Private Members' Business. - Criminal Justice Bill, 1983: Committee Stage (Resumed). – Dáil Éireann (24th Dáil) – Wednesday, 16 May 1984

Private Members' Business. - Criminal Justice Bill, 1983: Committee Stage (Resumed).

Question proposed: "That section 3, as amended, stand part of the Bill."

Dr. Woods

We have had a fairly extensive discussion on this section and have considered a large number of amendments. This debate gives us an opportunity to examine the section as a whole and as now amended. It is essential that we in this House and the public at large should realise that section 3 creates, for the first time since the foundation of the State — other than, of course, in emergency legislation — the power of arrest of any citizen on mere suspicion and his or her detention purely for questioning or interrogation. Some Deputies have said that much time has been spent in discussing this Bill, but this was essential because of the nature of the power which it is conferring.

Fianna Fáil have reluctantly but inevitably accepted the granting of this new power in the present circumstances and because the Garda force believe that it will assist them in dealing with crime. We are placing our confidence in the Garda force in this respect and trust that they will understand our request for suitable safeguards and amendments to ensure that those among their ranks who might not comply with the generally very high standard of the Garda force will not be able to abuse this legislation in the way in which it would be open to abuse.

Because of the new powers of arrest and imprisonment or detention being such a new and fundamental departure from the practice heretofore, we are convinced that the section must be accompanied by a Garda Complaints Commission on the one hand and minimum safeguards for persons in custody on the other. The Minister has been very helpful here in the debate on the section and has made commitments and promises regarding legislation which will cover these safeguards. He has been quite forthcoming in that he is prepared to consider positive regulations and safeguards and to bring in a positive motion in the House relating to the regulations. However, it is important to emphasise that the Bill should at this stage have had beside, with, or within it the appropriate regulations and clauses concerning the Complaints Commission. Today we are bringing in legislation without knowing about the Complaints Commission or the regulations. Because the Minister has supporting him the Labour Party and the Fine Gael Party, we have no alternative but to accept that situation. It is for the Members of this House a blinkered approach to the introduction of legislation, which is regrettable. It would have been far better for all of us if things had been otherwise.

In an attempt to improve the situation, on behalf of my party I have put down a number of amendments, the spirit of which certainly, I think it is fair to say, has been accepted by the Minister, both in relation to the necessary safeguards and the Complaints Commission. I find it very difficult to see how this section could come before the House without the Minister being in a position to deal with these matters. If I, as a member of the Opposition, without the Minister's support and back-up, could bring in something along the lines of what will be necessary, it should have been possible for him to bring in these clauses and put them before the House at this stage.

The effect of the section as amended is that there will be arrest on suspicion. I am a little concerned — and would like the Minister's views on this — as to how it will apply and where it will be applied. I feel that it would be applied mainly in the large urban centres, with some of which I am very familiar and other Members of the House also, where the level of crime is at present so high. Consequently if it is to be applied mainly in those centres it should be possible to provide the facilities and resources for those centres so that this section can be implemented in the areas in which it is likely to be used frequently because of the level of crime in them. The Minister might consider improving the facilities and resources in those areas in particular. I would like to have his view on where he sees the section being applied most.

We also have the question of detention after arrest. We know that at the moment it applies to those over seven years. There was some confusion about that earlier on but the Minister, following the debate on the section, has given us an assurance that he will come back on Report Stage with an amendment along the lines we have suggested. I suggested that the measures in this section should not apply to children under 12 years of age. The Minister agreed to consider at least that level for Report Stage. We welcome the Minister being so forthcoming in that respect and we look forward to his amendment on Report Stage.

We also now have in this section detention for six hours followed by six hours with eight hours rest and whether you are disturbed or called during the eight hours. With regard to six hours followed by six hours I have some reservations about the need for the second six hours because it would appear that most of the information required would seem to be ascertainable within the first three or four hours. I accept that there will be circumstances in which a longer time might be needed. It is a pity we could not have isolated those instances. I know the Minister will mention cases like murder and rape and I do not believe any of us would be concerned with the extra period applying there. Even the little information we had from studies done in England showed that for offences which did not involve sexual matters there seemed to be a very quick decision and early information provided. This might indicate that there are some particular offences for which the double period might be appropriate but that for the majority of offences the six hours might be appropriate. The Minister could perhaps consider this for Report Stage. Those accused of non-sexual violence are for the most part interrogated only briefly. Nearly 89 per cent are questioned for less than an hour. This seems to indicate some very distinct categorisation there, that in perhaps a very broad area the six hour period would be more than sufficient whereas for specific offences a longer time would be required. We are disadvantaged by the fact that we do not have much information by way of evidence on past experience in this area to tell what sort of crimes and what sort of cases would tend to need longer periods and if those could be categorised in any way.

We have also defined and teased out fairly well the kind of offences to which the section will apply, those for which the five year sentence applies generally. We know this can cover fairly simple crimes, from shop-lifting and larceny generally up to the very serious crimes. We have not succeeded in finding a means of categorising those. It is another question whether that is possible. I cannot help feeling that, if we had more information even on the lines of that available in England, it might be possible to do some more categorisation. I felt from the beginning that should have been possible but I accepted the Minister's view that larceny is larceny and you could not draw a line at a certain level in relation to it.

The Minister conceded a number of things during the debate on this section. He has agreed that the section will cease after five years unless it is brought back into being by both Houses of the Oireachtas. That is one of the concessions he has made. We also know that he is considering the question of age and will come back to us on it. I am still concerned about extending the detention for the second period. I believe, following the discussion we had on our amendment, that it should be satisfactory for a superintendent to give that authorisation rather than a chief superintendent, and if a superintendent gave authorisation that it should be possible for him to have reasonable grounds for the extension. I appreciate the Minister's argument that the chief superintendent may be at quite a distance from the scene and it would be more difficult. I feel very strongly that there should be reasonable grounds for extending into the second six hours.

I believe, following the discussion we had, that it would be quite in order to allow a superintendent or higher officer to give the extension there. After our discussion here I looked at the British Criminal Evidence Bill, page 34, section 38. It provides "where a police officer of the rank of superintendent or above, who is responsible for the police station at which a person is detained, has reasonable grounds for believing that ..." he may authorise the extended period. It was interesting to see from the discussion we had that they had taken the line I suggested earlier, that perhaps we could change it from chief superintendent to superintendent and install the reasonable grounds. That is something that could be considered on Report Stage. In any event, it is probably reasonable to give the power to a superintendent or a higher officer.

We have also considered the matter of questioning between midnight and 8 a.m. and the Minister has agreed to consider an amendment on this matter for Report Stage. There are some difficulties with regard to questioning in hospital and we will look at that before Report Stage. The Minister has given an undertaking that he will consider clarifying that section on Report Stage.

In his amendments the Minister has done much to overcome the difficulties in relation to rearrest, especially with regard to the combination of 12 hours and 48 hours. I hope the Minister will accept the spirit of what we have been trying to get across. We are providing in this section for detention for a wide range of crimes, apart from the specialised subversive offences and offences against the State, but we are anxious to have some means of closing off extensions after 48 hours. I appreciate that the Minister did this quite successfully in one amendment but there seems to have been a loophole even in that that could be closed.

I think the Minister was mistaken when he said that the Offences Against the State Act provided for 48 hours followed by 48 hours detention. As far as I know it is 24 hours followed by 24 hours. The Minister also referred to the British situation and spoke of 48 hours followed by 48 hours. Perhaps the Minister will clarify the point that the Offences Against the State Act provides for 24 hours detention followed by 24 hours, making a total of 48 hours.

The House has considered the matter of safeguards and some Members have pointed out that other kinds of safeguards were not included. One such safeguard is the question of medical examination. The provisions of this section are likely to be used quite extensively — for example, in cases of larceny and possibly shoplifting — and many of the detentions will probably be very short, possibly for one or two hours. Therefore, the question of medical examination will hardly apply. However, it could apply in a certain proportion of cases.

I had prepared fairly extensive amendments providing safeguards with regard to medical examination as a result of experience gleaned elsewhere. This brings out the broad and extensive nature of the section. In practice a very large proportion of the crimes involved will be disposed of fairly quickly in questioning and, consequently, one wonders to what extent one should go in relation to safeguards on medical grounds. The British have built in medical and a whole series of safeguards in the Act, including the responsibility of custody officers at police stations. They have spelled out the duties of a custody officer before charging arises, they have talked about the issuing of certificates and have defined clearly the responsibilities in that area and also in relation to persons detained. Subsection (10) of Part 4 of their Act states:

Before authorising a person's continued detention, the review officer shall give (a) that person (unless he is asleep) or (b) any solicitor representing him an opportunity to make representations to the review officer.

They considered that point and put it into the legislation. Perhaps one of the amendments I had down as a safeguard would be appropriate.

Minister for Justice (Mr. Noonan,

Limerick East): So long as you do not have to wake up the person to establish he is asleep.

Dr. Woods

Obviously they were thinking on similar lines. The whole question of medical examination is a major one. I did some work on that but I did not refer to it here because the whole matter would get too extensive. I suppose that is part of the problem with the section. It is so broad that there would have to be a section relating to medical examination. I presume the Minister will cover that point in his regulations.

The Minister has given an undertaking that section 3 will not go ahead until the regulations and the legislation for a complaints procedure is passed by the House. I take it this is a commitment made by the Minister and he can confirm or deny that when he is replying. Many people are asking us if this section dealing with detention on suspicion will reduce crime, or what sort of contribution will it make to the reduction of crime. The Minister has not so far given us any indication of the reduction he expects there will be from the implementation of the provisions of this Bill. I know that is a difficult thing to do. Nevertheless I presume he has some idea of the practical, beneficial effect it may have. Perhaps the Minister would tell us how he feels this section will affect crime and what contribution it will make towards its reduction.

Perhaps the Minister would tell us also what is the present position in relation to crime, or perhaps for the year 1983, which is now well behind us. The Minister must now have a fair idea of what happened in relation to crime generally in that year. We know that in 1982 the rate of increase in crime slowed down very considerably, the rate of increase in that year having been 9 per cent compared with 22.8 per cent increase in 1981. My understanding is that the rate of increase in 1983 will have slowed down even further. I would welcome hearing from the Minister on that subject in reply.

We must then ask ourselves: why is it at present being pulled back and what are the factors that are bringing this about? I believe personally that the deployment of men on the beat, the changes that are being made, getting more of them out into the community, on the beat, is having its effect on crime. In some of the major crime areas — while citizens generally will not recognise the fact at this stage because the general level of crime is so high at present — the official position probably would be that the crime rate again this year is dropping. It is important to establish what is our position now. I believe it would be very wrong if we went on thinking, after the passage of this Bill, that they were the special powers of detention and arrest on suspicion that had been the sole or principal contributor. We should monitor the position henceforth in the interests of the review which will take place, in any event at the end of five years. This should be done in a factual, analytical and statistical way by the collation of any data or information that can be gathered and which will prove useful in this respect.

I do not think there is any doubt but that the provisions of this Bill will contribute to a further reduction in the rate of crime. That is why we are agreeing to it in principle but it will be important to quantify the extent to which it will contribute ultimately. Perhaps by looking at some of the major urban centres very closely it will be possible to adequately monitor what is happening there.

Of course there are a lot of other factors affecting the drop in the crime rates which we have discussed at various stages in this House. We know also that a considerable amount of crime is drug-related. Teasing out that problem, dealing with it specifically, must substantially contribute to a reduction in crime. We know that the juvenile liaison officers have had very considerable success in their work and that the further development of that system could prevent many more young people entering a life of crime, by catching them at a very early stage. We are aware also that many of the crimes being committed are by people back on the streets — as soon as they have been put away — in which respect the provision of corrective facilities, whichever they may be, is vital. We are aware, particularly from the centre city area, that the Garda on the spot can tell one that had they somewhere to put a certain number of people then there would be a dramatic drop in the level of crime but that, even when they went to look for 'fit person orders' there was nowhere to put these people. Therefore, they are frustrated in that respect, another factor which could contribute to a reduction in crime and which must be pursued at the same time as the implementation of this Bill.

With the Minister's assurances in relation to the amendments which he proposes to make on Report Stage, the steps which he proposes to take and those which he has already taken, we will be supporting the section as a whole and we look forward to the Minister taking the other measures which he has promised.

Mr. Shatter

The powers that are now being provided for detention under section 3 with the various amendments that have been passed or which will be introduced on Report Stage are providing the Garda with a power they have sought for some time on the basis that they feel hampered in the fight against crime. They expressed the view in recent years that this is an essential part of the Garda armoury in the fight against crime to afford them a proper opportunity to investigate offences and to prosecute successfully those who are guilty of committing offences.

Many of us in this House are uneasy about the powers of detention that are now being provided and it is fair to say that that applies to Deputies on all sides of the House. That unease and concern have been expressed in the length of time we have taken in dealing with this section and the amendments tabled to it. We have tried to perform a very delicate balancing act of providing powers to the Garda while seeking to provide the required protection against abuse of those powers. I hope we have gone along the road of providing the necessary protections. We will only complete that as we debate other sections and when we come to further amendments which are to be tabled on Report Stage.

In recent times, in a number of cases which came before the courts there have been examples of, to put it mildly, excessive zeal on behalf of a very small minority of members of the Garda. Those instances have caused great concern to Members of this House and have influenced them in their concern about section 3 and the extension of detention powers. The behaviour of that very small minority is deeply regretted by the vast majority of gardaí who fully and properly perform their functions, do a great service to the community at large and have the full support of all Members of this House. In fairness to the vast majority of gardaí who do their jobs properly and on whom we depend for security in the State and the prevention and investigation of crime, a message should go out from this House that the power of detention, the power to hold someone for the purpose of conducting an investigation which is a power of a different nature from the ordinary arrest and charge procedure must only be used where it is genuinely believed that someone has committed an offence and where detention is positively required for the proper investigation of an offence.

The need for these powers has been expressed as a need which will assist the Garda not merely in the investigation of crime but in successfully detecting those who have committed crime and in prosecuting them in the courts. The statistics seem to indicate that under the Offences Against the State Act prosecutions are brought against only one of every nine or ten persons detained. When we come to review these powers if we find that only one out of every ten or 20 people detained have been prosecuted successfully, this would be an indicator that these powers were being abused or that they are not fulfilling the functions the Garda suggested that they could fulfil.

We are now putting our trust in the Garda force and accepting the view they have expressed that the provision of these powers will improve the detection rate, the investigation of crime and the conviction rate, and that persons who should be convicted and who have been involved in the committal of offences will be brought before the courts and successfully prosecuted. In this House we will be looking very carefully to see how these powers operate. I will be very concerned if it emerges that far more people were detained under the provisions of the section than were successfully prosecuted through the courts.

In the context of the safeguards provided it is fair to say many groups in the community have expressed general worries and concerns about the detention provisions. Those groups are representative of a broad spectrum of Irish society. The Minister is to be commended for taking in tow the concerns expressed by many of these groups in the amendments he has tabled and in the amendments he has indicated he is willing to accept on Report Stage. We in this House have done a good service by the manner in which we have dealt with this aspect of the legislation so far. I disagree with the view expressed by some of the Garda representative bodies that by going through this legislative process we are dismantling the Bill in some way or providing a Bill which will not assist the Garda. The general powers provided in this Bill will be of great assistance to the Garda and greatly reform the law in a number of ways. The detention provisions, with the built in safeguards, are in the interests of the Garda force generally and should be of assistance to them.

A number of groups have expressed the view that the use of the detention provisions could be counter productive in some sections of the community and, rather than improving community relations or assisting the Garda, could alienate sections of the community with whom the Garda should have greater contact in their role of community policing. In exercising the powers of detention the Garda will have to be careful about the manner in which they exercise them in local communities.

The Irish Commission for Justice and Peace very neatly expressed the concern I am expressing on 12 April 1984 when they issued a commentary on the Criminal Justice Bill as it stood at that stage with the amendments tabled. They said it is not necessarily true that crime is most effectively pursued or that community support for the police is most in evidence in jurisdictions where police powers are greatest. They said the rule of law can be undermined as much when the powers invoked to protect it are too great as when they are too few. I hope the Garda will be cognisant of that in the manner in which they exercise and operate their powers under this section and in the context of the detention provisions.

It is important that we do not see a development in parts of Dublin or Limerick or in particular sections of the community, where people are being detained for reasons which may appear to come within the ambit of the legislation, but which clearly do not, and in other sections of the country or in parts of Dublin or Limerick those powers are never exercised. We must ensure that they are not used in a sense as a weapon to intimidate the poorer sections of the community. It is in those areas that community policing and good Garda relations will achieve more than will be achieved by the operation of the detention provisions.

As we go through sections 4 and 5 and other aspects of the Bill we will deal with other amendments and other proposals relating directly to the provisions of section 3. We will be teasing out the original provisions and the amendments proposed. In the context of the immediate impact of detention on local communities, something which is not dealt with in this Bill or in any amendment tabled, the Minister may wish to consider giving a formal statutory role to the juvenile liaison officers in the interests of young people who are detained by virtue of the operation of section 3. The Minister has agreed to table an amendment on Report Stage to exclude from the possibility of detention children or young people under a particular age. We have already debated whether that age should be children under 12, 14 or 15 years. We will still have a group of young children between the ages of 14 and 17 years, or 15 and 17 years, or 12 and 17 years as Deputy Woods suggested, who may be detained under these sections.

I would like to see a formal statutory role for the juvenile liaison officers. They are more likely to be able to deal with the problems the operation of the detention sections could create within local communities in a delicate and understanding way than members of the Garda who have not worked in the area of the juvenile liaison officer scheme. The time is long overdue when that scheme should have been given a statutory format and base. The Minister cannot do that generally in this legislation. I hope we will see it when we deal with the reform of juvenile law and children's law. I would like to see it included specifically in this Bill and, if not in the Bill, I would like to see some role being given to the juvenile liaison officers in the context of the rules or regulations the Minister will introduce pursuant to the new section 6 which we debated earlier today.

I have no doubt that we will spend a further number of days debating this Bill. This has been a long day. I expressed the view earlier that at some stages we were being repetitive. I did not mean to offend any Deputy when I said that. Perhaps it is better that we should be repetitive and give consideration to all aspects of the Bill before it becomes law, rather than to nod it through the House without adequate consideration. I hope we can move on fairly quickly from dealing with section 3 in a general way and get down to the meat and the nitty gritty of sections 4 and 5 which we need to look at carefully and make further progress with the Bill this evening.

An Leas-Cheann Comhairle

Deputy Barnes.

Mr. D. Andrews

I do not want to interrupt my constitutency colleague but I thought the debate swung from side to side.

An Leas-Cheann Comhairle

On Committee Stage it goes around.

Dr. Woods

It has been going from side to side.

An Leas-Cheann Comhairle

I am well able to manage the Chair.

Mrs. Barnes

I shall not take up much time because so much has been said already and others want to get in. I want to allow my constitutency colleague to get in soon after me.

Mr. J. Mitchell

Is it Deputy Cosgrave?

Mrs. Barnes

We have a pluralist constituency whatever else may be said about the rest of Ireland. One of my concerns about section 3 is that we have not had sufficient statistics or evidence to show that there was a need for such powers of detention. All we can hope for is that in the five-year period after it passes through the House the evidence and statistics will be available to show if there was a need for this section and, more importantly, that there was not abuse of it. I hope that not alone will we get statistics of the number of people detained and convicted but that during that time an effort will be made to find a better way to organise our legal system. It is to be hoped that at the end of the five years we will have an opportunity to remove this legislation from the Statute Book rather than add to it. There is a fear that when such legislation is introduced there is a tendency to prolong it. History has not shown that we have been able to repeal such legislation as often as we should. I would like to think that in the five years there will be a look at the area of penal and law reform.

Fears have been expressed on behalf of vulnerable sections of young people who may not have had educational advantages. I hope the section will not be used in an unfair manner against such people. There is a fear that the thrust of section 3 will be used in this manner: "if we cannot get somebody for one crime let us get him for another". That is a genuine fear on behalf of those who feel that they are not competent to cope with the type of interrogation that may take place under the Bill. We must do everything possible to ensure that there are adequate safeguards in this regard. I welcome the decision not to detain children under these provisions. It would have been horrendous had that happened but the 14 to 17 age group are vulnerable. We must ensure that they are protected and that the safeguards in the regulations are clearly defined for them. It is not sufficient to rely on them reading complicated legal documents. They should be made aware of the safeguards in simple language.

I welcome the fact that we have had a lengthy debate on this legislation because it indicates that Members have gone into the provisions dealt with so far in great detail. While it may take days to get through this legislation here, we must bear in mind that if we do not introduce the proper safeguards some people will be detained in less luxurious surroundings than here. I accept that the provisions of the section cannot be implemented until the Minister introduces the safeguards he has promised but I fear that once the section is passed there will be a pressure on us to pass the regulations although we may not be satisfied that the safeguards are solid enough. I should like an assurance from the Minister that there will be a full debate on those regulations and that he will be free to hold up the operation of the section until Members are satisfied with regard to the safeguards.

I regret that the Bill is being introduced in isolation. I would have preferred to have seen it introduced as part of a package of reform. For instance, gardaí have said that section 3 is necessary because they do not get enough convictions of real criminals. However, our prisons are very overcrowded. The law has come into disrepute in this regard. Are there any plans for rehabilitation and training and not just for providing additional accommodation? We should not be clogging up or overcrowding prison buildings and not offering any hope for the future for the prisoners when they are released. The area of community service orders must be taken in conjunction with the provisions of the Bill. How will we manage with the outdated court procedures we operate and the long lists of delays? We are all aware that people have to wait for trial for long periods.

An Leas-Cheann Comhairle

The Deputy is moving slightly away from section 3.

Mrs. Barnes

My contribution is relevant to the section because if it has the effect the Garda say it will have then it cannot be seen in isolation from the need for reform in our courts. I urge the Minister to take that into consideration.

Mr. D. Andrews

I must treat the section with the gravest of reservations. If I was an Independent Member at this stage of the proceedings I would be voting against the section because of the grave doubts I have about its operability. My view is that the reservations are based on the question of its workability or operability. A tremendous amount of paperwork is involved in the operation of the section and that will increase its bureaucratic nature.

The Minister has given a number of undertakings the most important of which is that he will introduce regulations and that he will examine the question of the presumption of innocence and children under 12 as suggested by the spokesman for Fianna Fáil, Deputy Woods.

A most important question is that of the Garda complaints tribunal. We must await the Minister bringing that promise to the attention of the Dáil in due course. We are passing section 3, a most fundamental section to the Bill, in vacuo. I am not suggesting that the Minister is misleading the House in any way and we have a fail safe situation with the passage of the Bill through Report Stage when we will have an opportunity of reviewing the undertakings given on Committee Stage, by the Minister. The Minister gave very serious undertakings in relation to the complaints tribunal, the regulations and their introduction, and a review of the age limit and how this section would affect children. Deputy Barnes expressed concern about young people between the ages of 14 and 17. It was not an unreasonable expression of concern on her part and I share it with her. There is, admittedly, a five-year review when the Bill generally will be brought back into the House and we will have an opportunity at the end of that five-year term of seeing how the Bill operates.

We should urge caution in the passage of this section from Committee Stage to Report Stage. Perhaps we should give the section to the Minister. Possibly Deputy Woods, spokesman on Justice for Fianna Fáil, has given the undertaking that the section be passed from Committee Stage to Report Stage but when it reaches Report Stage we should have a serious look at the section again, having regard to what undertakings the Minister will have discharged by that time.

There may be a need for the section in the sense that undoubtedly there is an emergency, particularly in the city and county of Dublin, in relation to the whole question of law and disorder. This section may deal with it, and I use the word "may" advisedly. I have serious doubts about the operation of the section in relation to a reduction in the crime figures. One of the main reasons for the introduction of section 3 is to assist the Garda — and I hope it will do so — in the reduction of the ever-increasing crime figures. On a number of occasions outside the House I have suggested that this and other sections will do very little if anything to reduce the crime tally. I felt that only a major extension of the resources and manpower of the Garda technical department, for example, throughout the country would be sufficient to reverse that trend. I also pointed out that it was crucial that there be more forensic investigation of serious crime. I have mentioned also that prison accommodation at the moment is inadequate, as Deputies have pointed out. Many criminals are being released without serving anything like their full sentences, yet this Bill enables the Garda to catch more criminals who it is intended will serve their sentences to completion.

These are the difficulties in the operation of this section, which has been debated seriously. Members on all sides of the House have discharged their obligations to the people who elected them and have done a good job in relation to the section itself.

In support of my view that it is not so much sections of this nature that are required, but rather that the technical resources of the Garda should be increased, I mention that in the May edition of the Garda News, the general secretary of the Association of Garda Sergeants and Inspectors, Patrick Rogan, said on the Criminal Justice Bill that the difficulties of implementing the Bill had increased. I do not want to take Mr. Rogan's statement out of context. He said that at the end of the day the burden of implementing these procedures properly would rest almost completely on sergeants and inspectors and that the net effect of these provisions was that considerable extra resources would have to be made available for the effective operation of the Bill. He said that this would entail the appointment of extra sergeants, additional clerical staff, improvements in accommodation, training in new procedures and installation of extra telephones.

An Leas-Cheann Comhairle

Deputy Andrews, you are moving away from the section.

Dr. Woods

Detention requires these facilities.

An Leas-Cheann Comhairle

Continue, Deputy Andrews.

Mr. D. Andrews

I was raising these points and relating them to section 3. We have dealt adequately, however effectively, with the section. It will create tremendous problems for the Garda Síochána. We are told that the section is being introduced in ease and in aid of them to make their job less difficult. I think it will make their job more difficult and we will have to place a tremendous burden of trust on the shoulders of the implementing gardaí. We can do that without too much fear. Nevertheless it will cause problems which are not envisaged at present but will occur when the section is brought into operation. I am concerned also for the citizen. If one person is brought in under this section and is in any way maltreated, which I hope will not happen, therefore the section is a bad section because it allows such a thing to happen. I have the gravest of reservations about the section and at this stage I would vote against it, but having regard to the undertakings given by the Minister I think the section should be allowed to go on to Report Stage. I urge the House when the section goes to Report Stage to take a very serious view of it. By then we will have the undertakings given by the Minister before us and we can adjudicate the situation.

Mr. G. Mitchell

My comments on the Bill are already on the record of the House section by section, and clause by clause under this section, but I want to raise two points which I had not the opportunity to raise because they did not arise on the amendments. To some extent, particularly in relation to this section, we are putting the cart before the horse because we are leaving the questions of the independent tribunal and the regulations to a later stage. I will not go over that ground. I have already made that point and I do not want to develop it here. I heard the Minister say that he would consider incorporating a section on Report Stage and that an automatic review would take place in four or five years. On the last occasion we were talking about three or four years and I hope the Minister would come nearer to three years than to five years. Certainly I hope he will not depart from the original four years he mentioned.

I wish to put on record the views of the Association of Criminal Lawyers who sent a letter to Deputies dated 30 January 1984 enclosing a copy of a submission they made to the Minister for Justice. On section 3 (1) the submission states:

This section purports to increase the powers of detention for the Gardaí to cover any individual who is suspected of having committed an offence meriting five years or more in prison. However on a literal interpretation it does not do so owing to the phrase "for the which the sentence is fixed by Law". This can conceivably extend to any offence for which there is a sentence for instance careless driving, dangerous driving, drunken driving. As such therefore it is badly drafted.

If there is a drafting problem with section 3 (1)——

Mr. Noonan

(Limerick East): On a point of order, we have already passed an amendment which meets that point. The phrase “fixed by law” has been removed from the Bill.

Mr. G. Mitchell

I hope the amendments which have been dealt with will remove that difficulty.

Regarding section 3 (3), Deputy Woods has suggested that the Minister's proposal with regard to a chief superintendent might be left with a superintendent. I appeal to the Minister to leave the section as it stands. The provision is that a superintendent should be able to act for a chief superintendent if one is not available. I would prefer to leave it like that. The wording of the section is good in that regard and it would be going outside the general tenor of the debate to adopt the suggestion made by Deputy Woods.

Mr. De Rossa

We are all fairly tired at this stage.

Dr. Woods

Not at all. It is early.

Mr. De Rossa

That will not prevent me from dealing in detail with this section. I do not regard our contributions to this debate as a waste of our time because we are here to go through legislation. Section 3 is one of the key sections of this Bill. It is not the only important section which seriously restricts the freedoms and liberties of citizens. Representations that have been made to me and other Deputies have concentrated to a large degree on this section. The argument put forward for the right to detain — arrest and detention as opposed to arrest for charging — is that there is a crime emergency or crisis. I would strongly argue that this is not the case. People who have made the point that there is a crime emergency have not produced any evidence to back up their claim. There has also been the argument that the Garda need the power to detain in order to improve their conviction rates. There has been no serious debate as to how that conclusion was reached.

I refer to a number of articles published in Garda publications. Superintendent Tom O'Reilly from Store Street Garda Station published two articles in the Garda Review in January and February in which he compared crime rates in a number of countries including Ireland, the United States, Wales and New Zealand. We are often told our crime levels are at least as bad as those in the US but he showed that the US has fifteen times more crimes of rape per 1,000 of population than we have. For criminal homicide, the official term for murder, the American figure is 12 times the Irish rate. The rate of burglaries is one-and-a-half times more in the US and the larceny figures are twice the figures in Ireland. Clearly those who claim that our crime figures are in line with figures in the United States are not sticking to the facts. Other figures were quoted for Wales and New Zealand.

An Leas-Cheann Comhairle

I would be happy if the Deputy would stick to the section.

Mr. De Rossa

I am dealing with the argument that the Garda need powers of detention in order to reduce the level of crime because there is a crime emergency. Deputy Woods quoted figures which indicated that there was a decline in the rate of crime in this country last year and that the decline was continuing into this year. We do not know why the decline is occurring because the reason for crime and the reason for the high level of crime against property as compared with crime against the person is not being analysed. The Chair may feel I am wandering somewhat from the section.

An Leas-Cheann Comhairle

I do not feel it. I know you are.

Mr. De Rossa

I think you are wrong. We are talking about the restriction of a person's rights, a serious change in the law from the position where a garda has the right to arrest for the purpose of charging to a position where he or she will have the right to arrest for the purpose of detention for up to 20 hours so that the person arrested can be interrogated or forensic tests carried out. That is a considerable change in the law. I am trying to show that the demand for that change in the law is not based on any real argument which can be borne out by statistics. The argument cannot be sustained that there is a crime emergency or that detention will in any way reduce the rate of crime.

I refer to a publication entitled Innocent Until Proven Guilty produced by the Irish Council for Civil Liberties and written by Raymond Byrne, Thomas A. M. Cooney, J. Paul McCutcheon and Paul A. O'Connor, all of whom were involved with the law in some way. They take up this question of the need for detention and I quote from page 27 of this booklet at the paragraph entitled “On Arrest and Detention”:

The validity of the criticisms of the present law may be questioned. The critics have suggested that the present law constitutes an obstacle to the business of law enforcement and conviction. However, the fact remains that suspects are interrogated and confessions and self-incriminating statements are made despite the alleged inhibiting features of the law.

— that is, as it presently exists —

Moreover, the critics have failed to acknowledge the extensive nature of the powers of arrest and detention conferred by section 30 of the Offences Against the State Act, 1939. The offences to which the section applies cover the range of activities of professional and subversive criminals, of whom so much concern is expressed. Indeed, it could be surmised that, in as much as there is a failure to convict such criminals, that failure is not the product of inadequate police powers, but of inefficient police and prosecutorial practices. The value of interrogation as an investigative device and of self-incriminating statements as evidence vital to the securing of convictions has been questioned recently.

Here there is a note, No. 72, which is as follows:

Baldwin & McConville, Courts, Prosecution and Conviction (Oxford, 1981) pp. 126-158.

The quotation continues:

A definite conclusion cannot be drawn but the importance of a recent research is that it undermines the assumption that an increase in police powers is the panacea required to cure the perceived crime problem.

That part of existing research claims that the increased police powers which are being sought in this House by many Deputies will not be the panacea which they believe it will be. It must be frequently said that the evidence to date, taking arrests under section 30 of the Offences Against the State Act as an example, shows that the conviction rate derived from such arrests would not lead anyone to believe that detention in itself will result in a greater conviction rate or a lessening of crime in some way.

A question was put down by Deputy Mac Giolla for written reply on Tuesday, 6 December 1983 seeking information from the Minister for Justice for each year from 1972 to date of (a) the number of persons arrested under the Offences Against the State Act, (b) the number of persons charged under that Act and (c) the number convicted under that Act.

The reply gave the details for each year from 1972 to that date of arrests under section 30. However, the other information sought was stated to be not readily available and could only be provided by the expenditure of a disproportionate amount of Garda time. The figures given for arrests are interesting. For 1972 the number arrested was 229; for 1973, 271; for 1974, 602 — an increase of over 300 in one year; for 1975, the figure went to 607 — an increase of five; for 1976, to 1,015 — an increase of almost 400; for 1977, to 1,144; for 1978, it dropped back to 912 — a drop of about 200; for 1979, it jumped again to 1,431 — an increase of over 400; for 1980, it jumped to 1,874 — an increase of over 400; for 1981, it went to 2,303 — an increase of almost 500; for 1982, it went to 2,308 and up to October 1983 there were 1,857 arrests.

From the year 1972 to the year 1982 — I almost said the year 2000 — it went from 229 arrests to 2,308. The reply indicated that the Garda did not have the time to ascertain how many people had been charged or convicted as a result of those arrests. However, a document sent to me in the post from the Civil Rights Organisation — and I am sure that it was sent to other Deputies also — indicates that they did some research for the years 1981 and 1982. For the year 1981, the figure was in the region of 230 out of 2,303 and for 1982 the number of those brought before the courts was 230 approximately out of 2,300.

Less than 10 per cent of those arrested and detained under section 30 of the Offences Against the State Act were brought before the courts. We must assume that the other 90 per cent of the 2,300 people arrested in 1982 had not any or sufficient evidence against them to be brought before the courts. The 48 hours detention, which is the power given under section 30, did not provide any of the evidence necessary to bring those people before the courts. One must assume on that basis that those people were innocent. Based on our experience there are clearly no grounds to believe that the power of detention will improve in any significant way the detention rate or the conviction rate, although the Garda say that they need these to combat the high level of crime.

The point must be made also that the Offences Against the State Act of itself is emergency legislation. An interesting statistic, if you could call it that, relating to this question on detention under section 30 is that the Report on Crime in 1982 issued by the Garda Síochána Headquarters in July 1983 gives on page 16 the indictable offences which became known to the Garda during the year ended 31 December 1982 and in column 69, under the heading of breaches of the Offences Against the State Act, 1939, there is not a single breach of that Act listed there for 1982. Yet 2,030 people were arrested and detained under that section.

I know that there are scheduled offences listed under the Offences Against the State Act and it is clear that those arrested under that section were subsequently charged under other Acts. Legislation introduced to deal with an emergency — the title of the Act itself, — Offences Against the State Act, indicating the type of legislation which it is — is being used fairly freely to detain people who are suspected of crimes other than offences against the State. That must be borne in mind when we are debating the giving of additional powers to the Garda, particularly when we are asked to wait until this Bill has gone through the House before we see sight of the regulations which will govern the type of detention which we are authorising and the type of independent complaints tribunal the Minister has promised us.

He has also promised us that the section on detention will be amended to raise the age limit from seven, which is the age limit which applies at the moment, to some point. We do not know yet to what point. We sought to have an amendment accepted which would not affect any person under the age of 16. If people over 16 are brought before the court and are found guilty they are sentenced to imprisonment or sent to St. Patrick's Institution. The Minister has not yet clarified for us exactly what age he intends to have this Bill applied to. It could be eight, nine, ten, 11 or 12. Before Easter the Minister indicated he was thinking of something in the region of 12. The Fianna Fáil spokesman was anxious for 14 and we were anxious for 16. Does anyone believe if the Minister comes back with an amendment to make it 12 years, that these detention sections and all the other sections we will be discussing in due course should apply to a child of 12½, 13 or 14 years? I certainly would not like one of my children to be brought into a police station under this detention section. I have a child under 16 years and I have one aged ten years, and even with all the guarantees the Minister has given and the spokesman for the Fianna Fáil Party requested today, I would not like to see one of my children go into a police station under that detention section.

It is not only our feelings in relation to this matter that must be considered. We have all had constituents contacting us about this Bill. I will not go through all the incidents in detail but in the last few weeks three incidents have been brought to my attention. All of them relate to my constituency where gardaí appeared to over-step the power they have. All of the incidents have been referred to the Garda authorities and inquiries into them are taking place.

I would like to relate one of them where a woman with a young girl of 14 years of age allowed her to go with a youth group in the area to a disco in town. She went in at 11.30 to collect her daughter from the disco. When she got there she discovered her daughter had just left and had gone home in the bus. She was stopped by two young men standing outside the disco whom she did not know and they delayed her. She insisted she wanted to follow the bus because she did not want her daughter walking home alone from the terminus. One word followed another and she decided to go around to the station, which was only a few hundred yards away, to complain about the attitude of the two men, who it turned out were gardaí who produced their identification.

She went into the station to complain about their attitude and she was told, to "f-off". That woman was then taken into the station and told she was arrested. They threatened her with a body search. I am not talking about frisking her. I am talking about a situation where a bangharda proceeded to put rubber gloves on her hands and a very big garda — she said he was seven feet — proceeded to wind her arms up her back and forced her into a room to have her body searched. Obviously that woman became hysterical. She was subsequently charged with violent behaviour in the Garda station. She defended herself in court and the charge was thrown out.

That is the kind of incident which leads me to feel that gardaí should not be given additional powers of detention. That was a situation where a parent was looking after her child, who insisted she wanted to care for her child and she was doing the best for her trying to protect her. When she went to the Garda station to make a complaint about the way she had been treated by other gardaí she was abused, manhandled and subsequently charged arising out of a situation which was not of her making. When her husband came to the station to find out where she was he was physically ejected from the station. When he came back into the station and demanded why his wife was being detained he was physically ejected again from the station. All of this has been made in a formal complaint to the Garda authorities. I met the chief superintendent from the area when I brought the woman and her husband to see him. I am making the point very strongly that that is not an isolated incident. I can give another few incidents of the same type.

It is important when we are talking about giving any extra power to the Garda that we recognise that they are a fine body of men but they are no saints, they are people who have to deal with problems every day of the week and the nature of their job leads them to be aggressive. We must ensure when we are passing legislation that in every single respect decent, honest citizens of this city or country do not end up being abused, mistreated and manhandled in any way.

I feel that any time we spend here debating this particular section is of the utmost importance. I very much regret that Deputy Woods, the Fianna Fáil spokesman, has taken the view that because it would appear that the majority on the Government side have accepted the Bill it is inevitable that it will go through and therefore, we must not oppose it, we will not press for votes on it or will not argue it out. It is a deplorable situation that the largest party in the House should adopt that attitude. I am not trying to make a political point.

Dr. Woods

That is not what I was talking about. I will explain it afterwards.

Mr. De Rossa

Perhaps the Deputy will. That is what I took from his statement earlier. I am not trying to make a political point.

Dr. Woods

It related to the Complaints Commission.

Mr. De Rossa

We must fight this Bill every inch of the way. It is unfortunate that some Deputies in their constituencies are claiming that this section will solve all the problems in their area, problems of vandalism, joy-riding, buses going in there or not going, burglary, that it will be the panacea for all ills.

Progress reported; Committee to sit again.

Dáil Éireann debate - Wednesday, 16 May 1984

Private Members' Business. - Criminal Justice Bill, 1983: Committee Stage (Resumed).

Dáil Éireann debate -
Wednesday, 16 May 1984