Amendments Nos. 17, 18 and 19 were taken together.
Criminal Justice Bill, 1983: Committee Stage (Resumed).
Limerick East): I am opposed to these amendments because they will not do anything to improve the section. “Within one hour of detention” allows an undue flexibility as a replacement for “as soon as is practicable”. “Without delay” is unworkable if it means absolutely without delay. Some Deputies interpreted it as without reasonable delay but that does not advance the situation or make any improvement in it. As soon as practicable means immediately unless there is a practical difficulty.
As regards persons under 17 years of age, the Garda regulations and the present law make it necessary for the parent or guardian to be present. There is no incentive for the Garda to delay informing them because questioning cannot take place until they turn up. That is governed by existing law. I do not see any difficulty there. In the case of people over 17 years of age "as soon as practicable" is a phrase with which the courts are familiar. They have interpreted it previously and that interpretation is immediately unless there is a practical difficulty. Of course there will be practical difficulties on certain occasions and questioning will have to commence as soon as a person is arrested.
These amendments have been adequately debated. Before coming to the House I read the record and every possible angle of this section as regards these amendments has been discussed. I promised the House that I would look at the question of how an arresting garda decides whether someone is under or over 17 years of age. I have said that I will have to look at that, and there is an added urgency to it now since I have given a commitment that section 3 will not apply to children below a certain age, be it 12 or 13 years. The same difficulty will arise on the margin of how the absolute age can be established and of what will be the consequences of a garda treating somebody under 17 as if they were over 17, even if he made a bona fide mistake about it. I have promised the House I will look at these points and come back on Report Stage on them. Otherwise everything worth saying about this section has been said.
We regard "as soon as practicable" as reasonable to cover the situation and consequently we are not supporting these amendments. We explained this in greater detail on the last occasion.
This amendment is not withdrawn. The main point I want to make in support of these amendments is that the main body of the Ó Briain Report, signed by all three members, argued that a person should not be interrogated until a solicitor had been contacted and given time to reach the Garda station. It was suggested that at least one hour should be allowed to give the solicitor time to reach the station. We felt, in view of the fact that there was no such provision in this Bill, that once a person is detained he is liable to be questioned from the beginning without the presence of a solicitor, that it was only reasonable to try to ensure that a solicitor would be contacted at the earliest possible moment and that one hour would be a reasonable time to allow.
I move amendment No. 20:
In page 6, between lines 2 and 3, to insert the following subsection:
"(3) Where the member in charge of the Garda Síochána station has been given the name of a solicitor pursuant to subsection (1), or subsection (2), fails, after reasonable efforts to do so, to contact the named solicitor, he shall give the person detained the opportunity of naming another solicitor, and he shall cause any solicitor so named to be notified accordingly as soon as practicable."
We are trying to cover the situation where a named solicitor is not available or cannot be contacted when sought and the detained person should be given an opportunity to get a second solicitor — and perhaps even to indicate that the intention of the House is that if a second solicitor is not available, an effort should be made to provide another solicitor.
Paragraph 62, page 19, of the Ó Briain Report reads:
The Law Society delegation which appeared before us regarded as feasible a scheme whereby a panel of "duty solicitors" could be maintained. Solicitors on the panel for any given day would be available to attend at a local Garda Station when a prisoner requests the advice of a solicitor but is unable to name a solicitor of his own. A feasibility study of the subject should be undertaken forthwith. We so recommend.
If a duty roster of solicitors was available this would overcome the problem where an individual was unable to name a solicitor, or to name one who was available. The intention of this amendment is to say there should be a second option and the spirit is that reasonable steps should be taken to ensure a solicitor is made available and that a reasonable opportunity should be given in a practical sense to provide a solicitor.
(Limerick East): This amendment is aimed at providing for the case where the solicitor named by the detained person cannot be contacted. In that event it could be said that the right of reasonable access to a solicitor, which every detained person has, was not being given to him unless the detained person were given the opportunity of naming another solicitor and of having him notified as soon as practicable.
There must be some sympathy with the principle of the amendment. There is a somewhat analogous provision in the proviso to subsection (2) of this section, which deals with detained persons under 17 years of age. The proviso deals with the eventuality that the member in charge is unable to communicate with a parent, guardian or spouse of the person detained and provides in that case that the person under 17 years of age should be treated as if he was an adult. There will be a responsibility on the Garda to inform a solicitor. This alternative provision, in instances where the designated people are not available in the first instance, is in the section for persons under 17 years of age.
I have a certain amount of misgivings as to how far we should try to cover all possibilities like this in terms of statute. For example, if the Garda cannot contact the named person or the first solicitor, should the obligation extend until they eventually get a solicitor who can come? Should it be a second chance or should it continue? There are difficulties in this, but I agree with the spirit of the amendment. I will examine it to see if I can make provision for it either by way of an amendment on Report Stage or under the regulations which may be more appropriate. This could be provided for in the proposed regulations where there would be a modus operandi that the right of access to a solicitor would not be nullified by the fact that the first solicitor contacted was not available. I will come back to this on Report Stage, although I agree with the spirit of the amendment.
Under this amendment the question arises that a person detained may not be aware of the name of any solicitor. Perhaps the Minister would tell us how such a situation would be dealt with by the Garda. Under the section the person detained is informed of his right to consult a solicitor but a number of people detained, perhaps for the first time, in a Garda station would not have the name and address of a particular solicitor. The Ó Briain Report suggests a duty panel of solicitors. Could the Minister indicate if he has any intentions in that direction?
(Limerick East): I see the difficulty there. On the question of the panel of duty solicitors, which I understand has been suggested by the Incorporated Law Society, I should like that society to develop that proposal further. Are they willing to put forward a duty panel of solicitors as a public service in the interests of justice, a list of names being made available in Garda stations? Detainees could then choose someone from the list who would be available on a voluntary basis. I am not sure of the nature of the proposal and should like the Incorporated Law Society to develop it further.
The original point which I raised with the Minister concerns a person detained not being aware of a solicitor and not having a name or address of one. In what way can the rights of that person be protected?
(Limerick East): I think that it would be very unusual for a person not to know the name of a solicitor. For someone under 17 years of age there would be a difficulty but there is also the obligation in that case to inform the parent or guardian of the right of access to a solicitor. It would thus be in the hands of the guardian or parent. The vast majority of adults, while not perhaps being on terms of friendship with their solicitors and not knowing them very well, would certainly be able to name a solicitor.
I would like to say that when considering——
I called Deputy Shatter. He offered first.
Rather late in the evening, around 10 p.m. two weeks ago when we were debating Second Stage, I made a number of references to solicitors and the position of people detained which are relevant to this amendment. I do not think that the points which I raised have yet been clarified. I should like some clarification, first in relation to Deputy Woods' amendment with which I have a great deal of sympathy. If the spirit of this legislation is to be upheld, if someone seeks the assistance of a solicitor who is uncontactable, the Garda should have a duty to seek to make contact with an alternative solicitor named by the detainee. However, much of this will be theoretical, particularly with regard to young people. Under the present criminal legal aid system, one is entitled to apply for criminal legal aid if one cannot afford to pay for legal advice. That would include virtually the generality of persons under 17 years who may be detained. One is not, however, entitled to apply for free criminal legal aid until a charge with an offence is brought in the courts. If I am detained in a Garda station pursuant to the provisions of this Bill, I can seek assistance from a solicitor, be it the original solicitor named by me, or some alternative solicitor under Deputy Wood's amendment. If I do not have the financial wherewithal to pay for the solicitor's services, I shall not receive assistance from him or be entitled to independent legal advice, the reality being that the criminal legal aid system does not come into operation at that stage.
We are now providing for a somewhat different situation. I am concerned — and the Minister has not yet responded in this connection — that we examine whether the system can be extended to deal with this difficulty. The idea of duty solicitors to which the Minister referred——
If we do not keep to the amendments before the House, Deputy Shatter, we shall never make any progress. I suggest that the Deputy confine himself to the amendment. Perhaps what he is now saying would be more relevant on the section.
The point that I am making is in the context of this amendment. Whilst it is well intended and comes within the spirit of what is intended, the reality is that it is irrelevant if one does not have the financial means to pay for the services.
That is on the section generally.
We can go into this in detail when it comes to debating the section in full. However, I should be anxious to hear the Minister's observations at this stage on this aspect, in particular in the context of the decision delivered in what was known as the Healy-Foran case in the Supreme Court back in 1976, when it was effectively decided that young people who are charged with criminal offences are entitled to free legal aid if they do not have the financial means to pay for it. It would seem that that case and the judicial pronouncements in it could be extended to this area. While I accept Deputy Woods's amendment, being certainly in favour of the spirit of it, I am not yet satisfied that we are dealing adequately with the problem of providing legal assistance.
Secondly — and the Chair will obviously stop me if he considers this more appropriate to the generality of the section — in the context of a solicitor attending, be he the originally requested or another solicitor, there is no clarity in this Bill as to what happens when the solicitor attends at the Garda station. This will give rise to cases within cases and ongoing litigation.
This amendment deals with a certain point. It suggests that if solicitor A, whom the detained person has sought, is not available or cannot be contacted, an opportunity should be given to that person to name another solicitor. That is all that is involved here.
It would be of some help to clarify what happens after a solicitor has been contacted and when he or she arrives in the Garda station.
That would be under the section.
The only other point which I would make has been accepted by the Minister in the context of the Garda code of conduct. When a request is made to have access to a solicitor and an attempt is made to get the original solicitor, if the Minister adopts on Report Stage Deputy Woods's amendment it should be important that the time scale of these matters be properly logged in the station, so that there is no dispute as to the time of the request and the speed with which the Garda acted upon it. Possibly some other of my comments would be more appropriate when we are debating the section in general.
As other Deputies have also remarked, this could be an academic exercise. There is much evidence to show that most people detained would not know the name of one solicitor, much less a second. Am I to take it that unless the persons detained can afford to pay for the solicitor's services, until they are charged they do not get free legal aid?
That is clearly on the section, Deputy.
The Minister made reference to the Incorporated Law Society perhaps drawing up a rota. Are we to take it that the only provision of solicitors for those who do not know of a solicitor or cannot afford one would be through the philanthropic offer of the Incorporated Law Society by way of such a rota?
This amendment deals with a detained person who does know the name of a solicitor and who requests that solicitor, but that solicitor cannot be contacted. It suggests that he be given the opportunity of naming another solicitor. If some provision is to be made for someone who does not know the name of a solicitor, this is not the occasion on which to deal with that. That would be when we are discussing the section.
The Minister's remarks were made in direct relation to this amendment and I was referring to them.
Would the Minister be receptive at this point to discussing the question of someone who does not know a solicitor?
I would suggest that in order to——
Would he take the suggestion when we are discussing the section?
It would be in order then.
I purposely refrained from getting into a discussion on the duty solicitors and their roster. I raised the point the last day that the cost of a solicitor for many of the people who would be involved here would be a major factor. I agree this is a matter for the section as a whole. I welcome the Minister's approach to this and his assurance that he will have a look at this and consider it for Report Stage. He mentioned putting forward a list from which such a person could be drawn in the first instance. The question of the naming of a person is relevant because, in order to name a first or a second person, you have to know where they come from.
The Ó Briain Report said that a feasibility study on this should be undertaken. It is regrettable that that has not been done. I accept the Minister's suggestion that it is something the Law Society should consider and put proposals to the Minister. This is a very important feasibility study because I have to agree in selecting a name and looking for a second name there is a great danger that the knowing of a name becomes a very important aspect of the matter.
That is more relevant on the section.
The Minister mentioned this aspect.
As I understand the Deputy's amendment, it is put down to safeguard a person who might give the name of a solicitor whom he wanted to consult and where a lot of time was taken up in trying to locate this solicitor and no further steps were taken to get a solicitor.
That is the situation in relation to the Deputy's amendment.
That is quite true. When a person is detained knowing where to look or even to suggest a second solicitor arises even in relation to the amendment. I would like to clear up that point now because we will have to come back on it otherwise when discussing the section. The naming of a solicitor is an important matter and the Minister might consider this when he is considering the amendment on Report Stage. In certain areas it is very difficult for an individual to name a solicitor. The Minister said most people will know a solicitor and will be able to name one. I assure him that in my experience in certain areas there is no question of people knowing a solicitor unless they have been in contact with the law previously. There is a problem in that area.
Certain solicitors gain notoriety and become extremely well known as people to contact as solicitors. Most of the contacts seem to go to one or two solicitors. This seems to indicate that in looking for the first one or the second one, as proposed in the amendment, it is important to have a list which people can have put to them from which they can have a reasonable selection.
In the Chair's opinion what the Deputy is saying now is not relevant on the amendment but will be relevant on the section. If the Chair allows a long discussion on those lines on the amendment there will be a repeat of that on the section and this will go on and on.
I do not want to take issue with the Chair because we can discuss the section in a few minutes. There is a danger that some of these points will be lost as we go on to discuss the broader issues of the section. I feel I could take issue with the Chair on this because it would be an undue limitation in not being able to talk about the kind of solicitor a person might look for or where the person might look for a person as a second solicitor.
The person may name a solicitor. It would be out of order for the Chair to get into an argument about the merits of the amendment. I want to assure the Deputy I am not doing that. The amendment visualises the detained person naming a solicitor. If that person cannot be contacted within a reasonable time the amendment invites the person to name another solicitor.
The person is given the opportunity to name another solicitor and that includes a list from which the person might choose another solicitor. I do not want to get into an argument with the Chair on that but I do not want to be put into a position where I am being unduly restricted. It does not matter in this instance but it might matter in another one. We can take that up in a more general way on the section. The Minister has been quite open in his approach to this amendment. He recognises some of the problems and we can talk about some of the other problems which may be associated with the intention of this amendment when we are discussing the section. I accept the Minister's approach to it and I am prepared to withdraw the amendment on the assurances which the Minister has given to us in relation to Report Stage.
(Limerick East): In both amendments, especially those put down in the names of Deputies Mac Giolla and De Rossa, we have ranged fairly widely over the section. Deputy Shatter has raised a number of points which I dealt with previously. We have now spoken about the nomination of an alternative solicitor. I do not have any proposal to extend the criminal legal aid system to persons in detention before they are charged. It is a very costly system. I have serious doubts about the efficiency of the system at the moment and one could be critical about the operation of it. We should not proceed with the section on the basis that everybody will want a solicitor. People have the entitlement to contact a named person. I believe quite frequently the named person will be the option which people will opt for.
I would like to point out that the section is in ease of the detainee. There is no right of access to a solicitor being given in this section because that right exists already. The section is giving the person the right to be informed of the right of access. The same applies to parents or guardians. It is not a question of a new right being given under the section to a detainee where the parents or guardian have to be informed. That right exists already. The section states that a person is to be informed of that right.
I find it difficult to understand why Deputies Mac Giolla and De Rossa are opposing the section as a whole because, regardless of what one may feel about the details of the section, it is in ease of the detainee and of the person in custody rather than in ease of the Garda Síochána. I do not understand why the whole section is being opposed.
With regard to what happens when a solicitor attends, the existing case law covers that and it is a point which Deputy Shatter has made. As I pointed out previously, an arrested person has a right of reasonable access to a solicitor. The section is not conferring a new right but is recognising an existing right. It is ensuring that the person is notified of it. Although it has not been definitively settled by the courts the probability is that the right is a constitutional one. Accordingly, refusal on request to allow reasonable access would probably make the 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 adviser sought.
Relevant cases where the right of access to a legal adviser was considered were the People (DPP) v. Madden and others (1977 Irish Reports, page 336) and The State (Harrington) v. The Commissioner of the Garda Síochána and others (The High Court, 14 December 1976, unreported). In the latter case it was also decided that access to a legal adviser must be allowed in privacy and out of hearing of any member of the Garda Síochána. There is a right of access under existing case law. We should not proceed as if the courts did not exist. If the courts in their wisdom decide subsequently that a person's rights were breached under this section, that difficulties were placed in their way and their right of access to a solicitor was not provided for, the redress is in the court.
Deputy Barnes raised the question of the criminal legal aid system. Legal aid is very expensive and there are competing demands on the Exchequer — some of them in the legal area, many in the social area in general. The amount of money which could be spent here might be difficult enough to justify. I have asked solicitors what their advice would be and invariably the advice which a solicitor gives to a detained person it "say nothing". It is not as if the solicitor gives a long lecture to the detained person. The regular formula is "Do not answer any questions".
The statistics quoted by Deputy Woods of the experience in Great Britain would suggest that persons detained under section 3 of this Bill could be detained for very short periods indeed and that it would be the exception that people would be detained for the full stretch. One or two hours would be quite reasonable. I would expect that persons under the age of 17 detained would contact their parents or guardians or, if married, their husbands or wives. I am sure it will be mostly wives who will be called upon. If they are over 17 years of age they can contact a named person or a solicitor. I appreciate the difficulties of somebody who does not know a solicitor and Deputy Skelly made a suggestion as to how we could overcome it. Many of the details which would improve the situation could be dealt with by way of statutory regulation rather than amendment of the Bill.
I would agree with the Minister in relation to the section as a whole but I would emphasise that the minimum is to ensure that the judges' rules are upheld since they give protection to those under 17 years of age. We are faced with the difficulty that there is a basic inequality in this section. There is a major flaw which it is difficult to put right due to the problem of providing legal aid for people who are poor and do not have the money to pay for it. They say about going to court that the doors are as open as the doors of the Ritz Hotel. The legal aid system covers a person once he or she is charged, but now people will be detained without being charged. If they have a reasonable income they can handle it and pay for someone to advise them. I have made the point earlier that the need will arise only in a relatively small proportion of cases because most cases will be dealt with fairly quickly. We are talking about the 5 or 10 per cent of cases where people would need to be advised of their constitutional rights. If they are not so advised there could be further difficulties, even for the Garda. There is a gap because of the extension of powers of detention for a period when a person is not charged.
I do not know how the Minister can deal with this. I will be looking at the possibility of an amendment on Report Stage to ensure that adequate provision would be made for legal aid to poor or disadvantaged persons so that they could have equal access to the services of a solicitor, as envisaged in the Bill. If we accept this section as it stands people will not have equal access to a solicitor, during detention. Those who have the money and the knowledge can contact a solicitor who may just telephone the station and make inquiries. That can be very valuable. Things can flow fairly straightforwardly after that. We are dealing with a potential detention for 20 hours, although we accept that most detentions will be for a short duration. The section is designed to provide equal access to a solicitor but in practice it would be unequal. I accept the Minister's difficulty in that the enlargement of the legal aid scheme could mean that solicitors would be called up for no reason and money would be wasted. One has to set that against the basic inequality for the person who has less money. Such a person comes off second best and that must worry us, even though it would apply in only a small percentage of cases.
The Minister provided us recently with reference material in regard to a case which is relevant to this section, the case of Detective Garda Travers and a minor. This was a judgment delivered on 24 February 1984 by Mr. Justice Finlay and it is worth elaborating on it. In that case the defendant at the time of the alleged offence was 14 years. Apparently he was arrested in the presence of his father and was brought to the Garda station and cautioned. However, he was not informed of his right to have either of his parents present at any interview between him and gardaí. The prosecuting garda who had effected the arrest and who had taken the statement stated in evidence that he did not wish to have the father present during the questioning or during the taking of the statement for fear that the father might attempt to obstruct justice.
One of the questions that arose was whether a garda is obliged before questioning a young person of 14, in addition to the usual caution given to all accused persons, to further caution or inform that young person that he or she is entitled to have a parent or a guardian present during the questioning or the taking of any statements. In the decision afterwards the statement made was as follows:
I am satisfied that in relation to a person of 14, unless there are practical impossibilities arising, that if a person of about that age is suspected of a commission of a crime he should not be questioned or interrogated except in the presence of a parent or parents of some person of an adult kind who is looking after him as a guardian.
Further on it was stated:
It is not intended to be an inflexible rule nor under any circumstances could proof of non-compliance with it be said automatically to exclude as admissible evidence the making of a statement by a suspected young person.
The statement contained the following comment:
It would also seem to me that a prudent course on the part of an investigating garda in such circumstances would be to secure the attendance of a parent.
This is very revealing in relation to current practice and the law as applied by the courts and the strictures on the Garda in those circumstances. We welcome the Minister putting the High Court view before the House so that we can understand more clearly what can and is likely to happen. The general conclusions contained the following statement:
If for good reason a garda feared that one parent of a young person might obstruct the course of justice there would, in accordance with the principles I have set out, be still an obligation on such garda to seek the attendance of the other parent at the questioning or taking of a statement.
It also stated:
The fact that a parent or a guardian might advise a young person being questioned by the gardaí to say nothing does not constitute an obstruction of justice.
If parents knew their rights in this matter there would probably be less difficulty. Many problems arise because people do not know their rights.
We are prepared to go along with the Minister on this section on the assurances he has given us in relation to Report Stage. He has given us a commitment to look again at the section. I will consider tabling an amendment to the effect that adequate provision be made for free legal aid. The Minister said the Law Society might come forward with a list and that may be necessary. For instance, perhaps arrangements could be made with regard to having a reasonable fee granted for the making of a phone call — I know that ultimately all these things come back to fees. In many instances it may simply be a question of a solicitor making a telephone call. If people are properly advised of their rights and if they are not going to be held for a lengthy period there may be no need for anything further. However, we will have to look at this matter on Report Stage. Otherwise it builds into the Bill an inequality of access to the services of a solicitor and I shall consider putting down an amendment concerning this aspect on Report Stage.
As the Minister has said, the right of access to a solicitor already exists and this section improves the situation in that a detainee must be informed of this right which he has already. However, I am slightly concerned, as are many others, because most people have little to do with solicitors and many of them could not even name a solicitor. Even in a simple matter of purchasing a house people frequently ask one to recommend a solicitor. When a person is detained for questioning and when he is filled with fear and worry it may affect his thinking powers. Surveys are conducted frequently with regard to political matters: it would be interesting to carry out a survey and find out the number of people who could name a solicitor. That is only the beginning of it; it is another matter to be able to contact him, especially after hours.
The Minister should develop the suggestion or offer in the Ó Briain Report in relation to a duty panel of solicitors. I do not know what is the problem here but it may be with regard to money. The medical profession provide a valuable and worthwhile service at a very modest cost. Frequently they come to Garda stations at night-time to take blood or urine samples in drunken driving charges but they do not get much more than the day-time standard fee. I know this because my brother has for many years acted as a doctor on call and he has frequently gone to Garda stations. The day-time fee might be £6 and he would get £10 for a call at night. Admittedly the medical profession take the Hippocratic oath and they would not let a patient down. In the same way the legal profession could be called upon to provide a worthwhile service.
When you are talking about legal fees, when someone in detention calls in a solicitor, you might be talking about a very large sum, maybe hundreds of pounds or at least the start of a process whereby a fee of hundreds of pounds would be earned. I agree with the Minister when he said that the advice a detainee is most likely to get would be not to say anything until he can have consultation with a solicitor and a case can be prepared. If that is so, one does not need a great deal of expertise to advise a client and the onus should be on the profession — at least he should be asked — if that kind of service could be provided so that people at all times could have easy access to solicitors.
I should like that matter to be examined because I know that many people in my constituency would have no dealings with a solicitor as they are not permitted to advertise. Frequently solicitors names are upstairs over some shop or in a side street and they would not be meeting ordinary people socially. They are not a very large percentage of the population and unless one had a need to contact a solicitor or had dealings with solicitors in business there is a likelihood that people would not know them.
In any event, knowing a solicitor is not the answer to the problem. A person might want to have a particular solicitor representing him. In this respect the Incorporated Law Society could be of great assistance to the Minister to see if some kind of service, which would not be very costly, could be provided in the initial stages to safeguard and help a detained person. If that cannot be done, we should look at the legal education system and see how it can be changed because, if the medical profession can provide a service for everyone, I do not see why the legal profession cannot do the same. A directory of practising solicitors should be shown to the detainee so that he can at least choose a name and make a telephone call. In that regard, I do not see why the call is restricted to one solicitor or a friend. I do not see the reasoning behind that.
We had other amendments which spoke about "as soon as practicable" and "without delay" and I mentioned my reservations in connection with them. I understand the Minister's worry regarding the criminal legal aid system. Nevertheless, I still think it is a service which we should provide and, perhaps in the manner which I have suggested, the cost could be greatly reduced and humanitarian concern shown by looking at it in that way.
When a person is being informed of his right of access to a solicitor, there should be a notice to that effect visible and a copy should be given to the detainee because, very often, people are in a state of shock and cannot take in what is being said to them. The weaknesses in this section are in the right to inform the detainee and how that is done, access to a solicitor, the problem of having to locate a solicitor and, finally, from the detainees point of view, the circumstances under which he is detained. Very often, with people who do not know their rights, the tendency is to do nothing, to hang on and inadvertently to suffer as a result and possibly become embittered. That is unfair to the Garda because a person who would otherwise have spent a half an hour, an hour or an hour and a half, as the Minister has suggested, in a police station could end up spending a great deal longer which would not have been necessary. In fact the Garda may not even have wanted them to be there that long — all for the want of being able to speak up or for making things absolutely clear to him and giving him access to a solicitor.
The amendments which were put down by Deputy Mac Giolla and myself were intended to tighten up the section and ensure that there would be no undue delay in contacting solicitors and relatives of the detained person.
The Minister pointed out that persons under 17 years of age now have the right — presumably they always had this right but it has only been defined recently — to have a parent present before they can be questioned. However, the most important point in relation to this section is that while attempting to improve the rights of detained persons it does not go far enough. There are serious gaps in the section, most of which have already been referred to by a number of speakers contributing to this debate. The Minister, in response to some of these points, said he does not believe that there are very many people who do not know a solicitor. I have no way of knowing on what he bases that belief but, in my experience, a very large number of people do not know a solicitor. Many of them, while they may know the name of a solicitor, do not know his business or home address. It is quite likely that a significant number of detentions will occur after 5 o'clock in the evening and if the detained person knows the name of a solicitor but does not know his address how are the Garda supposed to contact him? If he is unable to contact a solicitor in what way are the rights of the detained person protected? He also indicated that some persons detained may not want a solicitor. In those cases it is my belief that that would be because the detainee would be afraid of the cost of employing a solicitor. This takes us back to the point raised by Deputy Woods that, as in many other areas of the law, a person who can afford to pay for the best legal representation has an advantage over a person who cannot afford to engage a solicitor of any kind.
Because we are in this Bill introducing a new concept into the normal criminal law, that of detention for the purpose of questioning, in view of the fact that the present legal aid scheme does not cover persons until they appear in court I would argue that the Minister should seriously consider taking up the proposal of having a panel of duty solicitors. The Minister argues that this may be very costly but we cannot reasonably argue that, because of cost, a person's rights should not be protected. Perhaps the Minister would comment on the recommendation in the Ó Briain Report, at paragraph 62, that a feasibility study be carried out on the possibility of establishing a panel of duty solicitors. Responding to that report in 1978 the then Government accepted that a feasibility study ought to be undertaken. Perhaps the Minister would also indicate whether this or any previous Government have undertaken such a feasibility study. It is reasonable to assume that such a feasibility study has been undertaken and, if so, perhaps the Minister would let us know its results.
Another important point to be raised on this section is in relation to a detainee knowing or not knowing a solicitor. It may well be that a detainee could know a solicitor by, for instance, having had dealings with him in buying a house, or his parents may have engaged a solicitor in the purchase of a house. We are all aware that many solicitors engaged in conveyancing are not interested and do not want to be involved either in going to court for criminal proceedings or in visiting Garda stations. Of course there are other areas of specialisation, there are solicitors who specialise in company law and so on. While a person may be vaguely aware of the name of a solicitor there is no guarantee whatsoever that that solicitor will be interested in attending a Garda station or indeed will be competent to do so, or of advising persons of their rights, because he may have spent most of his time in legal practice on conveyancing, company law or on any of the many other areas of law in which they can specialise.
There is a serious gap in the section as drafted. The Minister asked why Deputy Mac Giolla and I opposed the section in view of the fact that it is intended to improve the position of a detained person. Our basic reason for so doing is that we consider the section inadequate. If the Minister had accepted our amendments, similar ones, or had endeavoured to improve the section in some way, even if he offered at this point to improve the section — ensuring that detainees have reasonable access to a solicitor — then we would reconsider our opposition to the section.
Our concern with this section — like some of the others with which we shall be dealing today — is an endeavour to provide a system of checks and balances ensuring that there will be procedures to provide protection for people against possible abuse and protect basic civil liberties in the context of the exercise of the powers of detention by the Garda. However, this section has a fundamental flaw. I am sorry the Minister has expressed the view he has today, that he is unwilling to look again at the criminal legal aid system and the way it operates. I accept some of the Minister's reservations about the criminal legal aid system having proved expensive — there is no doubt about that. On the other hand, nobody has yet devised an alternative system affording people adequate legal protection when charged with criminal offences and which would be less expensive. The only mirror image of the criminal legal aid scheme that we have in this State at present is the civil legal aid scheme operating through law centres which are incapable of coping with the demands placed on them and which are entirely inadequate to meet the needs. Until such time as there is an adequate and appropriate suggestion for an alternative scheme of criminal legal aid the system brought into being by the 1962 Act is with us.
The problem with this section — and here I share the view expressed by Deputies Woods, De Rossa, Skelly and Barnes — is that the protections it affords are selective. In fact the provisions of this section will provide real protection for the hardened criminal, the person who has been before the courts, who is familiar with the criminal justice system, who has had regular contact with expert criminal lawyers — because of the fact of having been charged with criminal offences — who will receive protection under this section, in the sense that that person will have access to a solicitor because he or she will have established contacts with a solicitor and know how the system operates. I am not saying that such a person should not have contact with a solicitor; anybody who is held in detention is presumed to be innocent until charged with an offence and found guilty by our courts, so they are entitled to such access. The point is that this section will provide selective protection in that those who can afford to pay for lawyers will have access to them and receive advice when they are detained.
Those whom we would regard in this House as coming within the bracket of the hardened criminal, the person who has been before the courts on a number of occasions, convicted of offences, possibly having been sentenced to terms of imprisonment and who finds himself detained again, will have a relationship with a solicitor who will have some expertise in the area of criminal law and probably will have the wherewithal to pay for that solicitor. Possibly that solicitor — in the context of past fees earned, be it through independent payment by the persons themselves or through the criminal legal aid scheme — will be quite willing to go along to a Garda station. The problem arises with youngsters who are detained in a Garda station, who will have no independent income, who possibly have never previously been in contact with the police in a Garda station, who have never previously been suspected of committing a criminal offence, who have never been before our courts, such persons will be vulnerable. They will be unlikely to know of a lawyer and, if they do know of a lawyer, probably will not have the financial means to pay for his engagement.
Therefore it seems to me that what we are providing here is a selective system of justice where the protection provided will be determined by the amount of cash in the pocket of the person detained. I do not think that is satisfactory. We cannot simply dismiss it by saying that the criminal legal aid scheme as it operates at present is too expensive, therefore we will not extend it in any way to deal with this situation. We need to examine it. We had a long debate in this House two weeks ago about whether the Garda, when they are requested to make contact with a lawyer, should do so without delay or as soon as practicable. We had a great semantic argument about the respective merits of phrases like "without delay" and "as soon as practicable". It was all very interesting but was irrelevant to persons who are told either "without delay" or "as soon as practicable" they can make contact with a lawyer and who do not have the wherewithal to pay a lawyer.
I am not a fan of the scheme of having a duty solicitor attached to a police station, which operates in some countries. I am not sure it operates all that well. It provides someone with legal training who can advise someone who is detained but, whether that is the best way of dealing with it, and whether it always provides independent legal advice, is open to question. A question has been raised about a duty roster system in police stations in other jurisdictions. They sound all right in theory but often they do not work all that well in practice. Often you do not get the most expert lawyers waiting in police stations on a duty roster system.
A type of system which could operate as an extension of the legal aid scheme would be to use the names of those solicitors who are on a legal aid roster and who are on the list retained by the courts as being solicitors who are willing to undertake criminal legal aid work. A list of solicitors' names and telephone numbers should be in each of the Garda stations in individual areas or districts in which they operate. The Garda should be able to supply those names to persons who are detained and who do not know a solicitor. The Garda cannot be expected to recommend a solicitor. That might result in the solicitor never getting employment in the context of representing clients in criminal law work. It might result in persons not being represented by the most desirable solicitor, a person they would feel confident would give them independent advice.
There is no reason why the Garda stations should not maintain lists of solicitors who operate on the criminal legal aid panel. To some extent somebody who was not familiar with any solicitor would be taking pot luck in choosing a name, but at least they would have the facility to do that. A question then arises about payment. How do you provide for that in the context of a legal aid system where there is no independent——
The Chair feels we are now indulging in a Second Stage debate. The Deputy is now dealing with the whole system of free legal aid which is another step in the criminal code of the administration of justice and that is outside this Bill. It would take a separate and distinct Bill to deal with it. A reference to it would be all right, but to go into it in-dept would not be in order.
This section is concerned with the provision of legal assistance to people who are detained. I am trying to assist the Minister in seeing whether a scheme can be devised which would ensure that legal protection would be available to people who are detained and available equally to all people who are detained regardless of their financial position. I do not think that in making a reference to that in this context I am going too wide of the Bill. The Minister referred to the duty roster.
I do not think that is relevant to the Committee Stage of this Bill.
The ability of people who are detained to pay legal fees for advice sought when they are detained seems to me to be relevant.
I do not think that a long and learned discussion on the availability of legal people is relevant to this Bill.
I ask the Minister to look again at this, in a sense, blanket refusal to provide legal aid in these circumstances. It occurs to me that in the light of the Healy-Foran judgment to which I referred two weeks ago — and the wrong names appear in the Official Report — and in the context of the recent decision by the President of the High Court which sets out the law relating to the right of access of parents to young persons who are detained, it appears to me that when this legislation becomes operable, there must be some possibility that the courts might decide that there is some right to have access to a solicitor on the part of people who cannot afford to pay for a solicitor. This section is properly designed by the Minister to provide a protection. I believe it provides a selective protection.
I want to deal with another aspect of this section in the context of requiring the Garda to notify the fact that someone has been detained. I raised this point previously and I do not think the Minister replied to it. I apologise to him if he did. I may have missed his reply. I have been in the House for most of the debate and I have not missed too much of it. I made the point that where young people are detained the juvenile liaison officer scheme should have some involvement in addition to a solicitor or a parent. Garda stations are supposed to have a juvenile liaison officer attached to them. This scheme has never been properly and fully developed. It has a great deal of good in it and it should be allowed to grow in such a way as would allow it to make a very real contribution to the criminal justice system and in dealing with young people.
It seems to me uniquely appropriate that where a person under 17 years of age is detained the local juvenile liaison officer should be notified. He should have some involvement if that young person is to be questioned. He may be someone with whom the young person has had previous contact. I am critical of the fact that there is no statutory provision recognising the existence of the juvenile liaison officer scheme. In the context of detaining a young person, surely it would be appropriate that members of the Garda who have some expertise or training in this area — although they would acknowledge that they have not got enough expertise or sufficient training; but at least they have a specialist interest in young people — should be notified if a young person is being detained.
That would ensure that a degree of sensitivity would be exercised by the Garda in the manner in which they deal with these powers, particularly in the context of young people. It is a concern of many people that, when a young person is detained, while the Garda may notify a solicitor or try to make contact with the parents, the experience of being detained — and people will be detained who are innocent of any offence and who will never be charged with an offence — may greatly alienate young people and exacerbate feelings of alienation which already exist. The hope would be that in exercising these powers the Garda would deal with them in a considerate and considered way.
I ask the Minister to consider amending section 4 on Report Stage. Subsection (2) deals with persons under the age of 17 years who are detained. We should provide that, as soon as practicable, the juvenile liaison officer attached to the Garda station would be notified of the detention and consider in the context of rules of conduct or the code of practice of the Garda making some specific provision relating to the involvement of the juvenile liaison officer in the detention of young people.
The Minister made a passing reference to the fact that he believes periods of detention for many people will be short, that the experience is that they will be detained for an hour and a half and will not need legal advice. They may be detained briefly in a Garda station and be out again before it is possible to get a solicitor to come to the station. That may happen on some occasions, but it will not always happen. A great deal of public concern exists that people may be detained for unduly lengthy periods even after the Garda become assured that they have not been involved in any major criminal activity which would bring them within the ambit of this section. That point should be made when debating the Bill. The recent event when 33 young people were detained for 30 hours under the Phoenix Park Act, 1925, seems inexplicable in the context of assurances that people would be detained for only one hour or 90 minutes under this provision.
I ruled yesterday that that case is sub judice.
I appreciate that no comment may be made on what offences these people may or may not be charged with. As a general point I believe it is valid to express concern at a period of detention taking place. That was a lengthy period of time in the context of events. I do not know what offiences those people will be charged with but in the context of this section where assurances are given that people would not be detained for unduly lengthy periods of time the only point I am making is that that period of detention indicates the need to ensure that under the provisions of the Bill, in particular section 4, people detained will have full and proper access to legal assistance. That should apply not merely to young people — defined in the Bill as those under the age of 17 years — but to those over 17 years also.
I appreciate that the Minister's concern which he has expressed fairly throughout the debate is to achieve a proper balance, to ensure that the Garda have the powers made available to them that they deem appropriate and that people have available to them proper protection of civil liberties. It is necessary to ensure that those powers are not misused. In the context of the Minister's genuine concern I should like to ask him to consider some of the points I made in this area and add some more flesh to the skeleton type provisions that exist in section 4 to ensure that the legal protection he envisages being provided by it are genuine, will apply equally to everybody and are not dependent on financial ability to pay for a solicitor's advice.
With regard to the question of balance which Deputy Shatter and others said the Minister was attempting to achieve in this section we cannot consider there is balance of equality in it unless it is linked to legal aid and solicitors being available to everybody. We have already referred to the fact that many people do not know a solicitor, may not be able to afford one and would have problems coping with solicitors and the law. I accept, if expanded in this case, it could be expensive and might be difficult to justify. There is no point in putting legislation through to give powers of detention without giving that matter consideration. We must all strive for balance and equality before the law.
Deputies Shatter and Skelly referred to ways of overcoming some of the expense incurred in the legal aid system such as rota system. I will not deal with that matter in detail but it is essential that action be taken on it before Report Stage so that the Minister can introduce a structure for legal aid for everybody who needs a solicitor. I hope the Minister will be in a position to inform the House on Report Stage that that is in operation. If that does not happen the House will be concerned and reluctant to pass this provision without such an assurance.
With regard to information and access to it I do not think we can stress often enough during the debate the state of mind people are in when detained in a station and subject to the whole ritual of the law. I am referring in particular to those who are young, feel isolated or under threat. It is essential from the Garda point of view that this type of information is given so that we do not end up alienating the force from the community. It is essential that our people do not see the force as a hostile group that is out to get them. If that is to be avoided we must ensure that people detained are informed of their rights. Having done that the only practical thing we can do is to ensure that they get their entitlements. It is important to stress that.
The events last weekend indicate that there can be inexplicable detention. That can raise fears amoung members. Without focusing on the detention referred to by Deputy Shatter I believe I am expressing the view of many people when I say that in a security exercise such as occurred last weekend — I accept it was an unusual occasion — if extra powers of detention were given we might end up with the public believing that the forces of law and order were not working on their behalf but against them. We should never allow that to happen. Unless we deal with the issues raised in section 4 that will happen and to our cost. I hope the Minister will consider the recommendations made by Deputy Shatter in regard to those under 17 years of age. He may consider introducing the juvenile liaison officer. We are all attempting to ensure that law and order are carried out here in a humane and just way. I include the Garda in that.
I do not share the views of the previous speakers and I urge the Minister to retain the section without any adjustments. I do not hold the view, expressed by several Members, that people do not know solicitors. I accept that a few may not know of a solicitor but some people do not know where dentists are located. However, when they need a dentist they do not have much difficulty in finding one. Most rational and reasonable people will agree with the section. Any extension of the criminal legal aid scheme should be curtailed. That scheme has a question mark hanging over it. It has been a gravy train for a section of the legal profession. In particular a leading member of The Workers' Party has been the chief beneficiary. Recent figures indicate a drop in criminal activity — I have no doubt that will be shown to have been a temporary phenomenon — but I have no doubt that our fight must be to reduce the incredibly high rate of criminal activity here. Our concern must be for victims of that criminal activity.
The belief of Deputy Shatter that a juvenile liaison officer should be present is wrong. A solicitor should be present but a juvenile liaison officer should not be present. He has no function in that matter. I believe the conduct of the Garda Síochana in most cases is exemplary, particularly in dealing with young people under 17 years of age. Therefore, I support the retention of that section.
I found it profoundly depressing to hear the remarks of Deputy McGahon regarding the legal aid scheme. In effect he is saying that a distinction should be drawn between those people who can afford legal representation and those who cannot afford it. That is putting the clock back a hundred years. If a person has not the means to be legally represented then quite clearly the State must have an obligation to ensure that that person is not deprived of legal representation and assistance for that reason and that reason alone. The wealthy section of the community have no problem. They can retain solicitors and junior and senior counsel at will and call up all the aids they require. It is entirely unacceptable that we should divide our community into two sections, the haves and have nots, and so provide and maintain as a State that people with money are put in an advantaged position in a matter of this nature. The old saying of one hundred years ago that justice was open to all just as the Ritz was open to all who could afford the prices to go in there could not be tolerated in a caring society. I know that our country is to some extent at any rate, a caring society but considerably more remains to be done. I deprecate the remarks of the previous speaker in this House and I advocate strongly the extension of the legal aid scheme to ensure that people who cannot afford legal aid will have it provided for them by the State.
The question of access to a solicitor is the subject matter of this section. As the Minister pointed out quite correctly, the section recognises a right that is already there, namely the right of access to a solicitor. The existing law provides for that, that is true. The section, as the Minister indicates, purports to extend that somewhat by providing that not alone has the person the right of access to a solicitor but that he must be informed of that right. Certainly that is an appreciable improvement as far as it goes, but is it really doing anything of substance? What purpose or intent could there be in having the person informed that he has a right of access to a solicitor, but that is all you do? There is no great merit in that per se. I am a solicitor myself and I may be informed that a client of mine is in custody. There is no great advantage either to him or to me. Surely if the right to be informed of that is to have any meaning, the intent and purpose of it can only be that the solicitor should be present when the questioning takes place. What benefit is it to a person in custody that the person is informed that he has the right of access to a solicitor if before the solicitor arrives the questioning procedure swings into intensive action? It is of no benefit whatsoever to the person. The information, while interesting no doubt, is useless.
Likewise, from the solicitor's point of view it is quite useless that he should be informed that his client is in custody and he tells the Garda that he is on his way and will be there in an hour, if when he arrives in an hour's time or whatever he finds that it is all over. Therefore, there is no great merit in giving the information. The purpose is that the solicitor would be present before the questioning commences. That is the only logical reason for having a section providing that he is to be informed of his right of access to a solicitor. The section ought to be amended to provide that when the directive of the section is carried out and the person in custody is informed that he has the right of access to a solicitor, the next stage would be that the Garda would contact that solicitor and if that solicitor indicates that he is in a position and is prepared to be present within a reasonable time — the word "reasonable" is used in another context in the section — then questioning would be suspended for the reasonable period indicated by the solicitor.
It could be argued, and the Minister will no doubt make the point, that if a solicitor is not available, cannot come, says that he will not be there for days and so on, perhaps in such an extended case then the questioning might go ahead. If a solicitor indicates that he is prepared to be there within a resonable time, then the purpose of having him informed is to enable him to be there. In such a case would it be asking too much to suggest that an amendment be incorporated to provide that questioning be suspended for that reasonable period nominated and indicated by the solicitor when consulted? Making that as a sort of compromise point would in no way detract from my position that in any case, as I advocated on the last occasion, a scheme should be set up, with the co-operation of the law society and legal aid services, of duty solicitors who would be on call in emergency situations at any time of the day or night to assist people who find themselves in need of assistance and advice and who are unable to provide it from their own resources. At the very minimum if a solicitor when contacted pursuant to the section indicates that he is prepared to be present in a reasonable period, then surely the section should provide that questioning be suspended until he arrives.
(Limerick East): A number of points have been made and most of them have been made before now. The detained person has rights at the moment and what I am providing for under section 4 is that that perosn would be informed of his right of access to a solicitor and that in the case of a young person the parent or guardian would be informed.
Deputies made a point about young persons being detained who would not know the names of solicitors. That is not true. Under the section, if a person is under 17 years of age the obligation is to inform the parent of guardian as well, and it may be the parent guardian who will contact a solicitor. If a parent or guardian is not available, the obligation areise to notify, on request, named person. There is a point about whether people would know solicitors. There may be people who would not know solicitors personally, but they would know the names of solicitors. I accept young people would not, but most ordinary people would have reson to consult solicitors at some time in their lives, to make their wills or to buy property or because of some involvement with the law. I accept the point made strongly by Deputy Shatter, and I will examine the possibility to have some kind of list in Garda stations giving of solicitors who would be available for consultation in Garda stations. I will examine if that is practicable.
Deputy Shatter made a number of points oon access to solivitors and spoke particularly about the Criminal Legal Aid Act, 1962. The courts have decided that if it is essential in the interests of justice, criminal legal aid should be provided. There is also a means test to decide whether the perosn would be elligible for leagl aid, but the pharase "essential in the interests of justice" is the overriding factor. it is arguable whether it is in the interests of justice for a solicitor to attend questioning detention and so on.
The same Deputy spoke about this section and sectioon 3 being examined subsequently in the courts and he said the courts may decied that people have the right to have their solicitors present right through periods of detention. He said it is a totally new concept. Of course, we have detention at the moment and people can be detained for up to 48 hours under the offences Against the State Act, and the right of access to a solicitor is there. The courts have not development case law to make it essential to have a solicitor present right through the questioning period, but the right of access to a solicitor is there.
Deputy Taylor asked what use is that. The use is that during the questioning period a person has access to a solicitor in private, out of the hearing of the Garda Síochána, and he can be advised by that solicitor. That is as far as the courts have developed their interpretation on the rights of detainees. In the section I am taking the case law as stated by the courts and I am providing that detainees must be informed of the right of access to a solicitor and to a parent or guardian.
I can understand the concern of Deputies that there could be practical problems in the actual exercise of the right — that solicitors may not be available, or where the first solicitor was not available whether it would be necessary to contact a second one. I undertsnd those points and I will see if something can be done so that at least people who would not know the names of solicitors would be informed of them.
It is not the intention of the section to go beyound that. I am not in favour of Deputy Taylor's point that a solicitor should be there right through the questioning period. I do not think it is necessary and it would be enormously expensive. Obviously, if it was conceded in one instance it would be conceded in the others. I do not know how much solicitors charge per hour but I would regard £20 per hour as being a reasonably modest fee, and if somebody is detained under the Offences Against the State Act for 48 hours we could get a bill of £960 or £1,000 from a solicitor. We must think of the taxpayer. There is no such thing as free legal aid, whether it be criminal or civil free legal aid. The aid is free to the individual but the taxpayer is taking up the bill and I am not too happy about the operation of the criminal legal aid system.
It seems to me that certain solicitors and firms of solicitors are making enormous amounts of money out of the scheme and I am not too sure about the level of the service provided. That is not to say that I have immediate plans to change the system. i will not put the clock back 100 years and I agree that if people have not the means with which to be represented in court the State should provide it. That is not to say that we have a perfect scheme at the moment.
On the juvenile liaison officer scheme, the liaison officers' role is concerned with counselling youngsters who have committed offences. To bring them in when somebody has been detained would cause two things to arise. Firts of all, it would change the role of the juvenile liaison officer dramtically, but in the opinion of the public it would give the impression that the young person was guilty of an offence and was being counselled by the juvenile liaison officer when in many case the young perosn will be btought in in connection with the investigation of an offence and subsequently will not be charges.
I do not think this is a particularly good idea, even though I agree with what has been said about the juvenile liaison scheme and how effective it can be and how is should be developed. However, the scheme is to help people who have been found guilty of offences and have been referred to the care of juvenile liaison officers. There is another problem. The juvenile liAison officer is called and if the youngster confesses and makes a statement it might be said that the confession is inadmissible because it could be argued that ti was made as a result of an inducement by a person in authority, the point being that the juvenile liaison officer knew the young offender, had his confidence and used it to get an admission.
I a juvenile liaison officer is to act as the friend of the young person and if he is to be the advise of a person who has been convicted and if that youngster is brought in a second time the position would arise that some body who has the confidence of that young perosn would be brought in in an advisory capacity. This would create very serious problems in such a situation. That is not to take away from the complimentary remarks made about the scheme.
Similar remarks were made about the probationary services, about involving probation officers. In this scheme there have been relationshipd of friendship and confidence between probation officers and young offenders and anything said between them could be inadmissible because of this relationship of confidence being interpreted as an inducement by perosns in authority who had developed this rapport with young persons.
I repeat what I have said at various times, that section 4 is in ease of the detainee. It is not giving new rights of access to parents, guardians or solicitors, but it is putting a statutory obligation on the Garda Síochána to inform the person of his or her existing rigts. I agree that informaing perosns of their existing rights may not be enough to enable them to exercise those rights and I will see whether something can be done by regulation or practice in Garda stations to ensure that at least people who are unable to nominated solicitors will be made aware of the names nd locations of various solicitors who in general would be willing to act in this capacity.
A point which has not been adverted to is that because we have the criminal aid scheme many solicitors may be willing to attened at Garda stations because subsequently they will become the solicitors nominated if somebody is charged. It is not as black and white as Deputies have argued. I can see a situation developing if a perosn nominated a solicitor at that stage. If the person is not charged he will not have a major problem and if he is charged the solicitor who is nominated will benefit restrospectively when he will be paid for the court case. In practice solicitors, especially young solicitors, on the list may be willing to attend in station on that basis.
There has been reference to the availability of a duty roster of solicitors. The Incorporated Law Societry are an independent body. They cantorl an independent profession. Perhaps the community would appreciate a gesture on the part of the society whereby they would provide a service for people who are detained. This is not a question I wish to dwell on but I am not too sure about the situation of the legal profession advocating schemes that would be very costly to administer. The suggestion of solicitors being available on a roster system to detained perosns is good and I should like to see the Incorporated Law Society develop the idea and put forward a scheme on those lines.
In the interest of justice.
I accept what the Minister says in relation to the section in that it is in ease of the detainee and is providing for the right to be informed. We must take this in the context of the Bill in so far it is providing for a period of detention without charge and that is totally new. It is in that light that the Minister is provideing for access to a solicitor and for notification of detenmtion. We must bear in mind that the provision is not merely something gratutous in the interest of modernising the law. It looks as if only the innocent poor will be the ones in danger criminals who may be in the poorer groups will know their way around fairle well. Some may even be spondored or supported by other people but it is for the fairly large number of innicent poor people that we wish to peovide measure of protection.
The Minister has said he would be prepared to go along with a ropster system of solicitors who would be available to detained perosns. We take the point he makes about retrospective benefit. Such a situation operates in some instances but in the case we are talking of where under the Offences Against the State Act, for instatnce, 90 per cent of those detained are not charged, we do not know what the precentage would be but perhaps about 70 per cent would not be charged Consequently, the retrospective benefit idea may not commend itself to solicitors. However, the problem might be overcome by way providing fot the payment of a small fee in respent of a solicitor's availability to a detained person and then for the retrospective benefit in the event of a subsequent court case.
My hackles were raised by some of Deputy McGahon's comments. I was very much concerned about the line he was taking. Listening to him I was glad of our having a Constitution and also an independent Judiciary and independent courts.
I deal frequently with people in the sort of situation we are talking of. They do not know solicitors and ususlly do not wish to have any delaings with them. We are talking about innocent people who may not be too well off. Very often people are reluctant even to contact a solicitor for the purpose of making wills and failure to make a will leads to much difficulty in regard to probate and so on.
I agree that there are problems in regard to the free legal aid scheme but we must consider it with a view to ascertaining how it can be improved and modified. I have indicated that there are certain individuals and companies who seem to be very mush involved in that scheme but in practice I have had difficluty at times in finding them when they were needed in court. However, the need for the scheme is obvisous especially when we are considering the extension of powers. The Minister has acknowledged the point that while theoretically we may make a solicitor available, in pratice that may not be so because in the first instance detained perosns may not have the where withal to engage solicitors. But the availability to a solicitor in a case of detention is crucial. We lack a breakdown of case law and of how people are affected in thse matters of detention. I would refer to a case which occurred in September 1983. This involved the arrest of a man under the Offences Against the State Act but allegedlky for malicious damage to the extent of £15. He was taken to a Garda station at 10 p.m. and after 15 minutes requested immediately that a doctor and a solicitor be brought to him. He was attended by a doctor at 11 p.m. following which he was questioned for some time — from about 11.30 to midnight. He claimed that during that period there was limited physical abuse to his person. His solicitor visited him at 1.30 a.m. and he brought the man's wife to see him at 3.30 a.m. So far as that man was concerned the repeated visits of his solicitor were crucial to his state of mind because he was detained for almost 24 hours. He is convinced that if his solicitor had not been present he would have been detained for a second period of 24 hours. The solicitor was treated properly and was able to make a case for the client and to argue about the ill-treatment that the detained man complained of. The question of that alleged ill-treatment has been under investigation since October 1983. However, the question I am concerned with here is the importance of the availability of a solicitor in such instances. I agree with what a number of people have said. Deputy McGahon referred to the gardaí mostly being exemplary. I accept that. However, when we mention cases where gardaí did not act in an exemplary fashion we are told we do not support them in every situation. That is wrong. I will not accept a situation where we cannot question the actions of a member of the Garda or a system and so on. I could cite a case in Donegal which resulted in the conviction of two members of the Garda. In that case, the individual concerned insisted on a doctor being there both before and after. We want to try to cater for cases where there may be an abuse of power by a limited number of people.
It is very important that the poor and those who cannot afford to pay a solicitor would have somebody available to them who could take some kind of action on their behalf. I accept the Minister's difficulty in practical terms but I appeal to him to look carefully at this. Those who will be adversely affected by this are the innocent poor. Those who have an income will be able to get a solicitor and usually those who are not innocent are well used to dealing with the situation and will be well advised. Under these new powers people who will be innocent but may have information to convey must be protected. This section must be improved on Report Stage. I hope the Minister will not close his mind to the question of some form of legal aid however limited it may be because of the cost which would be involved. It is a challenge to the administration to bring forward systems to meet these requirements. That is the whole basis of management by exception. The management system is there to provide for the exception without spending too much money on it. Perhaps the Minister will deal with this on Report Stage.
The Minister indicated that he would look at the question of having a list of the names of solicitors available. That would be very welcome. There are solicitors who are subscribers to the legal aid panel and, as an interim measure, perhaps their names could be put on the list to be made available in Garda stations.
Some criticism was made by the Minister and others about the cost of the criminal legal aid scheme and the fact that some firms of solicitors are drawing substantial sums of money from the scheme each year. That is undoubtedly so. It does not apply only to solicitors but to counsel. One can see from the press the amounts made yearly by solicitors and counsel. Some of them show indecently large annual earnings from the criminal legal aid scheme. Deputy McGahon pointed out that some of the major beneficiaries may or may not be associated with The Workers' Party but whether they are or not has nothing to do with it.
The way to deal with that position is to restructure the criminal aid scheme. If the Minister proposes to implement that it will have our full support. It should be restructured in a similar manner to that which applies to the civil legal aid centres. Instead of calling in private firms of solicitors resulting in indecently large earnings for a small number, the State should set up criminal law centres to deal with criminal work as they have already done for civil work. The State would employ solicitors and counsel on a full-time basis and pay them an appropriate salary. They could be called on and be responsible to meet the criminal aid needs of those who are arrested and charged. In other words, there would be full-time solicitors and barristers employed by the State. There would be no difficulty in staffing such centres. It would cost the State considerably less to operate a service on those lines than the present system costs. It would provide a considerably better service from the point of view of those who would have to use it.
Reference was made to the presence of juvenile liaison officers at investigations. I was not entirely happy with the Minister's reply. The Minister pointed out that, as a result of the relationship between the juvenile liaison officer and the young person, there could be a danger that an admission made might be challenged on the grounds that an inducement had been offered. That is not a point that would arise very often if at all. At present juvenile liaison officers have an association with young people. I am not aware of any case where an admission made by a young person was challenged on the grounds of inducement. Inducement is part of procedure and it is by no means unusual for gardaí to hold out inducements. How often has the phrase "I will go easy on you when the matter comes up before the justice" been heard? One hears that all too often in practice. I would not rule out the association of juvenile liaison officers on that account. They do magnificent work. The officers are held in the highest possible regard, and rightly so, by district justices. It is important that juveniles should have the benefit of their guidance at all stages.
We must bear in mind the kind of people we are talking about. They fall into different categories. There will be people who are well educated and know the score. There are others who will have a low level of intellect. I remember being involved in a case many years ago and I sent in a juvenile liaison officer to talk to the young person in custody and discuss the matter with him. I have remembered the remark he made all these years. I asked how he got on and what was his assessment of the situation. His reply spoke worlds of the kind of problem we are dealing with. He said: "Not much grey matter there". The young person concerned had no grasp of the situation he was involved in, what he had done or what was at risk. Juvenile liaison officers dealing with people who do not have much grey matter have an essential role to play which is recognised by district justices.
I doubt that there is any district justice in this country who would strike down an admission or rule it out if it followed on discussions which had taken place, simply because a discussion had taken place between the accused person and the juvenile liaison officer concerned. Those Deputies who advocated that that is the situation have a valid point to make and in my view it should be looked at again.
We have been debating this section a long time and I suggest that the Chair puts the question.
If the Deputy had allowed me, I was about to put the question.
Amendment No. 21 is in the name of the Minister and amendments Nos. 22, 28, 33, 34, 44 and 52 are related. By agreement we will take them together.
(Limerick East): These amendments are to increase the fines from £800 to £1,000.
This means we will have to discuss a range of different areas at the same time.
Is it agreed to discuss them together?
(Limerick East): These amendments are to delete the fine of £800 and substitute £1,000. It is proposed to increase the current maximum fine on summary conviction in the District Court to £1,000. When the Bill was published the appropriate figure was £800. Ten years ago the maximum figure was about £500. We have had a lot of debate on this Bill over a long period and, and since it was introduced, the Copyright Bill and the Road Traffic Bill increased the appropriate maximum fines to £1,000. These amendments are simply to bring the figure into line. I want to point out that this is a maximum fine. Like all maxima the justice is in a position to impose a much lower fine.
It is agreed that we debate these amendments together?
Yes, but we will have to look at each in its own context.
It is agreed to take amendments Nos. 21, 22, 28, 33, 34, 44 and 52 together.
(Limerick East): I move amendment No. 21:
In page 6, subsection (4), line 32, to delete "£800" and substitute "£1,000".
Has the Minister said all he wants to say on this?
(Limerick East): Yes.
Section 5 (4) reads:
Any person who obstructs or attempts to obstruct any member of the Garda Síochána or any other person acting under the powers conferred by subsection (1) or who fails or refuses to give his name and address when demanded, or gives a name or address which is false or misleading, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £800 or to imprisonment for a term not exceeding 12 months or to both.
The Minister proposes to substitute £1,000 for £800. This amendment is introducing a new offence for which a person can be fined for refusing to give his name and address when requested. Subsection (1) says:
Where a person is detained pursuant to section 3, a member of the Garda Síochána may — (a) demand of him his name and address;
We are saying that someone who refuses to give his name and address when demanded will commit a new offience for which a fine will be imposed. In the Bill it is £800 and the term of imprisonment is 12 months, and the Minister proposes to increase that figure to £1,000 or 12 months imprisonment.
Let us be clear what is happening. The Minister has introduced a new offence where a person refuses to give his name or address, and he is increasing the fine from £800 to £1,000. In my view a warning should be issued. I do not know if the current regulations or current practices would insist on a warning in this case but people should be warned that if they refuse to give their name or address or give a false or misleading name or address, that would be an offence for which they would be liable to a term of imprisonment of 12 months. It seems only right that the people should be given a warning especially if a person is under 17 years of age. That is the main point I wanted to make on this amendment. This is a new offence. It is not simply a matter of changing £800 to £1,000 as the amendment would suggest. The difference between a maximum fine of £800 and £1,000 is not very great and the court would take into consideration the circumstances of the individual concerned before imposing this fine.
I would like to hear what the Minister has to say about inserting a warning into this section because people should be forewarned. For instance, if a person has been advised by his solicitor to say nothing, and he follows that advice and refuses to give even his name and address, he will be committing an offence. It is not a simple matter of increasing a fine from £800 to £1,000. We have to examine these amendments in that context. I am sure that the media will issue the warning generally because it will be news to people that, in effect, the section will introduce an offence for not giving one's name and address when asked by a member of the Garda Síochána. The Minister would say that a fine of up to £1,000 for not giving this information is at present required to bring about law and order and help the Garda in doing their work, which is probably true. However, people would want to be quite clear on the law as it will stand once this Bill is enacted and comes into practice.
Amendment No. 22 is in relation to section 5 (5) which states:
Section 7 (2) of the Criminal Law Act, 1976, is hereby amended by the substitution in paragraph (a), for "£500", of "£800" and by the deletion of paragraph (b).
The £500 in the Bill was there being increased to £800 and the Minister's present amendment No. 22 is increasing it to £1,000. I do not see any other implications in that amendment at this stage.
Amendment No. 28 deals with section 11 which states:
If a person who has been released on bail in criminal proceedings fails to appear before a court in accordance with his recognisance, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £800 or to imprisonment for a term not exceeding 12 months or to both.
This is fairly straightforward, not surrendering to bail being made an offence. We are glad to see this in the Bill. The amendment merely raises the fine of £800 to £1,000. I do not see any difficulty with that amendment also.
Amendment No. 33 deals with section 14 (2) regarding the withholding of information with relation to firearms or ammunition, which states as follows:
If that person fails or refuses, without reasonable excuse, to give the information or gives information that he knows to be false or misleading, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £800 or to imprisonment for a term not exceeding 12 months or to both, or on conviction on indictment to a fine not exceeding £10,000 or to imprisonment for a term not exceeding five years or to both.
Here the Minister is introducing an offence, the nature of which can be discussed, presumably, when we are dealing with the section in general. The Minister merely suggests that his earlier proposed fine of £800 be now £1,000.
Amendment No. 34 deals with section 15 which relates to the withholding of information with regard to stolen property:
If that person fails or refuses, without reasonable excuse, to give such account or gives information that he knows to be false or misleading, he shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £800 or to imprisonment for a term not exceeding twelve months or to both....
The Minister is now proposing to raise that maximum fine of £800 to £1,000.
Amendment No. 44 deals with section 20 (10), line 36, regarding proofs by written statement:
Where (a) a statement is tendered in evidence by virtue of this section, (b) and the person by whom the statement was made has stated in it anything which he knew to be false or did not believe to be true, he shall be guilty of an offence....
This is a section in the Bill which will help in the conduct of the business of the courts and will be welcomed generally also. It creates an offence where a person gives false information. Obviously, this is a very necessary safeguard. The Bill stipulates a fine not exceeding £800 or a term of imprisonment not exceeding twelve months or both and the Minister is raising the fine to £1,000, which is reasonable enough.
The final amendment is No. 52 which deals with section 27 (3):
Any person who refuses to allow his fingerprints to be taken pursuant to this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding £800 or to imprisonment for a term not exceeding twelve months or to both.
This refers to the taking of fingerprints of persons dealt with under the Probation of Offenders Act of 1907, or convicted. We shall have to discuss that subsequently under the section as a whole. The Minister is proposing a new offence and that the amount of the fine be raised from £800 to £1,000, which is reasonable.
(Limerick East): In general, the amendments to which Deputy Woods has referred replace an £800 maximum fine by a £1,000 maximum fine because since the Bill was published the £800 maximum fine has gone out of date. It is a question of lining it up with what has happened under the Road Traffic Bill and the Copyright Bill. In amendment No. 21, no offence new to our law is being created. Section 7 (4) of the Criminal Law Act, 1976, has a similar provision:
Any person who obstructs or attempts to obstruct any member of the Garda Síochána or any person acting under the power conferred by subsection (1) of this section, or who fails or refuses to give his name and address when demanded or gives a name and address which is false or misleading shall be guilty of an offence and shall be liable
(a) on summary conviction to a fine not exceeding £500 or to imprisonment for a term not exceeding twelve months or to both.
The £500 was updated to £800 and now, because of what has happened in other legislation, it is being updated to £1,000. The same type of concept is in the Road Traffic Act, 1961, section 107 (3), which reads:
Where a person, when his name and address is demanded of him under this section, refuses or fails to give his name and address or gives a name and address which is false or misleading, such person shall be guilty of an offence.
The penalties for the offences are graded as to first, second and third offence with the maximum fine increasing in each case. Under the Litter Act a person is obliged to give his name and address. It is not a new concept introduced into the law or anything like that.
On the question of whether we should have a separate provision so that the person should be informed of having committed an offence if he did not give his name and address I do not consider that that is necessary and it is not provided for in the Litter Act, the Road Traffic Act or the Criminal Law Act, 1976. In practice a garda would tell a person that he or she was committing an offence if the name and address was not given. The merits of the individual sections can be debated when we come to them. The only thing that is involved in these amendments is increasing the fine from £800 to £1,000. Many of our fines in various pieces of legislation are out of line with present money values. I have a particular interest in it not because of a desire to increase State revenue or punish people more adequately by imposing greater monetary penalties on them. My main concern is that I believe that if the courts had realistic alternative sanctions some people who are committed to terms of imprisonment might not necessarily be committed to prison. One of the main sanctions in everyday life in court is fines. If the maximum fine is too low and is totally out of line with present-day monetary values there could be a tendency in the difficult case to use the alternative of imprisonment rather than a fine. I ask the House to accept this amendment and to accept the maximum fine of £1,000. The District Court in its discretion can impose any kind of fine up to £1,000. It might not be a rule of thumb but it is certainly a very strong argument that the higher the maximum fine available to a district justice the less likely it will be that he will impose a term of imprisonment.
I take it the references the Minister made to the 1976 Act refers to people who are being charged.
(Limerick East): It is exactly what we have here where a person in custody under the provisions of section 30 of the 1939 Act——
Is that the Offences Against the State Act?
(Limerick East): No. Section 7 of the Criminal Law Act, 1976, says that if the person is detained under the Offences Against the State Act and his name and address is demanded he can be searched and photographed, which is exactly what we have here. It goes on to say that any person who obstructs the Garda is liable to penalties. The idea of the penalties was introduced in 1976. It is the same section being applied to this situation.
Under existing law people have to be arrested for the purpose of charging them. We are now talking about people being detained for a period of up to 20 hours for questioning. I am not against it. In terms of general law and order it is right that people should be prepared to give their names and addresses in the first instance but they should know when they have not committed any offence — in this case many of these people will not have committed any offence — they should be very clearly aware of the fact that under this section they will commit an offence if they do not give their names and addresses. If a boy or girl under 15 is detained under this Bill and is totally innocent and righteously feels that he or she should not even be detained because he or she is innocent that person would want to be quite clear that even in those circumstances that person would be committing an offence by not giving his or her name and address.
People should be made aware of this so that they are not letting themselves into a situation where they are totally innocent at the outset and they end up giving a wrong address for some reasons. In the past if one had a brother going for the priesthood one did not give one's name or address. That is not so unusual because it would be held against one's brother. Now you will pay a price for that. They are finding it hard enough to get people at present.
It is the opposite way around now.
You pay a price now for not speaking up. People should be made aware of the fact that under this Bill they must give their proper names and addresses because if they do not they will be committing an offence straightaway. I agree with the Minister's intent that people who are innocent about their business should not have fears about such an offence being introduced so the difference between the £800 and the £1,000 is largely irrelevant because the courts can look after this. We are not objecting to the Minister's amendment but it is very important that what is taking place here is broadcast quite clearly and people are made aware of it particularly young people who might feel for mistaken reasons that their mother or father should not know about what is happening. It is probably a good thing they face up to their responsibilities at an early stage.
As a strong advocate of the necessity for this Bill I have to confess that I have reservations about the extent of the penalties being made available for what in many cases could turn out to be a harmless crime. While everybody would feel it is a reasonable request that a garda should be given a name and address there are many occasions, particularly late at night, where very decent people who have taken a few drinks would be alienated by such a request. To impose a fine of £1,000 or send somebody to jail for 12 months for an offence of that nature is laughable while habitual criminals can commit crimes of violence on old ladies, assault them and get free under the Probation Act or get farcical jail sentences of three, six or nine months and be let go free after having done a few months in jail. This is going from one extreme to the other. I would like the Minister to look at that situation.
(Limerick East): It does not apply to a person cycling or driving along a road at night. It is under section 5 of the Bill which talks about the powers which the Garda Síochána would have if a person is detained under section 3 so, in the first instance, it can only apply to somebody who is detained pursuant to the powers given to the Garda under section 3. I take the point Deputy Woods is making but the public at large are aware that one is obliged to give one's name and address to the Garda Síochána under certain circumsances. For example, under the Road Traffic Act the motorist is obliged to give his name and address. There is a great awareness of that. People may not be sure what other information one is obliged to give or even whether one is obliged to give other information. If a youngster is found cycling home at night without a light on his bicycle he is obliged to give his name and address to the Garda Síochána. A person who commits an offence under the Litter Act is obliged to give his name and address. I do not think it necessary to include in the Bill that there should be an explicit warning to a person that he has broken the law. I can see the point which is being made and I will consider whether it was necessary to make provision in regulations. The fact that a person was brought into a Garda station on reasonable suspicion and detained would impress on him the seriousness of the matter and it would be difficult to conceive of a situation where people would not realise they were in breach of some kind of law or regulation if they did not give their name and address to the Garda Síochána.
It would be necessary to include it in the regulations so that the person could be so advised at the appropriate time.
Commonsense should prevail here. I do not think the Garda would succeed in court if they had not told a person detained that he was committing an offence by not giving his name and address. They would have to warn the person of the kind of offence being committed by the refusal to give the information.
The amendment provides for an increase in fines from £800 to £1,000 for various offences, which in most cases would take place in Garda stations as a result of detention under section 3. More is involved here than not answering questions about name and address. Section 5 (1) states:
Where a person is detained pursuant to section 3, a member of the Garda Síochána may—
(a) demand of him his name and address;
(b) search him or cause him to be searched;
(c) photograph him or cause him to be photographed;
(d) take, or cause to be taken, his fingerprints and palm prints;
(e) make or cause to be made any test designed for the purpose of ascertaining whether he has been in contact with any firearm (within the meaning of the Firearms Acts, 1925 to 1971) or with any explosive substance (within the meaning of the Explosive Substances Act, 1883) and for that purpose take swabs from his skin or samples of his hair;
(f) seize and retain for testing anything that he has in his possession.
The increase in fines also applies to other offences such as refusing to give information about goods in one's possession, refusing to make a statement which affects the right to remain silent and so forth. These sanctions are in effect the big stick which the Garda may use to persuade somebody that if he does not allow himself to be photographed, fingerprinted, swabbed and refuses to make a statement about goods in his possession he faces a term of imprisonment or a fine of up to £1,000. There is a grave obligation on the Minister to ensure that the Garda are obliged to make this clear to a detained person.
In the generality of cases the difference between finding the money to pay a fine of £800 or £1,000 is not real because people are not in a position to pay either amount. Unemployed young people may well be brought into stations and charged under this section. They may be receiving as little as £1 or £2 a week in social assistance. In most cases people would be unable to pay a fine of even £100, let alone £1,000. This brings us back to the point of the inequality of sanctions against persons found guilty of an offence. Generally the person who has access to money can pay the fine and avoid imprisonment, while those who cannot pay will presumably face imprisonment as a result. Apart from the right or wrong of the sections under which these fines and terms of imprisonment will apply, we are back to a debate which took place last year in relation to whether it is fair and just that the poorest section automatically face imprisonment through their inability to pay fines whereas those who have the capacity to pay the fines have no problem.
Perhaps the Minister would let us know if a person can be detained if he is known to be in breach of the gaming laws and is failing to pay tax on bets. If a person was detained in such a way, asked for information and refused to give it, would he be subject to a fine of up to £1,000 or imprisonment for 12 months?
I am surprised at Deputy De Rossa's contribution because we always talk about the maximum fine, not the minimum. When debating the Road Traffic Bill I expressed the view that a minimum fine should be imposed for various offences but it was made clear that it is enacted in our laws and held by the courts that people can only be fined in accordance with their means. District justices have always held to the principle that they cannot be fined outside their means. That is why we have maximum fines, never minimum fines.
(Limerick East): I move amendment No. 22:
In page 6, subsection (5), line 35, to delete "£800" and substitute "£1,000".
I move amendment No. 23:
In page 6, between lines 36 and 37 to insert the following subsection:
(6) (a) Where a person is detained pursuant to section 3, his personal belongings shall not be removed from his person or clothing unless such removal is authorised by this section or is removed by the member in charge because the removal is necessary for that person's safety.
(b) Where anything is removed from the person or possession of a detained person details of anything so removed shall be entered in the records in the Garda Síochána station by the member in charge.
This amendment is designed to avoid the intimidation of a person by, for instance, the removal of spectacles and the consequent feeling of disorientation. Apparently this has happened and there have been complaints about it.