Criminal Justice Bill, 1983: Committee Stage (Resumed).

SECTION 3.

Debate resumed on amendment No. 13:

In page 5, between lines 22 and 23, to insert the following subsection:

"(8) To avoid doubt, it is hereby declared that a person who is being detained pursuant to subsection (2) in connection with an offence shall in no case be held in detention (whether for the investigation of that or any other offence) for longer than twelve hours from the time of his arrest, not including any period which is to be excluded under subsection (6) or (7) in reckoning a period of detention".

—(Minister for Justice.)

Mr. De Rossa

I understand that this amendment relates to the detention of persons for an unspecified period if they have to be referred to a hospital. I oppose a section which allows for a person to be detained without taking into account the fact that they are still under arrest. When I spoke in this debate before Easter, I said that a person could be moved to a prison hospital or any other hospital where detention can take place.

Minister for Justice (Mr. Noonan,

Limerick East): I am sorry to interrupt the Deputy but we had finished that section.

Mr. De Rossa

Am I on the wrong section?

Mr. Noonan

(Limerick East): Yes, amendment No. 13 was to confine detention to 12 hours so that this fear of the detention period being in excess of 12 hours will be removed from the Bill.

Mr. De Rossa

I apologise, I understood we were still discussing the question of detaining people who had been referred to hospital while in detention.

Mr. Skelly

The maximum period allowed under the section is 12 hours excluding subsections (6) and (7) which the Minister said he would be studying again. The concern of the House was not to have the 12 hours plus the eight hours rest followed by 48 hours under the Offences Against the State Act. Subsection (8) says that nothing in the section shall affect the operation of section 30 of the Offences Against the State Act, 1939. Irrespective of the limit of 12 hours, could the Offences Against the State Act then apply after the 12 hours and would the question of rearrest be prohibited under section 3 of the Offences Against the State Act? In other words can we then have 48 hours plus 20 hours? That is what we were discussing before Easter, and the Minister was about to explain whether the opposite would apply, that you could have 12 hours and that the Offences Against the State Act would apply. The Minister referred to a combination of section 3 plus the Offences Against the State Act equalling 60 or 68 hours, including the rest period.

The Minister also referred to amendment No. 27 which deals with section 8. I should be glad if the Minister would explain if there could be 48 hours under the Offences Against the State Act on top of the 12 hours under section 3 because, under section 8 (1) a person arrested under that authority may be detained persuant to section 3.

Mr. Noonan

(Limerick East): It was always the intention that 12 hours would be the maximum period of detention, apart from subsections (6) and (7) which we discussed. Concern was expressed, inside and outside the House on Second Stage, that one or two things could happen, that there could be situation where people could be rearrested and held for subsequent periods of 12 hours and that this provision here could be combined with the provision for detention under the Offences Against the State Act, giving a combination of 12 and 24 or 48 hours as the case may be. The amendment I am proposing here is to avoid any doubt — it says that person who is being detained pursuant to subsection (2) in connection with an offence shall in no case be held in detention (whether for the investigation of that or any other offence) for longer than 12 hours from the time of his arrest, not including any period which is to be excluded under subsection (6) or (7) in reckoning a period of detention. That takes care of one fear. The other fear, of combining this section with the Offences Against the State Act, is not likely to have been realised. Amendment No. 27, section 8 (1) says that where a person arrested on suspicion of having committed an offence is detained pursuant to section 3 and is released without any charge having been made against him, he shall not be arrested again for the same offence. That precludes the possibility of somebody who was arrested under the section and held for 12 hours being released and arrested again under the Offences Against the State Act and being held for some portion of the 48 hour period. Subsection (3) says that where a person who has been arrested under section 30 of the Act of 1939 in connection with an offence is released without any charge having been made against him, he shall not be detained pursuant to section 3 and so on. In section 8 (1) the fear that a 12 plus 48 situation could pertain is removed and at (3) the fear that you would start with an arrest under the Offences Against the State Act and that somebody could be rearrested under section 3 of this Bill is also removed.

Dr. Woods

I appreciate what the Minister is doing and that this amendment, in combination with amendment No. 27, is an attempt to clarify this matter. However, there are still loopholes. The purpose of amendment No. 27, as the Minister has pointed out, is to ensure that the 48 hour period cannot be followed by a 12 hour period——

Mr. Noonan

(Limerick East): It also applies vice versa.

Dr. Woods

Subsection (3) of amendment No. 27 says where a person who has been arrested under section 30 of the Act of 1939 in connection with an offence is released without any charge having been made against him, he shall not be detained pursuant to section 3. That is the 48 hour period followed by 12 as I said initially. At first glance one would be inclined to think that the Minister has cut off the combination of a 48 hour period followed by 12. However, if you read on, it says he shall not be detained pursuant to section 3 (a) in connection with the first mentioned offence, or (b) in connection with any other offence of which, at the time of his arrest for the first mentioned offence, the member of the Garda Síochána by whom he was arrested suspected him. Therefore, he cannot be rearrested in relation to the first mentioned offence, for which he was arrested under section 30. However, in relation to (b) they could continue with a case that had arisen during that interrogation and which was not known or identified at the beginning. On that basis it seems that the 12 hours could, in those circumstances, follow the 48.

I know it is a complicated situation. It seems to me that while the Minister has closed off the generality of cases the reference to another offence leaves open an offence of which he was not suspected at the time of his arrest. This might arise during an interrogation. If something is raised during questioning or interrogation it could be pursued in a further 12 hours. I should like to hear what the Minister thinks about that. They affect one another.

An Ceann Comhairle

I suggest that we could discuss amendments Nos. 13, 14 and 27 together with separate decisions.

Dr. Woods

I agree because they are related. Could the Minister give us his views on that point? I accept that he has tried to close off the 48 hours followed by the 12 hours, but it seems to me that if something arises during the interrogation a further 12 hours could follow the 48 hours.

Mr. Noonan

(Limerick East): It is closed off in the generality of cases but, in a situation such as the one outlined by the Deputy, I cannot work a mechanism for actually closing it off. If there are extraordinary circumstances such as that, the opening is there.

Dr. Woods

In effect that means there could be 48 hours followed by 12 hours. That is the point we are trying to get clear. My amendment No. 14 proposes that we insert:

Provided that no person shall at any time be detained without being charged with an offence for a consecutive period in excess of 48 hours.

No matter what the circumstances, the total period should not exceed 48 hours. If the Minister accepts that as a separate amendment, it closes off any circumstances in which there could be an extension beyond 48 hours. That is the spirit of what we have been discussing. As far as Deputies were concerned, this was a separate provision to deal with special circumstances. It was never intended to be an extension beyond 48 hours. On that basis, if the Minister is prepared to accept amendment No. 14 that would cover the combinations.

Section 3 (8) provides:

Nothing in this section shall affect the operation of section 30 of the Act of 1939.

That is in the Bill as it stands. That confuses me on the question of 12 hours being followed by 48 hours. You could be questioned under the 12-hour clause which could work out at 20 hours. Does subsection (8) mean that there could be 48 hours following the 12 hours and in that way you would get another combination of 48 hours and 12 hours? I thought that might be overcome by saying at the beginning of subsection (8): "Subject to the new subsection (8)" which the Minister is inserting and tie the two together. I should like the Minister to explain to us the effect of a separate subsection which says, "Nothing in this section shall affect the operation of section 30 of the Act of 1939"

Mr. Noonan

(Limerick East): I appreciate the difficulty which the Deputy has raised. We cannot preclude the Garda from acting on the basis of information they receive subsequent to arrest about an entirely new offence which they were not aware of at the time. The first amendment I am moving is to confine section 3 to 12 hours so that we do not have this roll-over effect which some people seemed to fear initially. The second amendment would ensure that 48 hours plus 12 hours or 12 hours plus 48 hours cannot be combined in the situation which has been outlined. We cannot preclude a situation where the Garda in the investigating of an offence come across an entirely new offence. They will have to be allowed to be free to act on that and to use the powers available under the law to act on it.

On the question of not interfering with the Offences Against the State Act, the powers under this Bill do not preclude the Garda from using the sections of the Offences Against the State Act which relate to detention. The powers under that Act in relation to detention are maintained as part of our law and can be exercised by the Garda as they see fit. The fact that we are introducing new powers of detention for a shorter duration does not cancel out the existing powers under the Offences Against the State Act. The intention of the amendments I am talking about is that the two do not become combined, so that if you are arrested under the Offences Against the State Act the maximum possible is 48 hours, and if you are arrested under this Bill the maximum possible is 12 hours allowing for the rest period overnight. I should like the Deputy to go back on his own amendment. I do not understand the point of his amendment and I should like him to explain it more fully.

Dr. Woods

The Minister admitted earlier that 48 hours can be followed by 12 hours. All you have to do is find another offence within the period of questioning for 48 hours and then follow that by 12 hours. Now it would appear that 12 hours can be followed by 48 hours in the first instance because nothing is to affect the operation of section 30 of the Act of 1939. That means somebody can be released after 12 hours and then be arrested under section 30 of the Offences Against the State Act, 1939.

Mr. Noonan

(Limerick East): No.

Dr. Woods

This stands free as a section. If that is the Minister's intention why not put in at the beginning of subsection (8), "subject to the new subsection (8)" which the Minister is proposing "Nothing in this section shall affect the operation of section 30 of the 1939 Act"? If it is the Minister's intention that the 12 hours would not be followed by 48 hours, why not say so and be absolutely clear about it? My amendment is very simple. It is not our intention and never was the intention of Members of the House to extend detention to 68 hours. The effect of that would be to extend the overall possible length of detention to 68 hours. It was never our intention to have an overall extended period. The 48 hours is regarded as more than adequate for the subversive activities and the very serious crimes to which it is related. The amendment provides that no person shall be detained without being charged with an offence for a consecutive period in excess of 48 hours. The amendment states that the maximum period a person can be interrogated for — it depends on whether one is the recipient or one is talking academically about this — cannot exceed more than 48 hours. The operation of the two, irrespective of the way they are operated, should not exceed 48 hours.

For instance, if the gardaí hold a person for 12 hours on the basis of the new 12-hour clause the Minister is introducing and find during the course of their questioning that there is something they wish to pursue under the Offences Against the State Act they can pursue that matter but it should be that they will have 36 further hours to question the person, 48 minus 12. The fact that the person has been interrogated for 12 hours should be taken into account when considering the maximum period available.

Mr. Noonan

(Limerick East): It would be very dangerous to put the gardaí in a situation where if they are investigating an offence and come across evidence of another offence they would not be able to investigate it. The Deputy is speaking as if 48 hours is the maximum period of detention at present under the Offences Against the State Act, but in the circumstances I am outlining where evidence of a new offence is discovered the person could be rearrested for a further 48 hour period. That is the position at present. It does not happen to any significant degree. I cannot give the House even one example of when it happened last, but the provision exists under the Offences Against the State Act for a second period of detention if the Garda Síochána come across evidence of another serious offence. For example, if a person was arrested for possession of firearms and towards the end of the questioning period it transpired that evidence strongly emerged that the firearms had been used to murder somebody then the gardaí could rearrest the person for a further 48 hour period. I am trying to rule out the combinations of 12 and 48 hours. I am proposing in the amendment to confine the period to 12 hours in the section. In amendment No. 27, in section 8 I am ruling out the combinations which the House has adverted to and has caused a certain amount of anxiety to Members. I cannot rule out the possibility that the person could be rearrested for another offence of which there was no evidence or indication at the time of his or her arrest. It is the same kind of unusual circumstances we have at present for which a person could be arrested for a second period of 48 hours.

In the final analysis the courts will decide whether a person was treated oppressively or not. They will decide whether evidence is admissible or not. There have been cases where people have been held for longer than 48 hours continuously and the courts have decided that there were extraordinary excusing circumstances. The courts have decided in situations where there was not only a breach of the law but was probably a breach of the constitutional rights of an individual that the overriding public good, and the good of third parties, was greater than even the constitutional right of the individual. The courts ruled accordingly. We should not proceed by trying to legislate in primary legislation for every possible eventuality, because if we do we will get into frightful difficulty. We should not attempt to legislate as if the courts did not have a function. In the final analysis it will be the courts that will have to decide what is oppressive treatment and whether evidence is admissible or not. There have been several cases on the admissibility of evidence, especially the admissibility of confessions where we almost get a trial within a trial at the initial stage of court proceedings.

I will look at Deputy Wood's amendment but I do not think I will be in a position to accept it, because I believe it would put in the kind of restriction which may not cause any difficulty for many months or years but then a case will arise where a person who is blatantly guilty will walk free. We will then have a public outcry. I am sure the House recalls the famous case where two girls were raped and murdered and the people arrested for those offence were subsequently found guilty. Initially those people were arrested for a traffic offence. In the course of an inquiry by the gardaí they discovered that these people could have been involved in the murders. They were held longer than the 48 hours. They were arrested on a Sunday morning and were not charged until the following Tuesday. Certainly the period of detention was in excess of 48 hours. On the face of it, and in the opinion of a great many people, the constitutional rights of those individuals would have been transgressed by that act. However, the court decided that the evidence obtained was admissible because there were extraordinary excusing circumstances. We must allow a situation where a court can do so.

(a) be arrested again for the same offence, or

(b) be arrested for any other offence of which, at the time of the first arrest, the member of the Garda Síochána by whom he was arrested suspected him or ought reasonably to have suspected him,

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.

There is a cover there for any exceptional circumstances. If the gardaí in those circumstances feel there is a need to go further they can apply to the court to do so. I believe the Minister has covered that in amendment No. 27.

Mr. Noonan

(Limerick East): No. The reference to the court applies to the same offence with new information emerging. What is at issue is the procedure for a new offence and it is not covered in that part.

Dr. Woods

This would cover the same offence, if they wanted to continue with the same offence further but not for a new and separate offence. Under the Offences Against the State Act it is 24 hours followed by 24 hours, which is 48 hours in total. If the Offences Against the State Act is to follow this, then surely we should not extend the time beyond the total of 48 hours. I would have taken it that it was not our intention to interrogate somebody for longer than the time which is there at present.

Mr. Noonan

(Limerick East): That is the intention.

Mr. O'Dea

The Minister has referred to the recent murder case of which we are all aware where justice was done because the courts ruled that there were extraordinary circumstances. If that can happen under the present law, why do we need change in the legislation? If the Minister feels that the acceptance of our amendment would in some way preclude the courts from making a similar decision were similar circumstances to arise, would he be prepared to consider our writing into our amendment a proviso for extraordinary excusing circumstances?

In the new section 8, amendment No. 27, in the part which begins "except on the authority of a justice of a District Court" does the word "offence" on the third last line refer to the offence for which he is being detained in the first place or does it refer to that offence and any other offence of which the Garda ought to have suspected him?

Mr. Noonan

(Limerick East): It would refer to both.

Mr. O'Dea

It is not absolutely clear from the wording of the amendment.

Mr. Noonan

(Limerick East): I see the point the Deputy is making, and I will see if it can be clarified, but it refers to both. It is one of the safeguards but it must be exercised through the District Court and information has to be supplied by a member of the Garda Síochána not below the rank of superintendent on oath. Certainly the intention is that it would refer to both.

On the first point the Deputy made, if I accept the amendment I am fearful that it would rule out absolutely a situation where a court could maintain that detention beyond the 48 hours for exceptional or extraordinary circumstances was legitimate. This House has discussed the matter for months and the courts would be aware of that. We have gone into this at a level of detail which would not have been gone into previously and the courts would take that into account and they would say that it is now the intention of this House that on all occasions, whatever extraordinary circumstances occur, nobody can be detained for more than 48 hours. The court could say quite legitimately that they have no longer a discretion in this in any situation, even one like the notorious murder cum rape case that I have referred to. You would have somebody who was blatantly guilty of a heinous offence walking free because of a transgression of the letter of the law for extraordinary reasons. I do not think we should do that. We can make our intention very clear, as I have done in a combination of the first amendment and now amendment No. 27, and I think the intention of the House and of the Minister is very clear there.

For the new offence we cannot go beyond what we are doing without tying the hands of the courts to a degree that would not be in the public interest. I have been here on other occasions when other arguments were coming from around the House in a very unusual situation where a decision of a member of a Judiciary was debated here. There have been a number of protests in the public media over the last week about an interpretation by a judge of a warrant of arrest for people accused of drug-pushing. We will always need to be careful about what we are doing in trying to tie down to absolutely the last comma because we could end up worse than we are now. If we tie the thing down to the last comma and try to apply the absolute letter of the law rather than its spirit in all cases, then people who would be held and convicted are, in the opinion of the public at large, getting off on technicalities because it is difficult to make arguments in the other direction. I will examine what the Deputy is saying. I know he is sincere about the intent of 48 hours and 12 hours being confined and I will look at his amendment again.

An Ceann Comhairle

I think we are at the stage of repetition.

Dr. Woods

I want to make a point under section 8 (2). We must bear in mind that a person to whom the subsection relates may be arrested for any offence for the purpose of charging him with that offence forthwith. That provision is there for all to see. The scope to charge a person forthwith with an offence in the normal way is there and can be brought into operation. We accept the Minister's amendments and their intention. I ask him to look again at the one in section 27 and the phrase "at the time of his arrest" and its effect. The Minister has admitted that it means that the 48 hours can be followed by 12 hours for an offence not mentioned at the outset when he was arrested or which would not have been reasonably suspected at the initial time. While we accept the amendments, we want to make our intention clear here that we do not wish to see a period in excess of what is there at the moment.

Mr. Skelly

I want to make three points. The Minister has referred to a case and I gather from what he said that the argument is that that exception is going to be the norm, that we are legislating for the exception which will be the norm. He has referred to this previously in the House, and I find it difficult to agree with him here. Somebody could be picked up for a very minor offence, such as a traffic offence, and held for 48 hours. There are other means of detecting serious crime. The courts are there to decide whether abuses take place, so we should not legislate for that here. I do not know what the great fear is about trying to get not every detail but much of the detail correct in this Bill. It has been demonstrated and proven beyond all doubt over the last few months that the safeguards are very weak as far as the innocent person is concerned.

On Deputy Woods's earlier point I fear that section 3 could be abused, in that extensions would be permitted by introducing other offences. I wanted to ask a separate question, really on a point of clarification. Could there be switching from section 3 into the Offences Against the State Act for non-scheduled offences under that Act which would then give rise to extended periods of detention? For example, malicious damage is often used for the purpose of arrest under the Offences Against the State Act or, as was said recently, larceny of even very small amounts of money could also be used for that purpose. I would be concerned if switching could occur or if by means of these two sections we are talking about extensions of the section 3 provision would apply. Even though under section (8) (1) (b) a superintendent may go to the District Court if he has further information, an extension is often given in the District Court on a very perfunctory examination and there does not seem to be any difficulty in getting either a warrant for arrest or permission for an extension of detention.

Mr. O'Dea

The new section 8 states that if a person is arrested and detained pursuant to section 3 he cannot be arrested again for the same offence, except on the authority of the district justice et cetera. He can, however, be arrested again for the same offence if he is arrested for the purpose of charging him forthwith. Would it be possible for the Minister to consider between now and Report Stage including a provision whereby, in order to detain a person for a further six or 12-hour period, he would have to be charged immediately? As the section reads, a garda can simply say that he immediately rearrested him for the purpose of charging him forthwith for the offence but that due to some new evidence or other cause he was not able to charge him forthwith. What is the situation if he is not charged forthwith?

Mr. Noonan

(Limerick East): Somebody arrested on the conditions we have been talking about can be questioned and then either released or charged. If he is released he can be rearrested to be charged forthwith. If a person was rearrested and charged forthwith but was subsequently questioned, that would be illegal. To question a person after being charged would be an invasion of his rights. That formula would not work.

Mr. O'Dea

If he is arrested and not charged forthwith, for how long can he be detained? Is it the intention that he should be arrested and immediately charged?

Mr. Noonan

(Limerick East): No detention is permitted in that circumstance. He would be arrested to be charged forthwith. There would be no questioning between the arrest and the charge.

Mr. O'Dea

I accept the Minister's word but it is not immediately clear from the Bill.

Dr. Woods

We welcome this new section 8, which follows on amendment No. 13. We have been trying to tease the matter out, but in case there is any confusion let me say that we welcome what the Minister is intending to do. We have made our views clear.

Amendment agreed to.

An Ceann Comhairle

Amendment No. 14. This has been discussed with other amendments.

Dr. Woods

I move amendment No. 14:

In page 5, subsection (8), line 24, to delete "1939." and substitute "1939:

Provided that no person shall at any time be detained without being charged with an offence for a consecutive period in excess of 48 hours.".

Just very briefly——

Mr. Noonan

(Limerick East): I shall look at this amendment between now and Report Stage, but am not giving any commitment on it.

An Ceann Comhairle

Is amendment No. 14 withdrawn?

Dr. Woods

No, we shall vote on amendment No. 14 because we wish to express very clearly our intention on this.

An Ceann Comhairle

I am putting the question: "That the figure proposed to be deleted stand."

The Committee divided: Tá, 71; Níl, 65.

Tá

Barnes, Monica.
Barrett, Seán.
Begley, Michael.
Bell, Michael.
Bermingham, Joe.
Birmingham, George Martin.
Boland, John.
Bruton, John.
Bruton, Richard.
Burke, Liam.
Carey, Donal.
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.
Desmond, Eileen.
Donnellan, John.
Dowling, Dick.
Doyle, Avril.
Doyle, Joe.
Dukes, Alan.
Durkan, Bernard J.
Enright, Thomas W.
Farrelly, John V.
Fennell, Nuala.
FitzGerald, Garret.
Flaherty, Mary.
Flanagan, Oliver J.
Glenn, Alice.
Griffin, Brendan.
Hegarty, Paddy.
Hussey, Gemma.
Kavanagh, Liam.
Kelly, John.
Kenny, Enda.
L'Estrange, Gerry.
McGinley, Dinny.
McLoughlin, Frank.
Manning, Maurice.
Mitchell, Gay.
Mitchell, Jim.
Molony, David.
Naughten, Liam.
Nealon, Ted.
Noonan, Michael.
(Limerick East)
O'Brien, Fergus.
O'Brien, Willie.
O'Keeffe, Jim.
O'Sullivan, Toddy.
Owen, Nora.
Pattison, Séamus.
Prendergast, Frank.
Quinn, Ruairí.
Ryan, John.
Shatter, Alan.
Sheehan, Patrick Joseph.
Skelly, Liam.
Spring, Dick.
Taylor, Mervyn.
Taylor-Quinn, Madeline.
Timmins, Godfrey.
Yates, Ivan.

Níl

Ahern, Bertie.
Ahern, Michael.
Andrews, Niall.
Aylward, Liam.
Barrett, Michael.
Brady, Vincent.
Brennan, Mattie.
Brennan, Paudge.
Brennan, Séamus.
Briscoe, Ben.
Browne, John.
Burke, Raphael P.
Byrne, Hugh.
Byrne, Seán.
Calleary, Seán.
Collins, Gerard.
Conaghan, Hugh.
Coughlan, Cathal Seán.
Daly, Brendan.
De Rossa, Proinsias.
Fahey, Francis.
Faulkner, Pádraig.
Fitzgerald, Liam Joseph.
Flynn, Pádraig.
O'Dea, William.
O'Hanlon, Rory.
O'Keeffe, Edmond.
O'Kennedy, Michael.
O'Leary, John.
O'Malley, Desmond J.
Ormonde, Donal.
O'Rourke, Mary.
Power, Paddy.
Gallagher, Denis.
Gallagher, Pat Cope.
Geoghegan-Quinn, Máire.
Harney, Mary.
Haughey, Charles J.
Kirk, Séamus.
Kitt, Michael.
Lemass, Eileen.
Lenihan, Brian.
Leonard, Jimmy.
Leonard, Tom.
Leyden, Terry.
Lyons, Denis.
McCarthy, Seán.
McCreevy, Charlie.
McEllistrim, Tom.
Mac Giolla, Tomás.
MacSharry, Ray.
Molloy, Robert.
Morley, P.J.
Moynihan, Donal.
Nolan, M.J.
Noonan, Michael J.
(Limerick West)
Reynolds, Albert.
Treacy, Noel.
Tunney, Jim.
Wallace, Dan.
Walsh, Joe.
Walsh, Seán.
Wilson, John P.
Woods, Michael.
Wyse, Pearse.

Tellers: Tá, Deputies Barrett(Dún Laoghaire) and Taylor; Níl, Deputies B. Ahern and V. Brady.

I move amendment No. 16:

In page 5, between lines 27 and 28, to insert the following subsections:—

"(10) (a) A person arrested pursuant to this section shall be informed, at the time of his arrest, of the offence or offences in respect of which he is being arrested.

(b) When a person arrested pursuant to this section is brought to a Garda Síochána station the member in charge shall enter in the records of the station without delay—

(i) the time of the person's arrest;

(ii) the time of his arrival at the Garda Síochána station;

(iii) the offence or offences in respect of which that person has been arrested.

(c) When a person arrested pursuant to this section has been brought to a Garda Síochána station, the member in charge shall give to him, as soon as practicable, a statement in writing of the offence or offences in respect of which he has been arrested, and shall specify in the said statement and enter in the records of the station the time at which the said statement is given to that person.

(d) If a person who is being detained pursuant to this section in a Garda Síochána station is questioned for the purpose of the investigation, the member in charge shall keep a record of the names of the persons engaged in such questioning and the periods during which they were so engaged.

(e) If a direction extending the period of detention is given pursuant to subsection 3 (b), or a certificate authorising the questioning of a detainee between midnight and 8 a.m. is given pursuant to subsection 6 (a) the officer of the Garda Síochána responsible for giving same shall as soon as practicable provide the member in charge of the Garda Síochána station with details of the grounds upon which such direction or certificate was given, and the member in charge shall without delay, enter the details of the said grounds in the records of the Garda Síochána station.

(11) (a) Where a person is detained pursuant to this section he shall not be questioned for the purpose of the investigation for a consecutive period in excess of 4 hours.

(b) A period of questioning shall be deemed to be consecutive if there is not an interval of at least 1 hour since such person was last questioned for the purpose of the investigation.

(12) (a) Where a person is detained in a Garda Síochána station pursuant to this section the member in charge shall, from time to time during any such period of detention visit the detainee, and in particular shall do so at least once every hour, and shall on the occasion of each visit inquire from that person whether he has any complaints concerning the circumstances of his detention.

(b) Where a complaint is made by or on behalf of a person arrested or detained pursuant to this section concerning the circumstances of his arrest or his detention to any member of the Garda Síochána such member shall forthwith communicate the details of the complaint to the member in charge of the Garda Síochána station who shall enter the details of such complaint in the records of the Garda Síochána station.

(c) Where a complaint is made by or on behalf of a person arrested or detained pursuant to this section, in connection with his arrest or the circumstances of his detention, the member in charge of the Garda Síochána station shall enter in the records of the Garda Síochána station details of any such complaint without delay.

(13) (a) Where a person is detained in a Garda Síochána station pursuant to this section he shall, at any time during such a period of detention, be entitled to make and retain notes in writing.

(b) If such a person so requests he shall be provided with the necessary materials for the purpose of making notes referred to in paragraph (a).

(c) Where the detention of a person is authorised pursuant to this section he shall, without delay, be informed by the member in charge of his right to make and keep the notes referred to in paragraph (a) and that the materials to enable him to do so will be made available to him should he request them.

(14) Where a person detained pursuant to this section is questioned for the purpose of the investigation the entire of the questioning shall be recorded by electronic or other means.

In relation to amendment No. 15, our position is that we accept the Minister's commitment to an amendment on Report Stage. Consequently, we will leave it to the Minister to come back with an amendment and will consider it on Report Stage.

With regard to amendment No. 16, basically these are the safeguards which we are proposing should be included. In connection with subsection 10 (a) of amendment No. 16, we consider this is reasonable and we consider that as a general rule of law a person should be informed of the offence or offences for which he is being arrested. Notwithstanding that there is a provision in the Bill for other offences to be raised subsequently, we have carefully avoided tying the Garda to the offence for which the person is arrested subsequently in terms of their discussions and interrogation. Nevertheless, we consider the person should be informed of the initial offence or offences in relation to which he is being arrested on suspicion.

We consider subsection (10) (b) of amendment No. 16 to be reasonable. There should be an appropriate record of the time to arrival at the Garda station.

Mr. Noonan

(Limerick East): On a point of order, I suggest that we discuss amendment No. 24 with amendment No. 16 as I intend providing for most of the concerns of Deputy Woods and his party by means of statutory regulation under amendment No. 24. I do not think it would be possible for me to discuss amendment No. 16 without referring in detail to amendment No. 24.

An Ceann Comhairle

Is it agreed to take amendment No. 16 and amendment No. 24 together?

Dr. Woods

I am in agreement with that. I will quote subsection (10) (c) which we propose. It states:

When a person arrested pursuant to this section has been brought to a Garda Síochána station, the member in charge shall give to him, as soon as practicable, a statement in writing of the offence or offences in respect of which he has been arrested, and shall specify in the said statement and enter in the records of the station the time at which the said statement is given to that person.

Section 3 (6) (a) provides that an extension of time requires notice. It is specified in subsection (6) (a) that a notice would be given to the person against whom the extension is being granted. We are suggesting that, as soon as practicable, a statement of the offences in connection with which the person is arrested should be given and should be entered in the records of the Garda station. We feel this would be essential subsequently. Indeed, under the Offences Against the State Act there is a requirement that written notice be given. We consider this should apply in this case also. Subparagraph (d) of my proposed subsection (10) says:

If a person who is being detained pursuant to this section in a Garda Síochána station is questioned for the purpose of the investigation, the member in charge shall keep a record of the names of the persons engaged in such questioning and the periods during which they were so engaged.

It could be quite important subsequently and indeed an investigation could fail in court if the names of the people involved in the questioning were not recorded and kept for the subsequent court case or whatever. Also, in the event of there being any complaint to a complaints tribunal it would be necessary to have the names of the persons involved in the questioning.

Subparagraph (e) of my proposed new subsection (10) reads:

If a direction extending the period of detention is given pursuant to subsection 3 (b), or a certificate authorising the questioning of a detainee between midnight and 8 a.m. is given pursuant to subsection 6 (a) the officer of the Garda Síochána responsible for giving same shall as soon as practicable provide the member in charge of the Garda Síochána station with details of the grounds upon which such direction or certificate was given, and the member in charge shall without delay, enter the details of the said grounds in the records of the Garda Síochána station.

There is a requirement that reasonable grounds would apply in seeking a certificate for questioning between the hours of midnight and 8 a.m. Therefore the grounds, in brief form, would have to be recorded. Otherwise there could be quite an amount of confusion about this subsequently. The Minister has suggested that he would make provision for such matters. In this respect I might refer to his amendment No. 24 in which he says that he will make regulations regarding the treatment of persons in custody. Therefore the Minister's approach to this problem is to say: Yes, there should be such regulations — or, presumably, something like these regulations — that he will subsequently make these as regulations, that they would not be included in the Bill and they would not have statutory force. Subsection (1) in the Minister's amendment No. 24 reads:

The Minister shall make regulations providing for the treatment of persons in custody in Garda Síochána stations.

Subsection (2) in his amendment reads:

The regulations shall include provision for the assignment to the member of the Garda Síochána in charge of a Garda Síochána station, or to some other member, of responsibility for overseeing the application of the regulations at that station, without prejudice to the responsibilities and duties of any other member of the Garda Síochána.

Therefore, the Minister recognises that there must be a person who has responsibility for overseeing that these things happen and he plans coming along with regulations subsequently. Subsection (3) in the Minister's amendment reads:

A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him.

and the final subsection reads:

A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall render him liable to disciplinary proceedings.

I appreciate that but there is a problem of correspondence here. If, on the one hand, the Minister is giving the powers in the Bill then we believe that he should provide safeguards at the same time so that they are seen to be in correspondence within the Bill. I appreciate that the Minister's regulations shall have force but at this stage we do not know what they will be. Presumably the Minister will talk about his amendment No. 24 shortly. We do not know what the Minister has in mind here and we are giving powers in this section without including safeguards. That is why we feel it desirable and indeed necessary for the operation of other parts of the Bill that these kinds of safeguards and records would exist.

I shall be interested to hear what the Minister has to say about the regulations he proposes making.

Mr. Shatter

In the context of Deputy Woods amendment and also in the context of this Bill it is most important, bearing in mind the powers we are providing, that we ensure all the relevant protections are there also. We ensure the protections are there in the interests of the general public, to ensure that no abuse takes place in the implementation of the detention sections and also in the interests of the Garda themselves in order to ensure that no false allegations of abuse can be made against them. I would regard the keeping of records as an essential part of this Bill and the provisions to provide for such keeping of such records as an essential part thereof. I accept that there are two ways of doing this. The first way is through the amendment proposed by Deputy Woods, which contains some flaws and does not cover all the areas about which I would be concerned, but it states explicitly, within the context of the statute, all of the various protections that are necessary.

The second way of doing it is that proposed by the Minister, and I welcome the amendment tabled by him. Speaking at some length on the Second Stage debate in this House, I very explicitly made the point that the Bill as originally presented made no provision for ensuring that all of the safeguards. I believe are required would be there. Certainly it contained no provision for a code of conduct such as has been and is being provided in other countries and jurisdictions where similar legislation has been enacted. During the course of the Second Stage debate I referred to the example of the Police and Evidence Bill which has been the subject of long debate in the Westminster Parliament over the past 12 months, where there has been presented a draft code of police behaviour. When that Bill was debated initially at Westminster no such code was presented and the code now in being is a third attempt to provide a comprehensive code, the original one introduced having been amended to a considerable extent.

I welcome the fact that the Minister in tabling amendment No. 24 has acknowledged that it is in the interests of the general public and of the Garda themselves that a code of conduct be provided. The question now arises; is it more desirable that that code be in a statutory form in the sense of containing explicit statutory provisions, as Deputy Woods proposes, or is it better that it be done by way of ministerial statutory instrument or regulation?

One could argue relatively convincingly for both approaches. I would be anxious and concerned that before this Bill passes all Stages in this House we have sight of the proposed code, if it is a code to be provided pursuant to the Minister's amendment No. 24 by the insertion of his new section 6 in the Bill. In providing these powers of detention we are entitled to have available to us — if not possible on Committee Stage then certainly on Report Stage — the draft of the code of conduct that the Garda will have to operate under in implementing these provisions. I believe that, as it has been possible to debate that code at the same time as debating statutory reforms of this nature in a neighbouring Parliament, we should be able to do so here.

I recall the Minister saying at an early stage in the Committee Stage debate that he might propose instead that this provision be enacted. He gave the House an undertaking that he would subsequently, when introducing the code, table it before this House so that we would have an opportunity of debating the matter. That could be an acceptable procedure provided that the detention provisions are not implemented until the code is approved by the House. The concern would be to ensure a co-ordination of the provisional additional powers together with the provision of the additional protections to ensure that adequate protection is there.

The Minister has already undertaken that these detention provisions will not be implemented until the new complaints machinery is provided so logistically the detention provisions would not be brought into force until the Garda code of conduct is submitted to the House. It is open to the Minister to bring individual protections into force by way of ministerial order and the main concern I would have initially is co-ordination so that we do not implement the powers of detention without being assured that a proper code of conduct provisions is provided.

Should the Minister adopt the latter course it would not be possible for the code of conduct to be made available to the House before we complete the passing of the Bill. If that approach were adopted the Minister would have to amend his amendment No. 24, the new section 6, on the Report Stage if it is not possible to do it on this Stage because that amendment provides that the Minister shall make regulations. There is an obligation to make those regulations and, so far as I can see, though I could be wrong in this, to make provision as other legislation has done in the past formally for those regulations to be laid before the House. In the context of other statutory provisions one has provisions in the originating legislation which provide that, if a statutory instrument is made, that statutory instrument must be laid before the House and provided no objection is raised within 21 days it thereby becomes law. Now amendment No. 24 does not appear to make provision for the laying of the statutory instrument in regard to regulations to be laid before the House.

Mr. Noonan

(Limerick East): That is covered in the section.

Mr. Shatter

If that is so then I apologise. In the context of section 29 it states that every regulation made under this Act shall be laid before each house of the Oireachtas as soon as maybe after such regulation is made. It goes on to say that if a resolution annulling such regulation is passed by each House within the next 21 days such regulation shall be annulled. I was mistaken in saying there is no provision for the laying of regulations as there is under section 29. My point is that, because the provision of a code of conduct is so crucial in the context of the detention section, that manner in which we normally deal with the laying of regulations before the Oireachtas is normally simply to table that the code of conduct and, provided nothing happens within 21 days, that code becomes operative. The only thing we can do within those 21 days is effectively annul.

The Minister points out that section 29 is appropriate but I do not believe that type of formula is appropriate in regard to this new section and I would ask the Minister on Report Stage to introduce a specific provision amending this to ensure the regulations will be laid before the Oireachtas and amendments to those regulations can be tabled and those regulations, as amended, can then be passed. We would not then have the difficulty, and the Minister would not have the difficulty, of presenting a code of conduct on which Members may raise valid points designed to amend those regulations in some way.

The Minister has at all times shown a flexible approach throughout this debate and he has accepted valid points made by Deputies, and the amendments he has tabled are evidence of that. It could very well be that a code of conduct produced by the Minister may have provisions the vast majority of which could be both desirable and acceptable but there could be one or two provisions which would call for amendment. If the code of conduct, however, were dealt with as other regulations are dealt with all we could do is either accept or reject. It would be in the interests of the House to ensure a constructive discussion on those regulations that a specific amendment be included so that the regulations would not become operative until they had been approved by the House. That is my first point. Secondly, the House should have both the power and the capacity to amend the regulations and not be confined to simply accepting or rejecting.

I come now to the two different approaches, the approach of Deputy Dr. Woods and the approach of the Minister. Which approach should we adopt? One can argue persuasively for either approach. My concern would be to ensure that the protections are effectively provided. The difficulty in trying to provide for every eventually in a statutory form as Deputy Dr. Woods' amendment seeks to do, could result in some protections not being provided, protections which should be there, or the courts might interpret the statutory provisions in ways not regarded as providing the additional protection. It seems to me a power conferred on the Minister by way of statutory instrument to amend the code of conduct so as to provide a more flexible way of dealing with difficulties of that nature when the detention sections become operative provided those regulations could not become operative unless expressly approved by this House as opposed to the annulling procedure.

This would ensure that no Minister could diminish the protections provided without a debate in this House. It would provide a simpler form and speedier way of providing for amendments. Amendment No. 24 in the name of the Minister, which says that the Minister shall make regulations, enables the Minister not merely to make one set of regulations but to amend them at a future stage. Perhaps the power to amend the regulations by the Minister should be expressely referred to in the new section 6 also. It may not be necessary but perhaps it should be referred to. If you had this procedure whereby regulations would not become operative unless approved expressly by this House following a debate, we would have a flexible means of ensuring that, if we discover in the initial, teething stages of this legislation that all the protections which should be there are not there or that the courts are interpreting the code of conduct in a way which does not provide protection we regard as desirable, we would have an easier means of amending them.

The points made by Deputy Woods in his amendment are very important in the sense that much of what is contained in amendment No. 16 I would envisage as being incorporated in the code of conduct which the Minister has in mind. Unless there are explicit provisions to ensure that Garda records are kept of the offence for which somebody is suspected of having being involved in and for which they are being detained, there will be no means of monitoring whether somebody is being detained for a particular offence or whether they are being picked up purely on the personal whim of a member of the Garda. I am sure the vast majority of gardaí would not behave in that way but we all know of individual instances of them not always behaving as they should.

I fully accept that there is a need for a record to be kept of the offence for which someone is allegedly being detained, the time of commencement of the detention, the time of their arrival in the Garda station and the name of the garda who is responsible for holding someone by way of detention. If someone is being held for the purpose of investigating an offence they are entitled to be informed as to what that offence is. To ensure that there is no confusion regarding whether they were told they should be informed orally and in writing as to what the offence is. Deputy Woods' amendment provides that a person will be given, as soon as practicable, a statement in writing of the offence. There can be certain instances where the statement in writing of the offence might be such legal gobbledegood that the person to whom it is handed may not understand what the alleged offence is. They should be told, in ordinary language, what the nature of the offence is.

There are also certain records which should be kept for which Deputy Woods' amendment does not provide. We come to an area of whether they should be in at this stage, whether a code should provide for it initially or whether it should be amended later. For example, Deputy Woods' amendment does not state with regard to records at what stage someone is explicitly told they are entitled to see a solicitor or notify a solicitor or relation that they are being detained in a Garda station. The records should indicate what attempt was made to make contact with the person's solicitor or relation. It is not very difficult to do that, a garda can just insert a sentence indicating that he attempted to telephone a named solicitor or relation. It is important that these records are there. In the context of a search being carried out the records should expressly state when someone is searched in the station and what time that occurred. It should also state if any items were found on that person.

Deputy Woods' amendment does not deal with another aspect which I raised on Second Stage but which is important in the context of a code of conduct. There was a great deal of debate in the Westminister Parliament on their Police and Evidence Bill on an issue which has not given rise to any great debate in this country and which I am told has never been a problem in Garda stations but which should be expressly provided for in the context of a Garda code of conduct. In the limited circumstances in which a strip search can take place under the provisions of this Bill — the Minister validly made the point that such searches can already take place under legislation expressly referred to, such as the Offences Against the State Act and legislation to control drugs — the code of conduct should expressly provide that someone can only be searched by a member of the Garda of the same sex as the person being searched. That is not provided for in Deputy Woods' amendment and it is desirable in the code of conduct. When the Secretary of State in England produced a code of conduct which did not expressly provide for this there was a major public outcry and he had to amend the code accordingly.

We need a code of conduct. I agree with many things expressed in Deputy Woods' code of conduct but it is not all embracing and does not cover everything which should be covered. The proposal the Minister has by way of bringing in a code of conduct by statutory regulation is probably the better way of dealing with it, subject to the comments I made as to how those regulations should be presented to the House and how we should deal with them and subject also to ensuring that in no circumstances would the detention provisions become operative until such time as we have a complaints procedure and the code of conduct approved by this House.

Mr. O'Dea

I support the amendment in the name of Deputy Woods. It is a perfectly logical amendment in the context in which we are speaking. In order to preserve order and to uphold the law, citizens have to surrender part of what the Minister has repeatedly called their pool of liberties. We are surrendering part of our pool of liberties in this legislation and, accordingly, we must ensure that there are proper safeguards. Deputy Dr. Woods has enumerated a number of safeguards and the acceptance of his amendment would mean that those safeguards would be included in the primary legislation. The Minister's approach is different and is contained in the new section 6 which he proposes to insert into the Bill and which states that he shall make regulations providing for a code of conduct for the Garda. That approach is seriously deficient. There is nothing certain in the new section 6. Even though the word "shall" is used rather than "may" which implies obligation, there is, as Deputy Shatter and Deputy Woods pointed out, no time scale within which the regulations shall be introduced. The Minister envisages, obviously, in the new section 6 that they will be introduced at some indeterminate time in the future. How are we supposed to agree to legislation which, on the one hand, takes away part of the pool of liberties which we all enjoy while at the same time having to accept a promise from the Minister that these regulations will be introduced at some indeterminate time in the future?

Subsection (3) of the new section 6 states what the effect of these regulations will be if and when they are introduced. It states:

If that is the case, what safeguard is provided for the accused by the introduction of these regulations? If a garda ignores the regulations, what guarantee has the accused? The legislation tells us that the evidence may nevertheless be admissible and the accused may be convicted. What is the effect of the regulations? What certainty do we have that the regulations will contain any safeguard?

Subsection (4) of the new section 6 states:

A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall render him liable to disciplinary proceedings.

I take it that means internal Garda disciplinary proceedings. The question of discipline within the Garda is one thing. The question of protection of the accused who is detained in accordance with the provisions of this legislation is another. There is no necessary relationship between the two. I ask the Minister to look again at the amendment put down by Deputy Woods. As Deputy Shatter said, the safeguards in the amendment might not be adequate but, if the amendment is accepted, the safeguards in the amendment would become part of our primary legislation. If they were part of our primary legislation a failure on the part of a member of the Garda Síochána to observe them would render the evidence thereby obtained inadmissible.

Mr. G. Mitchell

Presumably we will have an opportunity later to discuss the destruction of records under section 6. I have some misgivings about putting into the Bill the statutory requirement proposed by Deputy Woods. In the Police and Criminal Evidence Bill in the UK there was no difficulty in doing that. The Minister is proposing to introduce regulations at a later stage which, under section 29, will be laid before the House. Will the House have an opportunity to debate them before the Bill becomes law and to propose amendments to the regulations? Will it be necessary for the House to approve those regulations? We are putting the cart before the horse to some extent. We are being asked to approve legislation which will not become law before a complaints tribunal is set up. We are told that at a later stage the Minister will introduce regulations. When we are passing legislation of this nature we should be able to satisfy ourselves as to the content of any proposed complaints tribunal or provisions regarding the non-observance of certain regulations.

In the Police and Criminal Evidence Bill in the UK clause 5 provides that annual reports made by chief constables should contain information about searches recorded under clause 3. Many clauses in that legislation set down specifically the circumstances in which disciplinary action may be taken against members of the UK Police Force for not observing certain regulations. They found it necessary to do that. Much of our legislation is very similar to theirs. Given the fact that they had to do that, and the controversy there was, we should be asking ourselves are we really serving the public interest by passing legislation of this nature and leaving regulations and a complaints tribunal and those types of safeguards until after we have passed the legislation. I do not believe any other Legislature would go about its business in this way. To some extent we are being taken for granted.

I do not think the amendment put down by Deputy Woods covers all eventualities. Quite a number of proposals in the Police and Criminal Evidence Bill in the UK go further. The place for these provisions is within this legislation. Deputy Woods has the right idea. We should incorporate statutory provisions within this Bill to provide for the non-observance of the protection sections and to provide for a complaints tribunal. It is reasonable to suggest that annual reports regarding the use of the Bill and statistics on the number of people detained should be made to the Minister for Justice as they will be made to the Home Secretary in the UK. The House should be able to monitor this legislation. This is a House of representatives and not just a Legislature. It is up to us to serve the common good and to ensure that the legislation we pass is working properly.

The right place for these regulations and the complaints tribunal is in this legislation. I hope that when the Minister reflects on this matter he will find it possible on Report Stage to consider that. Alternatively he should let us have the details of the proposed regulations and the complaints tribunal before this legislation is passed. That is what a Legislature is all about. It might seem like a smart manoeuvre to get the legislation through as a nice operational job and then slip in the regulations. Nobody will thank anybody for that.

There is no big hassle in this House about the Bill. We all want legislation passed which we believe to be necessary. We do not want anything that is not necessary. We do not want anything which would interfere with innocent people, or oppress an already oppressed innocent public. We want to deal with criminals only. It is the job of the Legislature to be sure that we are serving the public interest in passing legislation of this nature, and we should be certain about the regulations and the complaints tribunal before the Bill is passed.

Mr. Noonan

(Limerick East): I should like to say first that I am opposed to the amendment put down by Deputy Woods because I am moving an amendment myself, which provides for better safeguards by a different route. Deputy Woods in proposing this amendment said he wanted the regulations providing for the treatment of people in custody to have statutory power. I pointed out by way of intervention then, and I should like to repeat it now, that ministerial regulations should have statutory power. The statutory power of regulations made by the Minister under the powers vested in him are not inferior to the statutory powers of the primary legislation. It is not a question of one being a greater or lesser obligation than the other. The obligation is there, it is an equal obligation whether it is in the Bill or outside it.

The Bill as originally published did not make provision for this or for regulations. The Garda Síochána have internal regulations which are used and complied with for the treatment of people in custody. It was in response to the debate on Second Stage, and principally to the suggestions made by many of the people who contributed this morning, that I decided to introduce an amendment to allow for the bringing in of regulations so that there would be a published code for the treatment of people being detained under the provisions of the Bill and, indeed, under the provisions of the Offences Against the State Act. The Ó Briain Report published in 1978 has been around for a long time, and many of the recommendations in it have been incorporated in the regulations which are applied by the Garda Síochána in garda stations at present. However, since 1978 no Minister for Justice has come to the House and announced that there would be ministerial regulations with the force of law to regulate the treatment of people in custody. I maintain that regulations are more appropriate for the level of detail which will have to be contained in the manner in which the gardaí treat people in their custody. The primary legislation is the place for the principles of the Bill and a certain amount of detail, but the level of detail in the type of regulations I am referring to is more appropriate to regulations than to the primary legislation.

I accept that it raises a question for Deputies. Deputy Shatter made a point very forcibly in regard to this area and Deputy Mitchell has done so now. Deputy Mitchell also referred to the complaints procedure. On the publication of the Bill I gave a commitment to the House, and that commitment stands. Subsequently, in reply to Deputy Woods on the Order of Business and later in the course of the debate on Committee Stage that the complaints procedure will involve legislation. I said that it will not be an administrative scheme but one that will be provided for in legislation. I will be bringing in a Bill to the House and every Member will have the same opportunity to debate it through all stages as they have in regard to the Bill under debate. It will be an ordinary piece of legislation. Under section 29 there is provision that the regulations made by the Minister will be brought before the House.

Mr. G. Mitchell

Did the Minister say that the complaints tribunal will be by way of legislation?

Mr. Noonan

(Limerick East): Yes, and I announced that on the Committee Stage debate before the Easter recess.

Mr. G. Mitchell

Before the Bill has the force of law?

Mr. Noonan

(Limerick East): Absolutely. For the information of Members who are spending so much time in the Chamber debating this legislation I should like to state that the complaints procedure has passed through Government and is being drafted by the draftsman in the Attorney General's Office. We are proceeding at all speed to get it before the House. The net point on the question of regulations is how the gardaí treat people in custody. Under section 29 there is provision for any regulations made by me to be put before the House in the ordinary way. If they remain before both Houses without a negative motion for 21 days they have the force of law. Deputy Shatter said he would like a more positive mechanism on this occasion. It is a good idea and one which I will consider — I will not give a commitment — between now and Report Stage to put down a positive motion to enable Members discuss the regulations rather than leaving it to the mechanism of the 21 day period elapsing.

Apart from scoring debating points today we could spend some time with Members advising me as to what the scope of the regulation should be. I am opposed to Deputy Woods' amendment for the reasons outlined and also because the regulations he is suggesting do not go far enough in some instances. Certainly, they do not allow for situations that I would like to allow for under the regulations. Many of the provisions in the amendment cover ground that has already been covered. Another flaw is that the Deputy does not say what will happen if the gardaí fail to comply with one of the provisions; it is left hanging there. I shall deal briefly with the regulations suggested by Deputy Woods, indicate my thinking on them and deal with the amendment under consideration. Many of the suggestions made by Deputy Woods are either current practices provided for in the Garda code or are a part of the law already. If they are provided for in the Garda code I intend to being them in under regulations. If they are part of the current law it is not necessary to include them in the regulations. Some, for example No. 14 which relates to tape recording conflicts with section 26 of the Bill. For that reason that is not acceptable to me, but we will discuss tape recording when we reach that section. The Deputy's first proposal is that a person arrested pursuant to the section shall be informed, at the time of his arrest, of the offence or offences in respect of which he is being arrested. That is already the law. The Christie v Leachinsky case in 1947 an English House of Lords authority, was followed here in the Re O'Laighléis, 1960 and nothing in the Bill detracts from that. It is existing law and does not need to be put into the regulations.

Under amendment No. 16 the Deputy proposes that when a person arrested pursuant to this section is brought to a garda station the member in charge shall enter into the records without delay the time of the person's arrest, the time of his arrival at the Garda Síochána station and the offence or offences in respect of which that person has been arrested. That is standard practice already in garda stations. It would be inappropriate to have that type of detail in the Bill, but I intend to cover it in the regulations. The gardaí are doing that already because it is part of their internal regulations. I am telling the House that there will be legal obligation on them to do so, and that will be included in the regulations. That part of Deputy Woods' suggestion is acceptable.

The Deputy also proposes that when a person arrested pursuant to this section has been brought to a Garda Síochána station, the member in charge shall give him, as soon as is practicable, a statement in writing of the offence or offences in respect of which he has been arrested and shall specify in the said statement and enter in the records of the station the time at which the said statement is given to that person. I do not see what purpose would be served by having that in the regulations, because the person at the time of arrest must be told what the offence is. It is part of existing law, and I do not think Deputy Woods' suggestion in that regard is necessary. However, I am prepared to take that on board if some Member makes a convincing case for it.

In amendment No. 16, (10) (d) Deputy Woods suggests that if a person who is being detained pursuant to this section in a Garda Síochána station is questioned for the purpose of the investigation, the member in charge shall keep a record of the names of persons engaged in the questioning and the periods during which they were so engaged. That is acceptable in itself and can be incorporated in the regulations.

In consideration of the regulations I should like to tell the House that the criterion on which we judge the validity of a regulation is that it provide a real safeguard and does not impose administrative chores on the Garda Síochána or interfere with their investigation. I do not think there is any point in including something which increases the administrative chores of the Garda Síochána, something that interferes with their investigation, if it does not provide a safeguard. The test should be whether it is a safeguard in the first instance. We should not load the regulations with administrative detail for the sake of having long, elaborate regulations if they do not provide a safeguard. I will consider that in the regulations, in the context of what I have said.

The proposed amendment states that (10) (e):

Regarding the chief superintendent extending the period, we have had an argument and a vote already on whether it should be "the opinion of the chief superintendent" or changed to "reasonable grounds for believing". Obviously, that subsection is drafted in compatability with the previous amendment put down by Deputy Woods to change that provision of the Bill. In the Bill as it stands I am not sure if that regulation would provide any safeguard, but it is intended within the regulations to regulate the procedures in the Garda stations and I will consider anything reasonable which gives a safeguard. I will give the House more detail of what I have in mind subsequently. The amendment continues:

(11) (a) Where a person is detained pursuant to this section he shall not be questioned for the purpose of the investigation for a consecutive period in excess of 4 hours.

(b) A period of questioning shall be deemed to be consecutive if there is not an interval of at least 1 hour since such person was last questioned for the purpose of the investigation.

Dr. Woods

I think the Minister is straying ahead. He has gone into subsection (11).

Mr. Noonan

(Limerick East): Is that not part of the amendment?

Dr. Woods

We are taking all of those together at this stage including subsections (11) and (12).

Mr. Noonan

(Limerick East): It is all the one amendment. That is the substance of the recommendation of the Ó Briain Report and that is the practice in Garda stations at the moment. Writing it into a regulation might create difficulty. To say that four hours is absolutely the longest period may not necessarily be a safeguard. The courts have already recognised that what would amount to oppressive treatment for one person would not necessarily be oppressive treatment for another. What might be oppressive treatment for a hardened criminal might extend a long way. What might be oppressive treatment for somebody with no experience of Garda stations might be oppressive treatment in far less than four hours without a break. On the other hand, for the serious, hardened criminal who puts his eye on a spot on the wall and refuses to answer anything it might not be in the least oppressive if the four-hour period was exceeded. The courts have been developing for a while what they consider to be oppressive treatment in the light of individual cases and they decide on the admissibility of evidence on the basis of whether the treatment was oppressive. It would be impossible for us as a Legislature to specify by statute what oppressive treatment is because everybody is different from everybody else and what would be oppressive for one person would not be at all oppressive for another. As I have repeated a number of times on Committee Stage, we should not proceed as if the courts did not exist. The courts have a major role on the admissibility of evidence and we should allow the courts to develop their teasing out of what oppressive treatment is. In a number of judgments already they have vindicated their present position. That recommendation of the Ó Briain Report is already in practice in Garda stations, but I am indicating the difficulty of having it in a regulation, although I agree absolutely with the spirit of it.

(Limerick East): I do not want to make too much of that point. Specifying matters of detail by ministerial regulation allows for flexibility which is not there in primary legislation. The nature of the proposal that a person should be visited periodically and any complaints recorded is acceptable. That should be in the regulations and I do not see any problem.

Subsection (13) states:

(13) (a) Where a person is detained in a Garda Síochána station pursuant to this section he shall, at any time during such a period of detention, be entitled to make and retain notes in writing.

(b) If such a person so requests he shall be provided with the necessary materials for the purpose of making notes referred to in paragraph (a).

I will examine the inclusion of this provision in the regulations. It places another administrative burden on the Garda. Does it really provide a safeguard? If not, there is no point in giving another administrative chore to the Garda Síochána. Under existing law a person in Garda custody can take notes. The suggestion is that the Garda would be compelled under the regulations to tell everybody they had a right to take notes and supply the necessary material. The Ó Briain report recommended that a person should be allowed to write out his own statement rather than dictate it to a garda and subsequently sign it. That might be a more real safeguard than that proposed here. I am open to advice on it. Subsection (14) refers to electronic recording and is in conflict with section 26.

My approach is set out in amendment No. 24 which states that the Minister shall make regulations providing for the treatment of persons in custody in Garda Síochána stations. Deputy O'Dea did not see the force of the word "shall" but it puts an obligation on me to do so. I can implement this Bill either in whole or in part, section by section, by ministerial order. The treatment of people in custody is so fundamental to the exercise of powers of detention that there is no question of section 3 being introduced without the ministerial regulations being law and being available to the Gards Síochána.

Mr. G. Mitchell

What effect do these regulations have at law?

Mr. Noonan

(Limerick East): The same effect as anything in the Bill. It is not inferior at law. The regulation is as strong as the Bill in terms of its legality. It is simply a different way of approaching it. A power has been given to Ministers to deal with matters of detail and it is appropriate that they should be dealt with in this way.

Deputy Mitchell and Deputy O'Dea raised a point about the amendment I am proposing. There will not be an exercise of section 3 until the regulations are there for the Garda in relation to the treatment of people in custody. The intention is quite clear. It is being said openly now that the powers of detention under section 3 will not be brought into law by me until there are regulations governing the treatment of people in custody.

Subsection (2) of the new section proposed in amendment No. 24 states:

(2) The regulations shall include provision for the assignment to the member of the Garda Síochána in charge of a Garda Síochána station, or to some other member, of responsibility for overseeing the application of the regulations at that station, without prejudice to the responsibilities and duties of any other member of the Garda Síochána.

This is an attempt to make one person in the Garda station responsible for the welfare of the prisoner by ensuring that the treatment of the prisoner complies with the statutory regulations laid down by the Minister. The O Briain report has been quoted quite often by opponents of the Bill. Obviously many of them have never read the report, otherwise they would not be quoting it so widely. The report refers to the idea of the custodial guardian and my suggestion is very much in line with that. I am using this mechanism to introduce the idea of a custodial guardian responsible for the person in detention.

Subsection (3) of amendment No. 24 states:

(3) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him.

Deputy O'Dea is strongly opposed to this but I suggest that his opposition is based on a misunderstanding. Deputy Mitchell has also sought clarification. The key phrase is "shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody". If a garda is in breach of a regulation, what he does is an illegality. At the moment there is an internal Garda code, but I will be introducing statutory regulations and it will be illegal for a garda to be in breach of a regulation. The garda will be liable to disciplinary action. If the breach is otherwise criminal or if a civil wrong is committed, the garda would be liable for criminal or civil proceedings. No immunity is being granted. For example, if a garda assaults somebody and it becomes the basis of a criminal proceeding, there is no immunity which means that it must be treated only as a disciplinary matter. Of course it will be treated as a disciplinary matter but the right of the injured party and of the Director of Public Prosecutions to place charges is not in any way affected. They key phrase "not of itself" does not mean that if there is a breach of existing criminal law or a civil offence, immunity is given to a member of the Garda Síochána. The breach will not give rise to criminal or civil proceedings unless a criminal or civil offence has been committed.

Deputy Woods's amendment provides that a garda would be obliged to put down the time of a person's arrest. Is anybody seriously suggesting that if a garda omits to do so he should be treated as if he had committed a criminal offence or a civil offence? Certainly it is a breach of discipline since the garda should obey the regulations concerning the treatment of people in custody under his care in the Garda station.

The same thing applies to the admissibility of evidence. A garda may make a mistake and not put down the time of a person's arrest. A person may be arrested 100 yards from a Garda station and arrive at the station five minutes later. The garda may record the time of arrest and leave blank the section dealing with the time of arrival. In that case, is anyone suggesting that if that detained person is subsequently clearly guilty of something like murder, rape or armed robbery, the courts should be obliged to release him forthwith on the grounds of inadmissibility of evidence because the garda did not put down the time on the form? I am saying here that it shall not, of itself, render the evidence inadmissible. The court will look at the regulations and at the treatment of the person in custody. They can examine the nature of the breach of the regulations if such occurred and then will decide on the admissibility of evidence on that basis.

If there has been a serious breach of the regulations, the House can be quite sure that in the tradition of our courts in this matter, they will not allow the evidence to be admitted: they will throw it out. I want to maintain that freedom for the courts. I do not want them tied into a situation in which, regardless of the weight of the subsequent evidence and of the seriousness of the crime, if a garda in a Garda station omits to comply with some minor detail of regulatory procedure, people who are guilty of serious offences will be allowed to go free on technicalities. That is why section 3 is so phrased.

It is strengthened in section 6 (4) which says that a failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall render him liable to disciplinary proceedings and that is right. A garda in the course of his duties should know, and comply with, every detail of the regulations. If he does not do so, he should be subject to discipline. As the House knows, the Garda Commissioner is the disciplinary officer of the Garda Síochána. The idea, however, that a garda should be liable for criminal or civil proceedings on foot of something which is neither a civil nor a criminal offence is not acceptable. On the other hand, no immunity is being given under this amendment from criminal offences or civil proceedings. If a civil wrong or a criminal offence is committed, the garda can be proceeded against.

Evidence can be admitted to court if the court decides that it is admissible and that there was no oppressive treatment of the detainee. The courts will have to be the judge of that, but evidence should not be excluded on the grounds that a technicality was not complied with.

For the benefit of this debate, the following matters should be dealt with by regulation: The duty to notify detained persons of their rights on arrival at the station. Generally speaking, that would be the duty of the member in charge of the station who would be required to inform the person, both orally and in writing, of his rights and to obtain from him his signature as an acknowledgement that he has been so informed. Such rights include the general conditions, in a physical sense, under which persons would be detained, their entitlement to proper meals and refreshment as appropriate, visits from family members and legal advisers, and medical treatment if necessary. We cannot have regulations which do not allow people to avail of medical treatment where it is necessary.

Deputy Shatter pointed out very forcibly that the searching of persons, and in particular strip searching, must also be covered in the regulations. Many sections of this Bill have been maligned and have come in for a lot of criticism, but the particular provision on search has been the most unfairly criticised. This Criminal Justice Bill does not give any power of strip searching to the Garda Síochána. The debate has proceeded — not in this House but outside — almost on the basis that I am introducing a new concept of strip searching into Irish law and not alone that, but that I am also evading the issue of whether men could strip search women or vice versa. Under the Offences Against the State Act there is a power of search of individuals and under the Misuse of Drugs Act also. There is no need for me to be explicit on the reason for the existence of that power of search. However, that power of search is unqualified and under any normal interpretation of the law it could extend to strip searching and has been exercised. In this Bill I did not want to give the Garda Síochána a power to strip search, so in the provision of the Bill it is stated that the power would be there to search as far as underclothing but not to strip search in the accepted meaning of the phrase.

To maintain the powers under the Misuse of Drugs Act and the Offences Against the State Act, they were excluded from the provisions of the Bill so that the existing unqualified powers which have been exercised for many years will continue to be exercised. It is a Garda regulation, to which there can be no exception, that male members of the Garda cannot search women and female members cannot search men.

Mr. J. Mitchell

Cannot strip or cannot strip search?

Mr. Noonan

(Limerick East): Strip search. This is in the Garda regulations. I would intend that it would be written into the regulations also. There is a major misunderstanding about the section in this Bill dealing with search.

To sum up, I agree with most of the points made by Deputy Woods on the desirability of having regulations to guide the Garda force on their treatment of people in custody but do not agree with the mechanism which he is advocating. I am saying that it is better to cover this by statutory regulation rather than as a provision in the Bill. I point out again that a statutory regulation has a force as strong in law as any provision of this Bill would have. With some of the details of a number of the Deputy's suggestions, I do not agree, sometimes on the grounds that they are unnecessary because they are part of the existing law, sometimes on the grounds that they do not go far enough — for example, he makes no reference to the strip searching problem. I am opposing it sometimes on the grounds that it would be burdening the Garda with administrative detail without providing any safeguard. I am opposing his amendment and ask the House to accept my amendment.

The other major issues raised are what opportunities the House would get to have an input into the regulations. Certainly they will have the opportunity today, but I shall come back on Report Stage with a comment on the suggestion made by Deputy Shatter.

Section 29 gives the House the opportunity of discussing the regulations if someone puts down a negative motion saying that they are not acceptable. I do not think there is a procedural difficulty, but must check the procedure on how I can put down a positive motion to enable the House to discuss the regulations. There is no question of the power of detention in the Bill being given the force of law by me through section 2 unless the regulations are there to enable the Garda to be guided on the treatment of people in custody, and there is no question of that.

I stress very much the point made by Deputy O'Dea that the failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not, of itself, render that person liable to any criminal or civil proceedings or, of itself, affect the admissibility of evidence of any statement made by him. It is very important to focus on the meaning of the phrase "of itself". I think I have explained that pretty fully. I ask the House to accept amendment No. 24.

Mr. De Rossa

I have listened with interest to the Minister and welcome many of the points which he has made. Unfortunately, the debate is proceeding on the lines that the case for detention has been proved and I do not accept this. However, we are now being told that if the need for detention is proved regulations will be brought in governing that detention at a future date, providing we accept this principle of detention now. That is not acceptable to me.

I do not accept the need for detention and I do not accept the idea that it should be acceptable to anybody in the House on the basis of regulations which we have not seen, regulating that detention in some ways. The Minister has defined the kind of things he foresees as being in the regulations but we have no opportunity to judge the terminology that might be used in those regulations, the effectiveness of them, how they will be implemented and by whom. While the Minister has made a fairly long and detailed case in support of his amendment the basic principle must be that if we are being asked to accept detention we should have before us a draft of the regulations which he proposes to bring in to regulate that form of detention.

I believe everybody in the House accepts that this idea of arrest and detention for the purpose of interrogation is a new element in our criminal law and for that reason there is a need for very great care in how we go about it. The least we can expect from the Minister when we are debating section 3 is that we should have before us a draft of the regulations which will govern detention. I make that point very strongly despite the fact that his amendment says that the Minister shall make regulations providing for the treatment and so forth of prisoners. Two years ago the Private Rented Dwellings Act went through this House and it had a provision in it that the Minister for the Environment shall make regulations. The regulations under section 26 of that Act have still not been introduced in the House. The Act continues to be operated in the courts and now before tribunals. The people affected by that law are very severely hampered by the failure to introduce those regulations.

The Minister has given us an undertaking that section 3 will not operate until such time as he brings in the regulations. I accept the Minister's good intentions in that regard but, if we take the views that have been expressed by representatives of the gardaí who say that as the Bill stands the administrative load which will be placed on the gardaí is unacceptable and that it renders the Bill ineffective, there is no doubt in my mind that between now and the introduction of whatever regulations the Minister proposes there will be fairly heavy lobbying of the Minister to make those regulations as ineffective and in the least way restrictive of the gardaí in a situation of detention. I fully accept the Minister's good intentions in this regard but from my brief experience in this House in this particular situation where it is proposed to change the law so drastically we should have every i dotted before us in the House before the Bill goes through and gets the acclamation of the vast majority of our peers.

The Minister referred to the Barra Ó

Briain report and said that those who oppose the Bill have been quoting it and if they had read it they would not be using it so extensively. I am one of the people who opposed the Bill and I have read the Ó Briain Report. I used that report to express the reservations which the Ó Briain committee had in relation to the whole area of the treatment of prisoners while in detention. The Ó Briain report arose from the abuses of seven day detention under the 1976 emergency legislation. That legislation is still on the statute book and can be brought into effect at any time by the Government. That report attempted to outline how that kind of emergency legislation should be used. Barra O Briain in a minority report indicated that he thought that detention for offences other than for the subversive type offence should also be liable to detention but he made it quite clear that he thought under no circumstances should that detention extend beyond six hours. The Minister implied that because Barra Ó Briain added an appendix to the official report and gave his own personal views that that was the Ó Briain report it supports the idea of detention. That is incorrect and is not a valid case to make.

The Ó Briain report makes 21 recommendations in relation to how people detained under this emergency legislation should be treated. The Minister said that a number of these recommendations have been implemented under ordinary garda regulations in garda stations. I would like the Minister to enumerate for us before we move away from this particular section what precise recommendations of the Ó Briain report have been implemented, what precise recommendations in that report he considers to be unacceptable to him and what recommendations of that report have not been implemented and which are not unacceptable to him will be included in the regulations he says he will introduce. In opposing the amendment from Deputy Woods the Minister made the point that the amendment as worded would require the person in charge of a station to wake up a person who was asleep in a prison cell. I made the point, when the Minister said that, that he must never have spent a night in the Bridewell in Dublin or in Limerick. I have spent a few nights in the Bridewell in Dublin and I assure him there is not the slightest possiblity that one would get an hour's sleep in the Bridewell.

Progress reported; Committee to sit again.

Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.

Dáil Éireann debate - Wednesday, 16 May 1984

Criminal Justice Bill, 1983: Committee Stage (Resumed).

Tá

Níl

Dáil Éireann debate -
Wednesday, 16 May 1984