(Limerick East): I should like to make some general comments about the section. Then I should like to deal with the amendment in the names of Deputies Mac Giolla and De Rossa. If it is in order, while commenting on the section, I propose to move amendment No. 51 and to comment on that.
First of all, the Ó Briain Report made this type of recommendation. The idea of electronically recording a Garda investigation, the questioning of a detainee by the Garda Síochána is to provide a major safeguard for the person who is detained in custody and who is being questioned by the Garda Síochána. The phrase used is "electronic recording" because there are a number of options. People have been talking about tape recording but, of course, it could be video recording, or it could be silent video where there would be observation rather than a sound track.
The Ó Briain Report recommended that pilot schemes be set up forthwith but that was never done. Before the Criminal Justice Bill was published I appointed a committee to examine the situation. That was the first time to my knowledge that any examination was instituted in this country of the possibility of the use of electronic recording in Garda stations to monitor the questioning of detained persons. The committee was comprised of Mr. Noel Ryan, a Principal Officer in the Department of Justice, Mr. James G. Lacey of the Department of Electrical and Electronic Engineering in UCD and Superintendent Hubert Reynolds of the Garda Síochána. Mr. Paul Hickey, of my Department, is secretary to the Committee.
The terms of reference of that advisory committee are:
(a) to examine and report on the measures necessary to introduce a system for electronic recording of questioning of persons by members of the Garda Síochána in connection with the investigation of an offence.
(b) to examine in particular whether such recording should apply generally or to questioning at particular places, the extent to which and the circumstances in which it should apply and whether it should apply to all or only some offences.
(c) to recommend the type of equipment required for such recording and any necessary modifications to Garda stations.
(d) to estimate the cost of such equipment and modifications and any other costs involved.
(e) to report on the arrangements necessary to meet the reasonable requirement of the defence and prosecution in this regard; and
(f) to report on any other matter that the committee considered to be relevant to the foregoing.
That committee have been working and they have proceeded with all possible speed to have field trials introduced. They have been in Scotland and in England to study developments there. They are working closely with the Garda authorities in planning what has to be done. They expect to visit some United States jurisdictions to examine, in particular, video recording which is widely used there. A lot of work has been done now but a lot still remains to be done before we will be ready to move to pilot schemes. It will then be necessary to evaluate the pilot schemes before electronic recording can be introduced as general practice.
Deputies might remember that when I spoke about section 3 I was asked about the suitability of Garda stations for detained persons. I pointed out that it would be the major Garda stations in Dublin that would be used and also that it would be a question of two, three or, at the most, four district headquarters stations in the rural Garda Divisions. Therefore in a place like Wexford there would be perhaps three or four centres where a person would be detained. Consequently, when it comes to electronic recording we are not suggesting that the facilities should be provided in every Garda station in the country. What I am saying is that they would be provided in those Garda stations where it would be customary to detain people under section 3.
It is not easy to introduce this practice quickly. I want to make it clear that there is a difficulty in being able to introduce tape recording immediately the provisions of the Bill are implemented because research has not been done in this country and pilot studies have not yet been set up. Elsewhere in Europe, even in England, they had been discussing tape recording for many years. They expect four years to elapse in England before they are able to introduce it there. In Scotland field trials have been going on for approximately three years now. I suspect that in certain police districts in Britain there is a reluctance to move towards electronic recording anyway and I would think the delays there are very long indeed. A lot of research has now been done elsewhere and we can benefit from that research.
This brings me to the amendment in the names of Deputies Mac Giolla and De Rossa. I have made it clear that there is a commitment to introduce tape recording, or electronic recording but it can be done only following a thorough examination of the legal and technical difficulties involved. As I have said, I have set up a committee which intends to carry out field trials.
The reason I am reluctant to change from the word "may" to the word "shall" is that I must proceed on the matter in a systematic way. I would be afraid that if the word "shall" were included and some unavoidable delay arose a court order could be obtained to compel me to proceed notwithstanding our state of readiness. There must be some flexibility to enable the problems to be thoroughly studied. I have already encountered a difficulty. I inserted a provision in the original section that copies of recordings would be supplied to the accused, his solicitor or counsel. At the time we knew very little about tape recording and I inserted that provision in good faith. The section would have placed an obligation on me to provide in the regulations for a copy of the recording to be supplied to the accused, his solicitor or counsel in every case. I now have amendment No. 51 down to delete this provision. Deputies Woods, David Andrews and Skelly asked me to explain why I feel it is now necessary to delete this provision. It is not a question of the Minister making some concession to any particular interest group but a real, practical difficulty has arisen. First of all, there is the problem of providing recordings in cases where interests of third parties would be jeopardised. Until the questions have been examined in detail and a solution worked out it would be undesirable to maintain the existing provision in the section. The committee I set up to advise me on the introduction of tape recording are looking at this and all other aspects of the problem and they are taking in the experience in other jurisdictions. Of course the House can take it that, in whatever solution is adopted, it would be essential that adequate facilities would be afforded to enable the accused, his solicitor or counsel to listen to tape recordings in order to prepare a defence. To put it in straightforward terms, whatever I provide here will have to be extended to people who are detained under the Offences Against the State Act.
The Provisional IRA run a reasonably disciplined military organisation. Perhaps I should have seen it when I drafted the section but it seems obvious to me now that an obligation to supply a tape recording of an interrogation in a Garda station to members of the Provisional IRA who have been detained, and who may have given information to the Garda Síochána, puts that person in absolute risk of his life. The very possession of the tape recording would bring about a situation in which whatever chain of command is in existence in the Provisional IRA would require the handing-up of the tape so that superior officers — if I can use the term loosely — could listen to the tape and monitor what had been said by their members to the Garda.
The same problem arises in relation to organised crime. I envisage the situation of a drug pusher being questioned. The questioning is recorded and there is an obligation in the section that a copy of the recording be given to the suspect. Now, for a member of an organised criminal gang, it is reasonable to expect that he would not be allowed to be the only listener to his own tape and it certainly, if he gave any information, would put him at risk. Consequently there is a double difficulty. There is the difficulty of third parties with a vested interest listening to the tape and jeopardising the welfare of the person who is being detained and who has given information to the Garda Síochána. Then there is the intimidatory effect. The very fact that a recording existed and would be supplied would in many cases be sufficient reason for a detained person saying nothing if he was involved in one of the groups who organise crime or in one of the subversive organisations. Therefore, I am moving this amendment not because I have been pressurised by any pressure group who do not like the idea of tape recording. It is for very valid reasons indeed. I take Deputy Woods's point. He quoted an Article of the Constitution with which we all became very familiar last year, and it is nice to hear the familiar words echoing through the House at 2 o'clock in the morning.
