in Garda stations at present as a result of their adopting the recommendation in the Ó Briain Report.
I can appreciate what Deputy Woods was doing in his amendment and I am glad he withdrew it because we went over the same ground trying to phrase a positive amendment but the phrasing in this amendment works. This amendment brings in the idea that the detainee must consent to the suspension of questioning. On Second Stage this point was made very strongly by a number of Deputies and I am proposing this amendment because it improves the section further.
Subsection (6)(a) reads:
...the investigation (so far as it involves questioning of him) is suspended until such time as is specified in the notice ...;
In his reply the Minister said this would include activities such as forensic testing — I take it to include fingerprinting, photographs and so on. The section as it stands does not include those things; it simply refers to questioning. I take it that if the section is to be read literally any other activities the Garda wish to engage in in relation to a detained person, other than questioning of him, can be engaged in during that rest period.
(Limerick East): I see the point the Deputy is making but it is not valid. The purpose of serving the notice on the suspension of questioning is to suspend it so that somebody can rest. The rest cannot be interrupted once the notice is served, unless it is on the procedure established in the section. I thank the Deputy for drawing my attention to that phrase but I read it that the investigation into the crime could be continuing anywhere in the locality, but not in the Garda station. The investigation of the crime does not have to stop because the questioning in the Garda station is stopped when the person is resting. I see there is a possible ambiguity here and I will look at it.
Amendment, by leave, withdrawn.
(Limerick East): I move amendment No. 11:
In page 4, subsection (6)(a), line 38, after "rest," to insert "and that person consents in writing to such suspension.".
Amendment agreed to.
I move amendment No. 12:
In page 5, subsection (7), line 22, to delete "section." and substitute the following —"section, provided that such person has not been questioned for the purpose of investigating an offence during that time.".
Subsection (7) reads:
Where it appears to a member of the Garda Síochána that a person arrested in the circumstances mentioned in subsection (2) is in need of medical attention, or where during his detention it comes to notice that he is in need of such attention, and he is taken for that purpose to a hospital or other suitable place, the time before his arrival at the station or the time during which he is absent from the station, as the case may be, shall be excluded in reckoning a period of detention permitted by this section.
I take that to mean that if a person is brought to a hospital for medical attention or to see a doctor the time he is away will not be included in the period of questioning — the two six hour periods. That is reasonable. I propose that we delete in line 22 the word "section" and substitute the following: "section, provided that such person has not been questioned for the purpose of investigating an offence during that time". What subsection (7) says is very reasonable, but if a person is questioned in hospital, as may be necessary sometimes, that period should be included in the six hour or 12-hour period. This is a very reasonable amendment which is, I think, in line with the Minister's thinking. I appreciate he would not want to extend the period of questioning by that means.
(Limerick East): I am opposed to this amendment. I can see that it points to a certain difficulty because a person could be in need of medical attention after arrest. If there was a stabbing incident and a person is wounded but is being arrested for an offence——
Detained?
There is no detention. Be clear about that. From day one he is an arrested person. Other Deputies may not be very clear about this, and I think this is worrying Deputy Skelly.
(Limerick East): Arrest for the purposes of detention. It would be reasonable for a garda on the scene to ask a question, for example, “Who did it to you?” On the basis of the amendment put forward by Deputy Woods, if that happened or if any question had to be asked subsequently in hospital the whole period of detention would go. The asking of one question by the garda either at the point of the arrest or subsequently, for very serious reasons, in hospital would mean that the whole 12-hour period would go. It is not the intention that people should be questioned while in hospital and people in charge of a hospital would have very strong views about such questioning. There would be a control mechanism there. However, there are situations where a person is arrested and detained who is in need of medical attention and it is absolutely essential to ask a question. An incendiary device may be planted in a centre city store which will burn the place down within an hour and it might be necessary to ask a question as to where the device is placed. It is easy to envisage circumstances in which it would be necessary to ask such questions. Another example would be in the case of information coming to hand regarding a kidnapped person.
The difficulty in the amendment is that the posing of any question would mean that the whole detention period would die. I can see the problem but I do not think it is a major one. There is no indication from experience under the Offences Against the State Act that people are questioned in hospital unless it is absolutely essential. The Deputy's amendment does not solve the problem but it does point out the difficulty. It is a theoretic difficulty but I will look at it again before Report Stage.
I thank the Minister for his consideration and his promise to look at this matter again in order to overcome the difficulty highlighted by the amendment. I can understand some of the difficulties which would arise if the amendment were to become part of the legislation. Nevertheless I support the amendment because the Minister seems to ignore the larger problem that the legislation as drafted would allow any member of the Garda to drive a coach and four through the safeguards surrounding this section. A person can be detained for a period of up to 12 hours and questioned. If this subsection is allowed to remain unaltered gardaí will have the power to say that it appeared to them that the person was in need of medical attention. There is no limitation or restriction in regard to the hospital to which the detainee is taken. He could be taken from Limerick to Dublin and back again. There is a loophole and a great possibility for the gardaí to extend the period of questioning for as long as they wish. It is a real difficulty. I appreciate the problems mentioned by the Minister but he should take great care to avoid the major difficulty whereby an unscrupulous garda could indefinitely extend the period wherein a person could be questioned, under the guise of its appearing to the gardaí that the person was in need of medical attention.
(Limerick East): This is almost unthinkable. What the Deputy is envisaging is some kind of conspiracy between a whole group of gardaí, involving hospitals as well. One of the major safeguards which exists in relation to the Offences Against the State Act and will continue to exist if and when this legislation becomes law is the idea that a court may decide that a person was subject to oppressive treatment while in detention or under arrest. The scenario outlined by Deputy O'Dea and the questioning of a person in hospital would not be admitted in evidence by a court unless the gardaí could show that it was very necessary so to question him. Any kind of oppressive treatment would affect the admissibility of evidence. If a person is in need of medical attention and is in the care of doctors and nurses in a hospital, I cannot see how a long period of unnecessary interrogation could be regarded other than as being oppressive and any evidence gained by that process would not be admissible. It is even stronger than the case of questioning between midnight and 8 a.m.
The Minister is giving legal interpretations but we do not know how this legislation would be interpreted by the Judiciary. He is telling them how they should interpret various provisions and I do not accept this. I cannot see any reason why the Garda could not use this section as drafted to extend the length of time during which they can question a suspect beyond the normal 12-hour period.
There are two ways of looking at this, from the point of view of the Garda and from the point of view of a person arrested on suspicion. The Minister takes the line of the Garda and it is intended to provide that they should have their full whack of 12 hours questioning during which the person detained would be under their control. The section does not refer to questioning but states that the period of detention is to enable the Garda to carry out an investigation. A question mark hangs over that too. The person detained sees it differently. The criterion for him is that he is deprived of his liberty. If he is under Garda control, whether in a Garda car or in the waiting room of a hospital, he is as much deprived of his liberty as if he were in a Garda station. Admittedly a person might have some injury that would require medical attention but it might not be a very intense injury. One could visualise that he could be in a Garda car proceeding to the hospital to have a minor wound dressed and under intense questioning in a traffic jam or waiting for a couple of hours in the out-patients' department of a new hospital. It is a bit unreasonable that the section should seek a full, clear, unadulterated whack of 12 hours questioning in a situation where he would have to go to a hospital.
I would have thought that the amendment had some merit and was worthy of consideration. It is bad enough that a person has to be deprived of liberty merely on suspicion for the purpose of having an investigation carried out. I am unhappy about that. A period of six hours plus a further six hours is nominated but we then say there could be circumstances where that could be added to, possibly by bringing a person to a hospital for something that is not very serious. This might not happen frequently but from the point of view of the person deprived of liberty the 12 hours' detention should be enough.
(Limerick East): This amendment points out a difficulty but does not provide a solution. Once one question is asked, whether by the side of the road, in a Garda car or in a hospital then the whole detention period dies. Deputies have suggested that the solution is along the lines of reckoning the actual period of questioning and deducting that from the 12-hour period. One would need some practical mechanism for doing that. I do not think we can have a system of gardaí serving notice by the roadside to an injured person that he has been questioned for ten minutes and that this will be deducted from the 12 hours. Unless there is some kind of serving of notice to stop the clock and start it again it would be very difficult. Certainly there is a theoretic difficulty here. Experience, however, under the existing legislation where people can be detained has not shown abuse where people would be questioned for periods in hospital or some kind of game played in the outpatients' department, or people taken to hospital when they were not seriously injured, to lengthen the period of questioning. There is no indication of that. That would be abuse as far as I am concerned and to follow that line of prospective abuse one would have to envisage a conspiracy between the Garda on the one hand and the medical staff on the other. We can become too imaginative about the difficulties. I have said that I will look at the matter and see if I can come up with a solution to the problem which has been pointed out by Deputies. It is a very difficult matter to deal with and the amendment put forward by Deputy Woods does not deal with it.
I take it that the effect of this section would mean that, even though no questioning is taking place in general during the period of hospitalisation, the person will still be in detention although it will not be counted as such for the purposes of the 12 hours. If a person is hospitalised for a week, six weeks, six months or whatever length of time it takes to overcome the disability, once that person has been arrested for the purposes of detention and questioning, he will still be in detention for as long as he is in hospital. That hospital need not necessarily be a lay or a civilian hospital. It could be one attached to Mountjoy Prison or one of the military hospitals where a person would be detained and guarded. Am I reading the situation correctly? Could the Minister explain if that is the case? In those circumstances, what access have relatives, friends or a solicitor to the person held under that form of detention?
I appreciate the difficulties here in drafting, but the point must be made that the ordinary individual does not really know his rights after being arrested. It is normal, while a person is being brought from the police station to a hospital, that the gardaí in transit with him talk to him and possibly while they are innocent questions, they may be searching ones. There is no reason to believe that that will change, unless Deputy Woods's suggestion is followed. Perhaps that is the way it must be, except in the case of a serious injury when it is absolutely essential, for all the reasons which the Minister mentioned, that the questions should be asked. I do not know how that problem can be got around. I appreciate the points raised by Deputies Taylor and De Rossa in that one is into a long period of detention. I would have no objection to that portion being taken out of the 12 hours, if possible, except in the case of a serious injury.
There is also the possibility of the danger of severe questioning where a person is in a very vulnerable position because of his injury or the plight in which he happens to be. That is an extra and tremendous pressure on him, which should also be taken into consideration. Neither the amendment of Deputy Woods nor that of the Minister is perfect and both would have to be looked at again. The balance should come out in favour of the innocent person, unless we want to tie everybody up so that there is no room for manoeuvre, putting the total weight in favour of the Garda and the prosecution and totally against the innocent person. If there is a doubt, the benefit of that must be given to the innocent person. I am very worried that the first three sections have got through. No regard seems to be given to that point. No wonder Deputies are worried about this legislation. I am very upset that, because of the stance I have taken, certain Deputies have had a go at me. I have been made to feel that I am being obstructive here. It is our right and we must question these things in conscience. There was a lot of shouting about conscience around the House for the last year but I do not hear any now. We must get this legislation right for the benefit of ordinary, innocent citizens and that is what most of the population consist of.
I wonder if the situations envisaged by the Minister are really apposite in the current circumstances? He talks about situations in which there would not be facilities for stopping the clock, as he put it, when the time was running. He mentioned an example of gardaí finding there had been a stabbing or something of that nature and asking who had done it, or making preliminary inquiries. I do not believe that that would apply to the subsection about which we are talking. That is not a case of stopping the clock — the clock has not yet started. When preliminary inquiries are made by gardaí when they arrive on the scene to try to find out what went wrong, time would not have started at all, because there would not have been an arrest under section 3. Preliminary inquiries would have been made.
(Limerick East): With respect, it would be a question for the purpose of investigating an offence, which is what Deputy Woods's amendment says. That is why the amendment does not meet the situation.
Surely only if an arrest had taken place? There has been a stabbing and the Garda are sent for, they arrive on the scene and see a man who has been stabbed. Surely the Minister is not suggesting that the period starts to run at that stage? Surely the period only commences when someone is arrested on suspicion of having committed an offence. It is only then that the clock should start.
(Limerick East): The person would have to be arrested, but it is quite feasible that when someone is arrested a question of that nature would be asked. Deputy Woods's amendment then says —“provided such a person has not been questioned for the purpose of investigating an offence”. I am saying that one question is asked after someone has been arrested for the purpose of investigating an offence, and that is the end of the detention period, if I accept Deputy Woods's amendment. I agree that Deputy Woods has pinpointed a problem but he has not provided a solution.
I do not mean to interrupt but there is another point that has not been adverted to. In section 7, where a person is in need of medical attention or where during his detention it comes to notice that he is in need of such attention, we might introduce a situation where somebody in effect can feign the symptoms of a particular illness in order to be taken to hospital during his detention so that the period evaporates while he is there. Then the whole thing becomes inoperable.
I have already said that Deputy Woods has pinpointed a difficulty but it is not a major one in practical terms. We can argue ourselves into thinking it is but I will have it examined to see if a solution can be found.
The period of detention would only evaporate if the person was questioned during his stay in hospital.
(Limerick East): But even one question.
I appreciate what the Minister is saying and he obviously understands the point we are trying to tease out. The amendment we put down has had this effect, it has teased out that point. I was concerned that the Minister felt it was something that might arise infrequently, or not at all, but what we are trying to allow for is a circumstance which could cause problems in the future because of the powers covering the time of detention. We are trying to make provision for the extraordinary situation. If you look at the terms of reference of the Ó Briain Committee they were to recommend with all convenient speed whether, and if so, what additional sateguards are necessary or desirable for the protection against ill-treatment of persons in Garda custody having regard to allegations made in relation to persons held in such custody pursuant to section 30 of the Offences Against the State Act.
There is no question that there have been very substantial allegations over the years of ill-treatment and misuse of power by the Garda Síochána. It is to ensure that such an eventuality is prevented that we are proposing an amendment of this kind. I see the point the Minister is making and I appreciate it would require a further addition to that amendment to quantify the amount of time, provided such person has not been questioned for the purpose of investigating an offence during this time. It will need an addition to the effect that the amount of time devoted to such questioning would be excluded from the total time. I do not see much difference between us on that point. The Minister is saying that we pointed out a problem, something that in his view should be covered, but that we have not pointed out a whole solution, only a half one.
I accept that and would be happy if the Minister will look at it on Report Stage to propose a suitable addition to ensure that that period is covered. We are not really concerned about someone asking a quick question or two but about questioning over a period of perhaps half an hour, or any substantial time. The Minister may be able to expand on that and if he will undertake to look at it again on Report Stage we would be happy.
(Limerick East): I will look at it and I give you that assurance. I do not think a solution can be found simply by an addition of words such as Deputy Woods proposed. I think it will prove very difficult but I will try to find a solution.
Amendment, by leave, withdrawn.
(Limerick East): I move amendment No. 13:
In page 5, between lines 22 and 23, to insert the following subsection:
"(8) To avoid doubt, it is hereby declared that a person who is being detained pursuant to subsection (2) in connection with an offence shall in no case be held in detention (whether for the investigation of that or any other offence) for longer than twelve hours from the time of his arrest, not including any period which is to be excluded under subsection (6) or (7) in reckoning a period of detention.".
Section 3 was drafted on the basis that the upper limit on the detention period allowable under the section was 12 hours, excluding of course any periods that might arise under subsections (6) or (7). The point was made, both inside and outside the House since publication of the Bill, that it would on the face of it be open to the Garda to detain a person for successive periods for different offences arising out of the same incident. In that way, it was said, the Garda could prolong the period of detention.
While I have never accepted that this is a proper interpretation or indeed a likely possibility, I believe that, since it would be contrary to the intention of the section, it is right that we should remove any doubt there might be. The amendment will do that. The combined effect of this amendment and of the amendments to section 8 that I am proposing will remove any possibility of abuse occurring. The point was made by several speakers during Second Stage, but this amendment will certainly remove the issue beyond doubt, and the maximum period allowable under the section is 12 hours, excluding of course subsections (6) and (7) and we will be studying those again.
I welcome the Minister's amendment:
To avoid doubt it is hereby declared that a person who is being detained pursuant to subsection (2) in connection with an offence shall in no case be held in detention (whether for the investigation of that or any other offence) for longer than 12 hours from the time of his arrest, not including any period which is to be excluded under subsection (6) or (7) in reckoning a period of detention.
Subsection (6), which is the one we have just been discussing, concerns a person detained between the hours of midnight and 8 a.m., when rest periods are involved. Subsection (7), which we have also discussed, concerns the question of the period if medical attention is needed. Obviously it is affected by the amendment which we were suggesting to subsection (7), that if questioning takes place in a hospital this would be counted into the period of 12 hours. One of the concerns we had in relation to this is that this subsection, in conjunction with the next subsection, which is subsection 8, was to ensure that you could not have the 12 hours or the 12 hours with eight of rest, which is 20, followed then by 48 hours under the Offences Against the State Act. Subsection (8) as it stands says that:
Nothing in this section shall effect the operation of section 30 of the Act of 1939.
That would seem to indicate that irrespective of the Minister's limit of 12 hours the operation of the Offences Against the State Act could come into effect in addition to those 12 hours. I would like the Minister to clear up his view on that matter. There is presumably a way in which that could be made clearer by putting a prefix before subsection (8) and saying for instance:
Subject to subsection (8) nothing in this section shall affect the operation of section 30 of the Offences Against the State Act.
I would like to know the Minister's intention and what the actual affect of this will be in relation to the Offences Against the State Act. I welcome the Minister's move in limiting the 12 hours but I would like to know how that will fit in with the other one.
(Limerick East): Deputy Woods has referred to amendment No. 14 in his name. I do not think there is a necessity for that amendment now. I think it is covered by the amendment I have proposed and matters already in the Bill.
Is amendment No. 13 agreed?
No. We are discussing No. 13.
(Limerick East): It is very difficult to discuss one without the other.
We can discuss the Offences Against the State Act.
(Limerick East): The maximum allowed under the Offences Against the State Act, 1939, is 48 hours. The effect of subsection (3) of section 8, as amended, is to prohibit rearrest under section 3 of this Bill where a person has previously been arrested under section 30 so that there cannot be an accumulative period of 48 first and then 12. The opposite situation is also prohibited under section 8 (1). I think it is sealed off both ways. I do not see a difficulty unless I am missing something. If you use the Offences Against the State Act, that is 48, you cannot run on and use this Bill. If you use this one first you cannot run on and use the Offences Against the State Act.
The point I would be concerned about is that subsection (8) says that:
Nothing in this section shall affect the operation of section 30 of the Act of 1939,
which means, I presume, that when a person comes out the Offences Against the State Act still operates and that nothing in the whole section can affect the operation of that. If that is the case then when a person comes out after the 12 hours they can be rearrested under the Offences Against the State Act. This is why, on my later amendment, I was making the case that in no circumstances should the total period of detention exceed what the Offences Against the State Act provides so that if a person is arrested under this Bill and subsequently arrested under the Offences Against the State Act then the total period could not exceed what is the present maximum, which is 48 hours. If what the Minister is saying is correct the 12 hours will be the maximum and that I very much welcome. He says it covers the situation both ways. I do not see how it covers the independent operation of the Offences Against the State Act and that is why I said at the outset that I wanted to know what the Minister's thinking was on this.
(Limerick East): My intention is that the maximum detention period in the context of what we were saying all morning, under this Bill will be 12 hours and that the maximum under the Offences Against the State Act will be 48. What I do not want is a combination of the two to make it 60.
No, but what have we got?
(Limerick East): Amendment No. 27, which I will be proposing, is a section 8 amendment and I think it deals with that. It is on page 7 on the list of amendments.
That covers it just one way. Your proposed amendment says:
Where a person who has been arrested under section 30 of the Act of 1939 in connection with an offence is released without any charge having been made against him, he shall not be detained in pursuant to section 3——
Therefore, if he is arrested under it he will not get 12 on top of 48 but, as I see it, he could still get 48 on top of 12.
(Limerick East): I think section 8 (1) covers the eventuality the Deputy has been talking about and the one that concerned Deputies on Second Stage is covered by section 8 (3).
Is it simply a question of a superintendent going into the District Court and saying under oath that he has further information and that he wishes to arrest a person again without having to give any details or to prove anything?
(Limerick East): He has to satisfy the district justice and he is on oath. It is a provision for rearrest but it is one where we bring in the Judiciary. It is not at the discretion of the superintendent. It is at the discretion of the district justice. The superintendent will have to take an oath to that effect. He will have to satisfy the district justice. Many people say we should move towards the European system where you would involve the Judiciary in the system. They are being involved to that extent there.
The main point is that he has to satisfy the district justice.
I do now know if I am in order but the Minister did refer to section 8 (1). He says that this cuts off the possibility of rearrest under the Offences Against the State Act for a further 48 hours. Section 8 (1), the last sentence reads:
A person arrested under that authority may be detained pursuant to section 3.
Surely he may also be detained under the Offences Against the State Act? There is nothing mandatory that he can be detained only under section 8 (1).
Progress reported; Committee to sit again.