We are debating amendments Nos. 2, 3 and 15 together.
Criminal Justice Bill, 1983: Committee Stage (Resumed).
Debate resumed on amendment No. 2:
In page 3, subsection (1), lines 31 to 35, to delete all words from and including "for which the sentence is fixed by law" to the end of the subsection and substitute "for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and to an attempt to commit any such offence.".
—(Minister for Justice.)
Like other Members of the House I welcome the information that the Children Bill will be introduced after Easter. In reference to the Minister's response to the various Members who asked him to consider a section regarding the age of criminal responsibility — seven years — I ask him, when referring back this section to his Department for consideration and redrafting to take into consideration the concerns and doubts raised by Members in the debate yesterday. Also it might be possible for the Minister to have some consultation with the Minister for Health. A great amount of what we hope will emerge in the Children Bill will impinge very much on section 3 and the criminal age of reason and perhaps a certain amount of the isolation in taking two pieces of legislation separately will be removed if such consultations could take place informally beforehand. It would perhaps resolve a central issue of yesterday's debate about the age of criminal responsibility and the House would not have to consider either Deputy Woods's amendment for 12 years of age or Deputy De Rossa's amendment for 16 years of age. Legislation is difficult enough to move through this House with any speed and the only cohesive integrated way in which we can do it, considering that the Minister has suggested that he will take this back, would be in consultation with the Minister for Health and Social Welfare regarding the Children Bill and the central points of criminal age and the responsibilities of parents which were raised yesterday could be taken in consultation and be integrated as part of the recommendation coming back on Report Stage.
I want our position to be clear. From what the Minister has said I take it that he is prepared to consider very seriously on Report Stage an amendment along the lines we have suggested. If this is the case then it is very relevant to our discussion on our proposed amendment now. The Minister gave us some information yesterday on the numbers of children under 14 involved in crime. We know that some 100,000 crimes were reported in 1982 — 97,000 is the exact figure — and the number of charges which were held proved or orders made without conviction in respect of people under 14 years was 165 on 1 January 1982. A group called the B group in the report comes under the heading of age groups of persons convicted or against whom the charge was held proved and order made without conviction in respect of crimes committed during 1982, and the number there is 151. The total of those two figures, those pending on 1 January 1982 and those committed during 1982, come to 316 crimes. Out of the total numbers one will recognise that for those under 14 the figure is very small pro rata. Indeed, if you are talking about those under 12 years I am sure you are talking about a very much smaller figure again. I have not the figures for crimes committed between 14 and 17 years of age, but in contrast between 14 and 17 years the total is 2,243 and between 17 and 21 it is 4,800. These figures at least give some idea of the magnitude of the problem. People said here yesterday that the vast number of crimes are committed in these low age groups, under 12, and I am concerned that that idea would go across. While we know that a certain proportion of that age group create problems, the numbers are relatively small and the bulk of this crime is committed by the 14-18 age group. Therefore the amendment to age 12 would meet the requirements which I think the Minister has in that respect.
Much has been said about the Minister for Health bringing forward a Bill. That Bill too will take some time to debate in the House. Even though the Minister may be ready or practically ready, Bills take a good deal of time before they are finalised and come through. We expect that the Bill of the Minister for Health will raise the age of criminal responsibility but I am concerned about the time it might take to bring that Bill forward and have it passed in the House. I would not like to see the Bill now before the House being dependent on that other Bill coming forward. It would be a relatively simple matter for these extra powers being given here to be limited to deal with those who are over 12 years of age. A full draft of the other Bill was circulated to Cabinet members at the end of October 1982. That gives some idea of the length of time that can pass while further negotiation and discussion are going on. I was very much involved in that matter in the summer of 1982 and the back of the work was broken then because the document was prepared for circulation at that stage and was circulated before I left office. There may be a great deal of further discussion when it comes before the House because it is a very comprehensive Bill updating the 1908 Act.
I think we have made our position quite clear, that we are not prepared to support a Bill in which children under 12 years can be subjected to these additional powers. We support the Minister's amendment but we want it amended further.
We seem to have quite a lot of repetition and I ask Deputies to avoid unnecessary repetition.
I take the point made by the Chair. However, it may be necessary to refresh our memories with regard to the discussion yesterday. I support Deputy Woods in his views on this Bill. Deputy Harney raised the question of the Children Bill and the similarity between that Bill and the measure before the House in relation to the age of criminal responsibility. Yesterday there was a general discussion on the Latin phrase doli incapax, doli capax— that a child under the age of seven years cannot be found guilty of a crime but, on the other hand, a child between the ages of seven and 14 may be found guilty on the question of a dischargeable burden of proof.
It is important to remember that here we are dealing with this Bill on its own merits, and to suggest that we wait until the Children Bill is introduced is getting our priorities somewhat confused. The amendment tabled by Deputy Woods is quite reasonable and proper and the Minister should be seen to support it. As Deputy Woods said, we have been waiting for the Children Bill for a long time and we know what can happen when legislation gets bogged down in the bureaucratic pipeline. I was Chief Whip of the Fianna Fáil Government between 1970 and 1973 and I know that proposed legislation has to go from one Department to another for inter-departmental discussion before the legislation emerges on the Cabinet table. It does not appear to me that the Children Bill has got very far. I ask the House to realise that here we are discussing the Criminal Justice Bill and nothing else. If we are to continue to debate what should be the age of criminal responsibility so far as this Bill and the Children Bill is concerned, surely by now the Minister knows what age the Minister for Health intends to incorporate in the Children Bill.
I do not suggest, nor is it the intention of the Fianna Fáil Party to suggest, that the Garda Síochána would bring children under seven years into a Garda station and subject them to a rather rigorous examination as envisaged under section 3. Given the proper support of this House, the Garda Síochána can and will be seen as a caring, compassionate group of people. I do not imagine a garda will bring a seven-year-old into the station and subject him to a rigorous examination. However, the reality is that that may happen, and that is why we are arguing that the possibility of it happening should not be envisaged in our legislation. We should stand on the amendment we have put forward and not give way on it. The Workers' Party have tabled an amendment incorporating the age of 16 years, but I think that age is too old.
Limerick East): The House went through both amendments in great detail yesterday. The first amendment has been explained thoroughly and I do not think there is any conflict there. With regard to the second amendment, whether the age of 12 years or 16 years should be included in the Bill to apply to this section, I pointed out yesterday that there is no age in the Bill because any criminal legislation would apply to everyone who has reached the age of criminal responsibility.
Members are concerned that this section will apply to children of seven, eight, nine or ten years. We should remember that the Garda Síochána already have the power of arrest without warrant and this applies to everyone who has reached the age of criminal responsibility. Consequently, it applies to everyone of seven years and upwards, but I have not received any complaints that the gardaí have arrested seven-year olds or ten-year olds. Young people of 12 and 14 years have been arrested and convicted in the courts.
Before we become over-critical of the power being given to the Garda Síochána, we should remember that under the Offences Against the State Act the Garda already have the power of detention. That power is for 24 hours with an extra 24 hours if a chief superintendent authorises it. Because the age of criminal responsibility is seven years that applies to everyone over seven years. However, it would be ridiculous to suggest that the gardaí have used it against seven or eight-year olds on the grounds that they are little IRA men and are members of an illegal organisation. We can carry this criticism of the Garda to a ludicrous extent.
Hear, hear.
(Limerick East): The Garda have the power of arrest but I have not had any complaints that they are applying it to young children. Equally, they have powers of detention but I have not received any criticisms that they are applying it to young children. It may sound far-fetched to suggest that young children would be members of an illegal organisation, but one of the scheduled offences under the Offences Against the State Act is malicious damage to property. With regard to the complaints I receive from communities, and urban communities in particular, one of the main points put forward is that young people are damaging cars and public and private property. At the moment the Garda have the power to detain people for 24 hours for malicious damage to property. Yet I have not been given any instance of the Garda using this power to detain children aged seven, eight, nine or ten years. The people who are opposed to the Bill in toto— I am not referring to any Members in the House — have used this seven-year argument shamelessly. They have whipped it up as if it was one of the fundamentals of the Bill. I agree with everybody that the age of criminal responsibility is too low but I do not have any fear that under this section the Garda will be arresting and detaining for questioning seven or eight year-olds. Where those powers already exist, malicious damage in the case of the Offences Against the State Act for example, they are not used.
I accept what Deputy Woods has said, that there has been a great whip-up of emotion on this issue. People are anxious that the age of criminal responsibility be raised; they want to be certain that this would not apply to young children. Yesterday I promised to consider excluding children under a certain age from being liable to be detained under section 3 and I repeat that promise today. I cannot, as Minister for Justice, attempt to change the age of criminal responsibility in this Bill. The Garda still have the power of arrest without warrant and the courts will have the existing powers to deal with certain situations. However, I will consider the amendment put forward by Deputy Woods.
There are different views in the House as to what the age should be. My view is that the age suggested by Deputy Woods is about right. That is a personal view and I will have to consult with the Government and the Attorney General. I cannot accept the amendment across the House for another reason. The amendment will have to be examined because it may be flawed in at least two respects. First, one does not require evidence of age to be produced when the cut-off point is seven years of age because the presumption of innocence is so strong at that point. The likelihood of any garda arresting somebody aged seven or eight years is so remote that evidence of age would not be a prerequisite for the arrest. If we bring it up to 12 years there is every likelihood that the garda will want to arrest 13 or 14 year-olds who may look 12 or less. I can see a problem there when the presumption of innocence is much weaker as one approaches the age of 14. I need to examine that problem.
There is another problem that I need to examine in the same context. The Garda already have the power of arrest without warrant. If they arrest a 13 of 14 year-old without warrant and bring that young person to a Garda station to be charged, there could be a period of holding that young person in the station before the charge can be put, before a peace commissioner can be brought in or before that young person goes to court if it is a serious offence. Consequently, I must examine whether it is necessary to redraft the amendment. I welcome the amendment. It is probably one which is necessary now to kill a paper tiger but it was a paper tiger from the start. It is outrageous to suggest that if the Garda got this power they would be going around arresting children between the ages of seven and ten. People outside the House used the issue of seven-year-olds shamelessly in their opposition to the Bill in toto. However, since it has come to that situation and since it is affecting public opinion in that way I have given the commitment I have outlined.
May I put the amendment?
No. I want to make a final point.
We are having repetition. Before I call Deputy Mitchell I must call on Deputy O'Dea.
I should like to support the contributions of Deputies Woods and Andrews. I have every confidence in the Garda Síochána and I am on record here, and outside, as having criticised those who have been involved in outspoken criticism of the Garda. I have no doubt that the vast majority of the Garda will use the new powers we propose to give them in this Bill in a responsible manner. However, we are trying to avoid introducing bad law, the possibility of people between the ages of seven and 12 being detained under these vast new powers of detention and having that enshrined in our domestic legislation. I do not think we are being unreasonable in trying to avoid that.
There has been a lot of talk about the Children Bill and there is some conflict as to how long it will take before that legislation is introduced and passed by both Houses. We must avoid any possibility of bad law existing for even a short period of time. The Minister has mentioned the presumption of innocence but, with all due respect to him, that does not have anything to do with the matter. As was indicated yesterday that is a matter for the courts. We are dealing with powers of detention, the powers of the Garda to arrest and detain people. The presumption of innocence is something that arises before a court only.
The Minister must recognise that in regard to children between the ages of seven and 14 it is more difficult to convict them than it is to convict a person over the age of 14 because the burden of proof is greater. That is the general position in regard to conviction. Children over 14 years are distinguishable from children under 14 and the nearer the child under that age is to seven years the greater is the burden of proof. The Minister accepts that. Under the powers of detention as contained in the Bill there is no distinction between children under the age of 14 and those over the age or between those under the age of 12 and those over that age. If a distinction has been established at common law over many years, if criminal law judges have recognised that there is to be a distinction between children who can be criminally responsible but who are nevertheless under a certain age, then the powers of detention should also discriminate and distinguish between both categories of children. That is not unreasonable.
I welcome the Minister's commitment to look at this again before Report Stage. I do not follow the Minister's statement to the effect that there is no conflict about his amendment. I am still unhappy about the provision in relation to the type of offence to which the powers of detention can relate as opposed to the type of person to which they can relate. We have two problems in this regard. We are talking about the type of people who can be detained under these new powers and we are also talking about the type of offences for which people can be detained. I am not happy with the provision relating to five years. It is ambiguous and opens the door more widely than the Minister intended. I wish the Minister would give a commitment to look at that also between now and Report Stage.
The Minister is right in saying that it is unlikely that the Garda will go around arresting people between the ages of seven and 14 or detain people in that age group. For that reason there is no point in putting that provision in the Bill in the first place. It should be taken out of the Bill because the Garda, the Legislature and community groups do not want it. The Minister was correct in saying that this is being used by groups outside to beat the Bill but not by Members of the House. There is no doubt but that 99 per cent of Members, unfortunately and regrettably, want this legislation because of the situation that exists in society generally. Nobody is opposing the Bill, nobody wants to see the Bill, but we believe it is necessary given the circumstances that exist. It would help if the Minister could take this stick away from the people who are using it to beat the Bill. I left yesterday of the opinion that the Minister was going about this in a proper manner and he is being consistent this morning.
We should pass on. We are being repetitious. I do not suppose the Chair should have any views on this or make those views known but——
The Chair may have to go back in history to the time when I introduced a Bill dealing with mental health.
——there seems to be very little difference between the Minister and Deputy Woods.
I was about to say that, particularly in view of what Deputy Mitchell has said. In effect, he has supported Deputy Woods's amendment. Perhaps the Minister has fallen into a trap of his own making. He has been reasonable in his approach to the Bill so far and we are grateful for it. He said that in other legislation the Garda can arrest without warrant. This may be so, but in general the principle is wrong and we should not include it in legislation when it can be avoided. We are asking the Minister therefore to accept the amendment so that this power will not apply to this legislation.
Our amendment seeks to exclude those under 16 years of age. That amendment has been put down on the basis that people in the same age group behave differently. The courts accept this and so does the prison system: they treat those younger than 21 and older than 21 in different way. Both the courts and the prison system treat people under the age of 16 as children.
This section provides for the detention of persons over the age of seven years for the purposes of questioning, various forensic tests and so on. The contest which appears to be developing between the Minister and Fianna Fáil is in regard to whether those between seven years and 12 years should be excluded and there has been a suggestion that the ages be between seven and 14 years. I am arguing that all between seven and 16 years should be excluded because our legal and prison systems treat people under the age of 16 as children when it comes to sentencing. I think it is agreed that the question of criminal responsibility cannot be dealt with in this Bill, that we have to wait for the Children Bill. It may be that whichever age the Minister decides to adopt now will have an effect on the Children Bill and we could wind up with the under 12s being excluded from this Bill whereas the Children Bill may fix on a different age. That would produce an anomaly. I take it the Minister is seriously considering bringing in a Report Stage amendment on this and Deputy Mac Giolla and I ask him to fix the age at 16.
The Minister has told us that he is concerned about two elements, in particular evidence of age. I find that difficult to understand because evidence of age will arise at the time of arrest and detention, and when the matter comes to court there will be a question of presumption. The problem at the moment is in relation to seven-year-olds. I agree that the Garda have no particular desire to arrest people of that age and I have quoted figures in that respect.
The Minister told us that the Garda already have powers under the Offences Against the State Act. These powers are in relation to specified very serious offences, like subversive activities and serious malicious damage. I spoke yesterday of how these powers have been used otherwise, but the intention is that they be used only for scheduled offences such as the use of explosives and matters like that. However, when you come to the wider powers of arrest, the Garda are quite clear. The Deputy Garda Commissioner, Mr. J.P. McMahon, spoke to the Incorporated Law Society on 25 November 1983 about why the Garda need these extra powers. He said:
In former years the right of the Garda to detain suspects for the purpose of collecting evidence was not clearly defined, but this form of detention was not seriously contested in the courts. This scenario was, however, contested in recent years and the current position was clearly spelled out in such notable decisions as The People vs O'Loughlin, in 1979 IR 85, and The People vs Walsh, 1980 IR 294, and The People vs Shaw, 1982, IR 28, to name but a few. The net effect of these judgments is that gardaí are not entitled to arrest or detain a suspect for the purposing of securing evidence.
He pointed out that it created a problem for the Garda and he said:
The court judgments just cited clearly stated that no person may be arrested save for the purpose of bringing that person before a court at the earliest reasonable opportunity. In particular the gardaí have no right of arrest for the purpose of acquiring evidence.
Here we are dealing with something new and something extra. If the Minister is prepared to give us an assurance — I thought last evening he was but I began to wonder after he had spoken this morning — in relation to this, that we are not talking about people who are younger than 12 years and that he will come back on Report Stage with an appropriate amendment, we are prepared to accept that.
(Limerick East): We are discussing two amendments simultaneously. My amendment, No. 2, seeks to deal with the problem caused by the phrase “fixed by law” which has been causing concern to Deputies. I am amending it to indicate that it means a more severe penalty in respect of treason, murder and so on. Deputy O'Dea is not fully happy with the five-year situation. I told Deputy Andrews yesterday that I would look at the wording of subsection (1) again and I understand that Deputy O'Dea has views on the breadth of offences to which it applies. Deputy Woods and The Workers' Party have put down amendments to which I have responded. What I said this morning did not contradict what I said yesterday. I said it would be unfair to leave an impression that there was a real fear in the Minister's mind that the Garda would arrest young people. It is because of that that I have given a commitment. I am thinking in terms of about 12 years of age.
Neither have we any concern about the Garda in that matter but we are concerned to have the legislation right.
Amendment agreed to.
Amendment No. 3 not moved.
Amendments Nos. 4, 5 and 6 are related and, by agreement, will be discussed together.
(Limerick East): I move amendment No. 4:
In page 3, subsection (2), line 39, to delete "a Garda Síochána station and there detained" and substitute "and detained in a Garda Síochána station".
During the Second Stage debate it was suggested that the effect of subsection (2), as originally drafted, was that the Garda would be limited to detaining a suspect in the first Garda station to which he was taken on arrest. Such an effect was unintended and could be undesirable. There could be many valid reasons why a suspect would have to be moved to a station other than that to which he was first taken, for example, where proper facilities for detention were not available in the first station, as indeed is the case in stations in remote areas.
The provisions of section 4 about access to solicitor and notification of detention will apply in relation to any other station to which the person is taken. In other words, the member in charge of the station to which the suspect is first taken, as well as his counterpart in the other station, will be obliged to notify the suspect's detention to the person named by the suspect and to his solicitor, and, of course, the permitted period of detention will run from the time of arrest so that a transfer will not prejudice the suspect in any way.
The Minister has spelled out exactly what is happening. Section 3 (2) says:
Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies, that person may be taken to a Garda Síochána station and there detained for such period as is authorised by this section...
The Minister is asking us to agree to the following:
...that person may be taken and detained in a Garda Síochána station ....
It happens that people are moved from station to station, and I appreciate the Minister's difficulty that the first station may not be suitable. Obviously the Minister has had representations to provide this flexibility but this raises the question that there should be a central agency whereby a person can be located. The recommendation on page 17 of the Ó Briain Report says:
A "central agency" should be instituted in every Garda District for the recording of the whereabouts of every person taken into custody therein. Immediately upon the arrival of the person at the Garda Station the Central Agency at District Headquarters should be informed. The whereabouts of the person in custody should be made known, upon request and as of right, to any member of the legal profession or any member of the person's family — the latter only with the permission of the person in custody. We so recommend.
Our main concern is that sometimes people taken into custody cannot be located. I appreciate that there is an onus to make reasonable efforts to give the person in custody an opportunity to contact a solicitor, but in some circumstances that will be difficult. It is probably easy enough if one knows a solicitor or somebody who will get him a solicitor, but the Garda notwithstanding reasonable efforts may not be able to find a member of the family of the person in custody.
I would like to hear what the Minister has to say about a central agency being set up so that a person in custody can be located. If a person working in the community or a public representative goes to a Garda station, can he find out where a person is being detained?
Will there be regulations? What will be the situation in stations where there is only one garda? I understand there are 700 Garda stations: about 110 of them have a strength of only one member and there must be a large number of stations where the strength of the force might be two or three. This could mean that for most of the time only one garda would be on duty. If he is the arresting garda, there is no other garda to fulfil the functions laid down elsewhere in the Bill. I wonder if there will be instructions issued to the Garda not to bring detained persons to those stations? How will this be dealt with?
I support what Deputy Woods said. The amendment clearly envisages the situation where a person can be moved from one Garda station to another, or to a number of Garda stations. I think the amendment is necessary for the reasons the Minister set out, because the section as originally drafted is too restrictive. As we have recognised the difficulty that could arise, the recommendation of the Ó Briain Report that a central agency be set up is of vital importance.
I would like to add my voice to the concern expressed by other Deputies. I do not know what the regulations are but the Garda member may be very inexperienced, a new recruit or without rank and he may not be qualified to decide whether the grounds for detention are reasonable. Another worrying point is the phrase "a Garda Síochána station". If the person in custody is moved from station to station, his family may have difficulty trying to locate him. I do not want to make an issue of this, but this is a very big problem in other jurisdictions. Yesterday we heard of such a case at the inter-denominational service where people were moved from one station to another. I agree with Deputy O'Dea that we cannot have bad law. No one is suggesting that this happens very often, although it has happened in the past, but we cannot introduce into our laws situations which could be abused in the future. I would like definite answers from the Minister.
I agree with what Deputy Woods and Deputy O'Dea say but I have one observation to make on the section, which we have decided is draconian, to say the least of it, but which will be exercised by the Garda Siochana in the correct fashion. Nobody is suggesting otherwise. One of the most striking aspects of the section——
We are not on the section now.
I know we are dealing with the Minister's amendments but we are applying them to the section. While these amendments are proper and correct and improve the section as drafted, nevertheless the operability of the section must be brought into question. It is tremendously complex and we will deal with it in detail as the debate progresses.
I sympathise with the Minister because it is difficult to find a wording for an amendment which would cover all the concerns expressed. It is conceivable under this section that a leaving certificate student with 26 weeks training could be the person in charge of a Garda station and he would have to make such a judgment. That might not arise in the Dublin area where there would be a station sergeant in charge but it could happen in some of the more remote rural stations. It would be best to avoid this possibility but I realise there are difficulties.
It is important that we should continue the on-going discussion in relation to the complexities of this section. Agreement with the Minister's amendments should not deny us the right to tease out the philosophy behind those amendments. We should return to the question of the operability of the section. Deputy Mitchell has raised the question of Garda training, which may not be pertinent to this section. Deputy Molony has pointed out that 120 of the 700 Garda stations are one-man stations. There could be very serious difficulties in a recruit's operating the provisions of this section. Apart from attempting to comprehend it, its operability must be in question. When the section as amended comes into operation the lawyers will have a field day. I do not know whether it is possible for us to improve the section further but it is my intention to pursue this point as the discussion progresses.
The Minister's amendment has been put forward on the basis that the station in which a person is detained may not be suitable because of the conditions there, but the amendment does not require any reason to be given for shifting a prisoner from one station to another. It allows a prisoner to be shifted from one station to another without any reason being given. We should not pass laws which can leave it open to the interpretation of ulterior motives for the movement of prisoners.
The O Briain Report states that apart from introducing various measures to protect citizens from abuse there is also the need to protect gardaí from allegations of abuse. If the Minister's amendment is passed gardaí will be open to allegations of abuse, whether correct or not. One of the biggest problems with this Bill is that many of the recommended protections for citizens and gardaí are not included.
The Minister is wrong to assume that the section will be used only in the way he envisages. Let us take, for example, the case of a person arrested under section 3. All gardaí have means of communicating by personal radio or car radio with their station and gardaí making an arrest know the conditions in their station and presumably whether conditions there are such that the person could be detained. I do not accept the validity of the Minister's argument that the sole purpose is to ensure that a person is held in suitable conditions. It is open to abuse in that the tiny number of gardaí who might be prepared to abuse this provision will have the opportunity to do so. The gardaí will also be open to the charge of abuse by persons being detained.
(Limerick East): The phrase originally in the Bill was “a Garda Síochána station and there detained”. It was not as a result of any representations from outside this House that I decided to bring in this amendment but as a result of the Second Stage debate where Deputy Shatter pointed out that this could be interpreted as confining the detention to one particular station. This would not be practicable in very small stations in the country with no facilities. It was for that reason that I introduced the amendment and substituted the phrase “and detained in a Garda Síochána station”.
There is a real need for this provision because there are many small Garda stations which have no facilities. A major crime could be carried out in a rural area and three or four people might be arrested and detained. There would be absolutely no facilities in a small rural station and it is not the intention that people would be questioned there. There are a number of stations in the country which are open 24 hours a day. On a county by county basis the number is limited and they are the larger stations. It is envisaged that people would be detained in these larger stations and their detention in the smaller station after arrest would be minimal.
In Carlow-Kildare, for example, there would be Naas, Carlow, Baltinglass and Kildare. In Clare, there would be Ennistymon, Ennis, Killaloe, Kilrush and Shannon Airport. Kerry would have Tralee, Cahirciveen, Listowel and Killarney. Longford-Westmeath could have Mullingar, Longford, Athlone and Granard. These are the stations which are open 24 hours and where there are reasonably good facilities. Any stay in a small station would take place after arrest and would be minimal. It would not arise that anybody would be held over the period in the one-man Garda station. We are talking about large stations — three, four, five and six in the different counties. Of course, in the Dublin area there are a greater number of such stations.
Concern has been expressed about the moving of a suspect from one station to another and that people should know where they were. As I have said previously, there is a section in the Bill which obliges notification. The member in charge of the first station to which a suspect is taken immediately after arrest, as well as his counterpart in the other station, will be obliged to notify the suspect's detention to the person named by the suspect and to his solicitor. I am moving a major amendment which will allow me to bring in regulations covering many matters about the treatment of people in custody. I shall examine whether it is possible to require the member in charge of the first station, in addition, to tell the named person and solicitor of the station to which the suspect is transferred and to do so about the time of that transfer. I am considering in the regulations whether the information about the transfer actually having taken place can be communicated also, which will be another form of notification.
I am interested in the idea of having some kind of central station in the division — obviously the divisional station — where information will be pooled about where people are detained. Again, that will be a matter for regulation rather than for inclusion in the section. I take Deputy Andrew's point and we should all remember it in the House. If we load what is in effect primary legislation with a whole series of amendments which involve a major bureaucratic input, then we shall have frightful difficulties. Every line and word of it will be a matter for the court.
Many of the matters which Deputies desire can be dealt with by regulation rather than by putting them into the Bill. However, the difficulty about doing that is that there might be, for example, a case where a garda forgot to fill up a form which was not very important but which should have been filled in, and the court throwing out evidence about a murder or a rape as a result. A court could say that that is the Statute and that it was not complied with in all detail, even though the detail not complied with was, in effect, irrelevant. Because it is in the face of the Bill, the court might reject that evidence. Another rapist or murderer walks free even though it be quite clear that there is a very strong case against him, had it not been for a technicality, that there would have been a conviction. We do not want to dress up sections with so many minute points that we provide this Mecca for lawyers to get people off on technicalities. It is not that one does not need the type of safeguard which Deputies are suggesting, but I am saying that the way to go about it is by regulation.
I have down an amendment to allow me to introduce these safeguards by way of regulations whereby the regulations regarding treatment of a person held in custody would be made public. There are regulations already, of course, but they are not made public. Most of the regulations have been drawn up as a result of the recommendations in the Ó Briain Report. This is an enabling amendment, enabling me to publish those regulations and the need for this is clear. I do not see that it will be abused in any way and it is not open to abuse.
I think it was Deputy De Rossa who mentioned the moving of people from station to station. We are talking about the 12 hours maximum period, unless the detainee consents to the midnight to 8 a.m. period. That does not give very much time when you consider rest periods. People are not going to be questioned for 12 hours at a stretch — it does not happen that way. The courts always have to decide whether or not the treatment is oppressive before they admit evidence. The Garda must be very careful that there is no oppressive treatment, so in a short period of 12 hours the possibility of switching people around in some kind of way as to allow of an abuse does not exist. Also, the time will run on. If you decide to transfer somebody from the tip of the Dingle peninsula to the central station at Tralee, the clock does not stop. If it takes an hour and a half that is taken out of the 12 hours. This is included for real, valid, practical reasons. I thought the point was covered in the original draft — and it probably was — but because a doubt has been raised about it, it is appropriate to change it here.
I was rather intrigued when listening to the Minister. I appreciate that, if one puts too many safeguards into a Bill, the Bill can be rendered useless. However, could the Minister explain to me, as a layman, how a regulation would not be regarded by a judge in court as as binding as a Statute written into legislation? If a regulation is not complied with, surely the lawyers concerned would use that argument to throw a case out even though the regulation might be quite irrelevant as far as the particular crime is concerned? Would that not weaken the case more?
(Limerick East): We shall be having a full discussion on this matter, I am sure, when it comes to the amendment. Basically, if you make something part of the section in the Bill and there is an insistence that the absolute letter of the detail be complied with, there is not a discretion in the court and somebody is released on the technicality. The court can take into account whether or not there was a breach of the regulation in assessing admissibility of evidence. On the other hand, if the Garda break the type of regulation about which I am talking, they would be subject to their own internal discipline. That, in itself, would not make them liable to criminal or civil proceedings. There are many matters in the regulations which would not be a breach of the law. Why should it be a criminal offence for a garda not to fill in a form? It is a breach in regulations. On the other hand, no immunity is being given to the Garda. If gardaí in the course of questioning commit a criminal or civil offence, that can be proceeded with in the normal way.
We would want to be careful in our treatment of primary legislation as a matter on which we can load every detail as if there were no other consequences, because there are serious consequences. People have been released previously on technicalities, who, in fairness, were quite clearly guilty of offences. We should not provide a whole area where people would be released on technicalities, because that is certainly not in the public interest.
The Minister stated that the 12 hours is maximum for detention and that it would not be feasible or practical to move a detained person within that period because of the loss of time available for questioning. Is he implying that this Bill precludes the movement of a detained person in the rest period from 12 midnight to 8 a.m.? If the person did not wish to be questioned during that period, could he be moved from the Garda station during the eight hours?
I do not think that the Minister clearly answered Deputy Briscoe's point, which did not relate to internal Garda discipline but to the status of the evidence in a case where a regulation is breached. Is the Minister saying that if the Garda break one of the regulations which the Minister is going to introduce the evidence will still be admissible? If so, what is the point of the regulations?
(Limerick East): The court would be the institution to decide whether evidence is admissible or not.
It allows the court a discretion.
I am not happy with that. The discretion which the court will have depends on the exact format of the legislation which the court is interpreting. It depends on the format under which the regulations are introduced. Is it the Minister's intention to introduce regulations that can be broken at will by the Garda and which will have no relevance to the admissibility of evidence.
It would seem that this Bill may result in the derogation of the judges' rules. The judges' rules are the control that courts have over the treatment of suspects and admissibility of evidence. What the Minister has said in his regulations — and I think it is important — will discipline the Garda but will not affect the admissibility of evidence in court. That is of great concern. We do not know what the regulations are, but if the judges' rules are going to be derogated or interfered with then we need something strong to replace them.
With regard to the safeguards mentioned in the regulations concerning movement of detained persons, it could arise that a suspect will be directed to a particular Garda station and the member in charge there may be inexperienced or lenient. On the other hand he could decide that he has reason to detain the suspect for proper investigation. I will go into that later.
There is concern inside and outside the House for the innocent. If it is necessary to have a marathon session to get this legislation right then we will have one. If we make a bad law then it can be abused and we must ensure that that does not happen.
I understand that the legislation before us is primary legislation and it would be foolish to include minor details because the Minister will be covering these by regulations. It would be open to the interpretation of the court whereas if it is included in the Bill it would not. That is the kernel of the argument. I think it would be wise to include small details in the regulations and leave it to the discretion of the court and not tie them with primary legislation.
The point Deputy Skelly made is an important one. Those of us who are concerned about the effects of this Bill are concerned about the innocent, not persons engaged in criminal activity. We are also concerned that criminals should not be released on technicalities. I am not a lawyer but there could conceivably be a wide debate as to what precisely is a legal technicality and whether or not a particular technicality is involved in a crime. I also ask the Minister whether or not a detained person can be moved from a Garda station during the period of rest?
We do not know what is going to be in the regulations covering detentions in a Garda station. The Minister is arguing that he does not want to include the regulations in the Bill because they would not be open to the same interpretation as a section of the Bill. I wonder if people with legal experience would comment on that and advise us. For example, I understand that the judges' rules are not law or covered by any Act passed by this House, but they have a strong effect on how a judge reacts to the treatment of a person in custody. The interpretation of the judges' rules has sometimes resulted in charged persons being freed, some of whom were on serious charges. I would like to know whether the effect of the regulations will mean that a person can be moved from Garda station to Garda station during the rest period.
(Limerick East): The Deputy seems to have the wrong end of the stick on the question of a person being moved. The person must consent to the rest period but could opt for continued questioning. Twelve hours is the maximum unless consent is given by the detainee. It would be quite wrong to oblige people to rest in Garda stations where there are no facilities for rest whatsoever. If a person is arrested at 11.30 p.m. and the rest period commences at midnight there could be a need, so that the treatment would not be oppressive, to move that person so that he could rest where there are proper facilities. It all reverts to what a court would consider to be oppressive treatment of an offender and how that would effect the admissibility of evidence. In the regulations and the amendment I am proposing to enable me to draw up regulations, a breach of regulations would not per se make evidence inadmissible. The court will have to decide on that. I am saying that a breach of regulations itself would be a matter of discipline. I am also saying that this does not give the Garda any immunity for civil or criminal proceedings and, on the other hand, it does not seek to invent new crimes for gardaí that do not apply to the rest of the population. It is the only way we can sensibly proceed. People have been released on technicalities, people who were clearly guilty of serious crimes were released. That is not in the public interest.
We should not proceed here as a Legislature as if the courts did not exist. There is obviously a role for the courts and we should not seek to tie the courts on the admissability of evidence. That is why I am saying it is more appropriate to have the treatment of prisoners a matter of regulation rather than a matter of statute in what is primary legislation. Deputy Andrews adverted to the point. We could bring about a situation where, from the best of motives, in trying to improve a section of a Bill we would introduce a whole series of amendments which, first of all, would be very difficult to understand and would provide a kind of lawyers' paradise teasing out the implications of the section over a number of years and we could also bring about a situation where a court that quite clearly wanted to admit evidence could not do so because we had a section in the Bill preventing them from admitting evidence on a technicality.
I am still not happy with the Minister's explanation. I agree with him that it is not in the public interest that people should escape conviction of serious offences because of technicalities, but we must remember that we are living in a democracy. The fact that people are released on a technicality is a reflection of that. It shows that the Irish penal system reflects the fact that we are living in a democracy. We do not want to have something like the Soviet penal system where offences are drawn and drafted so widely that the court can take any meaning from them that the prosecutor wants the court to take. We are into a situation where a very serious precedent could be created. The Minister is suggesting that the safeguards which are necessary here as part of the system of checks and balances will be included in regulations rather than legislation and the Minister is suggesting that the evidence obtained as a result of breach of those regulations or involving breach of those regulations will not be per se inadmissable. That is very unsatisfactory. We are going more and more away from a penal system which reflects a democracy and moving nearer and nearer to a penal system which reflects some other system of government. I am unhappy with the idea of necessary safeguards being contained in regulations which the Minister himself admitted the Garda can ignore at will without fear of the evidence so obtained being inadmissable.
The Minister has mentioned internal Garda discipline. We are here debating the Criminal Justice Bill simpliciter. I am not interested, for the time being, in Garda discipline or in what other forms of legal action could be taken against the Garda. I am interested in having reasonable safeguards in this Bill and in being assured that breach of those safeguards will render the evidence so obtained inadmissable.
(Limerick East): The Deputy is discussing amendment No. 24. I have not moved that amendment yet. We are talking about amendments Nos. 4 to 6. It makes if very difficult for me to switch to amendment No. 24 and take up a whole series of points the Deputy has made. Most of them are not correct. If I do that we will be discussing amendment No. 24 before it is actually moved.
We are discussing amendments Nos. 4, 5 and 6.
The Minister has made the point I was about to make. Many Deputies wish to participate in the Committee Stage. I am anxious that we make reasonable progress. It would seem to me that we can very well and ably tease out amendments Nos. 4, 5 and 6. Like all Deputies — I think Deputy Skelly made a very valid point — I am most anxious to ensure that innocent people, people who are not involved in crime, do not find themselves in difficulties as a result of this legislation. With due respect to Deputy O'Dea much of what he said was somewhat confused and not accurate. I do not want to pursue that any further. I am glad the Minister made the point he did make. I would feel at this stage that we have teased out this amendment. There are a number of other concerns about section 3 (2). I presume we will discuss the section, as amended, before it is passed as amended. It would seem to me to be reasonable to now proceed on the Minister's amendment to include this aspect of the discussion.
Deputy Shatter has now abrogated to himself the function of the Chair.
Could the Minister tell us what percentage of those detained under the section are likely to come before the courts?
With the greatest respect to Deputy Shatter, for whom I have a great personal regard, one would not want to let intolerance creep into this debate. Deputy O'Dea's point is a very valid one and, while Deputy Shatter and others may not agree with him and may be becoming a little bit impatient, I think it is important that we discuss the Minister's amendment deliberatively and carefully. This is probably one of the most far-reaching pieces of legislation to come before this House certainly in the lifetime of this Dáil, the last Dáil and the Dáil before it. I remember that subsequent to my coming into this House in 1965 there came before this House another Criminal Bill. I, at the time, was a member of the then Government party. I remember the opposition to it from the predecessors of the person sitting opposite. There was a long and loud and proper outcry against some sections of it and I agreed with the Opposition in regard to some sections.
I do not think we should be intolerant in our discussions of this Bill. Deputy O'Dea inadvertently referred to amendment No. 24. He was not specifically referring to the section itself but there are aspects of the section which can be translated into the present discussion and I think the issues he has raised are very important. The operability of the Bill and the distinction to be made between statute law and regulations made under statute law are valid points. The Minister has been giving a lead in the matter of toleration and forthcomingness and that is how the people behind the Minister should approach it. Our spokesman, Deputy Woods, has properly responded to the Minister's constructive approach.
The Chair has been very tolerant. Amendment No. 24 in the name of the Minister would be a more appropriate amendment on which to discuss Deputy O'Dea's concern.
The Minister has said he will consider bringing in a regulation to deal with the questions raised here. Before we pass from this section we have to consider what standing such a regulation would have. Under the Offences Against the State Act at the moment only approximately 4 per cent of the cases appear before the courts. The Minister is telling us about the courts making decisions. We have to act as the devil's advocate here since a relatively small percentage of cases are likely to appear in court. I have asked the Minister if he has any estimate of what might be expected in that respect, and perhaps he would let me know. But, if a relatively small percentage only will appear in court then obviously the status of the regulations outside court will be very important in a situation like this one.
I appreciate the Minister's forthcoming approach on the whole question. I would hope that what we have to say would be helpful in that regard. As the Minister has said quite rightly, there are, on page 10 of the O Briain Report, regulations. When statements are sought the requirement is that they be voluntary. It goes without saying that ill-treatment, whether physical or psychological, is absolutely forbidden by the regulations. We are all aware that there have been cases fairly well established in which there was physical, psychological and other abuse. This is something that has to be catered for in so far as is practicable.
It should be said that these regulations are very good as they are spelled out in that Report. For example No. 24 says that all persons in custody are entitled, pursuant to Garda regulations, and provided it is reasonable practice, to certain facilities and they are spelled out — (a), (b), (c), (d), (e) — the right to have a solicitor and a member of the family or a friend informed when a person is being taken into custody. That relates directly to what we are talking about here, because we are talking about finding out where a person is and the difficulty that may arise for the Garda themselves in particular circumstances, in particular areas, where a parent may not be available. For instance, we know that in cases researched by the Medico-Social Research Board in the north inner city, 80 per cent or thereabouts were in situations of difficult family backgrounds in which there was not somebody to contact when one endeavoured to do so. In such cases it may be a community worker or somebody else who is endeavouring to find out where a person is and we wanted to provide that there would be some way of finding out.
There are other regulations here which are very good ones but which we can discuss in greater detail later. At present, on this section, I am prepared to accept the Minister's assurance that he will investigate the possibility of having some central location in a Garda division. From what the Minister has told us it would appear he is coming to that point, because he was stating that there would be certain particular larger centres which would be used for such detention, investigation and interrogation. Therefore, it may not be as difficult as it seems initially. It may become reasonably well established that once somebody is brought to one of these centres the divisional headquarters will know and then anybody who wants to know can check with those divisonal headquarters and be satisfied. Therefore, there is a means for covering the exceptional situation; whether it always works is another thing. I accept the Minister's assurance that he will examine seriously the question of having a divisional or some other similar centre.
I am pleased to hear Deputy Woods' last comments. I think we can make some progress on this.
I welcome the Minister's amendment because it constitutes an improvement on what is in the original section which is necessary if this is to operate at all. Like other Members, such as Deputy O'Dea, Deputy Woods, Deputy D. Andrews, Deputy De Rossa and others here, I am concerned that the Garda get powers that are proper. But we are equally, if not more, concerned that whatever powers they get will not be abused in any way. For example, with regard to the concern there is about station swapping — if that is done with the intention of rendering it more difficult for a lawyer or a member of a detainee's family to gain access to that person — that would be entirely wrong. I agree with Deputy Woods that we should leave this in abeyance for the moment because it is something that must be examined very carefully.
I might say, in relation to the comments made by Deputy Woods in respect of the regulations referred to on page 10 of the O Briain Report — they may well be very fine regulations but they have no force in law at all; they are merely instructions that existed within the Garda Sióchána Force itself. The instructions are contained in this document, described as Information for Persons in Custody, which is a page and a half of a very skimpy document. We should bear in mind what the Minister is doing. His proposal on this occasion — which is a tremendous advance — is to introduce regulations that will have statutory effect, on which the Minister is to be complimented. I would urge Members to examine the various sections of this Bill as we plod our way through, bearing in mind the Minister's offer in that regard, because the Minister is as concerned as everybody else here. Of course, in relation to any new power being given the Garda Síochána, one can well express concern that any such power may be abused. When we come to deal with the regulations it will be our job to ensure that there will be included whatever safeguards are necessary. Otherwise there is the danger that we will spend the remainder of the day dealing with this amendment whereas — if we are talking about safeguards — there are far more important things to be dealt with in this Bill.
Is amendment No. 4 agreed?
Amendment agreed to.
(Limerick East): I move amendment No. 5:
In page 4, subsection (2), line 2, after "station" to insert "to which he is taken on arrest has".
Amendment agreed to.
(Limerick East): I move amendment No. 6:
In page 4, subsection (2), line 3, to delete "has".
Amendment agreed to.
I move amendment No. 7:
In page 4, subsection (3) (b), line 11, to delete "is of the opinion", and substitute "has reasonable grounds for believing".
Section 3 (3) (b), as drafted reads:
An officer of the Garda Sióchána not below the rank of chief superintendent may direct that a person detained pursuant to subsection (2) be detained for a further period not exceeding six hours if he is of opinion that such further detention is necessary for the proper investigation of the offence.
My amendment proposes that the words "is of opinion" be deleted and that instead there by substituted the words "has reasonable grounds for believing". One finds that the phrase "has reasonable grounds for believing" applies in the first instance, in section 3(2) with the use of the words "with reasonable cause" and elsewhere by the use of the words "has reasonable grounds for detention". Then, towards the end of section 3 (2) it is said that the member of the Garda Sióchána in charge of the station at the time of that persons' arrival at the station must have reasonable grounds for believing that his detention in the first instance is necessary for the proper investigation of the offence. But, when we come to the extension of the second period of six hours, we have lost our reasonable grounds and we have moved over to the use of the words "is of the opinion". That would appear to be a more subjective determination and assessment. Consequently, I would prefer to see it being necessary that reasonable grounds should apply at that stage rather than an unsubstantiated opinion. The legal people here will tell us very quickly that, when it comes to a court, there would be quite a significant difference between the opinion of the superintendent at the time and the fact that he should have had reasonable grounds. Those reasonable grounds constitute a sufficiently broad categorisation for arranging or for believing that a further six hour period of detention was necessary. It may well be that the phrase "is of the opinion" is taken from the Offences Against the State Act, which allows for a superintendent's opinion in cases coming under the provisions of that Act. I would contend here that we are not dealing with such subversion or matters like those included in the Offences Against the State Act. I believe it to be necessary and only right that a chief superintendent, or superintendent acting on his behalf, would have reasonable grounds for believing that a second period of six hours detention should apply.
(Limerick East): I do not wish to be too dogmatic about this. It is a form of words. It is a question of what will or will not work. The phrase “the arresting officer will arrest with reasonable cause” can be objectively tested — that he will have to have reasonable grounds for arrest. When a person arrives at the station the member of the Garda Síochána in charge of the station at the time of that person's arrival at the station has reasonable grounds for believing that his detention is necessary. Again that phrase is used there. I considered that it was better that it would be a matter of opinion rather than reasonable grounds for the chief superintendent because after six hours or coming to the end of a six-hour period a superintendent would have to authorise detention for a further six-hour period. In the practical situation quite frequently the chief superintendent may not necessarily be in the station. He could be at some remove from it. There is only one chief superintendent in a Garda division. If you think in terms of rural Ireland rather than Dublin a place like County Wexford has one chief superintendent. The contact if a period of detention should be continued for a further six hours could be made by telephone and quite frequently will be made by telephone. Consequently, the member in charge of the station making the call could give enough facts to the chief superintendent to enable him to make up his mind and have an opinion about whether the person should be detained.
Is it reasonable to expect that somebody so far away and not in contact with the detainee could be tied in to the phrase "reasonable grounds"? In effect Deputy Woods drew attention to this because he said that we are not sure how a court would interpret "reasonable grounds" or "in his opinion". I would not like to see a situation where again we provide a loophole in the law where a court could decide that a chief superintendent 30 miles distant, because he was not on the spot, could not have reasonable grounds and so could not extend the detention period. That is why the "reasonable" phrase is used for the arresting officer or member in charge of the station. While there is a change of phraseology in this, it is for a practical reason. I do not wish to be too dogmatic about it.
There is a long line of judicial decision to the effect that the wording we are suggesting here would require the chief superintendent to satisfy an objective test rather than a subjective test. In other words, if Deputy Woods's amendment is accepted the chief superintendent must be shown in court by the prosecution to have acted in a way in which a reasonable chief superintendent, or superintendent, as the case may be, in the same circumstances would act. Under the section as proposed by the Minister a garda, in order to take somebody into a Garda station without a warrant and keep that person for six hours, must act reasonably. He must satisfy an objective test, but after six hours if a chief superintendent wants to order that that person be detained for another six hours he must overcome no such hurdle. There is a fundamental inconsistency there. The first person who brings the suspect into the Garda station must overcome this hurdle of an objective test. He must act as a reasonable garda would act, but for the second period of detention immediately following that the chief superintendent has to overcome no such hurdle. I do not see any consistency in that and I do not understand the Minister's explanation. The Minister has stated that there is only one chief superintendent in an area etc. and the chief superintendent may be removed from the Garda station. If a garda acting as a reasonable garda brings a person into a Garda station, rings up the chief superintendent and gives him all the information at his disposal, surely it is not too much to ask that the chief superintendent should act as a reasonable chief superintendent in making the decision that he has to make in relation to the further six hours of detention. The garda will place all the facts available to him at the disposal of the chief superintendent, and if the garda is to act as a reasonable garda, surely we must expect that the chief superintendent should be asked to behave as a reasonable chief superintendent.
(Limerick East): The very point I am making is that the chief superintendent could be removed from where the person is detained.
The information would be available.
(Limerick East): He could get the information by telephone and make up his mind and maybe he could form a reasonable opinion. However, there is a doubt in my mind that the courts could ultimately hold that he would have to be present at the station and that he would have to evaluate the situation on the basis of seeing the suspect and speaking to the gardaí and so on to satisfy the objective test the Deputy is talking about. Consequently, I am worried that we would write a provision into the Bill which could not operate and which the court would find could not operate. That is why I am saying “in the opinion of the chief superintendent”. Whichever phrase one uses, the mechanics are the same. On the scene, on the ground, it makes no difference because the chief superintendent will have to be contacted. It is a safeguard. The arresting garda and the member in charge of the Garda station just cannot proceed to hold people for 12 hours. After six hours or at six hours or just before six hours they would have to inform the chief superintendent of the situation. They would have to tell him the facts of it, how the questioning is progressing and if there is a necessity to continue with the questioning. He will make up his mind on that, he will form an opinion. The reason I am advocating that we should accept what is in the Bill “in his opinion” rather than the other thing is that because he is not present in many cases the courts may find that it was impossible to satisfy an objective test and consequently the thing would be inoperable.
Another matter in this subsection needs clarification in the context of both the section itself and Deputy Woods's amendment as to whether we should be talking about opinions or reasonable grounds. I presume that it is intended that if somebody is to be detained for a second period of six hours the intention of the Minister would be that the chief superintendent forming the opinion that such further detention is necessary for proper investigation of the offence would do so in the context of the offence being the offence which it is suspected the person being detained has committed. I am not sure if the section reads in that way. If one compares, as Deputy Woods did, section 3 (2) where a detention can take place by gardaí who with reasonable cause suspect a person of having committed an offence, it seems that a further period of six hours' detention can take place if the chief superintendent is of the opinion that such further detention is necessary for the proper investigation of the offence. It would seem within the phraseology of that section that it would be quite possible for the Garda during the initial period of six hours to reach a conclusion that the person they are detaining has not committed the offence of which he was suspected, nevertheless the chief superintendent might form the view that in order to assist in the investigation of that offence, even though they now know that this person did not commit it and could not be charged with it, he should be detained for a further six hours. I am sure that that is not what the Minister intended or what the legislation intends. If the section could have that effect it would create the possibility of it being open to the Garda having held a person for six hours, being satisfied that he had not been involved in the offence but as a result of the detention suspecting that they know who else was involved in it, to hold that person — I am not saying that the Garda themselves would do this or would wish to do it— for an additional period of six hours. I do not think that the Minister intends that or that it was intended in the original legislation, and I have seen this difficulty only sitting here while we are debating this.
It seems to me that that is of greater concern in the tightening up process than whether we use the words "is of the opinion" which are in the Bill or use the words "has reasonable grounds for believing" in the amendment tabled by Deputy Woods. Whichever phraseology is used, the concern must be that someone is detained only for the additional period of six hours if that person is still suspected of having committed an offence and that if to detain him will assist in the proper investigation of the offence. In the context of this section and in the protection that must exist, it appears to me that some additional words should be added to it. I ask the Minister to consider this as a possibility on Report Stage.
The last word in section 3 (3) (b) is "offence". I suggest to the Minister that the words "of which the person detained is suspected of committing" should be added after that word. That would make sense in the context of what I believe is the intention of the section and it would provide a greater degree of tightening up against a worry that I do not think any of us saw before now. This is why Committee Stage is so valuable.
I am sorry Deputy Andrews thought I was trying to push on the debate unnecessarily. That was not my intention. We must tease out the sections. I had thought we had dealt with the earlier amendment. While I accept that the points made by Deputy O'Dea were relevant and must be discussed, I consider we could do that more logically at a later stage. It was not my intention to create difficulties.
There are valid arguments for the points of view of the Minister and Deputy Woods. Unfortunately we will never know which is valid until one day the section is tested by way of litigation. If it is concluded at the end of a six-hour detention that the person detained is no longer suspected of committing an offence, I am concerned that he or she should not be detained simply because it is believed that that person might assist in the investigation of an offence which somebody else is suspected of committing.
(Limerick East): I am very glad we have had this discussion. It is a very complicated business and people are realising that. I will consider what Deputy Shatter has said. However, it is probably not necessary because in subsection (4) it is stated that if at any time during the detention of a person under this section there are no longer reasonable grounds for suspecting that he has committed an offence to which the section applies he shall be released from custody forthwith unless his detention is authorised apart from this legislation. In effect, if the reasonable grounds disappear and if it is quite clear in the first 30 minutes that there is not a case against a person, that he was not involved in what he was reasonably suspected of having been involved in, he is to be released immediately. It is not a question of holding a person for six hours, letting him out, holding him for another six hours and then letting him out as though there were two release periods after six hours and 12 hours. There is an obligation written into the Bill that a person has to be released if, for example, there are no longer reasonable grounds for suspecting that he has committed an offence.
Deputy Shatter wondered if this would apply to the second period after the extension by the chief superintendent. It is the intention that it would apply to the whole 12-hour period. I will have the matter looked at to see if there is any flaw there after the extension but I do not think there is any flaw.
This may be a nitpicking point but, to some degree, that is the purpose of Committee Stage of a Bill like this. In the Bill the words used are "he is of opinion" and in the amendment the words are "is of the opinion". The Minister says he will not be dogmatic with regard to the question of reasonable grounds. I do not pretend to have the same knowledge of the criminal law as Deputy Shatter or possibly Deputy Molony but I ask that we have some consistency here. I regard the use of the word "opinion" as preemptory and I think that the Garda officer concerned would prefer the formula proposed by Deputy Woods because it would make for greater flexibility. Deputy Woods is asking that we have consistency in relation to the terminology we use.
To add confusion to confusion, in section 3(2) there are the words "with reasonable cause", in subsection (2)(3)(b) there are the words "he is of opinion" and in subsection (4) we use the words "there are no longer reasonable grounds for suspecting". There is an added formula of words "with reasonable cause" and also "has reasonable grounds for believing" and we return again to the expression "is of opinion". If I may act as a layman in the context of criminal law, and that is what I am really, it is my view that we should seek consistency of terminology in this section. The Minister might give us a short treatise on how the courts might interpret the words "is of opinion" as against "with reasonable cause" or "has reasonable grounds for believing." The proposed amendment of Deputy Woods is the correct approach in this context. What we are proposing gives more room for interpretation and this would be helpful.
We are not dealing with subversion in this case. The extended period, even when acting under the Offences Against the State Act, is rarely used. It concerns me that the opinion of the chief superintendent will be accepted in this context. It does not have to be reasonable and an unsubstantiated opinion will suffice. Deputy Shatter said a person may be further detained for the proper investigation of the offence. I gather then that a person might no longer be under suspicion of committing the offence but he could be detained further if this opinion is forthcoming.
That would worry me in the sense that I believe the person should be released. If that person is being detained what is he being detained for except to be questioned further, given that he is no longer under suspicion, in order to incriminate other people in relation to that offence or to be further interrogated? That is why I believe the word "opinion" is not suitable. It terrifies me to think that one could pick up the phone and ask that a person be detained for a further six hours and that permission will be granted. If a superintendent has to go to the trouble of attending a station so be it. I do not like the suggested amendment of adding to "for the proper investigation of the offence" the phrase "that he is suspected of committing". That would lead me to believe that a person was being kept for a second period of interrogation so that he can be closely examined about matters unrelated to those for which he was brought in in the first place.
The Minister has told the House that the periods of detention are not six hour blocks, that after a short period of about an hour or so if it is found that the person being questioned is not under suspicion any longer he will be released. I would like to believe that, but experience and the history of criminal law here does not bear that out. We must legislate in favour of the innocent, and we cannot leave it to the opinion of anybody to release a person at the proper time. If we look at bureaucracy, at bodies like the civil service, or at police stations and the Garda in the operation of their duties, we will see that people are usually left waiting. People are left waiting around the courts and at Garda stations. I do not think anybody will run in at the first minute it is realised a person should not be detained any longer and tell that person to get out quickly. Although this legislation is not in operation there are many cases of people being detained for hours and left waiting in a cell. I am referring to respectable, decent and honest citizens. In many cases when the matter is investigated charges are not brought. Even for a simple thing like being brought in for a suspected drunk driving offence a person may be held for three or four hours in the station and then sent home. I am aware of one instance of a person being kept from 9 p.m. to about midnight in the station and when he asked for his keys he was told to come back in four hours. I would not accept that what we have been told will happen in reality. The amendment should be more restrictive and balanced in favour of this not happening given that we are a pretty inefficient race anyhow. I am not singling out the force and saying that they are inefficient, but generally we are sluggish and slow. It is a terrifying thing for a person to be locked up in a room, to be under suspicion and not to have contact with family or friends. Psychological pressure is put on a person who may have the frightening feeling that even if innocent he may not be understood and things could go against him. Things may occur and when taken out of context may appear different. We must come down heavily in favour of preventing a miscarriage of justice in the case of innocent citizens. It is for that reason that I support the changes suggested by Deputy Woods.
The Minister has said that in some areas there will be but one chief superintendent available and that in Dublin the number of chief superintendents is limited. Section 3 (d) states that the power conferred by paragraph (b) on a chief superintendent may be exercised in his absence by the superintendent acting for him. The power we are talking about is an extension of the detention period. According to paragraph (d) an officer of the Garda Síochána not below the rank of chief superintendent may direct that a person detained pursuant to subsection (2) be detained for a further period not exceeding six hours. I take it that in that event a superintendent can act for a chief superintendent. Will the Minister clarify that and the meaning of paragraph (d)? Is the Minister saying that is not the case?
(Limerick East): Yes.
The Minister is saying that a superintendent cannot exercise that power?
(Limerick East): He can if the chief superintendent is absent on leave or is not on duty. If the chief superintendent is on duty in his divisional office only he can exercise the function.
Does "in his absence" mean absolutely in his absence?
(Limerick East): Yes, not there at the time or on leave. There may be a problem about that, and the Deputy has pointed it out. The Deputy seems to have misinterpreted the phrase quite validly. The point is that the power may be exercised if the chief superintendent is not physically present, if he is a distance away. With regard to numbers the position is that there is only one chief superintendent in each division. There are chief superintendents at Garda headquarters, at Dublin Castle and so on. Some people in Dublin seem to think that there are a lot of such officers, but in areas the size of County Wexford, County Donegal, County Mayo, County Kerry or County Limerick there is one chief superintendent in charge of the division. He cannot be in four or five Garda stations where people are detained or be expected to travel to them. That is the difficulty.
Deputy Andrews asked me to give a treatise on the different phrases in the Bill such as "of opinion", "reasonable cause" and "reasonable grounds". The phrase "is of opinion" was inserted deliberately. There is not an inconsistency in the phraseology. The phrase was inserted for the reasons I outlined earlier, but Deputy Andrews had momentarily left the House when I explained the position. "Reasonable cause" and "reasonable suspicion" require an objective test and a court could very likely decide that a chief superintendent had to be physically present to satisfy himself on objective grounds that it was necessary to detain a person for a further six hours. It would not be possible for a chief superintendent to be present in all circumstances because Garda divisions are big and there are many stations involved. He cannot be expected to travel to them all. That was the reason why the phrase was changed in the case of the chief superintendent to "is of opinion".
Unlike what Deputy Skelly said the chief superintendent, being a senior ranking officer, will have to form his opinion reasonably. He cannot act unreasonably, but "reasonable grounds" goes beyond that. What concerns me is that if we accept the amendment put forward by Deputy Woods we may have a situation where a court may find that a chief superintendent who was not present or could not be present did not have "reasonable grounds". Consequently, the period of extra detention, the extra six hours or part of it, could be held to be unlawful. Deputy Skelly referred to the possibility of delay and people not being released.
We have approached the safeguards in a number of ways and there are many of them written into the Bill. There is a statutory provision in subsection (4) that if at any time during the detention of a person there are no longer reasonable grounds for suspecting that he has committed an offence he shall be released from custody.
I have here a report of a case from The Times, London, dated 24 March 1984. The headline is, “£1,750 damages for wrongful arrest.” The report is as follows:
A man wrongfully arrested by a police officer who did not have reasonable grounds for arrest was entitled to damages of £1,750 to compensate for four-and-a-half hours detention.
Mr. Justice Caulfield so held giving judgment for the plaintiff, David Herbert Hayward who claimed damaged for wrongful imprisonment from the Commissioner of Police of the Metropolis...
He had been an antique dealer but retired from the trade and became a fishmonger. He had packed his suitcase with cups and saucers, silver mustard spoons, a bag with precious stones, glass and other items. The fragile items were wrapped with newspaper four months old.
He met a friend at Paddington, went to Portobello Road and having made some sales to dealers he left Portobello Market and went towards Westbourne Grove to hail a taxi. He intended to catch the 1.30 train at Paddington.
He never caught the train. Just as he was placing his hand on the door of the taxi, he was stopped by Police Constable Walters. The plaintiff was arrested and taken to Notting Hill police station and detained until 5.45 p.m.
The report concludes:
Stolen property did find itself in Portobello Road and Portobello Market could be a haven for thieves and stolen goods. Having considered all the evidence and argument his Lordship was not satisfied that there were reasonable grounds for the arrest of the plaintiff.
Although that finding might put officers in a more difficult position when arresting persons, that was a small price to pay for preventing the imprisonment of perfectly innocent people.
The plaintiff was therefore entitled to damages for false arrest and false imprisonment. When considering the question of damages his Lordship was assisted by a recent decision of Mr. Justice Forbes who awarded £800(Millington v. Commissioner of Police of the Metropolis (The Times May 28, 1983)).
I cite this matter to make the point that the section states, "Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects..." That exposes the arresting garda as well as the garda in charge of the station. These are objective tests and not fancy phrases invented by a Minister to make it look as if there were safeguards in the Bill. These are real safeguards. Gardaí could be sued for wrongful arrests and wrongful detention. That is a serious situation to put the Garda in.
When this was considered, the phrase was changed to become a matter of opinion. There is an obligation written into the Bill which means that a person will have to be released if there is no longer grounds for detaining him. I will have the phrase used by Deputy Woods re-examined, though I think that the phrase in the Bill is the correct one. If I get advice that there will not be a difficulty, I think one phrase is as good as another if it achieves what I want to achieve.
Listening to Deputy Shatter I thought that what he said would apply to the initial period of detention, after arrest. The Minister said that a court may decide that, in order to be reasonable, a chief superintendent might have to visit the Garda station in question.
(Limerick East): I was talking about reasonable grounds.
The Minister said that the parliamentary draftman fears that if we use the term "reasonable" in relation to the chief superintendent forming an opinion in regard to the second period of detention, a court might decide that in order to be reasonable or to have reasonable grounds for a second period of detention, the chief superintendent would have to be physically present at the Garda station in the presence of the accused. Despite some evidence to the contrary, the Judiciary occupy the real world as well. We are talking about reality and it would be positively unreal for a court to come to the conclusion that in order to be reasonable or to have reasonable grounds for doing something, a chief superintendent would have to run around to every Garda station in his jurisdiction when people are taken in, by day or night. That would be a most unreal decision. The effect of the amendment of Deputy Woods would be that, within physical constraints, the chief superintendent would have to act reasonably. It is wrong as well as illogical to predict that sometime in the future a court would come to the conclusion that if 15 or 20 different people were taken in during the night in the Limerick district the chief superintendent would have to run around to every Garda station in order to have reasonable grounds for believing that the people should be detained.
Anybody who has been in the District Court and has seen a garda taking the oath would have seen how important things become so commonplace with everyday usage. Because words are used regularly, important words lose their importance. The Offences Against the State Act is an example. We are being asked to accept the subjective words "for the proper investigation of the offence"— not the offender, but the offence. The person may not only be detained in order to investigate an offence in which the person might have some involvement but the power could be used against a person totally innocent. That is very subjective. The Bill refers to an officer of the Garda Síochána not below the rank of chief superintendent. The Minister said the Garda division might be Wexford or Donegal. Under this wording there is nothing to stop a person in Wexford ringing a chief superintendent in Donegal —"a chief superintendent" is what the Bill states. In Dublin we have a number of chief superintendents. We have one in almost every station in my constituency. The words "having reasonable grounds for believing," seem reasonable to me, though I do not know if they would present difficulties from a legal point of view. "Have good reason to believe" seems to be reasonable. We have already accepted subjective language in this section and here I suggest it would be useful to have something along the lines suggested by the Opposition. It is reasonable to read this section in conjunction with section 8 which states:
(1) Subject to subsection (2), where a person detained pursuant to section 3 is released without having been charged with an offence, he shall not be arrested again for the same offence except on the authority of a justice of the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent that further information has come to the knowledge of the Garda Síochána since the person's release as to his suspected participation in the offence. A person arrested under that authority may be detained pursuant to section 3.
In the matter of re-arrest and detention we find very definite steps being taken later in the Bill. On this section I think the Opposition amendment is quite reasonable.
(Limerick East): We are discussing whether, in increasing the detention period for a further six hours, it would be better to have the phrase “in the opinion of the superintendent” or “whether he has reasonable grounds for believing”. I want to distinguish between somebody acting reasonably and somebody having reasonable grounds. Obviously a chief superintendent in forming his opinion would be expected to act reasonably, but is it possible to have reasonable grounds when somebody is at a remove from an event? I have a serious doubt about that. Deputy O'Dea says there is no problem, that the courts are reasonable and will act reasonably. The courts may take the view that to have reasonable grounds a person would have to be present at a particular time in a particular place. The courts may also take the very reasonable view that the people here draft legislation and that they interpret it, and if we have written in “reasonable grounds” that is what we mean.
Deputy Woods is asking me to accept something which I am advised could lead to a situation where the second period of detention would be unworkable. I have said I will have this examined but it was looked at previously when we considered the phrase "is of the opinion". I accept that Deputies are trying to be helpful but the arguments I am putting forward are very strong.
We are getting into the realm of repetition.
This is a very important matter which is being teased out fairly well here. The Minister says he wants a situation where a chief superintendent will be able to give his opinion without having to establish reasonable grounds because he is afraid there would be difficulty in court about those reasonable grounds. On the other hand, we are concerned that there would be reasonable grounds for keeping somebody beyond six hours. There are reasonable grounds for saying that detention should be six hours. We have considered this matter, and I am sure the Minister has too. It can be argued that the bulk of the information required is obtained within the first four hours but there can be circumstances when a longer time is needed. There would be reasonable grounds for saying, as is the case in Scotland, that there be only one six-hour period.
Paragraph (c) says that a direction under paragraph (b) may be given orally or in writing, and if given orally shall be recorded in writing as soon as practicable. That indicates it will be given over the phone in many instances and that the superintendent or, as I understood up to now, the superintendent acting on his behalf, will be giving the clearance over the phone. That seems to make it clear that it is not intended that the person needs to be there.
The next point I want to raise relates to paragraph (d). I cannot understand what the Minister is saying but it is said quite clearly that the power conferred in paragraph (d) on a chief superintendent may be exercised in his absence. I take it that "in his absence"— if he is at a conference, and not at his desk where there is a phone — a superintendent can act for him. I understood that to be the case up to a few minutes ago when the Minister suggested he would have to be away for that to come into operation. I took it the superintendent would be deputising for the chief superintendent. If chief superintendents are that hard to find, let us make it a superintendent rather that a chief superintendent. It is important when we are bringing in a second period of detention that there be reasonable grounds.
Deputy Shatter suggested that the Minister might add to the end of the section "for the proper investigation of the offence for which the person was being investigated". He referred to subsection (4) which reads:
If at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for suspecting that he has committed an offence to which this section applies,...
I was concerned about "an offence" and considered putting down an amendment saying "the offence or offences in respect of which he was arrested under subsection (2) hereof," in other words, to tie it to the offence or group of offences.
(Limerick East): We would establish a loophole if we did that.
That is why I did not do it. To the ordinary person it would seem reasonable if a person is arrested for an offence or a group of offences but as the wording stands a person can be arrested for one offence and detained for a different offence. The Garda may suspect a person of a crime but when they take him into custody, they may find he has knowledge of another offence and that can lead to detention for a further six hours. While I will go along with not tying it down, as I originally considered, to the offence or offences in respect of which he was arrested, nevertheless there should be reasonable grounds before a person is detained for a further six hours. The Minister gave the example of a member of the London police force against whom damages were claimed for wrongful arrest because he did not have reasonable grounds. That could happen here to the original arresting officer because all along the line there would have to be reasonable grounds, except in this particular case. I feel very strongly that it is necessary to have reasonable grounds for the second period of detention.
A way out of this dilemma might be to ensure that, once the direction is given by the chief superintendent, it be recorded, or if given orally it be recorded as soon as practicable afterwards. The record would show the grounds for the opinion. I think the Minister has answered this perfectly by saying that if anybody acts wrongly — a chief superintendent, a superintendent or the arresting or detaining garda — there is nothing one can do, but if a record is provided and the chief superintendent records the grounds for his opinion, he will be very careful when he realises that that opinion can be examined afterwards. The Minister might consider that.
The conflict between Deputy Woods and the Minister in relation to when a superintendent can replace a chief superintendent depends on the definition of the term "absence" in subsection (3) (d). The Minister might consider asking the draftsman to make clearer precisely what he means by "absence". The Minister seems to suggest that absence means absence for a period of time, such as when a person is on leave, but in our view it may not extend that far because there is nothing else in the subsection which would indicate that the term "absence" is so confined.
It would be most unreasonable for any court to expect a superintendent or chief superintendent to run around to every Garda station where a person is detained, to make a decision as to whether he should be detained for a further six hours. No properly instructed court could come to that conclusion. The phrase "reasonable grounds" in subsection (4) could render the term "opinion" in subsection (3) (b) ineffective at some stage in the sense that somebody may be able to prove that whereas the chief superintendent formed the opinion that he or she should be detained for a further six hours, objectively there were no reasonable grounds for so doing. There is positive conflict here, not just inconsistency.
I refer to what the Minister said in relation to reasonable grounds. He was concerned that the detention of a person by the Garda without reasonable grounds could be actionable. It would be a serious situation for the Garda but it would be even more serious for an innocent person. It would be very serious if innocent people had to suffer the risk of being put away unreasonably in order not to put the Garda in a position where a case could be taken against them. How many cases are we talking about? In how many cases in rural Ireland would people have to be detained for a second time? I am not sure the numbers are very great. There are superintendents in almost every station in Dublin or Cork cities and it is possible to get from one side of Dublin to the other in half an hour. If it is necessary for a person to be present, he should be there. If a garda telephones a superintendent and tells him about a person being held in the station, is the superintendent then deciding reasonably that the person should be detained for a further six hours or is he simply depending on the opinion of the person telephoning him? Surely he cannot decide reasonably in all cases on the basis of a telephone call. Every day in business people listen to others on the telephone and form opinions and very often they make bad judgments.
Adequate protection is not given to the innocent. I would not be too worried if this prevented the second six hours' detention because I am totally opposed to this detention. I would be quite pleased if we did not have any of it. It is the most draconian measure ever brought in and I am sorry to have to say it.
That does not arise on the amendment.
No, but I am referring to it. I am sorry to have to say that the Minister and another Deputy mentioned what happens in other countries as a reason for introducing these draconian measures here. That is a nonsense argument and we should not have to look at the measures in other European countries and the periods for which people may be detained. We have to decide in favour of the innocent person. It might be no harm if the Garda had to be cautious due to the risk of action resulting from taking a person into custody without reasonable grounds for so doing. The medical profession and others have to suffer such risks. It would be good for the innocent if the Garda knew they could not take in a person unreasonably.
Section 3 (4) states:
If at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for suspecting that he has committed an offence to which this section applies, he shall be released from custody forthwith unless his detention is authorised apart from this Act.
Who will ensure that he is released forthwith?
That does not arise.
It certainly does.
It does not arise on the amendment.
The Minister referred to it in his reply, Deputy Woods referred to it some minutes ago and it was not ruled out. Now you are saying it does not arise.
The Deputy should not address the Chair in a threatening manner.
Maybe it is my manner of speaking but that is the way I speak. It seems unfortunate that in the last two weeks every time I have stood up you have objected.
The Deputy will find another way of ventilating that.
I will.
Has the Deputy reasonable grounds for saying that?
What is missed in the argument put forward by Deputy O'Dea is that it is not just a question of absence. The chief superintendent could be absent in order to have a cup of tea. It could happen, based on the wording of the Bill, that a superintendent standing in for a chief superintendent could make a decision about something in another division. A chief superintendent in Dublin could be asked for his opinion on something in Bray, which is in the next county. In his absence a superintendent could give his opinion on something happening in County Wicklow. If it could happen between Dublin and Wicklow it could happen between Cork and Wexford. There is much subjective wording. We have to accept a certain amount of subjective wording but if the Minister were to look at the subjectivity of opinion versus the “reasonable grounds” amendment put forward, then at least the minds of Members could be put at ease.
I do not recall missing anything in my argument. Whether what Deputy Mitchell says is correct depends on what is meant by the term "absence". The Minister seems to have adopted one interpretation but——
(Limerick East): The Deputy should read the end of the sentence.
I have read the end of the sentence.
(Limerick East): It refers to the superintendent acting for him. He has to be absent on leave so that somebody else is delegated to act in his place. He is therefore acting for him.
The Minister takes a different view to that of Deputy Mitchell and I happen to share Deputy Mitchell's view.
(Limerick East): Regarding the question of a superintendent acting for a chief superintendent, Deputy Woods made the suggestion that perhaps we should change the reference to chief superintendent and make it a superintendent. That is tempting because there would be far more superintendents than chief superintendents but there might be a difficulty in that the superintendent would be involved in the investigation whereas the chief superintendent would be unlikely to be involved. Rather than looking for a 12-hour period of detention, the intention is that there would be six hours and then a chief superintendent would have to be consulted. It must be a chief superintendent because in normal circumstances he would be outside the investigation while the superintendent could actually be conducting the investigation. There would not otherwise be a check and balance and the required objectivity. The power conferred by paragraph (b) on a chief superintendent may be exercised in his absence by the superintendent acting for him.
A number of people have interpreted that to mean that the powers of the chief superintendent could be exercised by a superintendent if the chief superintendent were physically away — 20 miles away, for instance, in a different station. There, under the Garda chain of command, the superintendent would not be acting for the chief superintendent. The same would apply in the case mentioned by Deputy Mitchell. He raised the question of someone in charge of a station ringing a superintendent outside his division — that also could not happen. The garda would there be going outside his chain of command. It is a disciplined force and people are responsible to their superiors. They would have to act in that fashion.
I shall look at the points raised by the Deputies, but a chief superintendent would be removed from the situation. A court might find that it was difficult or impossible for a chief superintendent to have reasonable grounds for giving permission if he were not physically present and in a position to assess the situation and to ask questions of the gardaí and of the detained person. Consequently, the phrase "is of opinion" has been included. Certainly, that phrase is more subjective, but the chief superintendent must be reasonable in his subjective opinion.
Deputy Woods made the point that in the phrase "can do it orally or in writing""orally" implies clearly that it would be done by telephone. It could be, but not conclusively so. It could also mean that the chief superintendent could walk in and say that he is satisfied on reasonable grounds and that the detainee could be held for another six hours. He could do it orally in that fashion, not by telephone. I think that the phrase which I am using is a better and safer one than that suggested by the Deputy, but I shall examine the matter. I am not accepting the amendment now.
Is Deputy Woods pressing this amendment?
Yes. I believe that there must be a discipline in going into the second six hours detention. The Minister has mentioned the word "discipline". If there is not a discipline, it is a free situation and can be arranged in any way and may vary from area to area. I believe that the words "has reasonable grounds" are preferable. They will improve the section and the operation of the Act eventually. For that reason, we are pressing the amendment.
Would it not be more reasonable to wait? If this amendment is voted on now, it possibly will be defeated. Would it not be more reasonable to give the Minister an opportunity to look at the contributions being made and have a discussion on Report Stage?
The Chair would agree that it would be reasonable to do one thing or the other, but do it now.
At this stage, we are quite convinced that these words are preferable.
The matter should be left for Report Stage.
I am putting the question: "That the words proposed to be deleted stand".
Question put.
The Committee divided: Tá, 68; Níl, 55.
Tá
- Allen, Bernard.
- Barnes, Monica.
- Barrett, Seán.
- Barry, Myra.
- Begley, Michael.
- Bell, Michael.
- Bermingham, Joe.
- Birmingham, George Martin.
- Bruton, John.
- Bruton, Richard.
- Burke, Liam.
- Carey, Donal.
- Cluskey, Frank.
- Collins, Edward.
- Conlon, John F.
- Connaughton, Paul.
- Coogan, Fintan.
- Cooney, Patrick Mark.
- Cosgrave, Liam T.
- Cosgrave, Michael Joe.
- Coveney, Hugh.
- Crotty, Kieran.
- Crowley, Frank.
- D'Arcy, Michael.
- Deasy, Martin Austin.
- Desmond, Barry.
- Donnellan, John.
- Dowling, Dick.
- Doyle, Avril.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard J.
- Farrelly, John V.
- Fennell, Nuala.
- FitzGerald, Garret.
- Flaherty, Mary.
- Glenn, Alice.
- Harte, Patrick D.
- Hegarty, Paddy.
- Kavanagh, Liam.
- Kenny, Enda.
- L'Estrange, Gerry.
- McGahon, Brendan.
- McGinley, Dinny.
- McLoughlin, Frank.
- Manning, Maurice.
- Mitchell, Gay.
- Molony, David.
- Moynihan, Michael.
- Naughten, Liam.
- Nealon, Ted.
- Noonan, Michael. (Limerick East)
- O'Brien, Fergus.
- O'Brien, Willie.
- O'Sullivan, Toddy.
- O'Toole, Paddy.
- Owen, Nora.
- Pattison, Séamus.
- Prendergast, Frank.
- Quinn, Ruairí.
- Ryan, John.
- Shatter, Alan.
- Skelly, Liam.
- Spring, Dick.
- Taylor, Mervyn.
- Taylor-Quinn, Madeline.
- Timmins, Godfrey.
- Yates, Ivan.
Níl
- Ahern, Bertie.
- Ahern, Michael.
- Andrews, Niall.
- Barrett, Michael.
- Barrett, Sylvester.
- Brennan, Mattie.
- Brennan, Paudge.
- Brennan, Séamus.
- Briscoe, Ben.
- Browne, John.
- Byrne, Hugh.
- Fitzgerald, Liam Joseph.
- Fitzsimons, Jim.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat Cope.
- Geoghegan-Quinn, Máire.
- Gregory-Independent, Tony.
- Haughey, Charles J.
- Kirk, Séamus.
- Kitt, Michael.
- Lemass, Eileen.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leonard, Tom.
- Leyden, Terry.
- Lyons, Denis.
- McEllistrim, Tom.
- Byrne, Seán.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Cathal Seán.
- Daly, Brendan.
- De Rossa, Proinsias.
- Doherty, Seán.
- Fahey, Jackie.
- Faulkner, Pádraig.
- Mac Giolla, Tomás.
- MacSharry, Ray.
- Molloy, Robert.
- Morley, P.J.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West)
- O'Dea, William.
- O'Hanlon, Rory.
- O'Leary, John.
- Power, Paddy.
- Reynolds, Albert.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Walsh, Seán.
- Woods, Michael.
Tellers: Tá, Deputies Barrett(Dún Laoghaire) and Taylor; Níl, Deputies B. Ahern and Briscoe.
Question declared carried.
Amendment declared lost.
Amendments Nos. 8 and 9 may be discussed together by agreement.
(Limerick East): I move amendment No. 8:
In page 4, subsection (5), line 26, after "detained" to insert "in a Garda Síochána station".
This amendment and the following one are agreeable to us.
Amendment agreed to.
(Limerick East): I move amendment No. 9:
In page 4, subsection (5), line 31, to delete "his detention" and substitute "the continuance of his detention pursuant to this section".
Amendment agreed to.
Amendment No. 10 in the name of Deputy Woods is related to amendment No. 11. They may be discussed together.
I move 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.
(d) 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.".
The purpose of this amendment is to ensure that if there is need for a questioning during that period for specific and substantial reasons it can be done unless the person detained consents in writing to the suspension of questioning. What we were trying to get at was that it might come to 12 o'clock and there might have been five hours of questioning done and the person concerned might prefer to have the other hour done then and go home at 1 o'clock. We believe a person should have the option to do that. We appreciate that the period between 12 and 8 a.m. was intended as a period for rest and that this came from various recommendations and experience previously. Notwithstanding the fact that this in itself is obviously a very considerate idea, it is possible that people would like to go on and have their investigation completed so that they could return home. I appreciate that the Minister has given an option. His option is included in amendment No. 11 which says:
after "rest,", to insert "and that person consents in writing to such suspension,"
Under the Minister's amendment the person would be consenting to the suspension. I hope the Minister appreciates what I am trying to get at. I appreciate he has given an option. How much of an option it is we would like to tease out and be quite clear about. We believe a person should have the option to go on with the questioning, if they want to, at 12 o'clock.
(Limerick East): A number of Deputies made the point during the Second Stage debate that the detained person himself ought to have a say in whether a rest period was necessary and that consequently the serving of a notice on him under this subsection, which has the effect of prolonging the period of detention, should be subject to his consent. I agree with that view and amendment No. 11 will achieve that object. The effect of the subsection as amended will be that the detained person will have an option of continuing to allow the detention period to run its course rather than taking a rest which would have the effect of stopping the clock. It was pointed out on Second Stage, and the points were valid, that there are a number of situations where it would be desirable for somebody not to stop at 12 o'clock at night and that they would wish to go on and have the questioning finished if they were held for six or 12 hours. For example, if somebody was arrested and they had completed ten hours in custody and were due to be released at 2 a.m. it might be quite reasonable for the person to want to go on to 2 a.m. and have the questioning completed. The Bill, as originally drafted, would have brought about a situation where unless there were very serious reasons the questioning would be suspended at 12 midnight, it could not recommence until 8 a.m. and the final two hours of the detention period for questioning would be between 8 a.m. and 10 a.m. the following morning. This amendment gives the option to the detainee to consent to having his questioning completed so that for example he could be released at 2 a.m. rather than at 10 a.m. on Saturday. It is a significant difference.
It has another effect as well. The period of six hours plus six hours and the rest period from 12 midnight to 8 a.m. aggregates obviously to 20 hours. This has the effect of making the maximum detention period 12 hours unless the consent of the detainee is given. I think it meets the point which Deputy Woods wanted to make. The draftsmen and my officials looked at the way in which Deputy Woods was approaching the situation at drafting stage and they ran into certain difficulties. There are particular flaws in that approach which I will point out when I have heard the contributions of other people.
Basically, what is happening in the whole section is that the detention period is six hours, with a further six hours with the authorisation of a chief superintendent. That would have very serious effects on account of the practice at the moment that people are not normally questioned in Garda stations between 12 midnight and 8 a.m. if they are held, for example, under the Offences Against the State Act. Courts have never clearly said what oppressive treatment would be, but there are very strong indications that questioning between 12 midnight and 8 a.m. would be considered by the courts as oppressive. If it were considered by a court as oppressive any evidence acquired during that period could not be admitted in evidence. That is the problem. Many of the recommendations made in the Ó Briain report about the treatment of people in custody were adopted by the Garda and they have been given effect in their internal regulations. This is one of them. It would not be normal for somebody who was detained to be questioned between midnight and 8 a.m. The effect of the combination of a 12 hour maximum detention period and what amounts to a prohibition on questioning between 12 midnight and 8 a.m. unless there were very serious circumstances would bring about a situation where the effective time in which the Garda could question and investigate a crime would be reduced to four hours. It is to give the Garda the benefit of the short period of detention that I have proposed this, in contrast to what is happening in other countries. I take the point very fully that there are situations in which it is quite reasonable that a person wants to continue with the questioning period and be released late in the night rather than having to go to bed in a Garda station and have the questioning recommenced the following morning.
There is one other obvious point, that there could be a situation in which somebody is actually on night duty and, in effect, would have been in bed at home during the day. It would then be unreasonable to force somebody to take a period of rest when he did not need it, when it would be in his interests to get the questioning completed and go home — if that was the situation or to be charged and released on station bail if that was the situation.
I appreciate what Deputy Woods is endeavouring to do. But the way we have drafted the section, plus amendment No. 11 I have now proposed, achieves the same result in an effective way.
I have said repeatedly in this debate and on other occasions that I have full confidence in the police force. By and large they are very reasonable people and I am sure they can be depended on not to abuse these new powers they are being given. Nevertheless, I want to revert to a point I made earlier, that the law, particularly the criminal law, must reflect the fact that we are living in a democracy. The parliamentary draftsmen seem to take the view that it is normal that questioning will take place between midnight and 8 a.m. and have outlined an exception to it, namely, if the person who is carrying out the questioning decides that the detainee needs a rest, he can allow him a rest period. Nonetheless, that is a departure from the norm.
We are endeavouring to change the emphasis here. We are endeavouring to bring about a situation in which it would not be regarded as normal to carry out questioning between midnight and 8 a.m. We have set out a number of exceptional situations in which the norm, as we see it, can be departed from, and that list of circumstances is fairly adequate. They give the Garda plenty of power to depart from what we consider to be the normal, average, ordinary situation.
The Minister has made the point about the situation in which a suspect may not want to take a rest, in which he wants the questioning to continue and proceed to conclusion. Perhaps the Minister's argument could be met if we were to agree to include another exceptional situation, to include, let us say a paragraph (e) in our amendment, setting out there another exception to the normal situation, of say, a circumstance in which an accused person himself assents to questioning between the hours of midnight and 8 a.m.
It is a matter of emphasis here. I think that adopted by the parliamentary draftsman is wrong, that ours is right. If we were prepared to include another paragraph in our amendment, giving the accused an option of allowing the Garda to depart from the normal situation, would the Minister then sympathetically consider our amendment?
The Minister and Deputy Woods quite properly, and in unison really, explained the concern about this action. My personal concern about it was that we are introducing these new powers of detention. It is clearly the Minister's intent that they apply only for a total of 12 hours, two six-hour periods. Reflecting on Deputy O'Dea's remarks, we all in this House have every respect for the vast majority of members of the Garda Síochána. Our job, in dealing with this legislation, is to provide protection for innocent individuals against any possibility of abuse on the part of a small minority. There is always the concern that the intent of the 12 hours detention could automatically become a 20-hour detention if some garda saw fit to bring people in for detention periods always commencing around six or seven o'clock in the evening. The section, as originally drafted, effectively gave rise to a situation in which, whether or not somebody was capable of remaining in detention, as such, and being questioned at 12 midnight could become irrelevant. All the garda had to do was to say he had an opinion that somebody should have a rest, when a situation could arise in which those eight hours rest periods in a garda station became the rule rather than the exception.
I welcome the Minister's amendment. Clearly it is desirable that if somebody is brought into a Garda station, is being detained and is anxious that the period of detention be completed that any questions to be asked be asked of him or her. In a sense, it prevents a unilateral suspension of the period of detention and a requirement that that person will remain in the Garda station throughout the night by requiring his or her written consent. The Minister's amendment deals with the major portion of the problem, but I am not sure that it deals with the problem in its entirety. Accepting what Deputy O'Dea said and looking at Deputy Woods's amendment — which approaches the problem from the other side, with different emphasis — in that context it is an attempt to deal with another part of the problem. The other part of the problem would be this — in the context of the detention periods, a person who is being detained and possibly who has been detained for eight or nine hours could find himself or herself in a Garda station eight or nine hours after commencement of detention, midnight could arrive and the Garda concerned might say: I do not have any opinion about this person requiring a rest, I do not think he needs one, while the person himself may feel he needs a rest, and very much so. Therefore, this is still a grey area. I take the Minister's view in the context of decided cases as to what would be regarded as oppressive questioning in particular circumstances. But it is not totally clear in what circumstances, some evidence may be regarded as admissible. There is need somewhere in this section to provide for a situation in which somebody who is in detention and is genuinely tired, requires a sleep, and is unable to continue with the questioning, can seek a rest period after midnight whether or not the Garda are of the opinion that a rest period is required.
The problem in this is seen in Deputy Woods's amendment, which is very well intended. There is always the possibility that, in dealing with the second part of the problem as I have outlined it, professional criminals could use it as a mechanism, purely and simply, to prevent the period of detention continuing, to create difficulties for the Garda investigating an offence. Deputy Woods sees that in his having added all the provisos to his amendment. But those provisos are so wide as to become meaningless and not deal with the problem itself. The first proviso says that such questioning is necessary during that period for the proper investigation of that offence. This is the problem the Minister has with the second aspect of this. This is the problem Deputy Woods had in tabling his amendment, in that, presumably again, the Garda will decide whether the questioning is necessary or not. I hope Deputy Woods will take this comment in the spirit with which it is intended — because I fully accept the intent of his amendment — but that is so wide as to make that amendment meaningless. That phraseology does not afford the protection Deputy Woods would like provided for the person who is in detention, who has been in detention for a long time, who finds midnight has come along and that the Garda are not of the opinion that he needs a rest while he believes he does. Even changing the emphasis, Deputy Woods's provisos are so wide as to make the amendment meaningless. I take the view that the Minister has a problem here. The amendment the Minister has tabled deals very adequately and properly with the first stage of the problem, which is that of somebody being required to spend eight hours sleeping in a Garda station, when they feel fully fit and able to deal with questions put to them and are anxious to complete whatever detention period they have to complete and return to their homes.
It does not deal with the problem of the individual who feels exhausted, though the gardaí may not take the view that that person is exhausted. I am not sure that we can deal with that, and that is the problem Deputy Woods is trying to deal with, but so many provisos are attached that his amendment does not deal with the problem although it is an attempt to do so. I am not sure whether there is a different mechanism to deal with that problem. One might provide a simple mechanism whereby an individual so detained can himself ask in writing and should be told at 12 midnight that he may ask in writing, to be allowed a period of rest. Again, the gardaí may need to continue investigations in particular circumstances and that would not automatically result in the gardaí having to give that period of rest. However, if at a later stage in a criminal trial someone has made comments or statements after making such a written request for a rest, that written request would be there. I suggest that it would be part of the Minister's regulations that any such written request must be retained in the Garda station and that it would form part of the evidence in a criminal trial if and when the issue arose as to whether any statements made by that person subsequent to seeking a rest should or should not be admissible as evidence against him. That might get over the problem which I think Deputy Woods's amendment does not deal with. Neither does the Minister's amendment deal with certain aspects of it. We must try to deal with it but not by just providing a mechanism for people who are involved in crime to use to create difficulties and impede the gardaí in investigations. At the same time we must do what we are all anxious to do, that is ensure that people who genuinely are not in a condition to continue with questioning in such an investigation and indicate that fact to the gardaí, even though the gardaí may not be of the opinion that such is the person's condition, will not have to continue.
(Limerick East): This is a difficult section to deal with, and I have outlined the obvious difficulties. It would be very easy to bring in a prohibition and say that nobody could be questioned between midnight and 8 a.m. under any circumstances, but there are circumstances when people have to be questioned and it is quite legitimate to question them. For example, suppose somebody decided at 2 a.m., resting in a Garda cell, that he wanted to make a statement and indicated so to the gardaí, would it be reasonable to expect that the gardaí should wait for the statement until 8 a.m.? If, for example, a Garda investigation was proceeding and somewhere outside the city information came about a crime, a kidnap victim, an incendiary device in a centre-city store, a bomb being placed which was timed to go off before 8 a.m. or a store was to go on fire at 5 a.m., there would be very valid reasons for taking a person during his rest period and questioning him to protect the life of third parties. There is a real problem. We cannot have an absolute prohibition.
In trying to establish a mechanism which would be effective and at the same time allow the gardaí some discretion where it was absolutely necessary and when they had serious reasons, we must take the O Briain Report into account. The recommendation in that report was that people would not normally be questioned between midnight and 8 a.m. That recommendation has been carried out and is in the regulations under which the Garda operate, and the only exception to it is exceptional circumstances.
Deputy Shatter has identified another problem. Since we cannot prohibit the questioning and it would not be reasonable to do so from midnight to 8 a.m. if there are exceptional circumstances, why not say what would constitute what was oppressive and what was not oppressive? You could lay down a series of criteria which would suggest when a person was being treated oppressively. For example, generally we would agree that if a person is in need of rest, objectively viewed, and did not get it, that would be oppression and the courts would so hold. The Garda instructions cover this and the gardaí are very conscious of it because the courts have found that people have been oppressively treated, and evidence got in periods where the courts have found people have been oppressively treated has not been admitted. Therefore, the gardaí are very conscious and very concerned that there would not be oppressive treatment. The difficulty of trying to establish criteria of oppression and non-oppression is that what might be oppressive for an 18-year-old student would not necessarily be oppressive for a 40-year-old hardened criminal who had long experience of the Garda Síochána. It is impossible to legislate for what would or would not be oppressive. While one might have a view of what the objective criteria could be, one must apply the objective criteria to the individual case. In individual cases circumstances are so varied: people come from different backgrounds and would be in different circumstances and at different levels of education and perception, different states of physical health and different ages.
I take Deputy O'Dea's point that the presentational import of this is negative. We try to have a positive approach. It looks as if the section is suggesting that it would be the norm for people to be questioned between 12 midnight and 8 a.m., but that is not the situation. The norm is that under the directions of the O Briain Report and the Garda instructions there would not be questioning except for serious offences. I can appreciate what Deputy Woods was attempting to do because we went through that phase in coming to the decision in the section that is now in the Bill of trying to make it positive, but it proved very difficult. There are two major problems in Deputy Wood's approach which I mention not by way of criticism but by way of illustration. The end of the Deputy's amendment states:
(d) 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.".
If some questioning takes place the period will be included. The difficulty is this. Somebody is detained for six hours and then another six hours. The 12-hour period is up at 2 a.m. At 2.30 a.m., for one of the reasons outlined in Deputy Wood's amendment, the gardaí find it necessary to question that person, if they question him at all, if there is just one question, five minutes' questioning, half-an-hour's questioning, then the whole period between 12 midnight and 8 a.m. becomes reckonable. Eight hours go. Therefore, you have a problem immediately. There were two hours left for questioning for the following morning. Now the person is questioned at 2.30 a.m. just for a few minutes, and because of the way this is drafted that would mean that the whole period would have to be reckoned and, of course, the minute the questioning stopped he would have to be released immediately. He could not be held until 8 a.m. You might say that that is fair enough, but there is another problem. Because he was questioned at 2.30 a.m. and because the 12 hours would have been up at 2 a.m. and because the period from 12 midnight to 2.30 a.m. would now be counted retrospectively, the period for detention for questioning would have exceeded 12 hours, which is not permitted in the Bill, and the person would be in unlawful detention for that extra half hour by virtue of the fact that the gardaí found it necessary to question him in the middle of the night, and there would be a case against the gardaí. I am saying this for the purposes of illustration because we went down exactly the same road when we were trying to draft this section which I see as a safeguard section.
The second problem is that Deputy Woods's amendment does not deal with the element of consent that I am introducing. In effect, the detained person will have no control over the question whether the period from midnight to 8 a.m. will count because he has no control over whether questions will be put. Under the existing draft he would have that control and could refuse to allow the period to be suspended and thus ensure earlier release. In other words, my amendment allows that if a person is to be released at 2 a.m. he has discretion over the matter. The norm is that the questioning would be suspended at 12 midnight but if a person wants to go on because he wants to be released at 2 a.m. he signs a consent, questioning then continues until 2 a.m. and he is then released. That mechanism is not in the amendment tabled by Deputy Woods. The existing section in addition to the amendment I am proposing meets the situation. I want to assure Deputy O'Dea that I take his point, that the presentational thrust of the section gives the impression that what is not the norm is the norm and it certainly requires the explanation I have given.
In reaching the objective the Minister's proposal seems to be tighter then the proposed amendment by the Opposition. I should like to ask the Minister two general questions about the section. With regard to the whole matter of detention, the period between midnight and 8 a.m. and the maximum 12 hours, is it possible, if a person during that period is suspected of another crime, that a whole new process of detention could start?
(Limerick East): No.
There is some concern among criminal lawyers — they forwarded a submission to the Minister — regarding the question of the keeping of records, whether it is desirable that they be kept by the arresting officer, the garda in charge or another member and the relationship this would have to evidence at a later stage. It is understandable that in some stations in the country there would be only one garda manning a station at the time in question. In general, will it be the practice for a separate member of the force to record the information?
Deputy Shatter put our amendment in its proper perspective, in the sense that it is to turn the emphasis around, that questioning will not take place except in circumstances which make it necessary. I accept what the Deputy has said regarding subsection (a) (i) which states that such questioning is necessary during that period for the proper investigation of the offence. I appreciate it is not possible to tie this down and the Minister has said that is the difficulty he would have also.
In other circumstances we have heard the Minister say he can introduce regulations. At least regulations could be introduced to cover such circumstances where it would be regarded normally that questioning was necessary. I have covered the other more specific cases where such questioning would be necessary during the period in order to safeguard against serious threat to a person or property. Obviously that is quite clear and there must be the possibility to go on in such a case as, for instance, if a person has been kidnapped, if there is a threat to someone or if a bomb is placed somewhere.
The third case was where, for instance, an established criminal wanted to make use of the opportunity to dispose of the material evidence and to destroy it. As Deputy Shatter said, the first of the three cases is fairly wide in any event. That was my problem, that we had to provide a certain flexibility, to ensure that unforeseen circumstances were covered. The only thing I can say in this regard is that it turns the emphasis the opposite way, namely, it puts the emphasis on not questioning unless there are some reasons for questioning. It is good in that sense. The Garda can handle subsequently what they regard as reasonable reasons for going ahead with the questioning.
However, we are still left with the problem that a person may be overtired and may not wish to go ahead while members of the interrogation group may wish to go ahead. There is a psychological warfare in all of this when it is brought into more specialised areas. Tiredness can be an important feature. I ask the Minister to consider this section again and see if there is a possibility of turning it round the other way as I have tried to do. I am not an expert in drafting these matters and it is quite difficult for an Opposition spokesperson to deal with them especially when they are complicated in any event. I ask the Minister to look at this matter before Report Stage to see if these concerns can be met.
If the person detained wants to go ahead that is all right. I think if I were detained I would not want a rest period. However, there are a number of people who would want such a rest period, those who tire very quickly and those who may have a medical problem which might not be known to the Garda. Consequently, it would be unfair to question them, because of that medical problem. The Bill provides that the whole matter should be left to the opinion of the Garda in charge of the station but it seems the person detained has no say in the situation. Will the Minister comment on that?
I raise a question on the practical level concerning the provision of space and conditions of comfort for such rest periods particularly if people have a medical problem or are under a certain amount of pressure and who need and deserve rest. Are we sure that in our Garda stations that type of space and conditions of comfort can be offered for such rest periods?
That is an important question and one I had intended to raise. The Garda stations I know are not particularly restful places and they do not have the space. I am also concerned about how it would be decided in such circumstances that a person needs rest. For instance, how many beds are there in Garda stations?
(Limerick East): The difficulty arises in the first instance from what Deputy O'Dea originally pointed out that the presentational slant of the section tends to give the impression that it is normal to question people at present between midnight and 8 a.m. if they are detained, for example, under the Offences Against the State Act. On the contrary, it is not the norm; it is the exception. There is an instruction to that effect under which the Garda operate. If we look at the first part of the section — this brings me to a point raised by Deputy Joe Doyle — we will see that, if a person is detained pursuant to this section in a Garda station between midnight and 8 a.m. and the member in charge of the station is of opinion that any questioning of that person for the purpose of investigation should be suspended in order to afford him reasonable time to rest and so on, the same member forming that opinion would be under the instruction arising out of the O Briain report. That instruction is to the effect that a person should not be questioned at all between midnight and 8 a.m. because that could be deemed to be oppressive. People need a time of rest, but it could only be carried out in exceptional circumstances.
I accept the difficulty which was identified at the outset by Deputy O'Dea. However, we tried to draft this in a positive manner, like the way Deputy Woods approached it. I should like to assure the Deputy that I am not being critical of him. He is quite right in saying that it was very difficult. It was even difficult for people who are accustomed to this, the parliamentary draftsman and officials in the Attorney General's office. They had to go through several drafts before they came up with this. The intention, which is clear, is achieved here even though negatively. I appreciate the difficulties an Opposition spokesman has in drafting.
I do not have any quarrel with the reason why the Garda should question people during the night as outlined in the draft produced by Deputy Woods. The major problem arises when we come to subsection (d). I have already explained that if any questioning at all takes place during the night it would have the effect of bringing the period between midnight and 8 a.m. into the reckoning. That eight hour period would be added on to whatever existed already and somebody would have to be released immediately. That could be acceptable in certain circumstances because the Garda would have got their opportunity to ask the questions during the night. The difficulty is that there is a retrospective element in it. If the period of detention was to expire at 2 a.m. and if the person rested from midnight and the Garda saw a good and valid reason, as outlined by Deputy Woods, for questioning that person at 3 a.m. the fact that they did so would bring into the reckoning the period between midnight and 3 a.m. Then the person would have been held for 13 hours instead of 12 hours for questioning. There would be one hour where the person was under unlawful detention. The Garda, through the operation of this mechanism and being in a no fault situation, would be liable to civil proceedings on the lines I outlined this morning when quoting the extract from The Times of London.
The other difficulty is that the person does not have control over his situation and the element of consent is not there. The section, as amended, will work effectively. It is one of the major safeguards in the Bill for a detained person. It is effective from a practical point of view also. However, I will take up the points made by Deputy Woods to see if I can improve the provision between now and Report Stage.
The amendment states that, if a person is detained pursuant to this section in a Garda Síochána station between midnight and 8 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 the section.
(Limerick East): Consequently, if some questioning takes place the period will not be reckoned. That is the problem.
If that is the case it will be simple enough to put down a further amendment to the effect that any period in which questioning occurs would be excluded and specify the length of time when that occurs.
(Limerick East): The difficulty there is that in terms of a safeguard that would make the matter worse. We would be enabling a situation to occur where for any of the reasons outlined a person could be brought in, questioned for 30 minutes, put back in the cell and questioned later for a further half hour.
It was because of the fear that that could happen that such a period was included.
(Limerick East): The way I have done it, although presentationally it does not look as good as the way the Deputy has done it, it works as a safeguard.
I can appreciate that it could be abused and that is the point I was anxious to make.
It is becoming more clear as the debate progresses that it was difficult to draft this provision, that it will be difficult to enforce it and that it is probably unworkable. What concerns me about it is that it seems to favour the criminal and discriminate against the innocent person. It does that by way of the coercive atmosphere of police custody. In this context I should like to refer to an article written by a law lecturer from UCD, Tom Cooney, in which he stated in connection with this section:
(4) The proposed changes, if passed, would allow the police to trade upon the inherently coercive atmosphere of police custody. Incommunicado interrogation of individuals in a police-dominated atmosphere, while clearly not physical intimidation, is inherently coercive. The suspect who submits to interrogation faces strong pressures towards self-doubt, conformity and ulitmately confession. He or she would encounter interrogators, who, over the duration of six hours, would concentrate solely on establishing the guilt of the suspect.
Such encounters would involve police control of the setting, exclusion of contact with the outside world, indepth techniques of persuasion and interrogation. Resistance to police attempts to influence a suspect's behaviour will vary according to the suspect's self-confidence. It is, however, self-confidence which the poor, the inexperienced, and the psychologically vulnerable are likely to lack.
Thus a majority of suspects in their uncertainty would be little safeguarded against the stress and pressure of interrogation.
But the law will favour the more sophisticated suspect who can withstand greater than average pressure. This appearance of advantage may discriminate against the poor, the inexperienced and the vulnerable. In other words, the Bill, if adopted, would allow the police systematically to seek out and exploit the psychological vulnerabilities of a citizen. The guarantee of a right to a lawyer is illusory [as we know from another part of the Bill]. The police must notify a lawyer of the detention "as soon as practicable". This phrase is pregnant with confusion.
Furthermore, after six hours of indepth interrogation, mounting fatigue may play its part in weakening the police interrogator. His own wish to comply with the law may be broken by impatience, frustration, or the persistence of a suspect who remains silent. Given the proposed powers in this Bill it should not be surprising that sincere police officers intent on solving crime, should occasionally lose their tempers and resort to physical violence.
That brings us to the area of concern that most of us have, that the innocent should not be ignored. In all the contributions on this section no Member has referred to the great majority of people who do not have any connection or involvement in crime or to the mass of innocent, poor, uneducated or inarticulate people who may be affected by this. We have all been talking about the criminal only. It is obvious to me that this draft will favour the hardened criminal more than it will protect the innocent person. I should like to direct the Minister's attention to that, given that he has stated that he will look at this. I am afraid that the innocent are being ignored.
Progress reported; Committee to sit again.