Before the adjournment of the debate I was referring to the contributions of other Members and pointed out that that of Deputy Shatter in relation to the possibility of the integration of the juvenile liaison officer scheme with the supervision of young people who are detained was a valuable one. I hope the Minister will consider that proposal. I support the point made by Deputy Barnes to the effect that if the section under discussion is successful, and extra convictions result, there would be a need for more prison accommodation. The accommodation problem has been underlined by the Prison Officers' Association who have outlined the great problems they foresee if the Bill is introduced in isolation from other proposals to deal with the matter. They have outlined the difficulty there is currently in the prisons and pointed out that if the Bill proves successful there will be a greater strain on prison accommodation. I agree with Deputy Barnes who said that the problem is putting the system into disrepute and must impose great difficulties on the Garda.
Criminal Justice Bill, 1983: Committee Stage (Resumed).
I do not think this arises directly under section 3, as amended. It may flow as an indirect consequence from section 3, but a Second Stage debate on Committee Stage is not in order.
The point has been referred to by many Members today.
The Deputy is not the only offender — if that is the correct word to use — and we are having a Second Stage debate on the Committee Stage of the Bill.
The Bill is intended to deal with serious crime and the hardened criminals who have emerged in society and damaged the quality of life here. The section has been represented as anti-working class, but as a Member who has a big working class area to cater for and is surrounded by working class areas I reject that interpretation. It may be true to say that many criminals emerge from working class areas but it is not a corollary to suggest that to be working class, poor or deprived indicates criminal propensity. About 98 per cent of those who live in working class areas, or in deprived communities, people who live in the same circumstances as those who emerge as criminals, never run foul of the law.
I regret to have to interrupt the Deputy but this would appear to be more relevant to the Fifth Stage when we reach it, if we ever do.
In the absence of the Chair the issues have ranged more widely than his careful guiding hand is permitting at present. Many wider issues have been raised in the debate on section 3. It is important to make the point that the section is needed to help the working classes who are in the forefront of the fight against crime. I am happy to support the section as amended. I also welcome the promise the Minister made in regard to regulations and so on.
While I am from a different constituency to that of my colleague, judging by her analysis of the position in her constituency we might as well be on different planets. Respectfully, I do not agree very much with her analysis of the situation and how the powers of detention will affect the people from our respective constituencies. "There is power to arrest without warrant and this is a power which should not be given in this case. I know of no Bill, except a Criminal Justice Bill of unhappy memory, that contains such a unique list of repressive provisions designed to wreak vengeance on anyone who stands in the way of a man who may be an unscrupulous person as some of these are as we have seen from their behaviour——"
Limerick East): On a point of order, the Deputy has said that the Bill is providing the power to arrest without warrant but it is not. That is existing law.
I referred to "a Criminal Justice Bill of unhappy memory" and I was not referring to the Bill under debate. I was about to say that that quotation would appear — and the Minister has confirmed this by his intervention — to indicate that we were talking about the legislation under discussion. In fact, that quotation related to the Prohibition of Forcible Entry and Occupation Bill, which was very mild by comparison. Yet, it drew that type of comment. In this detention section I am not happy with the safeguard available for the innocent citizen. Detention by a member in charge of a police station is not necessarily a sergeant or a person with any status or experience. It could be a new recruit. I submit that in a force of 11,000 or 12,000 people, when we hand over the existing powers of a person the equivalent of a magistrate or a judge to so many people, it is inevitable that we would be concerned about how those powers are to be exercised. In this instance I am concerned that the safeguard is not strong enough to protect an inadvertent misuse of the powers because a person may not have the necessary experience to direct arresting officers. Detention for the purpose of investigation is contrary to Article 44.1 of the Constitution, which states that no citizen shall be deprived of his liberties save in accordance with law. In respect of the arrest in the present position, which is solely for the purpose of bringing a person before a court, this section would, in effect, alter that immeasurably. The Association of Criminal Lawyers in their submissions to us submit that it is also in contravention of the European Convention on Human Rights.
The chief superintendent's opinion does not have to be a reasonable opinion; therefore an unsubstantiated opinion would be sufficient, according to the Bill. There is also the possibility of further detention for the proper investigation of the offence. Therefore, a person could be detained even if no longer under suspicion for the offence for which he was arrested. Possibly that could be to incriminate others. I cannot think of any other reason why a person would be detained for a longer period if he is not being investigated for the offence for which he was arrested in the first place. Under section 3 (3) (d) the opinion of the chief superintendent may be substituted by that of a superintendent acting for him. This in effect is removing the protection given by section 3 (3) (b). The opinion of the superintendent will suffice. This is weakening the safeguards in the Bill where we should be strengthening them. A great deal of the worry expressed by Deputies on both sides of the House was for those safeguards. That is why Deputy David Andrews wanted these safeguards incorporated into the body of the Bill. I hope the Minister will clarify the position on Report Stage in relation to a person arrested under section 3 and that the person should not be detained under other legislation, for example, the Offences Against the State Act.
It is not in the interests of the detained person that a garda may choose not to investigate the offence between midnight and 8 a.m. if the member in charge feels that the suspect requires a rest. The detained person in that instance has not a choice, yet we are talking about the welfare of that detained person. I would like to see that amended if possible, because the welfare of the accused is overruled in that instance. We can all think of many examples where control should be within the power of the detainee.
I am concerned about section 3(6) (b) and (c) to make sure that notices would not be given continually to the detainee. There might be no provision to prevent successive notices being given, and that could be open to abuse. The section does not specify the status of the garda keeping the records. That could be the arresting officer, the member in charge or another member. I submit that the record should be kept by a non-arresting garda involved in the prosecution. As regards the keeping of the records, I would be concerned that there is no protection against records being kept indefinitely by the Garda. Under the section the records are preserved for a minimum of 12 months after the giving of such notices as may be required under the Bill. Even if no charge is laid such notices need not be destroyed even after a lapse of 12 months. That can be corrected easily and I hope the Minister will bear that in mind.
Under section 3(8) the period of detention should not be section 3 plus the Offences Against the State Act orvice versa. We discussed that at length and the Minister has tried to alter it in such a way that the maximum period of detention if the person is arrested under the Offences Against the State Act would be 48 hours or that that could not be added on if he were arrested under section 3.
Section 9(3) states that the powers under this section are in addition to all other powers exercisable by the Garda. I would have thought that this section could give rise to extended detention other than that envisaged by the Bill. I do not know if that is the Minister's intention and I hope he will clarify it.
Generally speaking, the section is not acceptable to all of the people who have contributed to this debate on the Bill. Some, including myself, are trying to make a last stand in order to have the whole section not accepted. Many sound reasons have been put forward as to the merits of the case for removing the section from the Bill altogether and why we should not have detention without charge in our law. As it stands the provision is applicable to all persons over the age of seven years, although the Minister is addressing himself to that for Report Stage. If a person is arrested and deprived of his liberty for a period of 12 hours plus eight hours on suspicion, this may in due course lead to a person being arrested for the purpose of being questioned and interrogated only. That point was made several times. Apart from the fact that such arrest or deprivation of liberty in those circumstances may constitute a violation of our constitutional rights, because no person can be arrested save in accordance with law, and it may violate the European Convention on Human Rights, this section has no consensus. There is no special protection in it for children or young adults and children under care could be exposed to criminal proceedings which may have a traumatic and lasting effect on the child. That is one reason why we hope that children would be exempt under the Bill. I understand that about 1,500 legitimate children are in care. Our duty is to ensure that as far as possible the Bill does not affect innocent people going about their daily affairs, who ordinarily would not be subject to this kind of detention, on the mere suspicion of possibly very inexperienced members of the Force who are likely to be out on the beat and involved in this duty. The more experienced and mature members of the Force may have been promoted or advanced to different forms of duty off the beat. We should not by means of detention make inroads into the freedoms that are accepted and have been accepted over the years. It is very worrying that in this section on detention the Minister has made a new amendment which in effect means that any breach of proposed regulations shall not affect the lawful detention of a person and that the admissibility of evidence also would not be affected by an abuse of that.
I suggest that the Minister should even at this stage take up the offer of the Association of Criminal Lawyers to arrange a meeting of all the interested parties so that a consensus can be reached on the steps to be taken to improve the criminal justice system in all respects. Concerned bodies who up to now have had the respect of all of us have made a long list of submissions. Now for some reason we seem, conveniently or otherwise, to be ignoring them and their well-thought-out and concerned submissions. Deputy De Rossa this morning referred to the Simon Community who made a submission to us to the effect that the aim of the Bill was to give the Garda further powers to detain and interrogate suspects in the hope of reducing crime levels. In the opinion of the Simon Community it is an illusion that increased police powers will affect crime levels significantly. They are concerned about the effects this Bill would have on the homeless. They submit that in a recent survey conducted by the Dublin Simon Community, of 98 people sleeping out, 56 had been in prison for minor offences and only four for serious offences. Simon submit that the proposed detention provisions are unfair and unjust. They say that:
As the purpose of these provisions is to secure confessions and admissions leading to conviction in court it is essential that no statement should be made as a result of lengthy oppressive interrogation periods in Garda stations. Most homeless people are inarticulate, timid and unaware of their rights and because of their homeless situation are particularly vulnerable in their contact with the Gardaí. What effect will sustained detention and questioning have on such a person?
They go on to say:
Many of our people are inarticulate and ex psychiatric patients. These sections carry the substantial and unjust risk that they would be convicted of an offence not because of evidence against them in the traditional sense, but because they are unable to cope adequately with the situation facing them.
Let us contrast that situation with the situation of a hardened criminal who would find himself involved in the same detention and interrogation procedure but who could very easily withstand a period in such circumstances of six hours, or 20 hours or probably a lot more and come out of the situation without giving away anything to the Garda.
Simon agree that the relationship between the Garda and homeless people is reasonable but they fear that if the Bill is passed with its emphasis on detention and interrogation as a means of solving crime, it will alienate homeless people from the Garda. They say it would be ironical if a criminal justice Bill were to lead to an injustice being perpetrated against this already deprived section of the community.
Why are we not listening to these submissions? We are ignoring the pleas of people like those in the Simon Community. The amendment to section 3 which will allow people detained to be transferred between Garda stations will render it more difficult for relatives or solicitors to find detained persons. While on the face of it the reasons given by the Minister for this provision are justifiable, that is, that some stations, such as oneman stations, may not be suitable for detention and interrogation purposes, the experience in other countries where this happens is that the clause is abused. However, I accept the bona fides of the Minister in putting forward the problem as an administrative one. We need only recall the recent case here of the Peopleversus Lynch in which the detainee was moved without his relatives being informed of where he was moved to. I would consider it a flaw in the legislation to allow for the moving of people from one Garda station to another.
I am concerned also that the safeguards put forward in the Ó Briain Report have been ignored in this case just as they were ignored by previous Ministers for Justice. I am concerned particularly about the situation of children. The wording in the Bill is that if a child so requested, his parents or guardians would be informed of his whereabouts as soon as is practicable. There are many children in this city who are out without their parents' knowledge or consent, so it is going a bit far to detain children and merely to insert a loose clause to the effect that their parents would be contacted as soon as is practicable.
This contribution would be relevant to section 4 which we have not reached yet.
I shall not go into the matter in detail. Detention on reasonable grounds — the phrase used in the section — is not a safeguard. We need only think of the Offences Against the State Act under which 90 per cent of the people arrested on reasonable grounds were considered to be innocent and consequently released. To say that detention will be on reasonable grounds only is the same as saying that anybody under suspicion will be arrested. I share the concern that deprived communities will be alienated from the Garda as a result of this measure. People innocent of all crime will be detained as they have been in the past and will have the unpleasant experience of being fingerprinted, photographed and interrogated while in detention. That in itself is a traumatic experience and can cause a great deal of fear and anxiety especially if one so detained lives in an area of high crime, a situation which in itself is penalty enough without having this additional harassment.
We must consider the background of those who will be dealing with people in deprived areas and how they would regard these people. We are all products of our own environment and the manner in which certain people dress or behave might have a certain influence on others. It would seem a serious flaw in the Bill that certain people would be victimised merely because of their environment. That would be grossly unfair. Detention on mere suspicion for the purpose of interrogation without immediate access to a relative or a lawyer is a dangerous precedent. Up to now it has existed only in emergency legislation. We are giving the Garda a power the limits of which cannot be defined sufficiently in legislative terms nor can it be adequately supervised in practice so as to give a reasonable guarantee that it will not be more widely used beyond the restraints originally intended. It is not possible to control that power within those parameters. That is a strong case for dropping it altogether.
We are legitimising the practice which has grown up of inviting people to go to Garda stations to help with inquiries. The Ó Briain Report recommended the discontinuance of that practice. It developed gradually in the past into the wider practice of detention. What we are doing is setting a new minimum instead of defining a maximum and exceptional limits for a new power.
In a submission I received, and which I am sure other Deputies also received, from the Medical Missionaries of Mary they refer to the appalling effects of similar legislation in countries where there are infringements of citizens' rights and liberties. There are no effective safeguards in the Bill for the person in custody. Ó Briain concluded that the practice of detaining people for the purpose of questioning them had no justification in law apart from the exceptional cases provided for in emergency legislation and should be terminated forthwith. We are legitimising what Ó Briain recommended should be terminated. If that is what we think of the Ó Briain Report not only are we ignoring the submissions by all voluntary organisations who know what is happening on the ground but also the commission we set up to advise us on how to proceed in this area.
The fear of abuse is widespread, but it has much more serious consequences because it applies to everyone who comes under Garda suspicion — the poor, the young, the unemployed, the inarticulate, the homeless and the impoverished. Practically everyone who made submissions referred to that group of people. It is becoming almost a cliché. I cannot repeat it often enough in the hope of getting it across to Members and especially to those who will be responsible for passing it through the House. We have a responsibility to lead public opinion as well as follow it. This has crept up on the public by surprise because it is tied in with our crime problem and people are not fully aware of the effects the measures will have on their freedom and on criminal law. It is up to us not to race ahead of the public and pass this legislation. We must answer for the effects of this legislation. If it detrimentally affects decent, honourable and honest citizens we will have done a bad day's work. That is not what we were elected to do.
In Volume 349, No. 10 of the Official Report, at column 1843, the Minister said:
In a serious Bill such as this, where the rules of evidence are being changed in some sections and where in other sections extra powers are being given to the Garda Síochána, it is important in a country such as ours with a reasonably homogeneous community as a whole that the greatest possible consensus is established. People were concerned and worried about certain provisions in the Bill.
That was a reasonable statement and the Minister was correct in saying that. We do not have a consensus to put these measures into our law. We are racing ahead of the people lest they ask us "What are you doing in our name"? I cannot understand why that is so. I cannot understand why we are afraid to tell them. Are we afraid they will not approve?
We have had submissions, particularly in relation to the area of detention, from a number of bodies. I had submissions from the following: The Irish Commission for Justice and Peace, Pax Christi, The Conference of Major Religious Superiors, Justice Desk, Student Christian Movement, Dublin Mercy Sisters, Irish Menonite Movement, The Jesuit Centre for Faith and Justice, Medical Missionaries of Mary, Church Justice Group, Dublin Simon Community, TRUST, HOPE, CARE — Children's organisations, the entire legal professions: Bar Council, Irish Law Society, Association of Criminal Lawyers, Irish Congress of Trade Unions, Dublin, Cork, Galway, Derry Trade Councils and many other individuals and groups.
We are driving a stake through the heart of our homogeneous society by passing measures such as this. We are hitting at the very foundations of democracy. We may never recover from it. About 75 per cent of the Members of the House have not contributed to this Bill. We are passing through measures which will — I hope not unalterably although I have fears about this ten-year measure — change the lives of the people and affect their liberty and freedom possibly forever. Passing that kind of measure without having a full consensus is not warranted. We may have a mandate to do it but we do not have a consensus because we did not seek one. To wrap this up with so-called emergency legislation because there is a crime problem and because a certain section of people genuinely believe that these measures will greatly assist in solving the problem is not acceptable and is not a good enough reason——
The Deputy should confine himself to section 3. That is the main section at issue.
Most of my references refer to the effects of detention. In theIrish Independent of 13 April the Minister said we could not ignore the views of the many reasonably-minded people who are concerned at the implications of the Bill. The people on the list I mentioned are reasonably-minded people and we are ignoring them.
In parts of the city there are many unemployed youth who simply hang around because they have nothing to do. There are no community facilities available for them. They are products of their environment. Many of them dress in what some of us would call a peculiar fashion. Many are punk, have shaven heads and wear ear rings. I wonder would they be suspicious enough to detain for questioning? Such is the case in my constituency in areas such as Blakestown, Corduff, Inchicore, Clondalkin and Ballyfermot. In many cases the gardaí patrolling those areas may not be familiar with the life the people in these communities lead. I hope that would not affect their judgement when it comes to suspecting people of serious crimes, but I am afraid that it has affected their judgment, as those of us who were reared in such areas can vouch. If a garda from Ballyporeen is patrolling areas of this city such as Ballyfermot would he be frightened by some of the apparitions he might see? Would he detain such people on suspicion? In future will people co-operate with the Garda? When this Bill is passed will we alieniate whole sections of the community?
I am not exaggerating when I make statements like this when discussing detention and the powers being given under this Bill. We have nuns getting out their typewriters and telling us in simple terms how they consider this Bill will affect the people in their care. Governments were not too proud to allow religious or voluntary groups to care for and educate the poor for generations past because Governments could not afford to foot the bill. Today we are not willing to listen to these people or to seek their advice when passing this legislation.
The Deputy is generalising and making a Second Stage contribution. I appreciate that you are concerned about the detention aspect but I would be very grateful if you would keep to section 3.
These submissions were made specifically with detention in mind and detention is the most onerous aspect of the Bill. Therefore, I will confine my remarks to detention as far as possible. It is scandalous that we are totally ignoring these people and that what they had to say has not been considered. We should allow ordinary people to have a say about the legislation which will be written onto our books. These people are like a voice crying in the wilderness and, having ignored their submissions, we have nothing to be proud of.
Detention will change the face of Ireland. It will make Irish people fugitives in the minds of those given the power to protect personal property. The people in our society who are most in need of protection and freedom are the deprived, the defenceless, old and young, often isolated as much in an urban setting as in rural areas. That statement was made by Mr. Dan Ryan, President of the Association of Garda Sergeants and Inspectors and the Garda are the people who will be most affected by the powers in this Bill.
The section, not the Bill.
He is speaking on behalf of the Garda, but this could bring the Garda into disfavour if they were given powers which a minority could abuse and that minority in turn will bring the whole force into disrepute. We are changing the emphasis of Garda duties from protection and investigation into interrogation. We are undermining the traditional community support and respect for the Garda which is essential for the effective control of crime in society.
I submit that we do not have a consensus, that we are ignoring our constituents. Can they trust us to look after their interests? They did not elect us to do what we liked. Have we consulted our constituents? Have we informed them and asked their advice? Have we told them plainly what the new law will be when this Bill is passed?
When this section is passed. I would prefer if you would continue referring to detention rather than the general aspects of the Bill.
I cannot support the extension of the powers of detention given to the Garda, not to mention the inroads on the rights to silence.
The section please, Deputy.
The conferring of powers of detention for the purpose of investigation of a crime is a serious invasion of the privacy of the innocent citizen. So far as detention is concerned, I have always been talking about the innocent. Many Deputies who contributed earlier on this section concentrated on criminals but in the latter part of the debate we discussed the innocents. This is a serious invasion of the rights of the innocent citizen and serious breaches of the existing interrogation laws by the Garda did not encourage lawyers to welcome greater powers for the police. That was mentioned inThe Irish Times of 13 December 1983. It has been agreed that tougher new laws and extensive police powers are no solution to the problem of increased crime. Everybody is saying that but we will not accept it. It was stated in The Irish Times of 19 October 1983 that it was Garda abuses which brought about a situation in which judges had to intervene heavily to protect individual rights.
What the Deputy is saying is relevant to at least ten sections. Section 3 deals with detention and arrest.
With respect, on Second Stage any time I mentioned a section I was told I could raise the point on Committee Stage, but now on Committee Stage——
We are on section 3.
I am talking about detention. Anyone concerned that civil liberties should not be eroded will worry that the Garda can detain people for up to 20 hours without charging them. That is one of the reasons I believe there must be a totally independent complaints procedure. InThe Irish Times editorial of 19 October 1983 it was said that with all due respect to the gardaí it could be a mistake to give too much power into the hands of any law enforcement agency. A little doubt always keeps them more honest.
I am concerned about the lack of safeguards while a person is in custody but not actually under arrest. I would like to see real protection for these people. I would like to see a lawyer present during questioning. I do not think it is guaranteed in the section.
The Minister referred last week to the Interpretation Act, 1937, as amended. I think he said that he could amend this Act under the 1937 Act, and if necessary he would amend it.
(Limerick East): I did not. I would have no such power. Any amendment must be brought in here.
The Minister knows very well that if it were brought in here we would do it. He could consider that. I will quote the Minister:
I have been informed by my advisers that the Interpretation Act, 1937, states that references to an enactment are to be construed as references as amended. That brings to mind an important point, that there is not anything in the amendment to prevent me or a subsequent Minister from coming to the House before the end of the five-year period with amendments. The amendment would not constrain me from bringing in amendments if the provisions of the Bill are not proving effective or are not operating properly.
I hope we can reply on that should this section not prove effective, and I hope that the suggestions made by Deputy Shatter in relation to keeping records will also be taken into consideration so that we can look at the section sometime in the future and that if it proves such a distastrous area as the Offences Against the State Act, with total abuses, this total Bill will lapse as a result.
If there is alienation as a result of the passage of this section I would like to put forward a question: at whose behest is this alienation taking place? Is it the Minister for Justice, is it the Department of Justice, or the Garda? The Garda had the strongest influence in the formulation of this section and the Bill in general. What we are in effect saying is that the Garda have a strong influence and some people would not unreasonably define that as the beginning of a police state.
The Deputy is generalising.
It is impossible to discuss the section without referring to these matters because they are the questions that will follow on from detention because we are going to take innocent people and incarcerate them for 20 hours.
We are discussing section 3 and I should like the Deputy to stay within that section.
In section 3 the flagrant, unwarranted interference with the liberty of the citizens, according to Chief Justice O'Higgins in 1980, will now be enshrined in our criminal law. That is what this section is doing. We are now enshrining that. They are the words used, "flagrant, unwarranted interference with the liberty of the citizen". We are now changing that and are going to legalise it, introducing a wholly new concept into Irish law, of detention without charge.
In the past, around the time of that statement, detention without charge was something that grew up because people were helping the Garda with their inquiries, and a lot of it was due to the ignorance and the co-operation of the public, which is there freely available and in good measure all of the time, even with the articulate and educated and well heeled as well as the inarticulate and the deprived. People are very co-operative with the Garda, and as a result of cases like the DPPversus Madden and the DPP versus Lynch a stricter interpretation of the law was laid down.
Under the present procedure you have a charge preceded by a caution. A prisoner is then brought before a court. We are now changing that completely. It has to be said that we are giving these powers to a body of 11,000 or 12,000 people. It is an enormous number of people to be able to control. They have different backgrounds, they are of different ages, different levels of maturity, different experience, and we are allowing them to make these very serious decisions. At present we are even allowing them to decide, in the case of detention, whether they will detain a child as young as seven years of age and make a judgment as to whether that child had the intention of committing a crime, which is probably almost impossible for an individual to do. I hope that will be changed satisfactorily on Report Stage.
I have to say in conclusion that not all gardaí are in effect seeking these powers; not all of them want these powers. I have submissions from gardaí who do not want these powers. I have written submissions from people of long experience who are advising caution. Naturally I would not like to name them and I could not read them out because it would not apply solely to detention.
I am against the section completely and I make no apologies for saying it. I am against the section because I feel troubled in my conscience about passing this kind of legislation. Even though we probably have a mandate to pass this kind of legislation we are doing so without consensus. We did not consult the people. While the legislation has been expected for a number of years, I think we have raced ahead of public opinion. I think we have capitulated to pressure, particularly from the gardaí, well meaning from their point of view, and we have succumbed to the pressure without fully examining it.
I think that unfortunately this section will work against the gardaí and I would not like to see that happen. I think, as I said, it is driving a stake into the heart of our society. I hope we can recover from it — I do not know that we can. We have ignored reasonable opinion. We have ignored the submissions made by people who have looked after the children of this nation for generations and who work in all of the deprived areas. They make a plea to us not to implement this section.
I believe the innocent will suffer more than the criminals, the well up innocent people as well as the ignorant innocent people. I think this section will alienate young people who at the moment are confused and frustrated because they are out of work. They are totally ignored. We are inclined to take young people for granted and this section, when it is put into effect, will have the appearance of actually harassing young people for nothing. They have done nothing wrong. They are our people, our children, our sons and daughters.
It is the wrong way to go about it, and I refer to the fact that in the last three years the crime statistics have reduced from in excess of 20 per cent down to 4.9 per cent this year, and recent information from the gardaí will tell you that crime is actually going down because the Garda are being more effective. I was one of the crime committee who visited the depot and the forensic science laboratory yesterday. We saw and were very impressed by the equipment. They were able to tell us it was equal to the best in Europe. The chance of a further decrease in the crime rate is on the cards. I feel for the impoverished and the disadvantaged people in our society who do not get an opportunity. I feel for the deprived, for the inarticulate, ignorant urchins from whose midst I came. Therefore, I have plenty of friends who will be affected by this section.
We are not cherishing all the children of the nation equally by introducing a section like this. The well off, as usual, will be able to survive the court system but those without money will find it very difficult. I see many innocent poor people going down in court for want of a word and that same situation will continue. By this legislation this House is driving a wedge between us and that is tragic. We are inflicting more damage on our own people than any foreign power could have done. It is our duty to inform ourselves and to lead public opinion but we have not done that in this case. Some 75 per cent of the Members of the Dáil have not even come into the House to contribute to the debate. This is not a lawyer's Bill. It is not technical and it is simple to translate what we are doing. We are bringing in measures we have never had before and the likelihood is that they will stay on the Statute Book. Apart from the pressure that will be brought by the Garda Síochána at a future time with regard to the regulations, there will be the general tendency to keep the legislation on our Statute Book.
We have failed miserably by bringing forward this measure in this form. We are responsible for the consequences of our actions and we will not be thanked. This section should be removed from the Bill. We were mad to put it in and the Garda are mad to accept it.
Deputy Kelly rose.
Does the Minister intend to reply? We are continuing a debate that we had last Wednesday but the Minister has not yet said anything. Many questions have been raised, including some I asked, and I had hoped the Minister would answer some of them.
Will Deputy Kelly yield to the Minister?
If the Minister wishes. However, on Committee Stage the Minister, like every Member, is free to offer whenever he chooses. If the Minister wishes to speak now, naturally I will give way to him but if he does not wish to speak I will continue.
The Deputy may proceed.
All Members must listen to Deputy Skelly with respect on a theme like this, on which I have heard him speak before. I know what his belief is with regard to this matter and I cannot contradict it, namely, that the poorer, less articulate and less privileged members of society are the people who get the thick end of legislation of this kind. I have heard Deputy Skelly say that before and I believe it. Therefore, I do not rise to contest anything he has said but to make a few ancillary points. One is influenced by the kind of thoughts in his own mind and, admittedly, the other is something of a niggling lawyer's point, or so the Deputy might consider, directed towards alleviating the anxiety he has expressed.
I will first make the niggling lawyer's point. It is that the powers in section 3 are powers that depend on a member of the Garda Síochána having reasonable grounds for believing that a person has committed a serious offence or reasonable grounds for believing his detention is necessary for the proper investigation of that offence. My reading of that is that these are objective criteria; in other words, that the existence or non-existence of reasonable grounds is something that remains open for decision by a court whatever the garda may subsequently swear. It could not be, and I hope never will be, enough in this country for a garda to say that he had what seemed to him to be reasonable grounds. The question whether the grounds were substantial enough to be reasonable must remain open for objective judicial decision.
I accept that there has been harassment here. I do not mean it has been in recent times or that it has been at the expense of the people Deputy Skelly had in mind but I accept that it can happen with any police force. If harassment takes place where there is no reasonable ground for arresting a person under the section and for keeping him in detention, to me that would be a very serious civil, and perhaps criminal, wrong. The Minister should spell that out and make it clear to the members of that large and disciplined force — who are in a very sensitive position, have troublesome work to do and cannot always be expected to perform that work, as Deputy Flanagan said last week, as though they were so many angels — that this criterion of reasonable grounds is something that is not for them to determine or to establish, that if they have not got reasonable grounds for using the powers of this section that may expose them to a civil action for false imprisonment or possibly for some other civil wrong associated with it if the section is abused.
Deputy Skelly may feel that is the kind of point that would occur to the privileged people who have been to secondary and third level education and I accept that is a fair suspicion. I know that people who are inarticulate and under-privileged will never have heard of the action for false imprisonment or of a civil wrong and will not know their rights. I accept that. All I am saying is that we have to try to write the law and at least let us not allow ourselves to be blackened more than we need be. When a standard of this kind is written into a Bill and when it is an objective one that permits judicial appraisal and will expose, at least in theory, a member of the Garda Síochána subsequently to a judicial decision as to whether his behaviour was reasonable in applying the powers of the section, at least that is something. I concede it will not answer all of the anxieties of Deputy Skelly but I do not think from what I heard of his speech that he gave enough weight to that consideration.
Deputy Skelly said that the powers which the section proposed to create were in essence something which the Chief Justice had described as a flagrant breach of personal liberty. The fact is that this House is not competent to create powers that amount to a flagrant breach of personal liberty on the constitutional level, which I presume is what Deputy Skelly means. When this House and the other House go through the motions of passing this Bill, and if the President thinks fit to sign it as it stands, it will be open to challenge in the courts.
Our obligation is to keep within the law, as we have debated it from time to time and as the court declares it; and no one has succeeded in putting an exact frontier around personal liberty or saying where it begins or ends. We know it is a very highly prized right, a rightly highly prized right, and highly valued in a free country like this. It can be abused and particularly abused at the expense of people who have not got the education or privilege or the right friends and so on to make sure they are not the sufferers. That can happen in any street — I would imagine we are not the worst in that regard — but there is such a thing as the public interest as well and striking some kind of a balance. Although I am not happy with this section, no more than any other Deputy or no more than, I suppose, the Minister is happy at having to promote it, it seems to me not necessarily a flagrant breach of personal liberty and, even if I am wrong in that judgment, the courts will still be able to strike it down after it leaves these Houses if the court comes to the conclusion that those powers go beyond what a reasonable balance between the individual and public interest could justify.
The last thing I want to say is that I did suggest to the Minister — I think both in this House and elsewhere — that it might have been wise to make this whole Bill or at any rate this particular power a temporary measure. Now I know that to enact a measure which is going to be only temporary may seem a minimal or paltry thing to do, may seem to be half hearted, and may seem as if we are anxious to steer clear of the odium of something from one side of the public while at the same time getting the credit from the other side of the public for doing it. That is partly in my mind and might be in the mind of anyone who thinks that way too. However, I think that where we are doing something new which has not been done before, except in an emergency situation where one is dealing with subversion, there is a case for considering making a measure of this sort temporary. But if the Minister's advice is against that — I accept there could be good reasons for not having a temporary measure because it might perhaps make the police feel their powers are being undermined — I think there is something to be said for gathering statistics about how the measure works even in a very short interval, over a period of a few months. I am sure the Minister will do that if this section is enacted and will make sure that the figures of the number of people who have actually been successfully charged after the application of the powers in section 3 are known. I think the gathering of information of this sort would be useful. If the Minister were to find, after the section had been in operation for three or four months or six months, that a large number of people had been held for six hours or for 12 hours under section 3 but that only a tiny fraction of them had subsequently been charged or been convicted, then I think the Minister would be entitled to conclude that the section was being used for the purpose Deputy Skelly apprehends.
I think any reasonable Minister would want to see how this was working. I am sure this Minister is one of the most reasonable we have had and that suggestion will not be lost on him.
(Limerick East): First of all, I should like to assure Deputy Kelly that I have already moved such an amendment and agreed that the measure will be for a period of five years. I have informed the House I am considering reducing that on Report Stage and I would like to thank Deputy Kelly for his contribution and the other speakers who have contributed to the debate. The debate has progressed in stops and starts over the weeks and the same points have been made over and over again by different speakers who, because of their other duties, cannot be here all the time. Speakers have now come into the House who have made points that have already been dealt with on a number of previous occasions. There have not really been very many new points made over the last several hours.
A couple of years ago there was a long investigation involving the Garda Síochána and police in Europe. Interpol was involved and after months of careful monitoring a very large consignment of drugs was found in Dublin Docks and a particular gentleman was taken into custody and held for ten hours in the course of that investigation. Then the advice to the Garda Síochána was that the detention was illegal, was not in accordance with law. They had no power to detain somebody and question him like that. No charge was pursued because the evidence — the confession in this particular case — of involvement in the importation of an enormous quantity of drugs would have been inadmissible and the person, who was clearly involved, could not be charged with the offence. When the police forces in Europe who had been involved in the investigation initially heard about this they thought it was some kind of cover up story for the inefficiency of the Irish police. They could not believe that the Garda Síochána did not have such a power. If that story had been told to somebody in the 1930s, the 1940s, the 1950s or even the 1960s they would have found it incredible as well because since the foundation of the State it was thought that not only had the Garda the power to arrest on reasonable suspicion but that they also had the power to question people, to investigate a crime by questioning prior to charging. But there were a number of court cases, cases which have been extensively reported and mentioned here, which refined and defined the law in the middle 1970s and which made it very clear to the Garda Síochána that they did not have such a power; and since then — not since the foundation of the State, but since the second half of the 1970s — the Garda Síochána have been clearly prohibited from arresting people and subsequently questioning them before they charge them or release them as the case may be if there are no grounds for a charge.
The situation now is, according to recent law, that the Garda can arrest on reasonable suspicion but they must charge someone; and if they charge someone they cannot question him or her subsequent to the charge. That would be a breach of the individual's right and would be inadmissible. That is the situation that has obtained in the Garda Síochána since the middle 1970s. That situation is different from the situation right through police forces in the Western democracies. I know there is a different system in continental Europe from the Common Law countries; but in all these European countries there is an initial 24-hour period, the minimum period, in which someone can be questioned by the police force engaged in the investigation of a crime. The system in continental Europe brings in a judicial investigator. One can be held in Italy for a number of years while a crime is being investigated. They have a different system. A person could be in custody for a long time awaiting trial too. I am not advocating we should adopt these practices but there is a 24-hour period——
(Limerick East): Right, Michael. I know you are a liberal. In Britain at the moment the police can detain people for 24 hours and they can extend that by a further 24 hours. The Bill before the House of Commons at the moment would allow the police to detain people in certain circumstances for 36 hours and that can be extended to 96 hours in all. There are special provisions for the period between 12 midnight and 8 a.m. here. In Scotland there is a period of six hours and that period can also be extended in certain circumstances.
I approve of an enormous number of recommendations in the Ó Briain Report for the treatment of people in custody. Three people constituted the Ó Briain Committee. The chairman was Barra Ó Briain. The other members were Ruaidhrí Roberts and Patrick Malone, an ex-Commissioner of the Garda Síochána. As many Deputies said, that committee found that there was no justification for detaining people for questioning because that power did not exist under our law. Section 40 of the Constitution says that people can only be detained in accordance with law. We are making the change here so that the Garda will have the power in accordance with law, because the courts have decided that they do not have that power in accordance with law at present. The Chief Justice made the point very forcefully that it was a flagrant and unwarranted interference with liberty. But that does not prevent this House from changing the law, because the Article in the Constitution says it must be "in accordance with law". The Ó Briain Report found that it was not in accordance with law to detain people. They then had an argument about their terms of reference, whether they should consider that this power should be recommended in the Ó Briain Report. I should like to quote from the chairman's addendum to the report. He said:
I am in agreement with my two colleagues save, as mentioned in paragraph 44, in regard to the interpretation of the Committee's Terms of Reference with respect to the matter of detention for the purpose of interrogation and the matter of the right of silence.... I would go somewhat further and question whether or not the time has now come to change the law relating to the investigation of crime by providing a form of "detention" for a strictly limited period. During such "detention" the Gardaí would have the right to hold persons reasonably suspected of having committed a crime, but only such persons, for the express purpose of questioning them in relation to the crime. The gardaí lack such power at the moment. Notwithstanding this, they are under extreme and increasing pressure from the whole community which is clamant that the police uncover and prevent crime and bring guilt home to guilty parties. Is it any wonder that the allegations which we have considered show a picture, again and again, of the gardaí, frustrated by their lack of legal power to question suspected persons in custody, taking the law into their own hands by holding them for custodial interrogation, and in doing so, breaking the law if not indeed the Constitution. This is so even apart from ill-treatment. But the allegations we have considered state that in a number of cases the gardaí in their frustration have used physical violence or threats of violence to secure answers to their questioning. If, therefore, this element of frustration can be eliminated, or even reduced, in some cases, by a change of the law, it seems to me that this change would affordper se some further safeguard against ill-treatment. But the change cannot be made by the gardaí or even by the Judges. It is, in my view, strictly and clearly a matter for the Oireachtas.
The same difficulties have arisen in other countries having a Common Law system or jurisprudence where it is recognised and admitted that the same irregularities consistently take place. In Scotland, the question has been considered by Lord Thomson's Committee on Criminal Procedure in Scotland (Second Report Cmnd 6218), and in Australia by the Commonwealth Law Reform Commission (Report No. 2). Both of these bodies favoured a new legal concept of a period of "detention" or "restraint" as distinct from formal "arrest". During a period of "detention or restraint" the police would have the right to question a person in custody closely but always in a fair manner. In Scotland the period recommended was six hours. In Australia the period suggested was four hours, extendable in certain cases. I would favour the amendment of the law here to provide that a person reasonably suspected of a crime but none others might be "detained" for questioning until the gardaí either decide to arrest and charge him formally, or alternatively to release him, but, in no case, for longer than a period of six hours.
It is both logic and common sense that a person investigating a matter should question those concerned in the subject under investigation, check their answers and if there are apparent discrepancies, come back to the person questioned for an explanation. The police work on suspicion and hearsay and on many other factors which are not legal evidence. The courts, on the other hand, proceed entirely upon legal evidence. The "detention" period would give the gardaí an interval during which to do what is strictly police work. The law at present largely denies this to the gardaí.
On a point of order, the Minister is not quoting from the Ó Briain report but from an addendum to the report by the chairman only.
That is not a point of order. Please allow the Minister to continue.
(Limerick East): The chairman went on to say:
The suspect should, of course, be told the charge in relation to which he is being detained. Furthermore, all that happens to him while detained at the Garda station (visits by legal adviser, doctor, relatives etc.) should be carefully logged in the officially prescribed station record.
It was not that the other two gentlemen on the committee disagreed with Barra Ó Briain. They only disagreed on the fact that the terms of reference allowed them to discuss this matter and to make or not to make this kind of recommendation. I quoted that because people have asked why the Garda need detention powers. They are alone in Western Europe in not having such powers. The period of detention I am requesting for the Garda is short in contrast with Western Europe and Britain. Many eminent legal people, including Judge Barra Ó Briain in the addendum to the report, advocated for a number of reasons which I have quoted directly from the report, that such a power should be provided to the Garda Síochána. This power, of course, has to be exercised in a very careful way, and I am glad that Deputy Kelly very strongly made the point about the question of reasonable suspicion. I should like to quote fromSandes Criminal Law and Procedure in the Irish Republic 1951 which outlines the situation.
When the arrest is made on suspicion, the suspicion must be reasonable, the result of an honest belief come to after the facts have been ascertained and considered. It is important that the liberty of the subject should be protected from undue interference. On the other hand, it is important that in the public interest officers should be protected in the proper discharge of their duties. They should not be hampered or unfairly criticised if they act on a reasonable suspicion. What would amount to a reasonable suspicion in any given case involves an inquiry into the circumstances of the case for the purpose of ascertaining what was the state of mind of the constable at the time of the arrest. What information had he? Whence did it come? Whatever the source it must come in a way which would justify him in giving it credit. He must not take too narrow a view of his responsibilities. Effect must be given to the word "reasonable". It is not sufficient for the constable to arrest a person merely because he bona fide suspects him of having committed a felony. Such a suspicion, though honestly entertained, may be entirely without reasonable grounds. Reasonableness of conduct does not entirely depend on the bona fides of the constable. The question of reasonable suspicion is a matter of law and should not be left the jury. It is a matter for the Judge to decide in court.
Could the Minister give information with regard to reasonable suspicion and indicate how a person who is arrested on reasonable suspicion and released after 20 hours can get redress, given that nine out of every ten persons arrested under section 30 were released after being arrested on reasonable suspicion?
(Limerick East): As I have said on a number of occasions, there are no new powers of arrest under this Bill. The criteria upon which people would be arrested under the powers of this Bill are exactly the same as existing law, that is, on the grounds of reasonable suspicion. Somebody who is detained without reasonable suspicion — and I mentioned it earlier here — has the redress of a civil action for damages. I quoted an English example as reported in The Times of May 28 which occurred on 24 March 1984. The headline was: “£1,750 damages for wrongful arrest”. I have read it onto the record already. It is quite clear that a garda who acted without having objective grounds would put himself at risk of challenge in court and would certainly put himself at risk of having to pay damages.
Many of the specific items raised were dealt with previously. They came up again in a number of ways. If I miss one out I will go back. There is no new power of arrest in the Bill. Yet in the earlier stages of his contribution, Deputy Woods suggested that there is a new power of arrest and asked what area would it be applied to most. The Bill is not directed against any area. Many Deputies made the point that, if you have long hair, denim clothes and two earrings in one ear, you are more susceptible to being interfered with by the Garda and more susceptible to arrest. Deputy Skelly talked about the Garda acting on mere suspicion. They cannot act on mere suspicion. Reasonable suspicion is what is in the Bill. Whether suspicion is reasonable must be tested objectively and the courts are there to make this objective test. The Bill is not directed at any class in the community except criminals. It is not directed against any social grouping in the community.
On the question of seven year olds, I have argued that this was a spurious and propagandist attack on the Bill. Because there is such concern about this, in advance of the Minister for Health fulfilling his commitment to change the age of criminal responsibility in the Children's Bill, I am prepared to accept the spirit of the amendment put down by Deputy Woods and to say section 3 of the Bill will not apply below a certain age. Deputy Woods suggested 12 years and I am inclined to agree with him. I have to get an endorsement from the Government on the actual age.
Deputy Woods quoted extensive English research which was interesting, indeed. It showed one thing very clearly. Various conclusions can be drawn from the same piece of research. The piece of research Deputy Woods talked about indicated that in Britain, even though they have power to detain people for 48 hours, the vast majority of people were released in the first hour, hour-and-a-half, or two hours. Deputy Woods put it forward as an argument for not having a second six-hour period of detention.
What we are talking about here is the maximum period permissible. Unlike what Deputy Skelly said, there is an obligation on the Garda to release a person if they reach a point of investigation where they no longer have a reasonable suspicion that he could have been involved in a crime. If that happens in the first half hour, the first hour, the second hour; or after two-and-a-half hours, that person has to be released.
The question of the internal safeguards in the Bill came up. There are safeguards in the Bill regardless of what people say here. There are many safeguards. They have been argued up and down and over and back when we were discussing amendments. I suggest the major safeguard in the initial stages is the question of reasonable suspicion and there can be an objective test of that. There is also the fact that the person in charge of the station has to be reasonably satisfied as well. There is the question of the extension for the second six-hour period to be on the authorisation of a chief superintendent.
More than that, I have committed myself in this House to introducing a complaints procedure. This was done when I published the Bill. I informed the House more recently that the complaints procedure will have a very strong, independent element and that it will be a legislative, statutory procedure rather than an administrative procedure. It will have to go through all stages here and in the Seanad before it can become law. I have also informed the House that the Government have accepted the proposals I put forward to them. The scheme is being drafted by the draftsman in the Attorney General's office at present. As soon as it is drafted, I will bring it in here. I cannot do better than that.
On the question of the regulations governing the conduct of the Garda in relation to people in custody, I have said they will be statutory regulations. That is not to suggest there are not regulations there already. There are regulations for the internal administration of the Garda, for the conduct of the Garda and, if they breach these regulations they certainly have problems. On Second Stage people in this House thought it was important that, rather than these being internal administrative regulations, they should be regulations controlled by law. I have agreed to that and, with the powers vested in me like many other Ministers, I can bring in regulations and I will bring in regulations. They are being drafted and they will have the force of law, not second class, or third class law, but the same force of law as the primary legislation we are passing here. When the regulations are being drafted I will take into account the views expressed in the House.
Deputy Woods asked specifically whether I would not come back from the idea that it should be a superintendent rather than a chief superintendent who would allow the second period of detention. Deputy Skelly was going in the opposite direction and was worried about that. I have written in a chief superintendent and I am inclined to leave it at that. Obviously a chief superintendent will go for his summer holidays. A chief superintendent will not be on duty for 24 hours a day, seven days of the week, so there must be a provision for somebody to act in his place. The appropriate person is the senior superintendent in charge of the division in his place.
There are not that many cheif super-intendents in the country. Deputies who represent Dublin constituencies are familiar with many senior gardaí. When you go outside the Dublin area, you are talking about one chief superintendent for a whole county the size of Wexford. You are talking about a chief superintendent for the Clare division and the Limerick division. You are talking about large cities and towns and counties under the control of one chief superintendent. That is the man in whom the power is vested. Not many other people have to exercise responsibility in a very major way in their normal work.
Deputies asked whether the Bill will reduce crime. If I did not think it would, I would not be bringing it in. There is another point which must be made in fairness to Deputies, to people outside the House and to myself. Every time I have spoken on this at any length I said I was not offering the Criminal Justice Bill as a panacea for our crime problems. I said other measures need to be taken. I said it was part of a package. I said we would have to do other things as well. On numerous occasions I outlined the other things which the Garda Commissioner is doing, which I am doing and which I intend to do in the future. I take that point and it does not have to be made any further.
There is no law which would be a cure-all for the crime situation. I am as concerned as anybody else about the effect on civil liberties of any powers the Garda might be given. I am also concerned about the way young people in certain parts of Dublin are being ravaged by drug-related crimes. I am concerned that many people, especially old people, are frightened in their homes. I am concerned that over the past number of months there has been an horrific series of murders of old people. I am concerned that people do not feel it is safe for them to go away for the weekend, because they cannot be sure there will be anything left in their house when they come back. I am concerned about people who will not take a summer holiday, because they think they have to stay in the house to protect their property. I am concerned about people especially in working class areas, who feel intimidated in their own homes by marauding gangs going through the streets. We all have concerns, but they can seem to be a little narrow at times. We should be concerned about the larger issues as well.
This power of detention is a moderate response to a request for a power which is absolutely essential to the Garda Síochána. The power which exists under the Offences Against the State Act is 24 hours plus 24 hours. That is not emergency legislation. It is part of our normal law. This is not emergency legislation either. It is the response of this House to the recommendations made to the Government on the serious situation which is facing us. I represent a constituency which is a city and has a rural area attached to it. There are more cities than one in this country. Not all the experience of urban Ireland comes from people within the areas between the canals.
In my experience the issue of law and order and of crime and the representations I get in my constituency come stronger from corporation estates than from middle class housing estates. It is the people in the corporation estates who are being intimidated by the criminals. It is those people who are pleading for action. I appreciate the concern of the House because the danger is that with such pressure for action one could go over the top completely. I can guarantee the House that there is no fear of that in my case. This represents a moderate response. I appreciate the submissions that have been made in the House and I defend the right of every Member to make the submissions they have made. They could go on for weeks at this if they wished and they are entitled to do that because this is where laws are made.
I have met most of the groups who have made submissions and the groups referred to in the House. I have discussed the contents of the Bill fully with them and I found that their approach in private was far more flexible than their position in public. Many of the amendments I introduced were discussed with those groups at length. We have gone a long way in this section.
Deputy Woods, in asking what was happening in regard to crime, quoted some figures. The increase in crime is going down, thank God. Three years ago it went up by 22.8 per cent; two years ago it went up by 9 per cent and this year by 4.8 per cent. The information from the Garda for the first quarter of this year is that it is going down again. That position is due to initiatives taken by successive Governments. Extra gardaí are on the streets and they are being deployed in a different manner. They are more effective now. The detection rates, especially for serious crime, are going up again. That does not mean that we do not need the provisions in the Bill. I have always advocated that the Bill is only part of the solution to the problem. We must act on behalf of the people who elected us and on behalf of the people who need the protection of the law. That is what we are doing in the Bill.
Frankly, I believe I dealt with the many other points raised earlier in the debate. If any Member feels I did not deal fairly with a point raised I will go back on it again. I believe the section has been teased out fully. It is clear what every word in the section means. As a Parliament we know how far we are going in the powers we are giving to the Garda under the section. We know the internal safeguards in the Bill. I know what is in the complaints procedure, and all Members will have an equal opportunity to discuss that line by line. The regulations being drafted to guide the Garda in their behaviour in the treatment of people in custody will not just apply to those in custody under the provisions of the Bill but also to those in custody under the Offences against the State Act and those in custody overnight until brought before the District Court the following morning. The regulations will apply to anybody who is in custody. Again, they are important and will have the force of law.
I am not trying to force a Bill through a reluctant House. I am aware that Members are as concerned about the crime position as I am. It is a question of getting the balance right and I believe we have got it right. We talk in terms of consensus but I believe there has been more consensus about this section among legislators here, and in the Seanad, than there has been about any major piece of legislation that went through either House for many years.
I should like to thank the Minister for clarifying some of the points raised. The Minister has been very skilful but somewhat selective in his response and cleverly omitted certain elements in his reply. One would want to watch carefully what he has said because he is skilful in the way he responds to a debate. One point I want to refer to was that raised by Deputy Kelly. It is clear in the Bill that Deputy Kelly's point in regard to the first six hours is right. For the second six hours there is no question of "reasonable grounds" on the part of a chief superintendent. That disturbed us. Subsection (3) (b) states:
An officer of the Garda Síochána not below the rank of chief superintendent may direct that a person detained pursuant to subsection (2) be detained for a further period not exceeding six hours if he is of opinion that such further detention is necessary for the proper investigation ...
We attempted to have the phrase "reasonable grounds" inserted — if the chief superintendent had reasonable grounds for believing — but the Minister was not prepared to accept that reasonable proposition.
(Limerick East): I missed that in my notes. I was developing the point that if we were to move from the chief superintendent to a superintendent for the second six-hour period, as was suggested, I would be prepared to consider the “reasonable grounds” as the requirement then. I will come back on Report Stage when I think about that again.
That is slightly different from what the Minister said earlier or, at least, it came across in a different way. Deputy Kelly was concerned to get the matter right. I suggested going back to a superintendent with "reasonable grounds" for practical reasons. I accept that if the Minister is talking about a chief superintendent he will have to tell the House that that officer will be a distance away and in practical circumstances the provision will have to state if he is "of the opinion" because it would not be easy for him to get close to the problem. It was for that reason that, as we have more superintendents, we suggested they should be given the power to decide in such cases but that their decision must be based on "reasonable grounds". I accept what the Minister has said about missing that point in his notes.
The Minister gave an example, and one that will have an appeal, on the question of drugs. He told the House that the Garda found themselves in an embarrassing position because through their Interpol activities they found large quantities of drugs, caught the person about whom they had a lot of information, got the confession but could not proceed with a charge and as a result finished up with egg on their faces in relation to the Europeans. I doubt if any Member would be even concerned about that position. In dealing with drug trafficking we are dealing with an extremely serious crime for which most Members want to see special powers introduced. However, the Act is broader than that. The Minister's amendment No. 2 stated:
In page 3, subsection (1), lines 31 to 35, to delete all words from and including "for which the sentence is fixed by law" to the end of the subsection and substitute "for which a person of full age and capacity and not previously convicted may, under or by virtue of any enactment, be punished by imprisonment for a term of five years or by a more severe penalty and to an attempt to commit any such offence.
That covers a broad range of offences and Deputies are concerned that it can apply to offences such as shoplifting. I accept that the Minister's statement about drugs and Interpol is great material for the newspapers tomorrow morning but our intention should be to deal with the Bill in detail here. Fianna Fáil have made it clear that they accept section 3 in principle. The Minister has given us an undertaking in regard to some of our amendments and we agree, reluctantly, that the powers seem to be necessary in the circumstances.
I should like to refer to a statement by Deputy De Rossa. I asked a question about the rate of increase in crime diminishing because I wanted the House to see the position in the proper perspective. The rate of increase in crime is diminishing at present, as the Minister has pointed out. I wanted the figures put into the debate earlier so that at least we would see the matter in its true perspective. The Minister has said that he agrees that the rate of increase — there are decreases in some areas — is due to other things which are being done. This is not really necessarily a panacea for all ills and it should be seen in that context so that we are not afraid to monitor it and deal with it in other ways subsequently.
On these grounds Deputy De Rossa said that he opposed the section, because in any event we have not an emergency crime situation and at least he feels that crime is not increasing at the rate at which it was. In response to that I would like to say that what concerns us is the unacceptable level of crime and the fact that it is still increasing from what is a grossly unacceptable level at present. The Minister has spelled this out by talking again about the old age pensioners, housebreaking, car stealing and so on. We are all familiar with this and that is why we are here about this business.
The unacceptable level of crime must be emphasised and to put it into some perspective we can look at the 1982 crime statistics. The 1982 crime report of the Garda Commissioner shows that the offences recorded in 1974 were 40,000, but the figure for 1982 is 97,000. Right away we are faced with the enormous increase in recorded crime. We know that the crime recorded is only a proportion of the total crime committed, as has become very obvious to us recently. I was amused to see in the Official Report of 11 May 1967, column 850, Volume 228, a question asked in the House about the Dublin Metropolitan Area. At that time for burglary, housebreaking, breaking into shops, attempted housebreaking and entering with intent, the number of offences known, which would be the recorded crime, was 2,640. The number detected was 1,863. These figures, which are for 1965-66, indicate an overall detection rate of 70.6 per cent. The figures given there are extremely low by comparison with the Garda Commissioner's report which gives 57,700 crimes reported in the Dublin Metropolitan Area. I could talk about Limerick, Cork, Galway or Waterford, where I suppose the situation is much the same; but we know that the Dublin position was 56.7 crimes per 1,000, more than double that of any other area and by far the highest in the country. Therefore, we see that we jumped from 1967 to 1974 and from 1974 we jumped enormously to the present situation. In 1981, as the Minister mentioned, the figure was 22 per cent, in 1982 it was 9.2 per cent and for 1983 it is 4.8 per cent; I would be interested if the Minister would tell us roughly when the 1983 figures are expected to be produced; I understand it is shortly. I believe that the present rate of increase is a little over 2 per cent. Therefore, things being done such as the increase in the number of gardaí and having more men on the beat are beginning to show effect and their influence would seem to be coming through very clearly in the statistics. The changes in deployment and administration and relating gardaí to areas which they know well are practical measures which have been suggested here by Members of the House and these measures are having effect where they are being applied. On that basis we must keep the measures we are talking about here in their true perspective.
Our reason for supporting this section and accepting it in principle is that we regard the present level of crime as unacceptable. Secondly, we accept the Garda view that the measures we are talking about — detention, in particular — will help them to overcome the present problems. We accept the view that they are putting forward very strongly. Sometimes we might not like the extent to which they might enter the political arena in putting forward these views; nevertheless we accept the basically held view they have in relation to this and essentially we have confidence in the work they are doing. For that reason we are prepared to go along with them on the question of detention. I would not be too concerned about what other countries are doing. It is interesting to see what they are doing and to have it for comparison. I have spent some time trying to get people out of other countries where they have been picked up and stashed away for maybe nine or ten months without ever coming to trial. I would not like to see such a situation occurring here. On investigation we will find that they have other arrangements where people are held in custody, which changes the situation around somewhat. We should look at what we have. We should try to preserve the crimeless society that we have had generally over the years. We have had a relatively low level of crime and we should try to get back to that situation and preserve it.
We agree with the section also on the grounds that it will include safeguards. The Minister has said that we want to see certain safeguards in the Bill and that he will put them in in regulations and that his complaints commission will come subsequently. We would rather see them here and now, but we accept his assurance in that respect. We have a three-to five-year trial period. We suggested consideration of from three to five years and the Minister may consider four years. We will see what happens there. He has left himself open in that respect. We accept the section only as part of a total approach and only on the grounds that the total approach continues. Here we are concened about community policing developing and being promoted, particularly within communities where there is a high level of crime. Also we want to see continuation of the programme of putting the police on the ground and appointing numbers of police. We know from what the Minister said earlier that by the end of this year it is intended to have only 11,400 — in other words, to go from 10,000 to 11,400 by the end of this year — when we want to see 12,000. We do not want to hear somebody perhaps at the financial end saying that we have these powers now and we can ease back on the other side. That is not acceptable. Certainly we do not want to see these powers used as a crutch or an alternative to good community police work and a good commitment of police in the community. We want to see provision of the resources the police need, the prisons, the modernisation and so on. We see this as part of a package and it is in that context we are supporting this section.
We say also to the Garda Commissioner that we are placing a trust in him, that we expect him to monitor and control the operation of this section and to take action where it is considered necessary. We would hope that detention beyond a six-hour period would be a rare occurrence and would be confined genuinely to cases of very serious crime, for which in the first instance it was sought, and to cases that are particularly intransigent and difficult.
Perhaps the Minister would give an undertaking to provide quarterly statistics within a month of the ending of a quarter as to the kinds of offences and the numbers of offences for which people were detained and to place that information before the House so that the situation could be monitored by the House regularly. I make this suggestion in the knowledge that the Garda authorities in present circumstances would be genuine in regard to monitoring this area. I accept also that the Minister would be genuine in saying that this is how he would like the section to operate, but invariably other pressures arise both for the Garda and for the Minister. Therefore, it would be valuable to have a regular monitoring system so that this House would be kept aware of developments in terms of the provisions. This would be in line with the spirit with which the Minister introduced the section.
In relation to the question of children within a certain group — say, under twelves — what are the present sanctions against children? There has been a good deal of questioning about the demand for parental control. Obviously we are all concerned about the way in which this section can have an impact on children. I should like to hear from the Minister on the matters of parental control and what he thinks could be done in that respect. Most of the points I have noted have been covered one way or another. I read in the newspapers recently that the head of the Drug Squad said that the number of drug offences seems to be decreasing. This may be due to the increased vigilance and manpower in that area, but again it tends to confirm the necessity for these other measures in conjunction with anything done by way of this section.
I support what has been said by Deputy Woods but there are a couple of technical points to which he did not advert and on which I should like clarification. I cannot find anything either in section 3 or in the Bill as a whole which contains any safeguard against a person being questioned for the entire period of his detention. It may be that because of a mental or physical defect or temporary illness a detainee may not be able to withstand questioning for the entire period of his detention or for any sustained period. The entire matter is to be left in the hands of the Garda. There is provision that questioning is to be suspended where the member in charge of the station is of the opinion that it should be suspended but that is not a safeguard.
I should like to hear from the Minister also on subsection (7) of this section. This provides that, where it appears to a member of the Garda that a detainee is in need of medical attention, the period during which the person is having that medical attention is to be excluded from the period for which he can be detained. An unscruplous garda could use that subsection to his own advantage. I am not trying to gain any political or debating point from this. It is something which concerns me, so I hope the Minister will take the remark at face value and will deal with it seriously when replying. It is a question that has been adverted to before.
Deputies Cosgrave and Flanagan were the main advocates of the line that the opposition to this Bill has been stirred up to a certain extent by a great deal of media hysteria on the part of vested interests. I cannot think of anything that could be further from the truth. Deputy Cosgrave posed the question as to how many people who signed petitions against the Bill have even read it. We could ask equally legitimately whether the Bill has been read by many of those people who are howling at public meetings and elsewhere for its implementation so that the crime problem might be solved. I wonder how many of those people have carried out any serious study of the causes of crime or of how the problem might be solved. I venture to say that only very few would have taken that trouble and that those who are very vociferous in calling for the implementation of the Bill are simply giving vent to a kind of primitive instinct to lash out indiscriminately in all directions.
The reality is that the socio-economic structure in which we find ourselves has given rise to a certain amount of deviation. While the socio-economic structure is changing we must contain the situation on the ground. Unfortunately, we cannot employ sufficient gardaí nor can we make available sufficient technical equipment to detect all those who are responsible for the deviation. When people are detected and brought before the courts the ultimate sanction is imprisonment. There are various stated reasons and motives for that penalty. It can have the objective of reforming the deviant or of punishing him or of putting him out of harm's way. However, some people are being released after ridiculously short periods of imprisonment. This is because of the lack of space in which to contain them. Therefore, the nub of the crime problem is that we do not have enough resources to detect all the perpetrators of crime and we do not have enough space in which to contain those who are apprehended and convicted. Only a very small part of the crime problem results from the situation in which people are walking free from the courts because of technicalities. Accordingly, this Bill will only solve a very small part of the crime problem. It is time the Government faced this whole problem realistically. Enacting bad law is not the way to deal with the situation.
While this party accept the principle of the section, we are concerned that it contains much that is bad. Many of the provisions are vague and imprecise, so much so that measures which are genuinely intended as safeguards are capable of being turned into something quite different. In some cases it will allow the Garda to arrogate to themselves even more draconian powers than the basic powers of the section. If we put through provisions that can be interpreted by the Garda in a way that is different from what is intended, we will be doing a bad day's work.
Will the Minister clarify the regulations he proposes to bring in concerning the care of persons in custody? Will a member of the Garda Síochána who brings in a person on the basis that he has reasonable suspicion but in fact does not have reasonable suspicion and abuses the powers under section 3, be obliged to record somewhere, contemporaneously with bringing the person in, his grounds for suspicion so that if the grounds prove to be non-existent or frivolous it will be possible for the detained person to have some means at his disposal to establish the basis of his complaint if he makes an appeal?
(Limerick East): Deputy Woods asked about having statistics available on a quarterly basis. Records of the number of people detained, the length of the detention and whether they are charged or released, will be kept. I have no objection in principle to doing what the Deputy suggests. I could not give a commitment that it would be done two weeks after the end of the quarter because of staff constraints.
I said a month.
(Limerick East): I cannot be precise in my commitment.
Will the Minister give a commitment on some time that seems reasonable?
(Limerick East): I am giving a commitment that I agree in principle with what the Deputy said. It is a question of getting the mechanism to do it in the best possible way. The Deputy also raised the question of sanctions. There is a section in the Children's Act, 1908, which provides that parents can be ordered to make good damages done by children. Fines can be imposed. In practice it is not used very much. I am not sure why. There have been difficulties with it, probably on constitutional grounds. The parents' constitutional rights would be infringed if they were made responsible for the wrongdoing of a child.
It seems to be spelled out so well in that Act that I was surprised it is not used at all. I wondered whether it was because of a constitutional difficulty.
(Limerick East): To my knowledge there has not been any case law which said so but there is reluctance to use it, possibly from a fear that it would be unconstitutional.
Deputy O'Dea asked if there were any provisions in the Bill which would mean a person could not be questioned for the entire 12 hours. It would not be necessary to have such a provision in the Bill. It goes back to the argument about the courts being in a position to decide that evidence is not admissible on the grounds that a detained person was treated oppressively. If a person was questioned for 12 hours continuously that would be oppressive treatment. There is case law to show where the courts have decided that people have been treated oppressively. The Ó Briain report recommended that a person should not be continuously questioned for more than four hours. That is now in the internal Garda regulations. I propose that the regulations will cover this point and that it will be spelled out clearly, as a matter of statutory regulation, that people will have to be allowed period of rest and periods for refreshment. There is no necessity to put it into the Bill but I take the Deputy's point. It would be outrageous to question somebody for 12 hours without breaks for rest and so on.
As regards subsection (7) and the abuse of medical attention, we discussed that previously. An amendment was put down and I said I would look at it again. The possibility of abuse would be very limited. There would be an objective test——
There is no objective test provided for in the subsection. It is where it appears to a member of the Garda.
(Limerick East): If somebody was not in need of medical attention the garda's opinion would have been wrong. The possibilities of abuse are limited since medical attention would have to be provided either by bringing a doctor to a station or taking the person to hospital. I will look at it again. It is my intention to close off any loopholes.
The Deputy also raised the point about people being released prematurely from prison. The position is better than it was. Over the last 12 months 400 more people have been detained in prison. The number was about 1,250 last year. It is averaging out now at 1,620 to 1,630. It changes from day to day. The fact that 400 people who were involved in crime have been taken out of circulation has had an effect on the crime statistics.
It is not correct to suggest that there is a reluctance on the part of the Government, or on any Government, to provide the Garda with adequate resources. They are well provided with resources. Somebody mentioned visiting the forensic laboratory and the level of equipment that is available. If someone was to make a speech on the inadequacies of the Garda in relation to crime, it would be very difficult to support an argument that the inadequacies were due to lack of resources. There are other inadequacies.
As regards Deputy Molony's point, the reasons why someone is arrested and a description of the crime will have to be recorded. If the Deputy has in mind that a prose passage will have to be written in great detail that would not be possible but I will examine the position to see what can be done. I take the Deputy's point.
The Minister made a point in relation to six hours and periods of rest. This is stopwatch legislation. Can you imagine gardaí, with the best will in the world, conforming rigidly to the timing in this legislation? The Minister said he will introduce a maximum period of four hours for questioning.
(Limerick East): The Deputy is misquoting me. What I said was existing Garda regulations have incorporated a recommendation in the Ó Briain report which states that a person should not be questioned for a continuous period of more than four hours. It will become a matter of statute when I bring in the regulations. To take the spirit of that recommendation, I am saying that people will have to have periodic periods of rest for refreshment and so on. The courts will decide what is oppressive.
During the course of the four hours?
(Limerick East): It could amount to that where the court thought it was oppressive to question a person for over four hours. We should leave the matter of what is oppressive treatment to the court and provide strong guidelines to the Garda in line with existing court decisions.
Having regard to the condition of some Garda stations and the type of refreshments available, could the Minister describe in detail what refreshments would be available to those individuals? Is it water or some form of revivement? I do not mean that with any disrespect to the Garda. One has to be very careful that one does not appear to be anti-Garda. I have always been careful to avoid that trap. I do not want anyone to lead Fianna Fáil into that danger zone.
Historians will adjudicate on how well we did this but we are doing it the best way we can. Personally, but subject to the rigid party system, I would rather that this was not in the Bill. Be that as it may, democracy demands that I subscribe to its retention in the Bill if my party so decide. In the meantime, the reality is the Minister has indicated that this section will help to reduce crime. I do not think that is a fact and I do not think the Minister can show this House, or prove to me in advance, that in some way the section will reduce crime. The Minister mentioned a number of other jurisdictions where this insidious form of section applies for different lengths of time, but can he tell the House how effective this type of detention has been in reducing crime in other jurisdictions? I am sure his civil servants will have this information at their fingertips and that the Minister can give the House a treatise on how effective this type of detention legislation was in those jurisdictions. This would help me make up my mind on the philosophy of the section about which I have the gravest doubts and reservations.
The Minister said there are a number of safeguards in this legislation and that he can assure us that these safeguards would be available in the event of certain problems arising. The fact that this section and the Bill as a totality are surrounded by so many safeguards indicates just how dangerous the Bill is. The Minister spoke about the safeguards, a review after five years, a complaints procedure which will be given statutory effect, and the regulations under the amendment he brought in. As regards the complaints procedure, will that come into effect after, before or during the course of the passage of the Bill? Will we have an opportunity to discuss the proposed complaints procedure legislation in advance of the Criminal Justice Bill being worked into law?
As the Minister said, we have an intelligent and very well educated Garda Force but, unfortunately, their preinduction course is not long enough having regard to the onerous work gardaí have to do in 1984. Many gardaí coming on the streets are not properly trained for their day-to-day work. That is not the fault of the Garda, that is our responsibility, and the responsibility of the Minister for Justice and his Department. If the Garda were given the proper technology, equipment and adequate manpower we would not be concerned with this legislation. These are some of the points I consider to be of concern. These are the views of an individual back-bencher with a concern for the type of legislation we are now dealing with.
The Minister speaks very effectively when he explains the purposes of section 3 but I do not know if he deals with them adequately. He talks about the 1951 edition of Sands in Evidence and he defines "reasonable suspicion". His definition is outlined in section 3 and he says that the legal interpretation of "reasonable suspicion" will be left to the judge as a matter of law; that is what judges are there for. Counsel and solicitors can only address the court on matters of law but it is for the judge to decide whether their interpretation is acceptable. In the meantime, will the Garda be given proper training so that they will understand what "reasonable suspicion" is as mentioned in this section?
This brings me to subsection (7) which was mentioned by Deputy O'Dea. I see a lot of stopwatch legislation here. I can imagine gardaí going around Garda stations with stopwatches to give effect to this section. Subsection (7) reads:
Where it appears to a member of the Garda Síochána that a person arrested in the circumstances mentioned in subsection (2) is in need of medical attention, or where during his detention it comes to notice that he is in need of such attention, and he is taken for that purpose to a hospital or other suitable place, the time before his arrival at the station or the time during which he is absent from the station, as the case may be, shall be excluded in reckoning a period of detention permitted by this section.
With respect, that is like injury time at the end of the match. This type of procedure is convoluted, confusing, difficult, hard to interpret, certainly hard to interpret and hard to operate. There is a huge number of pitfalls in this section as I see it and I genuinely do not want to be a party to section 3, but I am bound to be by virtue of the constraints placed on me. These are my concerns and I raise them in a constructive rather than destructive manner.
(Limerick East): I appreciate the spirit in which these points were raised. The first point dealt with the condition of Garda stations. As I pointed out, it is not the intention that people would be detained in small rural Garda stations. What we are talking about are three or four stations in a division, three or four large towns in a county and the larger stations in Dublin city. The question of meals being provided was also raised. This is in operation at the moment because there is power of detention under the Offences Against the State Act. What happens under that Act will happen under this legislation. Meals are brought in from outside from the local hotel or restaurant.
I would like to quote from the existing Garda regulations on the subject:
When a meal is given to a prisoner detained in a station (other than the Bridewell, D.M.A., where a special book is kept for the purpose by the Sergeant-in-charge of prisoners), the station sergeant or station orderly will record the fact in the Occurrence Book or Station Diary giving the time that such meal was supplied.
This is the relevant part.
The prisoner who so desires may have refreshment supplied at his own expense but intoxicating liquor should never be supplied ....
If the individual detained is not happy with the full ordinary meal supplied from outside, he can order his own meals from outside; they will be provided for him and he can pay for them. I do not envisage a problem in that. The problem has been there for a long period, since the 48-hour detention provision has existed.
There have been many complaints about the Offences Against the State Act and its powers of detention but I do not know of any case in which detainees complained about the quality of the meals or the inadequacy of food when they were detained. The question was asked whether detention will reduce crime. I believe it will. I know of people clearly guilty of serious crimes who have got away. We should not regard the power of detention as providing for periods of intense questioning followed by periods of rest, followed by periods of intense questioning.
One reason why somebody is detained is to allow fingerprints and photographs and handprints to be taken. Supposing somebody breaks into your house and steals whatever is valuable in it and the Garda take fingerprints, they have no way to match those fingerprints against those of people they suspect. If they suspect people they can arrest somebody on reasonable suspicion but they cannot take his fingerprints. If they charge him they can take his fingerprints under a power which I regard as being dubious. We are correcting that in the Bill. The Garda can fingerprint him after he has been charged. However, in order to charge somebody the Garda need a case against him. They could not charge somebody on a spuriousprima facie case so that they could just take his fingerprints. Under the power of detention there is also power to fingerprint, to palmprint, to photograph. Fingerprints cannot be matched quickly but the matching of photographs is different — the person concerned could be in a cell during the detention period while the photographs were being looked at. A person could be detained while the Garda were checking his story, so that witnesses could not be interfered with or so that an alibi could not be invented. Detention would not necessarily be a kind of third degree session of four hours, followed by a rest for an hour, followed by another four hours of questioning. It will not be like that. There will be periods of questioning.
The other reasons for this provision are equally strong and valid and they will be of help. This is not just a section which gives powers to the Garda to question so that they can get a confession. It also enables the Garda to get other evidence and to get at it more quickly. They can become involved in fingerprinting and photographing which will help in the detection of crime. The point has been made several times here that this is an attempt to increase the number of convictions on confessions alone. That is not so. There are many other points to this section.
Deputy Andrews asked when the complaints procedure will be out. It has gone to the Government. There are two things I cannot control — the length of the debate in this House, and I do not intend to control it, and I do not control things in the Seanad. I can exercise some control over what happens in my own office, but legislation is drafted in the Attorney General's office and the primary responsibility is there. The Complaints Bill is getting priority. As soon as it is drafted I will bring it in, it will be circulated to Deputies and we will have the Second Stage as quickly as we can. I do not want any delay.
Deputy O'Dea raised a point about medical attention. He asked if this could be abused. As I said earlier, an objective test is necessary. Somebody could be clearly in need of medical attention and this could be established clearly when the person arrived in a hospital. The other side of it is that the Garda might arrest somebody and supposing that person is visibly in need of medical attention and he is taken to hospital and held overnight in the hospital: if we did not have something like this in the Bill such persons would be immune from detention because they had spent a night in hospital. The following day they would have to be released and the Garda could not question them. That could be open to abuse. If the Bill were drafted in that way, the person with a minor injury, with a pain in his arm which might be a fracture, could be taken to the Garda station and held for the requisite period of questioning. The Garda would lose their power to detain and question if they gave him the medical attention necessary. I appreciate the difficulty Deputy O'Dea pointed out but I want him to appreciate the difficulty from the other end of it. I will look at this again and see if I can come up with something on it.
Deputy Andrews is able to make his own case but I think that what is in his mind, though he was too polite to say so, is the possibility of a disingenuous use of the section. The section might be used by a disingenuous policeman who would say, if he wanted to extend the use of his power: "You look as if you have a headache and we ought to have that headache which I suspect you have investigated". For some trivial cause, such a policeman might bundle the suspect into a hospital, adding an overnight stay there to the period of rest. That may be what is in Deputy Andrews' mind and perhaps the Minister should have regard to it when he is drafting his regulations. He should consider the possibility that the section may contain scope for disingenuous use.
If one excludes the disingenuous use of the section, the provision seems to be fair enough. If it were not there, suppose the honest policeman, trying to make honest use of the power in this section took into custody somebody who obviously needed attention medically and suppose the officer, in a case of very serious crime, found himself faced with the choice of humanely providing medical attention which might last the whole night or continuing with his investigation without bringing the arrested person to a hospital, and suppose the arrested person died or his condition deteriorated, what then would be said of the Minister and the powers he has given to himself?
Although the section is not watertight, Deputy Andrews was right to point out this possibility of excluding from this power, if we are creating it at all, the period during which necessary medical attention was given. This is not only reasonable but humane. That is only something suggested by Deputy Andrews in his last intervention.
The regulations which the Minister will make, and which will be subject to a positive decision of the House rather than a negative resolution, ought to have included — it could be included in the amended version of the section leaving it to the Minister to make regulations — the provision that any alteration of the regulations equally shall be subject to a positive resolution of the Oireachtas and therefore will not come into force until the Oireachtas has examined proposed alterations and approved of them.
I made this point briefly on the Fianna Fáil amendment. If the provision was otherwise there might be an interval between the making of the amended regulations and any chance the House might get to consider them, during which abuses might take place. The best way of avoiding that is to make amendment of the regulations equally subject to an affirmative resolution of the House.
The Minister has been very reasonable in his handling of the Bill; in fact, there have not been too many Ministers of Justice in my time who have been as open to sweet reason as has been our Minister. Since he is that anxious to lean over backwards to meet everyone's case and since he is obviously a reluctant promoter of the Bill, it might be no harm if he were to undertake in an informal way to conduct in his Department every six months a review of the way this or any other section will work. He might then seek the leave of the House to make a statement on how he has been advised the measure is operating. If he finds after a number of months that many people have been subjected to extended arrest and that very few charges have arisen out of it — Deputy De Rossa said in connection with section 30 of the Offences Against the State Act that only a small fraction of the people held for 24 or 48 hours are subsequently charged — I know the Minister will be man enough to say so to the House and to submit to the judgment of the House that perhaps the section is not providing the benefits promised for it.
My last point is something of which the Minister is probably well aware and, if so, I am sorry for troubling him with it. The expression "in accordance with law" in Article 40.4 of the Constitution does not, in fact, mean what it appears to mean. It does not mean that this House is at liberty to abridge personal liberty merely by enacting a statute. The older generation of judges up to the time of Chief Justice Ó Dálaigh used to think so but in the past 20 years that opinion has been dropped. I am sorry if I am saying all this to people who know all about it. The expression "except save in accordance with law" does not literally mean in accordance with statute law because certain higher principles have been imported by the courts into the interpretation of the constitutional sections so that any law that purports to abridge personal liberty must conform to fundamental principles of the kind which the Constitution contains. Most of them now seem to be latent rather than explicit. The courts now appear to retain for themselves the power of invalidating a statute that would conflict with personal liberty even though it may be in the black and white of an Act of these Houses if it conflicts with what the courts apprehend should be the law in the light of constitutional values about personal dignity, fair play, procedures and so on.
For anyone to whom all of this is unfamiliar, let me give the instance of bail. The law with regard to bail is not statute law. The old understanding of the law on bail was shot down by the Supreme Court 18 years ago in O'Callaghan's case and the criteria on which bail can be refused have been much narrower than they were once. This fact is something which the Garda are inclined to blame for the rise in crime on the grounds that people out on bail feel they might as well be hanged for a sheep as a lamb and they go on and commit other crimes. I know the Minister in this Bill is proposing to do something about that by another route. All I mean by mentioning bail is to say that even had the Oireachtas in the immediate wake of O'Callaghan's case purported to draw up a catalogue of bail criteria that would more or less have re-established the pre-O'Callaghan set of criteria, the High Court or the Supreme Court could still have said that those criteria do not correspond with their understanding of what a free democratic country with a set of constitutional values as we have is all about. The courts could say that even though the Oireachtas had gone through the motions of enacting these bail criteria into statute form they are still no good and they could declare them invalid. The mere incorporation of these rules in Bill form will not necessarily save them.
My view is that the House is probably within Article 40 in enacting this legislation. On balance and given the kind of world in which we live, these do not seem to be unreasonable encroachments on personal liberty and on balance the Minister is well within his constitutional duties in promoting it here. However, the mere fact that it will leave this House in the form of an Act will not protect it subsequently from challenge.
The main point remains to be debated, namely, whether detention as proposed in this section will have the benefits which it is alleged it will have. In reply to Deputy David Andrews, the Minister said he believed it will have an effect on the levels of crime but he has not presented to us the grounds on which that belief is based. I raised this matter in my contribution earlier and Deputy Woods sought to give a summary of my position on this section and on the Bill. He went half-way but not the whole way.
No one is arguing that the level of crime is acceptable. What we are arguing is that this section will not have any real effect on the levels of crime or on the level of convictions. The Garda, the Minister and Deputies who are in favour of this section have said they believe there is an emergency and that this Bill must be brought in because we must be seen to act on the problem of crime. However, not one of them who supports this section dealing with detention, whether with reservations or without them, has presented any evidence that detention will affect materially either the detection rate of the Garda, the conviction rate or the level of crime.
Earlier I referred to an article written by a superintendent Tom O'Reilly of Store Street Garda Station who carried out some research into the levels of crime in Ireland, England, Wales, New Zealand and the United States. In his introduction to that article in the December issue of theGarda Review he said:
Much of public debate on crime, criminals and what should be done about them is characterised by certain assumptions that might be called the "everybody knows" syndrome. "Everybody knows" that Ireland is experiencing a crime wave. "Everybody knows" that Dublin is a crimeridden city. "Everybody knows" that it is not safe to walk the streets at night. But nobody really knows how bad the situation really is. The question is are we any worse than everybody else. Or are we better? How valid are our perceptions of our level of crime on an international basis? The same people who decry the dangerous state of the principal streets of our capital city will blithely saunter through the principal and not so principal streets, of London, Paris or New York without batting an eyelid.
That is a statement from a superintendent in an inner city area of Dublin. Not the inner city area, but the Dublin metropolitan area accounts for more than 50 per cent of the crime which is perpetrated in this State. He goes through a comparison of crime levels of various kinds here and in other countries and his conclusion in
January 1984 from these comparisons is that we have a low rate of crime against the person as measured by criminal homicide and rape. Even taking into account differences in definitions which still exist and differences in reporting and recording facts which also may exist, we do not appear to be as violent towards one another as others are. New Zealanders have considerably less respect for their neighbour's person than the Irish, not to speak of the Americans and the British.
I would recommend the Deputy to read the article. New Zealand is less densely populated and because of that one would expect that there would not be the same level of crime. I do not propose to read the whole article but anybody who is really interested should read the article. That comes from somebody who is, as Deputy L. Cosgrave said, being manipulated in these things. I should point out that the superintendent is talking about levels of crime specifically. This perception that crime is as bad as it is or worse than it is in other countries does not bear scrutiny. We have had headlines in our newspapers stating that crime is worse here or as bad as it is in New York. The actual statistical fact is that it is not. In terms of homicide the United States is twice as bad as it is here.
We should therefore be debating this particular section from the point of view of objective criteria and the effect this section will have on the levels of crime in our society. Nobody so far has argued on that basis. That is one of the reasons why I am opposing this particular section. It is introduced, at best I suppose, as a hope that it will do something. It is brought in as a reaction to the plea that something must be done and that politicians must be seen to do something.
There are far better things we could do in relation to crime. I would refer Deputies to the prisons report which indicates that a very high proportion of our prison population is composed of people convicted in some cases as frequently as 20 times. At least 65 per cent of our juvenile prison population have been convicted at least once and in the case of the adult prison population 60 per cent have been in prison at least once. Clearly there is something wrong with a system of justice which simply regurgitates through its closed circles of arresting, detaining, charging, bringing before the courts, putting into prison, out in six months, 12 months, two years, through the whole process all over again. No attempt is being made to address that aspect of crime and effectively what we are proposing here in regard to this detention is to try to squeeze more people through that system without making any attempt to come to terms with what is exactly at stake.
With regard to the Minister's belief that this section will affect the levels of crime and that there are people walking the streets who could have been convicted had the Garda power to detain, he gave one example in regard to drugs. In the 1982 Garda Síochána report 18 murders are listed and all of those more or less outside of the Dublin metropolitan area were detected. Three were detected in the Dublin metropolitan area. I would like the Minister to give us some firm evidence that the reason why those three murders were not detected was that the Garda did not have the power to detain the particular culprits or suspects. If he does not do that we are just arguing in circles here. The period of detention is too long. There are not enough safeguards and so forth.
We have not got down to debating what effect, if any, this power to detain and to question will have on the levels of crime. I referred this morning to the only piece of research I have been able to come across which sought to establish whether or not detention and questioning would have any effect on the levels of crime. It is the journal of the Institute of Public Administration, volume 31, No. 4. On page 43, in relation to interrogation, they say that the evidence from research in Britain and the United States does not support the importance which the police give to the role of interrogation in the detection of crime and the role of confession in subsequent court cases. I shall not read the whole article but there is real scholarly work there which indicates this is not an open and shut case. There are arguments against detention being an effective deterrent or an effective weapon against rising crime rates. I would appeal to Deputies to address themselves to the question whether or not detention will have any effect whatsoever, even the most marginal effect, on the levels of crime.
We are all interested in reducing crime and those of us who visited the detective bureau last Monday realise the facilities available to the Garda. Fingerprints can be checked, and it can also be checked whether the person has used a firearm. With the power to fingerprint, the Garda will be able to match up fingerprints, or fail to do so, as the case may be of a person who is detained with the fingerprint staff at the scene of the crime. In relation to firearms they can take swabs, hair, etc, which will prove whether a person used a firearm and which will be of great assistance in helping to curtail crime.
The Minister said earlier that some people feel that this detention might be oppressive to some people in the community, especially the lower income group. However, the Minister was correct in saying there is a demand for this legislation. When I spoke on Second Stage I gave an example of a woman who had been burgled in a corporation flat not a hundred yards from this House. When she returned from bringing her child to school her hall door was open and her small pieces of jewellery, including her engagement ring, which meant most to her, were stolen. That girl came to see me and she was very depressed. It is far more serious to commit crime against the less well off than committing it against those who are very well off and able to insure against such an occurrence. Therefore, detention will protect the interests of the lower income group.
The purpose of this section is to detain people who are suspected of committing a crime. The Minister has spoken at length about safeguards and the complaints procedure. He has satisfied most people in the House in this regard although I have one doubt to which Deputy Kelly had a solution. While I agree that people who are suspected of committing a crime should be detained, I should not like to see the Garda using this Bill as a means of harassment against innocent people. People who were detained should be monitored and, if a hundred people were detained, and only three were charged, the Bill is not being carried out in the spirit in which it was enacted in Dáil Éireann. That is the only doubt I have and perhaps the Minister would comment.
Deputy Doyle made a good point but it returns to my original proposition that there is a question mark after this section and my worry in regard to its general operability. If I were to answer the question posed by Deputy De Rossa I would say that marginally there is a need for this legislation — but only marginally. As the last speaker said, there is not so much a demand for this legislation as a demand, especially in the city and county of Dublin, for a method of dealing with increasing crime and vandalism, break-ins, burglaries, assaults, larcenies, robberies and so on. These are matters which need to be dealt with and this section will not deal with them effectively. We have equipment and technology and well educated men and women but there are not enough of them. We need more gardaí on the beat, which would deter potential criminals and housebreakers. House-breaking has become one of the most endemic of all crimes and is a very serious problem in County Dublin. I know of instances where people have been broken into on six, seven or eight different occasions. This is an appalling situation. The victims go to the local Garda station to report the crime and, of course, the local Garda station co-operate as they always do and always have done. Nevertheless, they are not at the scene of the crime and, consequently, the burglar makes off with his loot and sells it. Then there is an insurance claim, the merry-go-round continues and the problem is not solved. Deputy Doyle made a very valid point and I am not critical of him for doing so but I do not think there is a demand for this legislation. There is a demand for curing the crime problem, 1984 style.
(Limerick East): Deputy Kelly raised a number of points about medical treatment and the possibility of the Garda being in a position to abuse the section by insisting that people who required medical treatment should be taken to hospital rather than to Garda stations. What would be the purpose of this? If the Garda take someone to a hospital they cannot question them there and I cannot see what the purpose of that would be. The point was raised previously by other Deputies also and I said I would look at it. Deputy Kelly said we should review it every six months and we have passed an amendment that will require this House in four or five years' time to monitor the legislation or re-enact it. Obviously it will have to be monitored Departmentally to see how it is going and that will have to work right through. I do not think it is practical to come in here every six months and make a statement on it. The operation of the Bill will be monitored and statistics kept because it is important that the information should be available to the House on the basis of a Dáil question. If the Minister is asked to make a statement he should be in a position to give information on how the detention powers are operating.
Deputy Kelly also spoke about the constitutional implications of "save in accordance with law" and I fully agree with what he said. I feel confident that there will not be a successful constitutional challenge to the Bill because the Offences Against the State Act has given powers of 24 hours plus 24 hours with far less safeguards than we are proposing here. Even though people say that that is emergency legislation it is part of our law like any other statute and is subject to the same challenges. If that can stand up with a 48-hour period of detention we are very safe in assuming that a 12-hour period of detention with a particular arrangement between midnight and 8 a.m. will stand up also.
Does the Offences Against the State Act deal with a different type of criminal?
(Limerick East): That is a restrictive interpretation. Deputy De Rossa asked if detention powers would reduce crime. He asked if there was a demand for it and why we are introducing it. I have already quoted one case and I will now quote a fairly recent case. A suspect was brought to a station at 11.30 p.m. on suspicion of murdering a girl who was an employee of a Dublin hotel. It was a pretty brutal murder. He was questioned and after approximately four hours he made an incriminating statement. At his trial a question arose as to whether he was in lawful custody. The jury could not agree and there had to be a second trial. At the second trial it was found that the evidence was admissible. He was clearly guilty. The first trial collapsed. The jury could not agree. The question was could the evidence be admitted, evidence obtained after four hours in detention. It hinged on whether he was in lawful custody. That kind of case brings the law into disrepute. Nothing angers the public more than for somebody who is clearly guilty to get off on a technicality.
Deputy Andrews raised the same point when he talked about house-breaking being endemic in certain parts of the country. Of course it is, and people are annoyed about that as well. Take the situation of the Garda at the moment. Your house is broken into in south County Dublin, or wherever else, and what you consider to be valuables are stolen. It is broken into another five times in the next two years. How are the Garda to proceed unless there were witnesses to the break in? What are they to do? They take your complaints. People say the Garda should not rely on questioning and so on, that they should get out the magnifying glass and do the Agatha Christie bit.
Analyse the cigar ash.
(Limerick East): The practicalities are that they have not got the power to fingerprint people they suspect. They can take fingerprints from the house and there might be fingerprints over the house. They might be the same fingerprints because, contrary to the general belief, I do not think we have an enormous number of criminals here. We have very active criminals who keep committing crimes.
We have amateur criminals.
(Limerick East): The detention section here will enable the Garda to question people about whom they have reasonable suspicion. It will also enable them to photograph and fingerprint them. It will enable them to cross-check their stories. It gives them the kind of power other police forces have. It will help in the house-breaking area.
Deputy De Rossa talked about people going back into prison time after time having been convicted again. This is the problem of recidivism. Of course we have that problem. I do not argue with his statistics. They are no worse than they are in any of the neighbouring jurisdictions. This is a problem which goes right through western Europe and North America. The same people go back to prison. If we look at the District Courts where young people are dealt with under the Probation Act we find that the same young people have been dealt with under the Probation Act five, six or seven times and have never been committed to custody. When they get older they end up in St. Patrick's and when they graduate from there they end up in Mountjoy. Of course this is a problem, and of course we must attempt to rehabilitate as well as contain and remove them from circulation. There is a major problem there which has not been solved elsewhere.
Deputy Doyle talked about monitoring the Bill and said he would not like the Bill to be used by the Garda to harass the public. When we come down to it, that is the fear in most people's minds. That is what Deputies are most worried about. That is why I have accepted the idea Deputy Kelly suggested in the first instance that there should be a time limit on the powers which people are doubtful about in this Bill. Probably four years will be appropriate on Report Stage. So that we will be in a position to make a valid decision after four years the statistics will have to be kept and we will have to monitor it as it goes along.
There is nothing in the amendment to prevent me or any of my successors from coming in here before the four years are up and changing the law if the thing is not working. I take the Deputy's point. It has to be monitored. What we are doing is serious and it must be monitored.
Even though it bears on several sections other than the one we are talking about would you allow me, Sir, to say something briefly in response to an interesting point Deputy De Rossa made. He spoke about the futility of a section of this kind which will contribute to the pattern which he can see in our society whereby the same people, as he very graphically put it, were regurgitated time after time in the criminal courts and the prisons. What he said is perfectly true.
As the Minister very fairly admitted, recidivism is a problem which no one has got the better of in this country or in any other country. We might go further than that and admit frankly to Deputy De Rossa, or anybody else who is worried about this, that the whole criminal and punitive process is a very blunt and primitive instrument. Most of us do not know how to use it. We are not sure we are using it in the right way on the right people and that we are getting the right results.
The whole purpose of long periods of imprisonment, which are not really an effective deterrent and do not really rehabilitate anyone, and only imperfectly convey a sense of satisfied vengeance to the injured public, is very problematic. It is quite likely that everything Deputy De Rossa said about it is true. In the field of social control it is comparable to some primitive medical treatment which was given in an age when perceptions were not so good of this or that complaint. For example, in the 17th or 18th century high blood pressure used to be treated by letting off a lot of blood. In a crude way it worked, or it might kill you. Inasmuch as the through-put of blood in the arteries was reduced, it relieved apoplexy or the threat of it. It was a crude hit and miss way of dealing with a common complaint. Nowadays I suppose the causes of it are not yet properly understood, but there are more subtle, effective and direct ways of controlling it.
The criminal process and the whole penal system have not yet reached that point. To persist in that simile, we are still at the blood-letting leech application stage of treatment of the whole phenomenon of crime. I want to put this to Deputy De Rossa. I do not want to belittle what he said because I have often said it myself. It is easy to belittle what is done and ask what is the point in this smug, fat society keeping a lot of stinking prisons regurgitating the same ignorant people time after time. That is easily said.
I remember going to Mountjoy with a class of students 17 or 18 years ago and finding, in those days before the IRA were heard of and before the North exploded, at a time when this House should have been worrying more about what was coming up and what was approaching in the North, that Mountjoy was half empty. There were whole wings with no occupants. I remember the very high number of prisoners on whose doors a symbol was written conveying that they were illiterate, that they were not able to read or write.
A very high proportion of that prison population, small though it was, was confined in the prison hospital for psychiatric reasons. I am not an expert on this. Far from it. It is true that many people are either genetically, or environmentally, or because of a poor upbringing, virtually inevitably destined to spend a great deal of their lives, if not most of their lives, being regurgitated through the criminal process. We do not know how to cure this. I do not know whether Deputy De Rossa knows how to cure it.
It is easily said that, if you improve social conditions, you will cut away at the roots of crime. Undoubtedly you will cut away at the roots of a great deal of it, but you will not cut away the roots of the bulk of it. Some people by genetic nature, or by the disposition which their environment or their bad upbringing has concretised on them have anti-social natures by the time they become adults. Some people are protected by relative prosperity from the consequences of having that nature show through. When I see traffic offenders or people doing anti-social things I sometimes think: "There is a man with criminal instincts which were it not for the fact that he is in a position in life and society or otherwise which guards him against the temptation to steal or to embezzle, would land him in prison, if not worse". All those things come to mind. Is one to sterilise somebody about whom one could make a 70 per cent prediction that they are genetically going to end up criminals? Is one to lock them up as a preventive measure merely because their upbringing is such that a criminologist can predict with 80 per cent certainty that they will end up criminals? It is easy to criticise what the Minister is trying to do if one is on the Opposition side of the House or on Deputy De Rossa's side, if his side gets in?
Will this section cure it?
This section — I had better not apply descriptions to it — is part of a process which we know is a blunt instrument, a primitive and inexact one. We know that and we make no greater claims for it than that. The people who can criticise it — I am not belittling what the Deputy has said — are not very forthcoming when asked how they would deal with crime. I have to observe — I am not trying to sneer at Deputy De Rossa's politics when I say this — that in countries which have a different economic or political ideology from our own they are by no means tolerant of crime. They are by no means inclined to send people to health farms or to luxurious rehabilitation clinics if they commit murder or throw bombs into crowded restaurants. If I were found guilty of a crime of violence, of vandalism or savagery I would rather be dealt with by an Irish court than by one 700 or 800 miles to the East.
The Minister made reference to the question of the necessity of ensuring that people do not get off. Of course I subscribe to that entirely. It is very important to ensure that guilty people do not get off. That is one side of the coin. The fears of many of the Deputies, including myself, who spoke with some reservation on the provisions of this section are directed to the end of ensuring that innocent people perhaps do not get detained. That is a matter that requires the attention and direction of the Deputies in like manner. The points made by Deputy Kelly I do not think are directed towards that particular matter. One has to ask oneself: what would be the motivating factor when a guard forms an opinion that he has a suspicion that a person has committed an offence and he proceeds to detain that person? What will be the basis of that suspicion? Could it be perhaps that he believes that a person living on a particular road has committed an offence? It may be a cul-de-sac with six houses and an absconding criminal may have disappeared in the direction of that cul-de-sac. The guard would have a reasonable suspicion that somebody from one of those six houses had committed an offence. Might he under this section pull in the lot and subject them to questioning? Would that be an appropriate line of conduct for a guard to adopt? It may well produce a guilty party, but at what cost? At the cost of at least five or ten innocent people being pulled in. They are the sort of reservations one has about this.
To say that the measure is needed because at present a suspect cannot be fingerprinted or photographed may or may not be right, but it seems to me that if the House decided there was a necessity that a suspected person be fingerprinted it would be far less discomodious to a person under suspicion to be fingerprinted than to be detained. He could give his fingerprints and go home straight away. If he had to have the choice of being photographed or being detained he could quite happily be photographed and go home. If all that was required was a need to obtain a fingerprint or a photograph — I am not saying that I advocate that — that is a far cry from detaining perhaps for hours what is at this stage an innocent person. Why is a measure not introduced authorising fingerprinting or photographing if that is the object of the exercise?
To bring in as an analogy the question of the Offences Against the State Act and to state that because detention is permitted under that Act, and that that is a precedent which warrants a broad sweep covering the extent in this Bill, does not hold water because the Offences Against the State Act is clearly directed towards a very exceptional and specialised kind of situation. The introduction to the Offences Against the State Act describes it as an Act to make provision in relation to activities and conduct calculated to undermine public order and the authority of the State. That is a very specialised situation and by no means encompasses the broad sweep of the field of the criminal law that would be covered by the measures in the Bill before us.
The kind of situation we are talking about was considered in the UK and the EnglishLaw Society Gazette published an article on 14 December 1983 making the following comment:
To detain people without charge just in order to go on questioning them effectively destroys their right to silence. What value can there be in a confession obtained after hours of questioning? There should be a presumption that evidence obtained in this way is tainted.
They are some of the legitimate fears that we have. By means of the provisions in the section we are setting about overturning the entire concept of what has been our criminal law for centuries. I have a doubt as to whether it will alter anything very much in the field of bringing guilty people to justice. It could cause quite serious harassment to many people many of whom may not deserve it. That being so I have reservations about the broad principle involved here. I have to question the need for this. It is the function of the Garda to investigate crime. "What are they to do?" asks the Minister. Their job is to find the evidence, as they have always done, and when they have sufficient evidence to warrant an arrest to make that arrest. The implication here is that it is all right on suspicion to pull in a person and question him for many hours, the idea being that questioning will cause the person to break, produce a confession, and to secure a conviction in that way. A person may and is entitled to refuse to be questioned. No penalty is involved for refusing to answer questions. Therefore, if that is made clear and that basic human right is made known to a person pulled in in that way, how can prolonged questioning of this nature, unless it is done against the person's will by misleading that person or whatever, change anything in the investigation of crime? These are some questions that leave me unhappy about this section.
I want to make a couple of points in relation to what the Minister said. During detention if a person is no longer suspected of a crime there is an obligation on the Garda to release him or her immediately. Adding to what Deputy Andrews said about what was a stopwatch form of detention, how can we ensure that that would happen, that the person would be released immediately? Given that we know the situation that pertains in Garda stations, hospital waiting rooms and casualty wards all over the country, what does not happen very often is that anybody is released quickly from any of these places. It is not likely that the primary concern in the circumstances we are discussing will be the welfare of the person detained and that someone will run in and release that person immediately.
The Minister referred to the urban part of his constituency which, I accept, gives some reason for comparing it with what we experience here in Dublin. I do not think that the two can be compared equally, given that South Hill has about 1,300 houses maximum and we are dealing with estates of 6,000 houses here in the city with a concentration of population numbering over one million. That is a very big difference. Therefore, the experience of Dublin Deputies on the ground would be more relevant when talking about legislation of this nature. I was a little disturbed by the fact that the Minister said that of the list of people, associations and organisations I mentioned which numbered in excess of 12, the approaches made to him by those people in private was different from the public stance they had taken. That upsets me a little. I find it hard to believe that those bodies and associations are writing to all of the Deputies in this House and making certain comments on the Bill and do not really believe in those comments and when they go into private session with the Minister they say: "We are not really pushing this too hard, this is what we really believe". That is serious, and I will not be satisfied until I find out the truth behind it. It is misrepresenting a very large section of the contribution I made earlier this afternoon.
It is disappointing to see Deputy Kelly's generous suggestion about the review of section 3 every six months or so rejected out of hand when everybody is so terribly concerned with the bringing into force of this Bill and it will remain so for at least four years. It seems a very reasonable suggestion that would be accepted on all sides of the House and I cannot see any reason for its rejection. I was startled by what Deputy Kelly said about Deputy De Rossa's contribution, that the challenge was being thrown back. What is the cure for the situation? If the people regurgitated through the prison system happen to be the illiterate, ignorant and deprived of the community, because we have not the answer to it we say this legislation will suffice and it is right to put it through. I am altogether appalled by that statement. Will this action cure it? As has been said, it is deeds and not needs that are needed to help the poor.
In response to the Minister's second example which he gave after the first was not accepted by the Members here, I say that exceptions make bad law. We should not be legislating for the exceptional case. As Deputy Taylor pointed out, it is the innocent people whom we are concerned about and innocent people are too readily and too easily brought into this net, albeit in an innocent manner in the illustration that Deputy Taylor has just given. That can be expandedad nauseam. It must be said for the umpteenth time that we are not very interested in what people in other countries are doing or whether what is happening in other countries should happen here and I support what Deputy Woods has said on that. We are talking about an Irish situation. It is not too long since we had a relatively crime-free society and it is encouraging that there is a decrease on the increase in crime. We are coming down to not acceptable levels but a normal situation, and it is working. Some of the things that the Minister said in relation to the facilities the Garda have, the forensic science laboratories which we as members of the crime committee have seen, and so on are working to bring down the increase in the crime rate.
The longer this debate goes on and the more we talk about these things the more it is becoming obvious that this measure will not solve the problem. It is not even needed. We should be prepared to give this a chance, but for some reason which is puzzling me we are trying to rush this through the House without even getting the approval of the people outside and letting them know what we are trying to do. We are resisting the monitoring of it over shorter periods of time and we are trying to get it to four or five years. The danger is that this will be passed by a majority of whatever party happen to be in power when ever it comes up again.
We have been debating this section for a very long time and it is not fair to say that it is being rushed through the House. I have had reservations about this section which I have expressed and anybody who has had an inclination to do so has been given an opportunity to express reservations. This is section 3 of a Bill of 31 sections and we have given a great deal of time to it. One of the problems is the manner in which we are going through the debate on one day a week, to some extent taking up on the arguments where we left off last week.
It is good to see a decrease in the increase in the rate of crime, particularly in places like Limerick where there is a reversal in the crime rate, which is a good indication. However, other areas still have a serious problem. Whereas we want to deal with that problem by better Garda management and deployment and better legislation, we want to be sure also that legislation going through is necessary and adequate and not more than necessary and adequate. We have had a very long, good debate and I propose that we put the question, unless anybody else is offering to contribute.
The question is that section 3, as amended, stand part of the Bill.
To conclude on this section, first of all we have had some further statements from Deputy De Rossa about the level of crime and he quoted Superintendent Tom O'Reilly. It is important to bear in mind that Superintendent O'Reilly is in the highest crime district in the city. He was making his proposal so that we would keep our position in perspective rather than suggesting that we did not have a serious problem. The position remains that we accept in principle the provisions of this section. We regard the present level of crime as unacceptable. Nationally the crime level is increasing though as we have pointed out the rate of increase has been reducing substantially since 1981. For that reason we are anxious that this measure would be seen only as contributing to a whole series of actions we must take. We accept the assurances of the Minister in regard to bringing in appropriate safeguards at a later stage.
In response to Deputy Woods, I did not imply or indicate in any way that the level of crime was acceptable but I ask the Deputy as I asked every other Deputy here who is supporting the section to produce evidence that the section will materially affect the level of crime. Deputy Woods has not put forward any such evidence. Neither has the Minister produced a case to prove that the lack of power on the part of the Garda in respect of detaining for questioning is resulting in persons walking the streets whom they believe to be guilty of serious crime. The Minister did produce a case of a murder in which a conviction was achieved.
On the last occasion on which I contributed I gave statistics which I have found since to have been wrong. I was relying on memory on that occasion. The statistics are on page 18 of the 1982 report on crime. They reveal that for that year the number of murders in the State was 24 and that the number detected was 18. These statistics reveal also that all of the murders committed outside the Dublin Metropolitan Area were detected. There were 12 of those but of the 12 committed in the Dublin Metropolitan Area six were detected. I appreciate that the Minister may not have the information to hand but in a debate such as this where it is being claimed that the hands of the Garda are tied because they do not have adequate powers of detention, we should have that kind of evidence before us to help us assess whether the case is valid. Perhaps some of the six murders which up to the publication of the 1982 report had not been detected have since been detected. I do not know but if there are walking the streets of this city or elsewhere people who are guilty of those murders, whom the Garda are convinced committed the crimes and in respect of whom cases could be brought successfully in the courts if in the first instance they could be taken to a Garda station and questioned for 12 hours, we are entitled to have that information before us. The problem is that we have not been presented with any such information in the course of this debate.
I am under the same pressure as are other Deputies in relation to the level of vandalism, of cars being stolen and so on but I have argued in my constituency that detention is not the answer. A high proportion of indictable crimes are crimes of burglary and larceny and generally they take place when there is no one around. We have not had any serious debate about the effectiveness of detention. Because I am convinced, on the basis of the study I have done into this matter, that detention is not the answer, Deputy Kelly says I must produce the answer to crime. I do not accept that it is my problem to produce an alternative to what the Minister is proposing but during the two years I have been here I have put forward various arguments relating to social and economic conditions. If these social and economic conditions were tackled properly by the Government of the day there would be a definite effect on crime levels.
The former general secretary of the Association of Garda Sergeants and Inspectors by way of an introduction to the document,Community Policing, indicated it was his belief that reactive legislation to crime, legislation on the basis simply that we must be seen to be doing something legislatively in this area, was no longer adequate. He argued very strongly that the most effective way of beating crime is to bring about a good relationship between the Garda and the community. He is borne out in that view by other people who have studied the question of crime. Therefore, I am still at a loss to know why no Deputy who supports this section has brought in any evidence to indicate it will have the effect its supporters are claiming, that is, that it will reduce the level of crime or increase the conviction rate. When one considers that the conviction rate in the courts is at the level of 80 per cent one must ask what possible effect this section can have on conviction rates.
A number of Deputies have expressed their appreciation of the Minister's offering to reconsider the various sections on Report Stage. He has promised to bring forward various amendments for that Stage. However, I am suspicious of the willingness of the Minister in this matter. I am suspicious that he is attempting to have the section put through by hook or by crook and that even if he must give a little here or there, he will have the section at the end of the day with the right to detain persons for six hours followed by a further six hours and in certain circumstances for up to 20 hours. This is despite the fact that the legislation relating to a complaints tribunal has not been produced yet and that we have not seen either the regulations which the Minister said would be brought in to ensure that the section is implemented properly and is not abused. In addition, we have not seen yet the Bill relating to children under seven. The Minister is to bring in an amendment which will restrict it to 12 year old children. This means that a child whose twelfth birthday was yesterday could be arrested today but if his birthday was not until tomorrow he could not be. How does a 12 year old differ from an 11 year old, a 13 year old, 14 year old or 15 year old? At present they are treated by the courts as children and are not supposed to be detained or sent to prison. If the Minister brings in such an amendment, as I am sure he will, all these sections will apply to children over 12 years of age. We all know there are mature 13 or 14 year olds but they are by far in the minority. The vast majority of children I come across are not mature enough to be brought to Garda stations and held for long periods for questioning, fingerprinting and photographing. I am not satisfied that the Minister's amendment is adequate in relation to detention or that the case for detention has been proved. In fact, it has not even been debated.
When crime increases in society pressure is built up among sections of the public and among the law enforcement officers for an extension of the armoury at their command to enable them to deal with it. That is understandable, but it can be taken to unacceptable lengths. It could be that, if the law permitted all suspects to be detained for long periods and if there were other draconian measures, the crime figures would be reduced. Be that as it may, one has to try to strike a balance between the pressures that build up and the liberty of the individual. The liberty of the individual is something which we, in common with other western countries, cherish very strongly. This proposal is an infringement of that liberty.
Detention for 12 hours is a serious punishment to impose on a person. We are all aware that, on conviction for moderately serious crimes, frequently courts apply the Probation Act, impose a fine of £10, £20 or £100 and bind the convicted person to keep the peace. A penalty of detention for 12 hours is a serious one, particularly when in many cases, as the section confirms, the person will turn out to be completely innocent. The best way to contemplate that is to imagine yourself in that position and being caught up in something in which you were completely innocent. For one reason or another a member of the Garda Síochána casts suspicion on you and, despite your protestations, you are taken off to a Garda station, interrogated and deprived of your liberty for a period of perhaps 12 hours. At the end of the day they say "Thank you very much" and let you go. That would not be easy to accept.
If the Minister thinks there should be some increase in the armoury of the Garda, would it not meet his needs and those of the Garda if a person was fingerprinted and photographed? I am not saying I agree with that but would it not be a major increase in their armoury on its own without imprisoning a person for 12 hours? Let us call a spade a spade. What do we mean by detention? It means a person is imprisoned. He is locked up and cannot do what he wants to do. Could the Minister not just give power to fingerprint and photograph? What is the intention when it goes beyond that? It is for the purpose of compulsory questioning and interrogation. That is not the case under the present system.
At present gardaí can go to any person, whether in their home or on the street, and say they are investigating a crime which took place on such and such a day and that they want to ask the person some questions in connection with it. Gardaí do that all the time in the course of their investigations. That kind of questioning does not have to be done by locking up the person in a Garda station. It can be done anywhere. What is the difference between doing it under the existing investigatory process and doing it in a Garda station? Is it so that the person will be intimidated or be likely to confess in that setting whereas he would not if he was questioned in his own home? Is it not the case that gardaí can ask people questions in the course of investigating crimes? They can and do. Would it not meet the Minister's needs to just have fingerprinting and photographing without detention, involving as it does compulsory questioning in an imprisonment situation?
(Limerick-East): Nothing new has been raised. I will not go back over the same ground as I have answered all these points at length during the previous five hours of debate.
Deputy Mitchell has asked that the question be now put.
The Deputy is not here. In relation to the point raised by Deputy De Rossa, the problem is one of detention and of putting people away for crimes they have committed. He keeps saying now — he did not say it initially, but he is saying it now — that the present level of crime is unacceptable.
In this debate I said it five times.
I want to emphasise that the level is unacceptable and unless we can detect a higher percentage of crimes we will get nowhere. We are agreeing with this measure because the Garda believe that this section will assist them in detecting more crimes and so put more people away who should be put away. Earlier I asked the Minister if he could give an indication of the extent to which the crime rate may be reduced by this measure; but he does not have this information as he made clear. I can appreciate that he does not have that information at his fingertips because, if he did have, he would have given an estimate of the reduction. He relied on the fact that these powers are in force elsewhere and he does not see them as being extraordinary.
According to the crime statistics for 1982 the rate of detection in the Dublin Metropolitan Area is 28.5 per cent; more than 70 per cent of crime is not detected. In Limerick city there is a 33 per cent detection rate and in the country as a whole the figure is 33.6 per cent. We have massive levels of undected crimes. These are the figures about which we are concerned. The Garda believe these powers will help them to detect crime. We have discussed ways of ensuring that these powers would not be abused, and that the Garda would have only the powers which were necessary. The Minister has gone a good distance in meeting us in relation to safeguards and promising further safeguards.
Some Deputies spoke about a softer approach to crime, putting people in prison and whether this was the best thing to do. In a recent study —NIJ Reports, May 1984, an American research study on prisoners and crime — there is a very interesting finding. They said that an examination of the national trend data suggested that getting soft or reducing the risk of imprisonment was an unwise crime control policy.
Deputy Taylor raised a question about the underlying cause of crime and the perpetrators of crime. I have been in this House listening to this debate since it started; so has the Minister. These points were raised again and again and some of the points Deputy Taylor raised were dealt with earlier when we debated the pros and cons. I have asked the Minister to look at juveniles, the juvenile liaison system and not having people in prison who should not be there.
Even if we do all these things we will be still in the position where any approach which might be seen as going soft is more likely to lead to an increase in the level of crime. It is interesting to note that the statistics in the report are in line with the statistics in Ireland. There is a need for considerable research in this area, but we will not get the kind of figures some Deputies are asking for. At this stage we have to take our courage in our hands and state that because of the conviction of the Garda Síochána we are prepared to go along with this in principle. We look forward to the Minister giving the safeguards he promised.
I listened to this debate for the last 90 minutes and all the contributions were repetitions. Deputy Mitchell asked that the question be now put, and I now move that the question be put. All we are hearing is repetition and the Chair will have to exercise tighter control because what we are having is a Second Stage debate.
I do not believe the Deputy has the power to move the question. On five occasions I have stated that the level of crime is not acceptable. I have kept note of this because I noted from the Deputy's contribution that he implied I was accepting this level of crime.
Deputy Woods said he is supporting this Bill because the Garda believe it will increase their detection rate. I have been asking for evidence that this is true. At present the only power to detain we have in law is under section 30 of the Offences Against the State Act. The evidence from that Bill is that detention of up to 48 hours does not improve the detection rate. I have already given the statistics for the period 1972-1982 when less than 10 per cent of those detained under section 30 of the Offences Against the State Act were brought to court and convicted. There is nothing to prove that detention results in an increased detection rate. If we go outside our own experience, the only alternative we have is to see how the power to detain has affected the detection rate in other countries. I have cited a study made by Mr. Ciarán McCullagh, a lecturer in sociology in the Department of Social Theory and Institutions, University College, Cork. He specialises in research into and study of social deviants. His study of the situation in Britain and the United States indicates that power to detain has not improved the detection rate of the police forces in those countries. I am asking that Deputies who are proposing to support section 3, giving power to detain for up to 20 hours, whatever reservations they have, bring in the evidence which underpins their belief that this will affect our crime level. That is all I am asking.
I brought in a fair number of statistics the other day suggesting that six hours of detention would be sufficient. We have been through all that. The information required was made available to both Deputy De Rossa and me during the first one or two hours. Figures would not show the impact overall because studies must be made in certain areas. When referring to the Offences Against the State Act we are talking about subversives and subversion.
In 1982 there were 2,308 arrests under section 30 of the Offences Against the State Act and the conviction rate was 10 per cent of those arrested, in other words 230. The Garda Report for 1983 showed there had been no breaches of that Act listed. I put down a question asking for details of the number of persons charged under the Act but the Minister said it would cost too much to compile the information. The Prisoners' Rights Organisation sent me figures indicating that there had been 230 convictions from 2,308 arrests.
This is relevant because we all know the Offences Against the State Act is being used for the purpose of detention. In November 1983 I had a similar question and it appears that of those arrested only 10 per cent appeared before the Central Criminal Court — many others may have appeared before other courts. We know the Offences Against the State Act is being used to detect other crimes. That is a reason for having something in this section rather than using the powers under the Offences Against the State Act, which the Garda are using at the moment. They are using an instrument which this House never intended they should use in this way. For instance, it is being used to arrest people on charges of malicious damage. Such crimes were never intended to come under the Offences Against the State Act.
Therefore, there is an argument for having available a lesser measure than the Offences Against the State Act. We have been told that if we have powers under the Bill so many more crimes will be solved.
The use of the Offences Against the State Act, or its abuse, has been said to be a case for bringing in this power of detention. It has not been established from statistics of arrests and convictions that the power of detention will be a panacea for dealing with crime but that is being claimed for such power. When using the power to detain for 48 hours the Garda got a less than 10 per cent conviction rate out of 2,308 arrests.
What redress have people who have been arrested under section 30 of the Offences Against the State Act? The Minister said they have the right to take civil actions for wrongful arrest. That is totally unrealistic. How many people arrested who had jobs have not got them as a result of being arrested? Presumably, having jobs they would not have a right to free legal aid? Deputy Woods is accepting the provision for detention and the Minister appears to be intent on putting it through. I hope those Deputies who have reservations will oppose it.
Under Standing Order 55 Deputy Carey wanted to put the closure of the debate on this section. I have not the power to accept his closure motion and I suggest that he makes a second attempt to raise it at 8.30 p.m. when the Ceann Comhairle will be here.
I am not clear about what is being proposed.
It is in relation to section 3, as amended.
That does not conform with the Minister's approach which has been more than forthcoming. Deputy Carey is proposing a guillotine. It is an outrage.
(Limerick East): Deputy Carey is making a suggestion rather than a formal motion, that we might agree to close the debate on this section.
It is a strange way to speak English.
The question is "That section 3, as amended, stand part of the Bill." On that question a division has been challenged. Will Deputies claiming the division please rise in their places?
Deputies Mac Giolla and De Rossa rose.
As fewer than ten Deputies have risen in their places, in accordance with Standing Order No. 59 I declare the question carried. The names of the Deputies dissenting will be recorded in the Journal of the Proceedings of the Dáil.
Dún Laoghaire): In view of the fact that the Opposition spokesman, the Minister and Deputies who have taken part in the debate have been here since 3.30 p.m. I propose, by agreement, that the business of the House be suspended for 30 minutes until 8.30 p.m.
Is that agreed?
We agree. We might get out of the House by October at this rate.
I move amendment No. 17:
In page 5, subsection (1), line 35, to delete the words "as soon as practicable", and substitute "within one hour of detention".
This amendment relates to subsection (1) in regard to persons not below 17 years of age. In that case the person is entitled to consult a solicitor and to have notification of his detention and of the station where he is being detained sent to one other person reasonably named by him and shall, on request, cause the solicitor and the named person to be notified accordingly as soon as practicable. We do not believe that "as soon as practicable" would be either just or fair to the detained person and so we want to delete "as soon as practicable" and insert "within one hour of detention".
"As soon as practicable" can be interpreted in many ways. One interpretation — and this may be the one the Minister has in mind — is as soon as the person can possibly get in touch with the particular solicitor. There are many other interpretations which can be put on "as soon as practicable" in relation to the station, the manning of the station and the various factors within the station. It might not be convenient for the Garda at a particular time and so there could be quite a long delay before the garda in a particular station might regard it as practicable to notify the solicitor or the one other person named. Therefore, we believe the words "as soon as practicable" are most unreasonable in the context of the Bill in relation to the detained person because all the decision would lie in the hands of the Garda to decide what is "practicable" and what is not.
There could therefore be quite a long delay and there is no good reason why there should be a delay because it is very important for the Garda, having powers of detention, to see that these powers are operated in a just and fair manner towards the detained person who so far is an innocent person. The detained person should have a reasonable opportunity of getting a solicitor, or whatever person he named, to consult with as soon as possible and we believe that should be within an hour of detention. Obviously there could be difficulty with regard to the particular solicitor but at least contact could be made with the solicitor within one hour. While the Garda may not in fact be able to speak to the solicitor within an hour, they could make contact within that time. It would therefore be in the interests of the detained person and also in the interests of the Garda, who, if this section is passed, will be under close scrutiny on detaining people. It would be in their interest then to make a quick contact with the solicitor and with the named person, the person the detainee wants notified of his or her detention.
In regard to amendments Nos. 18 and 19, which relate to persons under the age of 17 years, in the case of persons under the age of 17, even if we assume that the Minister accepts eventually an age limit of 12, which he has indicated he may well do, even if we assume that — it is the best possible assumption we can make with regard to age and under the terms of the Bill it could be as low as that — and assuming the Minister puts a limit of 12 years, then one is speaking of a person over 12 and a person over 12, a 13 year old, a 14 year old, is most unlikely to be able to trot out the name of a solicitor straight away because he or she has never had contact with any solicitor and does not know the name of any solicitor and so on.
Under the Bill a person is to be informed without delay that he is entitled to consult a solicitor but then under paragraph (b) he is to inform or cause to be informed a parent or guardian of his detention and of the place where he is being detained as soon as practicable. I think this should be the reverse. Without delay the parent or guardian of that young person under the age of 17, possibly over 12, should be informed of the detention because it is the parent or guardian who will be able to advise him or her with regard to a solicitor. There is no point in telling a 12 year old that he is entitled to consult a solicitor immediately and then leave him or her for hours until "as soon as practicable", as soon as the Garda find it convenient, when in the particular circumstances of the station it is convenient for them. It will be as soon as they decide it is practicable, possibly after many hours of detention, and then informing, or causing to be informed — sending a message, in other words — the parent or guardian of that young person advising the parent or guardian that he or she is detained. Again, in the interests of both the Garda and the detained person it is vital that the parent or guardian be immediately, without any delay, informed of his or her detention. This is injustice to the Garda and injustice to the detained person. The Garda will be under scrutiny in regard to this and delays in advising the guardian or parent of the detained young person will again throw suspicion on the Garda as to why they are detaining such a young person for so long without advising their parents or guardian.
The Minister may interpret the words "as soon as practicable" as meaning the same thing, in other words as soon as they can do so, but it leaves the question open to interpretation in a Garda station of what is practicable at a particular time. That is not doing justice to the young person who possibly has never been in a police station before, who has no idea of how to contact a solicitor or what solicitor to consult and who would be very dependent on the parent or guardian for advice as to his rights.
With regard to line 45 —"and shall, on request, cause the solicitor to be notified accordingly as soon as practicable" he is notified without delay that he is entitled to consult a solicitor, there is no problem about that. However, "as soon as practicable" can mean a long delay in advising a parent or guardian and to cause a solicitor to be notified. This throws the whole onus and responsibility for the interpretation of those words on to the Garda and does not give any clear guarantees to the detained person that their parents or guardian, the person named by them or a solicitor, will be notified at any particular time. It may not be practicable until the following morning to notify these people and a garda could make a good case in that regard. There should be no shilly-shallying on this point, especially in the case of young people. We suggest inserting "without delay" instead of "as soon as practicable".
If this Bill is passed in its entirety — later on there are sections in regard to the changes in the right to silence — it will make further difficulties for a detained person because it can become quite complex in regard to inferences, etc. Therefore, if the Bill is passed, it will be vital for a solicitor to be present at the earliest possible moment for a detained person because under the Judges' Rules of Interrogation, people are told at various stages that anything they say may be taken down in writing and used in evidence against them. A person must have a solicitor's advice at this stage because if the Bill is passed and if the inference clauses with regard to the right of silence are altered, a detained person will have no idea of the effect of what a person says or what the effect will be of not saying anything. This will make the Judges' Rules more complicated and, therefore, the issue in court will also be much more complicated for the detained person as to what he said or did while in custody. From the point of view of the detained person and from that of the Garda it is essential to show justice and fairness in the detention and interrogation of a detainee by ensuring that the parents or guardian or named persons and a solicitor are contacted without delay rather than as soon as practicable.
(Limerick-East): I am opposed to these amendments. The point was made on Second Stage and in submissions to me that it would be necessary to look at this form of words to see if it was necessary to change or improve them. I had it examined and am forced to the conclusion that “as soon as practicable” is a good form of words in this circumstance. The difficulty about using a phrase like “without delay” is that there could be an unavoidable delay. A solicitor might not be available and the parents might be playing bingo. If “without delay” means that the obligation to get a solicitor is instantaneous regardless of the practical difficulties, I do not think it would work. With regard to “within one hour of detention” in the first amendment, the obligation would arise immediately to get a solicitor. People are entitled to access to a solicitor and the Bill provides that the detained person would be informed without delay of that right. That is an obligation. In contacting solicitors, parents or guardians, practical difficulties could arise. The courts are familiar with the term “as far as is practicable”; they are used to dealing with it in other legislation and they can adjudicate on it. The obligation is that it must be done immediately if there is no immediate practical difficulty.
The problem of young people is of great concern and the existing Garda regulations require that a parent or guardian is present before a juvenile is questioned except in exceptional circumstances. The law laid down by the High Court in a very recent case is to the same effect. I am proposing that there will be a similar set of regulations in this Bill to that effect implementing in regulation form what is the decision of the High Court in a very recent case. Because that is the interpretation of the High Court there would be no incentive to the Garda not to inform parents or guardians without delay because they could only commence questioning in the most extreme circumstances before a parent or guardian turns up. I do not think there is a difficulty now in the case of young people. When a young person is arrested and brought to the Garda station the time runs from the time of his arrest. There is an obligation to inform him of his right to a solicitor without delay because it is practicable to do so immediately. The problem of attendance by parents and guardians means that a young person could be detained by the Garda but could not be questioned until the parent or guardian arrived unless there were exceptional circumstances. That is basically the reason for not accepting the changes which Deputy Mac Giolla has suggested.
It is a question of inform or cause to be informed. I am aware that there may be difficulty in actually informing, because the person might be at bingo or wherever. "Cause to be informed" I presume would mean leaving a message in the house. Could that not alter "and without delay cause to be informed"?
(Limerick East): The obligation is on the member of the Garda in charge of the station. He does not necessarily have to do the informing himself. He can cause the person to be informed. He can send a garda around. The member in charge of the station can tell a garda to go around in the squad car and tell the parents to come down to the Garda station.
Could that be done without delay?
(Limerick East): Provided the parents are in the house when the garda arrives, but the parents might be out.
If he left a message would that mean he caused them to be informed?
(Limerick East): He would not have caused them to be informed because they would not have got the message. They might not get the message until late that night when they returned home. That would be the reverse of what the Deputy is trying to achieve. That would make it looser rather than tighter.
Although Deputy Mac Giolla made one or two points which were very well worth making, I do not understand the approach of his party to this section. In one mood they are trying to improve the section by putting in amendments which would tighten up the chronology which the section imposes on the police. In the next breath they seem to be opposing the whole section fourfifths of the way down page 5 of the list of amendments.
I do not say it is, but it might be a very badly drafted section. Even if it is, and I am not saying that it is, the intent of it seems to me to be a liberal one, namely, to regularise what I would have said are more or less the rights of an arrested person. Unless I have failed to see some sinister intent in the Minister's wording, I do not understand how The Workers' Party can wish to oppose a section which puts statutory black and white frontiers and lineaments on what are to date only judicially described general rights of people to have access to legal advice and to add to these a right which has not yet been constitutionally established, although it should be, namely, the right of young persons to have immediate access to their parents or to a guardian. I cannot see what is so hellish about that section that The Workers' Party should wish to oppose it while, at the same time, trying to tighten up the chronology which it proposes.
The difficulties which the section seems to me to present are of a different order. Deputy Mac Giolla adverted to one of them. The difficulty which strikes me at first blush with the section as the Minister has brought it before the House, is that it seems to place an onus on the Garda. Before they go a step further, except in the case of somebody who by ordinary observable biological criteria is well over the age of 17 years, there is an onus on them to establish that they have in their hands somebody who is above rather than below the line for the purposes of subsection (1).
Any onus of that kind in an overworked Garda station with people trying to investigate a serious crime, in the conditions of noise and everything else Deputy Skelly painted here last week, will complicate their work rather than make it simpler. I do not think the section as drafted will entitle the police to say he looks 17 years of age. That is not what the section says. It does not say where a person appears to be 17 years of age, or refuses any information, or perhaps not having been questioned about his age leaves the Garda guessing. Even though the Garda might behave in 100 per cent good faith, it still does not seem to let them out.
I wonder whether the Minister with the best intentions has not forged a minor shackle — I do not want to exaggerate what is likely to be its practical importance — and laid it on the Garda in addition to their other problems by this undoubtedly, in principle, very understandable and very correct special regime for young people. It may be that, in saying all that, I am overlooking some other statutory provision which will surmount the difficulty I have suggested. If so, and through my own ignorance of that statutory provision, I have wasted the time of the House, I am sorry.
I would like the House to be told if there is something which will relieve the Garda of any risk of falling foul of the Minister's fair intention by making a mistake in regard to somebody's age, or taking a shortcut where somebody does not say what age he is, or falsely claims that he is below the limit instead of above the limit in order to hamper investigations by imposing on the Garda the extra necessity to contact what might be non-existent parents for all the Garda might know. I do not mean non-existent literally, but inaccessible parents. The question of accessibility is something the courts will sort out. Even that is not actually spelled out. The Minister says "as soon as practicable" but he does not say "if practicable at all". The parents or guardian might be in England. They might have disappeared without trace. Very often in the unhappy syndrome of delinquency these would not be uncommon cases.
Needless to say I mention these things in no sense to cause the Minister trouble. I know this section is very well intended. Perhaps because its intentions are so good, it seems to me that it might open up a set of difficulties on the ground. I would be interested to know what the Garda feel about the likely problems which this section might present to them. I do not feel any great worry about the idea that they have the manoeuvring room which the expression "as soon as practicable" appears to offer to them. The Minister has given a very fair picture of what that means.
If Deputy Mac Giolla has done his homework on this Bill, as he obviously has, he will know that the courts, not necessarily in this context but in other contexts, have considered statutory phrases of this kind and refused to allow themselves to be sidetracked or bamboozled by administrative authorities saying: "It took us four years to decide to acquire compulsorily that corner or something like that. That is fair enough because it was not practicable to do it any sooner". In a few cases which I cannot give the House off the top of my head but which, if these discussions were to persist, I could easily track down, the courts have asserted their right to say what they thought was a practicable length of time in the context of the statutory provision in question.
The last thing I want to say in this intervention relates to a good point Deputy Mac Giolla raised in connection with the juvenile suspect or arrestee but which he might have generalised to any person under arrest. There is such a person as somebody who does not know the name of a solicitor. Perhaps he has never been in trouble before or, if he has been in trouble, he has not had any truck with the legal profession. Possibly for all I know, to use a vulgar colloquialism, he is stoned out of his mind and is not in a condition to answer questions about whom he would like to have as a solicitor.
These seem to me to be practical problems which I know the Minister would wish to surmount, and it would be in the spirit of this section here if he did surmount them. Deputy Mac Giolla has done a service by drawing attention to the instance where somebody cannot think off the top of his head at 3 o'clock in the morning under the influence perhaps of drugs or drink. Therefore, in effect he cannot avail of the protection of this section. Under the existing law which entitles somebody to access to a legal adviser at ordinary common constitutional law, if he cannot think of a legal adviser but still wants one — the point has not been settled — if an arrested person were to say: "I want a solicitor; I do not know a solicitor", that would put the police under the obligation of facilitating him in some fair way. I do not know how they would go about it, but it would put them under that obligation.
The Minister in trying to formalise all this is to some extent at the risk of falling into the difficulty of setting out his good intentions but by the very act of making concrete and statutory that which formerly has been flexible and general creating difficulties because of what he is leaving unsaid. I am not going to press this matter, but will the Minister's advisers tell him how this section, which would not cause any problems if it did not exist, will work in an instance such as that given by Deputy Mac Giolla, irrespective of the age of the arrested person, where the person does not know the name of the solicitor or cannot think of anybody to contact?
That is a question we will return to when dealing with the section. The section states that where a person not below the age of 17 years is detained in a Garda Síochána station pursuant to section 3, the member of the Garda Síochána in charge of the station shall inform him or cause him to be informed without delay and so on; and, in relation to getting a solicitor, shall cause the solicitor and the named person to be notified accordingly as soon as practicable. The first question that arises is whether questioning will commence in that period. The Minister has said that for those under 17, because of a recent High Court decision, questioning would not commence except in exceptional circumstances, but for those over 17 the questioning could commence and be proceeding in the meantime. Consequently, one would be concerned that there would not be too great a delay.
There are two ways to look at the amendment tabled by Deputies Mac Giolla and De Rossa. They say that the words "as soon as practicable" should be deleted and "within one hour of detention" be inserted. It may be possible to inform a solicitor within 15 or 30 minutes. I accept that the intention of the Deputies was to keep the time as short as possible and one hopes that the intention is to inform a solicitor immediately. In the first instance the person concerned will be informed that they are entitled to consult a solicitor and should be so informed without delay. The question of notification to one other person reasonably named by him and, on request, to cause the solicitor and the named person to be notified, means that there are two people involved.
In regard to this I should like to refer to the Criminal Justice (Scotland) Act, 1980. Section 3 of that legislation covers the right to have someone informed when arrested or detained. Section 3 (1) of that Act states:
Without prejudice to section 19 or 305 of the 1975 Act (intimation to solicitor following arrest), a person who, not being a person in respect of whose custody or detention subsection (3) below applies—
(a) has been arrested and is in custody in a police station or other premises, shall be entitled to have intimation of his custody and of the place where he is being held sent, to a person reasonably named by him;
That seems to be in line with the Minister's proposal. Section 3 of that Act continues:
(b) is being detained under section 2 of this Act in a police station or other premises, shall be entitled to have intimation of his detention and of the place where he is being detained sent, to a solicitor and to one other person reasonably named by him,
without delay or, where some delay is necessary in the interest of the investigation or the prevention of crime or the apprehension of offenders, with no more delay than is so necessary; the person shall be informed of such entitlement—
(i) on arrival at the police station or other premises; or
(ii) where he is not arrested, or as the case may be detained, until after such arrival, on such arrest or detention.
It seems clear that where a person is not below the age of 17 years the Scottish Act requires the police to act without delay. I do not know what the experience of that section has been.
Deputy Mac Giolla's suggestion that there should be notification within one hour could mean that there would be an unnecessary delay. Obviously, in some cases it would be a matter of a phone call and I should like to know why there should be a wait of one hour in such instances. On the other hand "as soon as practicable" could lead to some unnecessary delay. I appreciate the point made by the Minister that the practicality has to come in from the point of view of the Garda. The Minister is of the opinion that "without delay" would be too urgent and immediate. However, that term was accepted in the Scottish Act. Will the Minister comment on that matter?
I should like to get some clarification on this amendment. I cannot follow Deputy Dr. Wood's point in respect of amendment No. 17. It seems to me if the amendment was accepted that the Garda would have to notify the solicitor, parent or guardian within one hour of detention. It might be physically impossible to achieve that. For that reason I do not think the amendment makes sense, if I am reading it correctly. I am not sure I understand the distinction the Minister draws between "without delay" and "as soon as is practicable". Perhaps he will elaborate on that. It seems to me that what is intended in the section is to provide a safeguard or a protection for people who are taken into custody. Whether it is a young person, a person under the age of 17, with the difficulties pointed out by Deputy Kelly, or whether it is a person over that age, they have a right to have a solicitor informed of their detention and to consult that solicitor. There is no obligation imposed in the section that consultation should take place before a person is questioned. I cannot understand why some provision was not made for that in the section.
I take the Minister's point that there may be cases in which because of an emergency it would be unwise or where the Garda might let something slip through their fingers by allowing any delay before questioning a person, but one could allow for such a situation. In the ordinary run of things what is important is that where there is not any urgency about the questioning of somebody a person who is detained under section 3 should have the opportunity to consult with a solicitor and, in the case of a young person, have a parent or guardian informed and allow that parent or guardian attend at the place of detention. The Barra Ó Briain Report was specific in what it felt should be done in this regard. Its basic message and exhortation was to ensure that anything suggestive of intimidation, isolation or deprivation should be avoided. If persons are taken into custody, whether under or over the age of 17, unless they are hardened criminals it is an unpleasant experience for them. If we are to ensure that that atmosphere of deprivation, isolation or intimidation is to be avoided they should be allowed an opportunity to consult with a solicitor before questioning takes place. The Ó Briain Report also suggested that a solicitor should be present as an observer during the course of questioning when a person is detained. None of these things is provided for in this section. We will deal with a number of these on the section itself. I take it that the purpose of Deputy Mac Giolla's amendment is to bring that about. I do not think he has gone about it in the right way, with respect to him. It may be possible to do it in other ways. I would like to know whether the Minister is against it in principle.
(Limerick East): As I understand it, the purpose of Deputy Mac Giolla's three amendments is to remove some doubts he has about the phrase “as soon as practicable”. He is afraid that that will involve a delay in carrying out the obligations which the section puts on the Garda. Consequently, he is looking for a different form of words to make it a stronger obligation and to avoid what he sees as the possibility of delay. On the question of “within one hour of detention” as Deputy Molony said, on the one hand it might be impossible to do it within one hour of detention. I would construe the phrase “without delay” to mean that the obligation arises immediately, that there can be no delay. For practical reasons it is not possible to do that. On the other hand, as Deputy Woods pointed out, under amendment No. 17 the obligation does not arise immediately, and would give the Garda a leeway of an hour in all cases where in effect the obligation arises immediately. This is Deputy Woods's point, and I agree with him. It is not good for that reason. Deputy Molony has said that a provision should be included which would prohibit questioning until the detained person has been allowed access to a solicitor. Inevitably there will be circumstances where delay in questioning would be fatal to the success of an investigation. There could be serious practical difficulties in getting a solicitor in some cases. To introduce a requirement such as this would go much further than the courts have been prepared to go up to now, and I do not think it could be justified, particularly in the context of a short detention period. The only practical way such a provision could operate would be that the time before a solicitor arrived would not run, and in effect would mean a longer detention period. There would be difficulties in certain cases in getting a particular solicitor. Also we should not proceed on the basis that we must put a question mark over all gardaí and that all solicitors are absolutely above suspicion. In the case of hardened criminals and criminal gangs and the godfather situation where known criminals report to one boss, it is not too extravagant to suggest that a solicitor might be part of that group also, that that solicitor would be nominated by certain criminals when they would be detained and that that solicitor would never turn up. Consequently, the Garda could do nothing until he turned up and if he never turned up they would have to let the person out after 12 hours without using the detention period at all.
The law society are going to cluck their tongue at this.
(Limerick East): There are great difficulties. I could not give practical examples from this jurisdiction but anybody who watches television will be familiar with the concept of the lawyer in cahoots with criminals.
Oh, we are not talking about this country.
(Limerick East): Reno or Chicago or somewhere like that. Deputy Kelly points out the difficulty on the age question. How does one establish on the margin whether someone is over or under 17 and how is the onus on the Garda Síochána to be discharged if they are not sure of the age? That has become a more serious difficulty since the Bill was drafted as a result of the court case which specifies that guardians and parents should be present during questioning. It also concerns me more as a result of accepting the spirit of Deputy Woods's amendment that the detention section would not apply to children below the age of 12 or 13 or whatever we settle on finally. The same situation could arise there. Again, how can the Garda be certain that somebody is 13, 12 or 11? We are conscious of the difficulty. We are examining it and I hope to have progress on it by Report Stage.
Deputy Molony raised the point which I was about to raise about preventing questioning particularly of young people, taking place until the solicitor has arrived. I take the Minister's point in reply to that, but perhaps between now and Report Stage he will consider the possibility of redrafting the section in such a way that at least in those cases where a solicitor can be contacted immediately and is on his way, as far as possible questioning would not take place until such time as he arrived.
I want to refer the Minister to a brief point in relation to the drafting of section 4. It seems that there is some discrimination between what a person over the age of 17 has to be told about and what a person under 17 has to be told about. As I read the section, a person over 17 has to be told without delay that he is entitled to have a solicitor consulted. He also has to be told without delay that he is entitled to have another person informed. If the person is under 17 he has to be told without delay that he can have a solicitor contacted as soon as practicable, but he does not have to be told without delay of his right to have his parent or guardian, or other person in the case of the absence of a parent or guardian, contacted. The section provides that a parent, guardian etc. has to be contacted as soon as practicable but there is no provision that the detainee has to be told about this.
Another point in relation to the section is that the detainee has to be informed by the garda in charge of the Garda station about his rights. What about the situation where the garda in charge is absent or perhaps has absented himself deliberately? Is there any provision to cover that situation?
Thirdly, the solicitor or parent can be called in when the detainee requests; in other words it is at the request of a detainee that the garda in charge is obliged to inform the solicitor as soon as practicable. In deference to the point made by Deputy Mac Giolla and Deputy Kelly about people's lack of knowledge of their rights etc. and lack of response because of their mental condition, some provision should be included where at least in some cases the garda in charge would be obliged to do this on his own initiative rather than wait to be requested to do so.
(Limerick East): In the case of the young person the gardaí would not have a discretion. There would be an obligation on the Garda to inform the parents. The youngster could not opt out on that by saying that he does not want his parents informed. There would be an obligation on the Garda anyway to inform the parents.
There is no obligation on the member of the Garda Síochána in charge of the Garda station to tell the young person about his rights to have his parents, guardian or other person contacted as there is in the case of a person over the age of 17.
(Limerick East): It is not necessary to have that incorporated because there is an obligation on the Garda to inform the parents and have them present.
As soon as practicable, but there is also an obligation on the Garda in the case of a person over the age of 17 to contact somebody.
(Limerick East): Yes, but in the case of the person under 17, the one creating the initial difficulty, the Garda have an obligation to inform the parents and the parents must be present before the Garda can question him unless there are exceptional circumstances.
That is not in the section.
(Limerick-East): It is the law. We do not need to restate the law.
The difficulty about the wording of the section leaving the solicitor to be sent for as soon as practicable is that the whole purpose and intent of the section could be negatived if the position in the Garda station at the time was such that the Garda were under pressure as is the case more often than not and if the people to be contacted were not available by telephone. That would mean that a Garda vehicle would have to be sent to convey the information. Four, five or six hours could elapse before it became practicable to bring the requirements of the section into effect.
There is no meritper se in having a message sent to a solicitor to say that a certain person has been detained. The solicitor may know that his client is under detention but the implication must be that the solicitor will be able to help the detained person, to have access to him and to consult with him before the questioning commences. The solicitor should be in a position to offer certain advice to the client regarding the questioning.
Would it not be reasonable in those circumstances to provide for a reasonable delaying period before questioning would commence? I take the point the Minister made about a solicitor not arriving or not being contactable but that should not mean that the whole operation would have to fall. Would it not be reasonable to provide for a hiatus period to be determined in which the solicitor would be given an opportunity, in practical terms of being present.
Assuming that, having been informed of a client's detention, the solicitor arrives at the place of detention, he still has no right of access to the person detained. It is interesting to note that in section 4 the side note refers to access to a solicitor and to notification of detention but that the section deals only with the notification of detention. It does not provide any right of access. Might it not happen that a solicitor, having duly arrived at a Garda station, would not be given access? The point is that a person detained in this way should have the availability of a solicitor. It might be that a person was detained at, say, 6 o'clock on a Friday evening when it might not be possible for him to have access to his solicitor. In these circumstances should there not be set up some type of dutysolicitor arrangement whereby solicitors from a panel would be on call to attend in response to calls from people being detained. Apart from the non-availability of a solicitor nominated by a detained person, anyone detained and who did not have any particular solicitor in mind would know at least that there was available a duty scheme whereby a solicitor would be available from a free legal aid panel or whatever.
(Limerick East): Under existing law an arrested person has the right of access to a solicitor. The section is not conferring a new right. It is recognising an existing right and ensuring that a detained person is notified of that right. That is why the section concentrates on the question of notification.
While the question of the right of access to a solicitor has not been settled definitively by the courts, the probability is that it is a constitutional right. Therefore a refusal to allow reasonable access on request, would be likely to render a person's detention unlawful. The courts have held that what is reasonable in this context must be construed having regard to all the circumstances of each individual case, particularly as to the time at which access is requested and the availability of the legal advisers sought. Relevant cases in which access to a legal adviser were considered were theDPP v. Madden and others,  Irish Reports 336 and the State, Harrington v. the Commissioner of the Garda Síochána and others (High Court 14 December 1976, unreported.)
Notice taken that 20 Members were not present; House counted and 20 Members being present,
(Limerick East): In the last case I cited it was decided that access to legal advice must be allowed in privacy and out of the hearing of any member of the Garda Síochána. There is a right of access to a solicitor if one is in Garda custody at present. All that was necessary in the section was to provide for notification. The only difficulty I can see is the point raised by Deputy Kelly. I am having that examined now. Notification of the solicitor must be at the discretion of the the detainee. Some people will not want a solicitor, for example, because of the cost involved. However, they must be informed of their right of access to a solicitor.
There is an onus on the Garda to inform the parents or guardian of young person whether or not they are requested to do so. There is an onus on them not to commence questioning until the parent or guardian is present. There is no incentive, therefore, for the Garda to delay notification of the parent or guardian. There is no provision to stop the clock. The time is running and will run until the parent comes in. Existing law gives a parent or guardian the right to be present when their children are questioned and the provision in this section deals with the statutory obligations of notification.
Will the solicitor have a right to be present during the interrogation?
(Limerick East): I have dealt with that. It would not be practical to provide for that unless we had stop the clock provision. If the solicitor did not turn up the person could not be questioned at all.
Has he a right to be present when he turns up?
(Limerick East): Even in a profession as free from suspicion as solicitors it is conceivable that there could be a solicitor who was in cahoots with a criminal. If the solicitor did not turn up when he was notified the 12 hours would run and the Garda could not question the person in custody. There is another difficulty. People when arrested — dramatically we always think of them being arrested in the middle of the night — often talk in the patrol car.
(Limerick East): What are the Garda to do in those circumstances? Are they to say they are sorry but the person cannot make a statement now as there was no solicitor present? It would not work.
That is not interrogation. The Minister mentioned that a person may not want a solicitor but if he does he would be able to speak to him in private and out of hearing of the Garda. A person over the age of 17 years is entitled to ask for a named person to be notified. Has that named person the same access to a detainee as a solicitor and the same right to speak to him without the presence of the Garda? A person may not want a solicitor but may want advice from a named person.
(Limerick East): No, they would not have the same right. The named person could be an accomplice and could be told, for example, where the stolen money was.
You cannot have two for the price of one.
(Limerick East): The same access would not be given to a named person.
If the named person was a parent, brother, sister or member of the family——
Or a Deputy.
——would they have the same access?
(Limerick East): They would have access if the person was under 17 years of age but not otherwise. The possibility of them being an accomplice could be increased if they were a member of the family.
I appreciate the Minister has a number of difficulties but some of these could be overcome. The Minister is missing the point. What is requested is that a solicitor who arrives should be permitted to be present as an observer at the questioning. As such he would not be in a position to compromise the situation in any way. It is not unreasonable that a solicitor should be permitted to observe the interview taking place if a person asks for a solicitor.
If a person wants a particular solicitor but he cannot be found within an hour I do not see why the Garda should not contact another solicitor to advise the person as to their basic rights. It would get over the position of a person feeling isolated and removed from an ordinary environment. I accept that in a case of emergency there cannot be any delay. We could provide that in very exceptional circumstances there would not be any obligation on the Garda to notify a solicitor or any other person. However, in an ordinary case a person who wants a solicitor should be able to name one and if he cannot be contacted the Garda should inform the person in custody who could then opt to have legal advice from another solicitor.
Under road traffic legislation doctors are called to Garda stations to take blood samples. The person in custody can name a doctor. If the Minister's concern about lawyers is correct, it could equally be said that doctors may not take blood samples correctly or could muck up the operation in some way. We must approach this on the basis that we are dealing with professional people. I do not foresee any circumstances in which anything could go seriously wrong. If a solicitor comes to a Garda station he can advise the person in custody without the presence of the Garda. That is the law as it stands. The only thing we seek is that, after the interview with the solicitor, the solicitor should be permitted to be present in the room when the interview with the Garda takes place. We could deal with problems which might arise if we redraft the section.
Listening to the discussion on this section I wonder whether the Minister, between now and Report Stage, might look at the entire section and the idea of having it in the Bill at all. If I understand it correctly, the position is that the law of the land, in the form in which it emerges from the courts, is not unfavourable to those in custody. On the contrary, in the last few years the courts have established a large range of explicit rights in regard to people's entitlements when in custody. That could not have been said ten years ago. Those in custody now might not know it, but a lawyer would know that he must be fairly treated and given access to legal advice. He must be given a reasonable degree of human access and he must be given privacy and his personal dignity cannot be trampled on. These things have been put into judicial words but ten years ago they were speculative ideas.
I do not want to be complacent about this or unsympathetic towards those in custody, whether guilty or innocent, but the law as it stands is favourable towards those who are arrested. I cannot think of any abuses which the courts have been willing to stand over or have allowed to slip through. I wonder whether a lot is achieved by providing in a statutory section a couple of hurdles or barriers against possible police either misbehaviour or neglect of somebody's rights and so on? I wonder whether, with the best intention in the world, the Minister is not actually tying the police by a lot of invisible threads — because they cannot see them until this comes into operation and once they find themselves tugging against one thread, it may prove onerous. There are many things in this section which are there with the best intention in the world but if you say something is permissible in a statute the implication is that any other course of action is not permissible. If you require X the implication is that you do not require Y and Z. There are many positive and negative implications to be read out of the fact that a certain procedure is set out. There are many things which this section does not say which are part of the existing law. A minute ago Deputy Taylor mentioned the right of access which is described here in the side note. Naturally the Minister does not intend to abridge the right of access. The point of notifying a solicitor is so that he will be able to get in touch with his client andvice versa, but the section does not actually say so. That is only the tip of the iceberg. There are many things the section does not say, and does not need to say, because they are established through the courts.
I do not want to complicate the Minister's job or that of his advisers, but I wonder if he would not be better advised to take out this section and incorporate some basic rules such as notifying guardians and the solicitor immediately — in the regulations which he proposes to make in regard to persons in custody under section 3, a mere breach of which, if nothing more fundamental is involved, would vitiate the legality of the custody. To cast this in strict statutory form is to some extent superfluous because there is nothing in this that the courts have not now asserted. I do not think there is any new right here for any person in custody which the courts already have not recognised and are not in any danger of derecognising.
This is a reflection I did not come in here to state because it only occurred to me while listening to the debate over the last half hour. I do not ask the Minister to respond to it in any way but, having listened to the contributions this evening it might appear to him and his advisers that a more appropriate way of carrying this benevolent intention into effect — of forcing the Garda to inform somebody of his rights, and to allow him to get in touch with his solicitor if he knows one, and so on — would be more appropriate if incorporated in the body of the regulations the Minister says he is going to make.
With respect to Deputy Kelly, if any section should have been removed it was the last one. I appreciate the attempt The Workers' Party have made to try to incorporate safeguards for the innocent person, but so far whenever we have come across an insurmountable problem in this Bill, the section seems to be drafted in favour of the prosecution rather than the detainee. If the words "as soon as practicable" are not suitable, why should we have to accept them if they are not in favour of the detainee? I am troubled about these words too, and I was not happy with the Minister's explanation although I understood the reasons he gave. We have teased out a number of points in this section.
We are dealing with amendments Nos. 17, 18 and 19. The section will be debated later.
At the moment I am discussing the amendments and I will deal with the section later. We have made clear that the drafting in this Bill is not satisfactory. The definition of "as soon as practicable" is "as soon as can be done" or "as soon as can be carried out" and that could take several hours. I appreciate that it may not be practicable for the Garda to get in touch with the detainee's guardian or solicitor and to act with speed, but nevertheless if we are trying to protect an innocent person from a period of incarceration, detention or imprisonment, we should err in favour of the innocent person. To date 90 per cent of the people detained under the Offences Against the State Act have been innocent. We would be legislating in favour of those people.
I hope I do not offend anybody by saying this but Deputies stand up here and betray their sheltered backgrounds when they talk about people who come to Garda stations and can contact a solicitor, know a solicitor, can telephone home or get in touch with somebody. The chances of that happening normally are very slim because these people do not know solicitors. They certainly will not be their pals nor will they have gone to school with them, and they would not be able to name a solicitor off the top of their head.
On page 148, paragraph 62 of the Ó Briain Report, reference is made to a duty roster of solicitors. Doctors can be contacted in case of emergencies, and I do not see why the same does not apply to solicitors. If, as the Minister said, some people do not want solicitors, or there may be crooked ones around, that would indicate that not enough thought has been given to this section to safeguard those innocents. Deputy Kelly suggested that the Minister take out this section but I suggest that he have another careful look at it because when we get down to discussing the section we will find many more blatant flaws which will militate against the detainee.
I can see the objectives of these amendments and I do not think they should be dismissed lightly. We should not be afraid to use the words "without delay" or "immediately". Ó Briain was not afraid to use them. We must remember the inherent coercive atmosphere of police custody in which a detainee is likely to find himself. He may be too shocked to understand what is being said to him even if the member in charge is about to give him a warning or a caution. Later a garda will be able to say he issued a caution but the person was not able to absorb what was being said. We must avoid keeping people incommunicado in a police station or police cell. The onus is very strongly on us to be able to grant that kind of access to persons who are detained. I will reserve further comment for the section.
What is the practice in the Offences Against the State Act? I know and have experience of some cases in which solicitors have been called. They are there in one and a half hours. Would the Minister say what is the practice and the relevant regulation in that Act? Can he say something more on why he considers "without delay" inappropriate in this case and in the other two amendments? The Scottish Act has "without delay" and perhaps the Minister's officials have experience of that Act.
Deputy O'Dea asked earlier, what is the position if the member in charge of the station is absent, does somebody else become the member in charge?
Frequently people are taken in, and their neighbours know about it and often there is quite a stir. If a suspect is to be taken in under this section apparently the parents and friends will know and that person will not have to wait to hear from the member in charge what his rights are. On the other hand, the member or members of the Garda who are taking the person in could inform him of his rights and therefore be ahead of any obligation on the member in charge. In many cases that would occur.
I am contacted very often about somebody being listed or taken in for questioning under the Offences Against the State Act. In those cases the arresting garda can advise the person straight away about his rights. In such cases who will contact the solicitor and who will pay? Legal aid applies only when there is a charge. Therefore, there is difficulty about access to money. Somebody who has got money can get in touch with a solicitor who will get to the station quickly —"as soon as practicable" will fit in there. A solicitor can be got in touch with locally and do the initial representations. That solicitor is likely to be in touch with the station early on.
If there is a question of legal aid — many of the cases that will arise under this Bill will be seeking legal aid — those taken in for questioning can only get it when charged. This will involve a major problem in regard to getting a solicitor initially. There is a suggestion in the Barra Ó Briain Report, on page 19, that there should be a panel of duty solicitors maintained and that one such solicitor would be available at fairly short notice by telephone. If there was such a panel, "as soon as possible" or "without undue delay" would operate. If there is not such a panel there will be great problems for many people who will not be able to pay. Young people between the ages of 12 years and 17 years will not have the money and their parents are not likely to have it nowadays. Therefore, "as soon as practicable" becomes necessary because it may not be possible for many persons to pay for solicitors until they have been charged. Therefore, the suggested panel of solicitors will become necessary.
I was beginning to wonder if it would be possible to get a word in edgeways. It is essential that subsection (1) should provide that on arrival at the station the suspect would be informed immediately of his entitlement to a solicitor and that he would be shown a list of solicitors on the legal aid panel. This would get rid of the objections to this section to which we have become accustomed. Many suspects might not know solicitors; they would not have much contact with them because they would not be in their social milieu. Therefore, a provision should be built into the section that suspects would be shown a list of solicitors and that they would have a right to choose one from the list.
The provision that the suspect should be allowed to see "any other person" would do away with the effect of the section. If the suspect is older than 17 he would be capable of looking after himself and if we allow such a person to see "any other person" we could be giving rise to numerous abuses because the other person might try to defeat any efforts being made and might be able to help the suspect to conceal evidence. I have in mind particularly people in the drugs business. Inspector Mullins has shown how easily things can be concealed.
The purpose of the Bill is to redress that imbalance. People feel that justice is on the side of the criminal rather than the victim and we must take every possible step to eliminate this imbalance. If the suspect has access to "some other person" that other person may try to dispose of evidence or to warn accomplices. Deputy Kelly brought this to the Minister's attention and the Minister dealt with it. We want to be fair but we must keep in mind the purpose of this Bill. This section contains many dangers but I believe that people older than 17 years, if they have a right to the knowledge that a solicitor will be available, can take care of themselves. On the other hand when the person is under 17 years it is vital that the relatives be notified. The Minister has assured us of his intention to ensure that those safeguards are provided.
It is not unreasonable to ask the Minister to get the parliamentary draftsman to have another look at the section with the view to providing that in the case of a person under 17 years the Garda would be obliged to wait until the solicitor arrives before they commence questioning. I do not agree with the point made by Deputy Kelly that it would be better to leave out the section. We do not want the section to constrain or restrict rights which the detainee may already have in common law. There could be a slight redrafting of the section to state that the rights given in the section to the detainee do not in any way affect his rights in common law or those given to him by any other enactments.
The amendment of Deputy Mac Giolla seeks to delete the words "as soon as practicable" and to substitute "without delay". I do not agree entirely with the Minister's prediction regarding the courts' interpretation of the words "without delay". If the courts were to interpret those words in such a way that the information that the person was being detained would have to be communicated immediately to the solicitor or to another person I think that would be most unreasonable because the first court that interpreted the words "without delay" in that situation would be doing so in the knowledge that almost 50 per cent of the cases would be dismissed simply because, through nobody's fault, the information could not be communicated immediately. On the other hand, I think the amendment in the name of Deputy Mac Giolla which seeks to substitute the words "within one hour of detention" is unnecessarily restraining. It would result in many cases being dismissed because the information could not be communicated within an hour if the person to whom it was to be given could not be contacted within that time.
Deputy Woods referred to British legislation governing Scotland and that shows there is middle ground. What Deputy Mac Giolla is trying to achieve might be achieved and the Minister's objection might be overcome were we to include a phrase such as "without unnecessary delay" or something along those lines. Perhaps the Minister would quote the authority he mentioned in relation to the questioning of young people. He referred to the necessity of a legal adviser or a parent being present.
I think it was Harrington versus the Commissioner.
We are trying to provide a system of checks and balances in order to ensure that the procedures will provide protection for people against possible abuse and to protect basic civil liberties. A number of points that were made are worth repeating but I am surprised that some other points have not been made yet in the context of the amendments.
We are talking about phrases such as "as soon as practicable", "within one hour of detention" and "without delay" but no matter what may be the existing common law or the constitutional rights of individuals because the legislation is silent on it there will be considerable confusion as to the exact meaning or effect of the sections. If the Garda notify a solicitor or a relation as soon as practicable or without delay, the section is silent as to what happens after they have been notified. If a solicitor or a relative arrives at a Garda station, are they immediately entitled to see the detained person? Will they be allowed to remain there during the course of questioning or will they be put out? Can they insist that they remain during questioning? What happens if they are kept in the station for a few hours before the detained person is told they are there? These are problems with regard to the section. It is left to the courts to interpret what is meant.
The Minister gave a reasoned explanation that if a person goes to the station obviously he will see the detained person but for how long will he be allowed to see the detained person? If the detainee believes he is facing a complicated legal charge for a criminal offence, will there be a time scale imposed? Will he be allowed to consult with his lawyer for five minutes, ten minutes or for an hour? What criteria will be used? Unless all these problems are dealt with within the context of the statutory provisions of this Bill or the code of practice that the Minister is to present, there will be a vast grey area that will be the subject of an enormous amount of litigation. We will have trials within trials. When a person is detained and subsequently charged there will be an initial issue at each trial for the first two or three years after this legislation comes into effect where the courts will have to tease out if the Garda have complied with the requirements under the section and consider whether people were given proper access to relations or to lawyers. As the section stands it may create more problems than it will resolve.
I ask the Minister to consider this section again before Report Stage. The amendments tabled do not deal adequately with the problem. The section has not been properly thought out. I do not share the view of Deputy Kelly that it should be abolished. I take the view that we need to spell out precisely the rights of individuals when they are detained.
I disagree strongly with the point made by my colleague, Deputy Glenn, when she said that at the moment justice is on the side of the criminal and that in some way this section should be used against the criminal. In the context of those who we believe have committed a criminal offence it is necessary to use the detention provisions to assist in the investigation of the offence but I hope that if a person is being detained we are not going to presume he is a criminal. The presumption of innocence should still apply. No matter how careful the Garda are — this aspect has been of concern to many people in this House — there will be occasions when people who have had no involvement in criminal activities, who will not be charged with criminal offences and who will not end up in the courts will find themselves detained under sections of this Bill. No Member of this House wishes to see an unwarranted protection for people who wilfully commit criminal offences and who terrorise communities. We want to ensure that the sections will not be used in a way that can create real problems for the innocent.
One could engage in a long-winded semantic argument about the benefit of phrases such as "as soon as practicable" or "without delay" but unless we decide what will be the end result of the notification and the individual rights arising from the notification and what interaction the Garda will have with the lawyer who comes to the station when questioning is taking place or when a person is being detained we will leave a hornet's nest of legal issues to be resolved through litigation in the next few years. If they militate against the proper investigation of offences and may not be of any assistance to the Garda at all then, indeed, there would be a large question mark as to the exact nature of the protection provided by this section. It could be some considerable time before that is teased out by the courts. We must tease it out on the Report Stage.
I do not think either side has so far really tackled this issue but on the Report Stage, we could add substance to the intent within the section by adding to the skeleton provisions there the meat necessary to spell out exactly what the protection is intended to be. I would share the view expressed by other Deputies in the sense that I would be happier — I understand the Minister's reservations on this aspect — with the use of words other than "without delay" and "as soon as practicable". I am not sure what "practicable" means. Does it mean as soon as practicable from the point of view of the Garda, as soon as practicable according to the workings of the telecommunications service, as soon as it is practicato get a Garda squad car to go around to the parents' house and tell them the child is detained? Could "as soon as practicable" mean from the point of view of the investigation of a particular offence? It might in some instances be more practicable not to notify anybody. There is an ambiguity about this wording.
I understand the problems the Minister has with the wording "without delay" as well. We have a problem in this area. We have not merely a semantic problem but we have the problem of implementing what I believe is the Minister's intent, and not alone the Minister's intent but the intent on both sides of the House. Whatever wording we use, unless we specifically set out the protections we intend, it will not be relevant but, even if we do that, we have a problem with both these cases. I accept the Minister's reservations in regard to the phrase "without delay", but I am not happy about the phrase "as soon as practicable". We need to tease this particular difficulty out and I would ask the Minister to have another look at this. It is too ambiguous. I do not believe it necessarily implements the Minister's intention.
With regard to the notification procedure and the effect of it, and whether it is done quickly and without delay, or as soon as practicable, I do not always agree entirely with everything Deputy Woods says but he made one point with which I agree and which I intended to make. It is not a party political point nor is it really contentious. Deputy Woods made the point in a constructive way. I refer to the whole area of legal aid. One speaker argued that children should have access to legal aid but detainees over 17 years of age should not have access to legal aid. I take the view that if someone is detained he or she should have access to a lawyer. The entitlement to that access should not be determined by the person's financial ability to pay for a lawyer. The vast bulk of legal representation afforded to people charged with criminal offences comes through the criminal aid system. Deputy Woods correctly made the point that when children are charged with an offence, as the criminal aid system operates under the 1952 Act, one is not entitled to apply for legal aid.
When one is charged with an offence the procedure is that one may apply for legal aid; one's means are assessed and on the basis of the statutory measurements set down and certain constitutional pronouncements, one's right to legal aid is then determined but there is no doubt at all, as the law stands, there is no entitlement to legal aid, no entitlement to free access to a lawyer for those people who are detained and who cannot afford to pay for a lawyer outside the ambit of the criminal legal aid scheme. That needs to be looked at in the context of this particular section because we can notify solicitors "without delay" or "as soon as practicable" until the cows come home but if they know the people detained in the Garda station have no means to pay for their work they will not go there to see them. That connotes a selective system of justice where the protections provided will be determined by the amount of cash in the pocket of the person who is detained. That is not a satisfactory situation.
The Minister has made the point that in a sense we have detention with us in the context of the Garda invitation to assist in an inquiry. If we are now going to provide a statutory system of detention we have a duty to extend the criminal aid scheme in this area. I would question the constitutional validity of section 4 in the context in particular of young people who are detained in pursuit of an investigation under this section if we do not extend the legal aid system to them. I would refer the Minister in this context to the constitutional case determined in 1976 under the criminal legal aid statutory provisions, Healy and Ford, reported inIrish Reports where it was made clear in the context of charging young people that if they did not have the finance available they virtually had a constitutional right to legal aid. If we are going to detain young people, whether we fix the age at 12, as Deputy Woods and the Minister seem to suggest, or 16, as Deputy De Rossa suggests or perhaps, as we tend to do, we find a compromise and say 14, whatever we do, we will have a group of young people who will come, in my opinion, within the judgment in the Healy-Ford case who will be open to being detained for the investigation of offences, who I believe the court might decide at some future date, on the principle enunciated in Healy-Ford, are entitled to legal aid.
That is an aspect which has not so far been adverted to and it is the first opportunity I have had in the context of section 4 to raise the matter. The Minister should have a look at this because the last thing we want to do is pass legislation without looking at those areas directly related to criminal processes and the criminal justice system. A constitutional right is involved. That is another area that must be examined. I do not think that so far these things have been properly considered. There are some of us who are concerned but we would not regard ourselves as experts in these areas and by teasing it out we are seeing some of the problems and difficulties which we may not have thought of on the Second Stage debate.
I would share the views expressed by Deputy Alice Glenn. I have no sympathy with the people to whom she refers, people engaged in drug trafficking. I want to see them before the courts. I want to see them properly sentenced for the horrific offences they commit. I do not want to see innocent people convicted. I do not want to see innocent people detained. I certainly do not want to see people who have not committed offences finding themselves, be they 15 years of age or 55 years of age, detained in Garda stations for six, 12 or 20 hours without access to proper legal advice. I take the view that if one is being detained for the purpose of an investigation, irrespective of age, one is entitled to have access to lawyers.
In this context I believe there is another individual who should be informed when a young person is detained. We do not always relate what is happening in one area with what we enact in this House. We have the juvenile liaison officer scheme, to which I have referred on many occasions. It is very much the cinderella of the Garda Síochána and no Government have ever taken it sufficiently seriously. It has a good and constructive role to play in the context of young people who are engaged in crime or anti-social acts which bring them before the courts. If we take the juvenile liaison officers scheme seriously and if we see those officers as having a role to play in these areas, then one of the persons who should be informed as soon as is practicable or without delay when a young person is being detained is the juvenile liaison officer attached to the Garda station in which the person is being detained. It could very well be that that juvenile liaison officer might already have had some involvement with the young person who is being detained, but even if he had not he would have a degree of training and sensitivity in dealing with young people which does not always apply throughout the Garda Síochána generally.
There is probably one other person we should notify as well. What about the position of someone who is brought in and detained who is already on probation? He has previously been before the courts but is under the supervision of a probation officer or he has been imprisoned and released early on one of the schemes that exist for intensive supervision. Would it not be in the interest of justice generally, in the interest of the person being detained and in the interest of the community for someone who is subject to intensive supervision or under the supervision of a probation officer that, if they are being detained, the probation officer should be notified? He or she could be someone with whom the detained person has developed a relationship of a practical nature and could be of assistance to the person detained and to the Garda. Of course that may not always be the case; those relationships may be peripheral. But, if we believe in the probation service and the intensive supervision system as something that works practically other than as a respectable excuse for the shedding system that operates in the prison service, we should consider notifying the probation officer or the welfare officer attached to the Department of Justice who is involved with a person who is being detained for the investigation of an offence.
No matter what form of wording we accept, this section is quite inadequate and, while a number of the problems have been teased out, we have not dealt with all of them. I wanted to put down a marker as to how I see some of the problems, because clearly we are not going to complete this section tonight. I should like the Minister to look at some of these areas, we should tease out this section properly and get it right. We devoted a tremendous amount of time to section 3, although at the end we were all repeating ourselves. I hope that will not happen on section 4. It is important that some of the areas to which I referred should be looked at. Some of my colleagues have supported criticism or constructive comments made by other Deputies in the context of the proposed amendments under discussion.
I should like to reply to Deputy Shatter.
The Minister has indicated that he wishes to speak.
(Limerick East): It is obvious that we will not make much more progress tonight, so Deputy Glenn will have another opportunity to reply to Deputy Shatter. I should like to thank everyone for their contributions. It is late and it has been a very long day. Perhaps we are not as sharp as we were early in the morning.
I think that people have got the wrong end of the stick regarding the section. It was drafted for the benefit of detainees. It does not just apply to people detained under section 3. The difficulty I see is that people are ignoring existing law and they have a notion that if we do not write existing law into the section it is nullified. Of course that is not the case. There is an existing right of access to a solicitor and that right has been developed in existing law. I quoted the relevant cases. The right of access to a legal adviser was considered in theDPP v. Madden and others in 1977 and in the State, (Harrington) v. the Commissioner of the Garda Síochána and others, which was a section 30 detention. The position of the courts is that circumstances will vary but that there is a very strong right and possibly a constitutional right of access to a solicitor. In the second case I quoted it was also decided that access to a legal adviser must be allowed in privacy and out of the hearing of the member of the Garda Síochána. The fact that we do not write that into the section does not mean that the rights, as developed in those cases, are nullified in any way. Those rights exist.
In section 4 I am giving a new right to the detainee to be informed of the right of access to a solicitor. On the question of access itself, I am not trying to develop the law any further than it stands at present, as it has been developed by the courts. The courts have not gone as far as to say that somebody in custody cannot be questioned until the solicitor arrives and I am not proposing to write that in here. The courts have not gone as far as to say that a person has a right to have a solicitor present right through questioning and I am not proposing that here. I am proposing to allow the existing rights of access to stand and to concentrate then on the procedure for notification of those rights in the section. That is why the section is drafted as it is, and I admit that there are some difficulties in the way it is drafted. However, they are not the difficulties which have been pointed out by most Deputies in the course of the debate because those difficulties have been taken care of in existing case law.
Deputy O'Dea asked me what case I referred to. It was a High Court case — Detective Garda Michael Travers v. a minor, so I will not mention the name. The judgment was delivered on 24 February 1984 by Mr. Justice Finlay. It sets out the rights of young persons to have their parents present while being questioned by the Garda. There is no need to write that into the Bill. The Bill was drafted before that judgment was made but it was existing practice and it was in the Garda regulations that they would not question young people unless their parents were present. There is access to solicitors under existing law.
I have enumerated the cases and I have outlined the nature of that access. On the other hand, for people who are under age there is the right to have their parents or guardians present during questioning. There is an obligation already on the Garda under law to inform the parents and guardians of the person.
Last week the Minister indicated that he would let me have a copy of the Ó Briain recommendations which were incorporated in the Garda regulations. I have not received it yet.
(Limerick East): I said I would provide the Deputy with a copy of a speech issued by a previous Minister through the GIS. I am sorry if the Deputy has not got it. I will see that he gets it. The copy of the judgment which was requested by Deputy O'Dea will be provided to Deputy Woods and I am sure it will be helpful.
Will the Minister provide me with a copy of the GIS speech?