Dáil Éireann debate -
Thursday, 5 Jul 1984

Vol. 352 No. 7

Criminal Justice Bill, 1983: Report Stage (Resumed) and Final Stage.

Mr. De Rossa

I move amendment No. 13:

In page 4, between lines 31 and 32, to insert the following:

"(e) When a person so arrested has been taken to a particular Garda station, he shall not be transferred to more than one other Garda station during the period of detention.".

This amendment seeks to restrict the possibility of moving detained persons from station to station. On Committee Stage the Minister introduced an amendment which enabled persons detained under section 4 to be moved to a station other than the one to which they were brought when arrested. It is our opinion that this gives power to the Garda to move people from one station to another. Our amendment is intended to restrict that. I know the Minister's intention in introducing the amendment was simply to ensure that a person could be brought to a station where proper facilities would be available. I know his intention was not to facilitate moving prisoners from place to place. Our amendment is aimed at ensuring that this is made clear in the Bill. I ask the Minister to accept the amendment.

Minister for Justice (Mr. Noonan,

Limerick East): This amendment would confine the investigating gardaí to the use of two Garda stations for the holding of a detained person — the station to which the person was first taken and one other. While the idea behind this might appear to be reasonable in that two Garda stations or, indeed, one ought to be adequate in the vast majority of cases, it would be unwise to tie the hands of the Garda in this way. It could have unfortunate results. A person might be arrested and taken to the local rural one-man station to enable his identity to be checked out. There might be no proper facilities there, such as interview rooms, refreshment facilities and so on. If it was necessary to detain the person for any length he would be transferred to a large station such as the local district headquarters where proper facilities are available. Suppose that on the way the Garda car broke down or was involved in an accident and the person had to be taken to another station to await the arrival of another car, this would mean that he could not be transferred to the district headquarters because the allotted number of garda stations would have been used up. We cannot reasonably accept this.

There is another reason why the House should reject this amendment. I believe that acceptance of it would imply that the Garda cannot be trusted not to play cat and mouse with a detained person and take him from station to station so as to prevent solicitors and relatives from getting in touch with him. All the safeguards already written into the Bill providing for notification of solicitors and relatives and access to the detained person would be meaningless. In any case, apart from the fact that moving persons around like that would be a manifest abuse there would be nothing to be gained from it. The period of detention runs from the time of arrest. The member in charge of each station would have to notify the solicitor and the named person. As I have said, I will provide in the regulations that the member in charge at the first station will tell the solicitor and the named person where the detained person is being transferred to. In the case of small stations this will be done simultaneously. As district headquarters is where suspects are normally detained, there should be no difficulty in providing information about persons detained in the district. The amendment is unnecessary and if it is being put down for the reason which I suspect, it is undesirable.

Dr. Woods

We have put down an amendment which relates to this one, amendment No. 20 relating to the provision of information about where people are kept, which we shall come to later. Our belief is that the information should be readily available within a Garda division as to where a person has been detained and moved to. If this information will be available we shall be satisfied with the position as it stands. I understand the intention of Deputy De Rossa. Nevertheless, his amendment would restrict the Garda in certain circumstances where it may be necessary for practicial reasons to make more than one move. We would not want to restrict the Garda but would want to have the information about where a person is moved. Hence our amendment No. 20.

Mr. D. Andrews

This amendment, as Deputy Woods has said, is well intentioned. On reflection Deputy De Rossa will probably withdraw the amendment, particularly having regard to the fact that the Minister has set out clearly his views. There are undoubtedly safeguards against the proposition outlined in the amendment. The suggestion that in some way the Garda would course an accused from station to station does not bear examination. It is even unworthy to suggest it.

The safeguards are contained basically in the next section, as I understand it, — the section about access to solicitor and notification of detention. The solicitor and the named person would be a cure for the proposition that the Garda would transfer an accused from station to station. I do not believe that Deputy De Rossa is for one moment suggesting that the Garda would abuse their position. Nevertheless, that proposition is contained in the amendment. On the basis of certain sections such as this, it is a dreadful Bill. While we do not support Deputy De Rossa's amendment, nevertheless it was well intended and it has one effect with regard to this Bill. I believe this legislation is going too fast. It should have been left over until next term to give us more time to reflect and to let other organisations outside the House reflect on the amendments and the discussions which we have had on Second Stage, Committee Stage and now on Report or Fourth Stage. One merit of Deputy De Rossa's amendment is that it gives us time to reflect on what section 4 — the detention section — proposed to do. If for no other reason, it provides a service to the House in the context of the debate generally and we should be grateful to Deputy De Rossa for raising it. I do not accept the amendment because I do not believe that the Garda will abuse their position. If they do, they will have to answer to the law and to the courts.

Mr. De Rossa

I am very pleased that everybody has said that the amendment is well intentioned. Indeed, all the amendments which I have put down have been well intentioned. However, a number of points arise from what has been said. It has been suggested that I have in some way made insinuations against the Garda in putting down this amendment. Like most and perhaps all Deputies in this House, I have the greatest respect for the Garda in the job they do and the difficulties they face. However, the whole thrust of our argument in trying to safeguard the protections is that the powers being given in this Bill are very wide ranging. Given that there is a majority consensus in the House in support of the major sections, I have seen my responsibility as being to push as hard as I can to restrict so far as I can the possibilities of abuse. I put it no stronger than that. The Minister has promised to introduce legislation and regulations also to restrict the possibilities of abuse. That is the purpose of my amendment.

I have, at times, had occasion to make complaints about the activities of a number of gardaí, just as I have had occasion to praise the work of the vast majority. For that reason I would deprecate and disown any insinuation that I am critical of the vast majority of gardaí. In the course of this Bill going through the House we must ensure that the possibilities of abuse are restricted in so far as is humanly possible. That is my reason for the amendment and my reason for pressing it.

The Minister argued that the amendment would restrict unduly the capacity of the Garda to cope with the situation. The example which he gave was of a squad car breaking down on the way from one station to another when the prisoner might have to be brought to an intermediate station. One could argue that the car which comes to collect the gardaí from the broken down squad car could continue the journey to the original destination. There is no great problem there.

I recognise the Minister's reluctance to accept the amendment if he reads into it a criticism of the Garda. That is not my intention. My amendment is intended as a protection for the detained person. We must accept that if gardaí have detained a person who they are convinced from knowledge available to them is guilty of a serious crime, there will be pressure on them to use to their utmost the powers available to them. If this permits legally keeping a person from access to those who are entitled to see him, either a solicitor or a relative, I fear that that opportunity could be used. Even if used only once or twice over the next four years, it would in my opinion be an abuse. It would be to the advantage of this House to close off this loophole. I ask the Minister to reconsider his refusal to accept the amendment.

Amendment put and declared lost.

Mr. Noonan

(Limerick East): I move amendment No. 14:

In page 5, line 8, after "section" to insert "and the powers conferred by section 6 shall not be exercised during the period so excluded".

As Deputy De Rossa pointed out on Committee Stage which section 4 (6) prohibited questioning during the rest period between midnight and 8 a.m. it did not explicitly preclude the Garda from exercising their powers of search, fingerprinting and so on during such period. This amendment removes any possible doubt on that point.

Mr. De Rossa

I wish to thank the Minister for introducing this amendment. I suppose it proves the value of our long discussion on Committee Stage.

Dr. Woods

I welcome the amendment.

Amendment agreed to.

Acting Chairman (Mr. Allen)

Amendment No. 15, and amendment No. 18 are related. I suggest that amendment No. 15 and the four amendments to it, and amendment No 18 and the amendment to it, can be discussed together. Is that agreed?

Agreed.

Mr. Noonan

(Limerick East): I move amendment No. 15:

In page 5, between lines 32 and 33, to insert the following:

"(7) (a) Subject to paragraph (b), subsection (2) shall not apply to a person below the age of twelve years.

(b) If the member in charge of the Garda Síochána station in which a person is detained has reasonable grounds for believing that the person is not below the age of twelve years the subsection shall apply to him as if he were of that age, provided that, where such member ascertains or has reasonable grounds for believing that the person is below that age, he shall be released from custody forthwith unless his detention is authorised apart from this Act."

Paragraph (a) of amendment No. 15 provides for the exclusion of children below the age of 12 years of age from the scope of section 4 of the Bill, that is, detention after arrest, and consequentially from the scope of the related sections conferring new powers on the Garda in relation to persons detained under that section. The amendment takes account of the concern expressed within and outside the House that the powers of detention being conferred on the Garda were applicable — on the face of the Bill — to children of seven years of age and upwards.

I say "on the face of it" to emphasise again what I said on Committee Stage that we are dealing here essentially with theoretical possibilities and not in any real sense with probabilities or likely possibilities when we visualise children of very tender years being arrested and detained in Garda stations. I remain firmly convinced, therefore, that the campaign against this Bill deliberately exploited this matter and did so in a very emotive and I think quite unfair manner to secure support for its cause. It succeeded in gaining support from sincere people. Deputies in this House expressed concern here and as a result I brought in this amendment. A similar amendment suggesting the age of 12 years was introduced by Deputy Woods on Committee Stage.

I hope that the effect of this amendment will not produce any unfortunate results. As I said before, the fact is that children under 12 years are involved in serious crime from time to time. It is noteworthy that the Report on Crime for 1983 shows that in the five-year period 1979 to 1983 there were 3,371 indictable offences of which children under 14 years of age were convicted or had charges proved against them. It may well be that many of these offences were committed by children under 12 years of age.

It should be noted that the amendment will not affect the general age of criminal responsibility or the existing powers of the Garda to arrest and charge children suspected of crime. The question of the age of criminal responsibility of children is a matter that will be dealt with in the Children Bill which is at present being prepared by the Minister for Health. If that Bill provides that some age other than 12 years will be the new age of criminal responsibility it may be desirable to include in it an amendment of this Bill to bring the two into line.

Paragraph (b) of amendment No. 15 provides for the position where the member in charge of a Garda station authorises the detention of a child whom he bona fide believes to be 12 or over. It will be appreciated that this could quite easily happen either because the child looks to be about that age or above, or he might say that he was and there might be no on the spot way of checking. So long as the member concerned has reasonable grounds for his belief, the detention will be lawful and the member will be protected from an action for false imprisonment.

However, as soon as it becomes known to the member in charge that the child is under 12, or as soon as the reasonable grounds for his belief cease to exist, the child must be released immediately, unless there is other lawful authority for detaining him, for example, in order to charge him and bring him before a court, or where a bench warrant has been issued for his arrest. Apart from any such exceptions, if the child were detained beyond the point at which his correct age became known his further detention would be unlawful.

Amendment No. 18 covers a point adverted to when the exclusion of children under a certain age from the scope of section 4 was being discussed, that is, that provision relating to proof of age would also be necessary in section 5 in relation to children under 17 years of age. It caters for the difficulty that could arise where a young person who is being detained appears to the Garda to be over 17 when he is, in fact, under that age.

The amendment provides that, if and so long as the member in charge of the Garda station where a person is being detained has reasonable grounds for believing that the person is 17 years or over, he will be entitled to treat the person as if he were over 17 and notify him of his rights in accordance with subsection (1) of section 5.

The critical words are "if and so long as" he has reasonable grounds for believing that the person is 17 or over. That means that if at any time during detention the Garda ceases to have reasonable grounds for so believing, or receives information that the person is under 17, he will be obliged to apply subsection (2) of the section and notify the young person's parent or guardian of his detention and whereabouts and of his right to consult a solicitor.

Deputy Mac Giolla and Deputy De Rossa suggested that the age of 12 years should changed to 15 years. The effect of their amendment would be to increase from 12 years to 15 years the age below which a young person could not be detained pursuant to section 4. The Deputies sponsoring this amendment did not, in my view, make a convincing case on Committee Stage. Perhaps they will have something more substantial to say now.

We are also taking amendments Nos. 2 and 4 to amendment No. 15. I accepted the spirit of the amendment moved by Deputy Woods on Committee Stage when he advocated that we should bring in an amendment to ensure that children under 12 years of age were excluded from the provision of section 4. The effect of the amendment No. 2 to amendment No. 15 in the name of Deputy Woods is to raise it from 12 to 14. If there are any other points I can take them up when I am replying.

There are two points of conflict on the age question. There are three elements in my amendment. The first is that children under 12 years will be excluded from the detention provisions of the Bill. That presents the Garda with a difficulty in establishing who actually is or is not 12 years of age. The second part of the amendment deals with that. The same consideration arises at 17 years of age, not as to the lawfulness of the detention but as to whether the person is 17 or not with regard to notification of a parent, etc. and amendment No. 18 meets this point.

Dr. Woods

I welcome the Minister's amendment which brings the minimum age for children up to 12 years of age. At 12 years of age they come within the provisions of the Bill. We had a fairly lengthy discussion on this. As reported at column 1868 of the Official Report of 11 April the Minister said:

On Report Stage I will come back to the House with a proposal that I hope will satisfy Members. Perhaps the age of 12 years suggested by Deputy Woods is right: it seems to be about right.

As reported at column 1864 of the same volume I said:

We are prepared to talk about whether we want 12, 13 or 14 years of age or whatever, but we are not prepared to accept it as applying to under 12.

What the Minister has said is quite fair and quite right. It was quite clear that these special additional measures should not apply to children under 12 years. As we discovered at the time they did apply to children from the age of seven years up.

I put down an amendment at the time suggesting 12 years of age. I welcome the step the Minister is taking in bringing it up to 12 years. I put down the figure of 14 years because that was back in April. We have been trying to think what is the right age, and I put down the amendment to have this question aired again on Report Stage. There is a relationship to the age of 14 years in that the incapacity of infants to commit crimes ceases on their attaining the age of 14 years. At that age they come under the full capacity to commit crimes. This brings us back to our doli incapax and doli capax, and the question of being incapable of committing crime with a rebuttable presumption between the ages of seven and 14 years. The age of 14 years really means 13 years up to the day on which the child becomes 14 years. From one's knowledge of children one would be very reluctant to have these measures apply to a 12-year old or a 13-year old.

I welcome the Minister's proposal to exclude children from seven years to 11 years but I still have reservations about the period between 12 years and 14 years. However, I accept that a greater number of crimes will be committed at that stage and, in fact, the Minister has quoted a figure of 3,371 indictable offences. As the Minister has said, if the age of criminal responsibility in the Children Bill is 14 years, presumably that should apply to the special measures here. I welcome what the Minister is proposing in raising the age to 12 years but I have reservations about the period between 12 and 14 years. In the vast majority of cases children are quite innocent at that stage and have a reduced capacity to commit crime.

In amendment No. 15 subsection (7) (b) the Minister has taken a practical step to safeguard the gardaí. That subsection states that where a garda has reasonable grounds for believing that the person concerned is not below the age of 12 years but finds subsequently that he is under 12 years he shall be released. The Minister has introduced a similar measure in subsection (3) to amendment No. 18 which refers to a person of 17 years. In this connection I have put forward amendment No. 4 to amendment No. 15 which reads as follows:

To add a new paragraph as follows:

"(c) Nothing in this section shall render admissible at the trial of an accused person any statement, oral or written, made by him when arrested or detained pursuant to this section, if at the time of said arrest he was below the age of fourteen years.".

If a garda arrests and detains a child who is under 12 years but who looks more than 12 years, as soon as the garda discovers his correct age the child will be released and will not be treated under the special powers in this Bill. However, the garda might have got some evidence, statement or admission from the child before that time and to make the position quite clear when the matter comes to court, the Minister should have an amendment along the lines I have suggested. While it is fair to say that a garda might make a mistake in relation to the age of a child, and we want to cover the garda in such event, obviously as soon as that fact is discovered the person will be released from custody and the information or evidence taken at that stage will be taken outside the powers of the Bill. It would then be reasonable to suggest, as we have done in amendment No. 4 to amendment No. 15, that nothing gained in that period will be admissible at the trial of the accused, whether it be an oral or a written statement, during the time they were mistakenly detained. That will make quite clear that there would be no benefit in taking in persons by mistake and detaining and interrogating them if they are under 12 years of age. I should like to hear the Minister's reply to that suggestion.

Mr. De Rossa

Will the Chair clarify what way we are dealing with the amendments?

Acting Chairman

We are taking the four amendments to amendment No. 15 and we are also taking amendment No. 18, which is related. There is also an amendment to amendment No. 18.

Mr. De Rossa

I welcome the Minister's proposal to increase the age in respect of detention but it will be clear from the amendments we have tabled that we are not satisfied he has gone far enough. On Committee Stage we proposed 16 years as the age below which a person could not be detained. As we were not permitted under the rules governing Report Stage to resubmit 16 years we had to propose 15 years. Our argument in relation to the age of 15 or 16 years is that the vast majority of young people of that age are still immature. One of the points I made on Committee Stage was that the courts treat a person under 16 years as a child and, for instance, such a person is not liable to be sentenced to imprisonment.

The capacity to judge if a person is ten, 11, 12 or 14 years if very subjective and the older we get the more liable we are to err in this area. Quite often when I assume young people are of a certain age they get very offended when I think them younger or older than their actual age. This holds for the Garda as much as it does for anyone else. The question of how to judge a person's age is subjective and it is difficult to set down guidelines for it. It is even more difficult in the age range between ten and 15 years because children develop in different ways and at a different rate. A garda may decide that a child is 12 years because he happens to be tall. Would that be reasonable grounds for assuming that the child was 12 years?

I know of one child of ten years of age who would pass for 13 or 14. A garda could not judge that child's age unless there was documentary evidence available. The responsibility must be on the Garda to take active steps to establish the age of the child they wish to detain. For that reason, as well as wanting the age to be increased to 15, we have also put down an amendment to the effect that the Garda must not only have reasonable grounds but has taken reasonable measures to establish the age of the young person. That also relates to the other section which deals with persons under 17 years of age who, before they are questioned, must have a parent present. If the Minister is not prepared to accept the proposed age of 15 years, he should at least ensure that the Garda must take reasonable measures to establish the age of the detained person.

Mr. Skelly

I agree with some of the amendments and I am glad that the Minister recognises the need to establish an age. The question now is whether the age of 12 is suitable. I think it is too low and I would be more inclined to think it should be 14 or 15. Therefore, the amendments to amendments No. 15 which have been suggested by The Workers' Party and Deputy Woods should be given serious consideration, even to the extent of introducing the phrase under amendment No. 3 to amendment No. 15 that a garda has taken reasonable grounds to establish the age. That may seem to be duplication and unnecessary in that it is expected that the garda must have reasonable grounds for believing and, if that is a judgment which will be established by a court, there is a fair measure of protection in it. However, because we are dealing with such young people and because it is crucial that we should not, inadvertently or on purpose, abuse a person of that age, we should put in a watertight protection in this area.

It is very difficult for a garda to judge a child's age. Recently I was out when a garda called to my home at 10.30 p.m. in regard to a routine problem. He had a discussion with my daughter who is only 13 years of age. From the conversation reported to me later, he obviously assumed that she was older and this is likely to happen all the time. If this happened to a person in detention it would be much more serious because the atmosphere in a Garda station would be very upsetting for the child and also for the parents. The onus is on us to make sure that that cannot happen. The Minister assured us on Committee Stage that this is not likely to happen because the Garda would not have reason to detain or question very young children. Nevertheless, he said earlier today that there are very young criminals. The balance must be towards the protection of the innocent, especially those who are very young. I am in favour of increasing the age to at least 14 if not 15. When the Minister for Health introduces his Bill I will also be impressing on him the importance of that age.

We can and should take steps to get expert advice which was not sought when this legislation was introduced. We should also have a public debate regarding the age of criminal responsibility before the Minister for Health introduces legislation in this regard shortly. We have the summer recess to initiate that and I urge Members to do so. The intentions of Deputy Mac Giolla and Deputy De Rossa were laudable in introducing this obvious protection. Like the amendments introduced by Deputy Woods, they have shown that further refinements can be brought to this legislation even at this stage. That was also referred to by Deputy Andrews and Deputy O'Dea and it is unfortunate — and I regret it very deeply — that this Bill is going to be guillotined at 10.30 p.m. and that we will not be allowed to tease it out to the last degree.

We have got through 15 amendments today and, even if it meant two days' extra sitting, it is a shame that we are not allowed to debate it fully. If necessary, as Deputy Andrews said, if we had to postpone the Bill until the autumn, so what? Even if we had to spend another week or month here, so what? If civil servants had to stay up until 4 o'clock in the morning, so what? This Bill could affect innocent people and those as young as 12 years of age. So who cares if we have to spend all day, all night, all month, all summer or all year to get it right? It is a blot on the House that this Bill will be guillotined at 10.30 p.m. and that we have to vote on it without discussing the Fifth Stage. Against great odds, the Members who have contributed have succeeded in a painstaking way in extracting some small measures of safeguards and protection. We have also underlined the importance of getting the legislation right and have put future Members of the House on notice that if, after a certain period of time, the sections are not working, they will lapse. Because of the approach we have taken to this legislation the obligation would be on those Members to give the same weight of consideration to them as we are giving to this legislation.

I would prefer to see the age limit raised and we will soon have another opportunity to examine this when the Minister brings forward the necessary legislation. I welcome the part of the amendment which says that a garda has to have reasonable grounds for believing a person is not below the age of 12 years. I also welcome the double protection in Deputy Mac Giolla's amendment to insert the words "and has taken reasonable measures to establish that a person is not below the age of 12".

Deputy Woods's amendment provides protection which should not be ignored. Even after taking reasonable measures to establish a person's age, if he is below the age of 12, the oral or written evidence should not be admissible at his trial. That is an important safeguard and I cannot see why anybody should object to it. I urge the Minister to accept this amendment. I do not think it is necessary to comment on amendment No. 18 because it applies to people of 17 years.

Mr. D. Andrews

I am glad Deputy Skelly supports my view that we are unnecessarily rushing this legislation through the House, unless the Minister can put forward persuasive arguments to suggest otherwise. We have already propounded the proposition that the Garda Complaints Tribunal is dependent on a number of sections in this Bill as drafted. What is the hurry about passing this legislation? I have already gone over that ground on a number of occasions and there is no point in doing it to death.

It may appear to the Minister that there has been a change of mind on the part of the Opposition in extending the age limit from 12 to 14 years but, as the Minister said on other occasions, people should not be ashamed to be seen to be changing their minds. Last Monday we had a very long debate on this subject and the point the Minister made was anticipated by Deputy Woods, Deputy O'Dea and by myself. In fairness to the Minister it must be said that he was not very critical of our change of view and we are pleased about that but we felt that our amendment might be seen as opportunistic. As other Deputies said, this is a very serious matter. It must be said that we were not firmly fixed on 12 years. I do not have the Committee Stage debate here, but it is only fair to say that we have changed our attitude and feel it would be better to have the age increased to 14 years. With the permission of the Chair, I would like to quote from a document entitled "Campaign for the care of deprived children". It is important that we place on the record of the House the views of concerned individuals and organisations because they may help to crystallise one's views on important topics. The CARE document reads:

CARE views with grave concern and disappointment the failure of the Minister for Justice to bring forward to the Dáil an appropriate amendment to the Criminal Justice Bill to absolve young children of fourteen years and under from the powers granted to the Garda in the Criminal Justice Bill to arrest, detain, search, photograph and question suspects.

CARE considers that the amendment to the Bill proposed by the Minister to remove its application to children up to and including 11 years of age is inadequate and seriously calls into question the existing presumption of law in favour of children under 14 years of age. More particularly CARE considers this to be an inadequate response by the Government to the widespread concern voiced by many organisations... about the Bill and its application to children.

CARE further fears that the Bill calls into question the commitment of the Government to raise the age of criminal responsibility to a realistic level in response to the Task Force Report on Child Care Services published in 1981.

CARE considers that while changes may be necessary in the criminal law to tackle serious crime carried out by hardened and sophisticated criminals, no case has been advanced for the need to apply the extensive powers contained in the Bill to children and no case has been advanced to show that the present law is so inadequate to deal with the activities of 12, 13 and 14 year old children.

CARE, therefore, calls upon the Government to further amend the Criminal Justice Bill so as to ensure that the powers of detention, search, and fingerprinting of children under 15 years of age will be removed from the ambit of the Criminal Justice Bill as a necessary step to ensure that confidence exists in the Garda and that where good relations exist at present they will not be irreparably damaged in the future by the application of such extensive powers to young children, and as an indication of the Government's commitment to raise the age of criminal responsibility in Ireland to a realistic level.

We need not be bound to that point of view but it is important that it be placed on the record because this organisation over the years has done so much for deprived children. In this case they have articulated a responsible point of view. There were occasions when I did not agree with them, and I said so, but I am neither agreeing nor disagreeing with their point of view as set out in this document.

One of the traps into which politicians sometimes fall is that they are hogbound by the views of an organisation and that restricts their freedom. That is a wrong principle. In my view, the signing of commitments by politicians pre-elections is very wrong and irresponsible. If organisations demand a politician's signature on a particular proposition pre-election, they should be told that the politician will consider the matter and will give a commitment after the election. I see that as a form of blackmail, it is unnecessary, unreal and irresponsible, and more or less reflects the views of Deputies who have been so assiduous in their research into this matter.

Mr. L.T. Cosgrave

It was never the intention that the Bill would apply to very young children of between six and ten years but there was the possibility, and many contributors to the debate came up with the age of 12 years. We cannot be totally dogmatic about the age of criminal responsibility, whether it should be 12, 14 or 15 years. This matter will be reviewed later in a Bill to be introduced by the Minister for Health. Various arguments could be made in relation to the age of criminal responsibility.

The main Opposition Party have tossed around ages and have come down on 14 years now. As I have said, it is not easy to fix the age at which children should be held responsible for crimes. I have no doubt this debate will be continued over the months to come. We all know that many of the initial contacts with crime are by children between the ages of 11 and 14 years. Much work has to be done in considering this matter. It involves accountability by parents. Serious crimes can be prevented before children go into their later teens.

I am sure all these arguments will be reviewed in consideration of the forthcoming legislation. One cannot be definite about the proper age of criminal responsibility. Twelve years has been proposed by the Minister but an equally valid case could be made for 14 or 15 years. In the light of legislation to come, the Minister's amendment is reasonable. The whole question of juvenile crime must be looked at.

Mr. O'Dea

We thank the Minister for having raised the age. It was reprehensible on Committee Stage to hear that children of seven years and over could become subject to the provisions of the Bill. Our earlier amendment referred to children of 12 years — we suggested that children of that age should not be subjected to the provisions of this legislation. That did not mean we agreed that the provisions of the Bill should apply to children of 13 or 14 years of age but I think 14 years is a reasonable age. There is a lot of medical and other opinion for that suggestion.

I refer the Minister to our amendment to amendment No. 15. Our suggestion of 14 years is a logical extension to the Minister's proposal. A person of the age of 12 or under cannot be pulled in under the Bill but if a garda brings in somebody whom he reasonably believes to be over the age provided for in the Bill the Minister has provided protection for the garda. That is fair enough, but what about the position if the person brought in who is below that age, makes a statement and signs documents? If that person is under the age of 12 he has been subjected to an injustice because the garda has acted in a way which he is not permitted to do. If the mistake is reasonable and genuine the garda is protected. However, the case may come to trial and if the age issue is raised everybody will know that a mistake had been made and that a wrong had been done. Our amendment to amendment No. 15 accepts that wrongs may be done by mistake but that wrong could be perpetuated or extended. Therefore, our amendment to the amendment affords reasonable protection for the garda who makes a mistake, and the Minister should accept it.

Mr. Shatter

I welcome the Minister's amendment because there has been a great deal of debate about the matter of an age limit. Many Deputies have been concerned about it. Somebody suggested the age of 12 years, which is the age the Minister has finally proposed. Deputy De Rossa suggested 16 years. The point is that we are still dealing with the age of criminal responsibility laid down over a century ago in English legislation. It is a matter of some concern to me and was, even when I was chairman of the organisation Deputy Andrews referred to, CARE.

Concern was expressed many years ago that the age of criminal responsibility was remaining at seven years. In dealing with detention problems we must remember that the Bill is not concerned with the juvenile justice system. Many Members, including myself, are disappointed that the Minister for Health has not introduced a children's Bill. I am disappointed that the Minister for Health has not produced legislation to reform the entire juvenile justice system. We should have dealt with the age of criminal responsibility and fixed a new age. There is a consensus in all parties, and throughout the country, that it is a nonsense that the age of criminal responsibility is seven years. Had the Minister for Health introduced his children's Bill we would have an agreed age as to the age the detention provisions should apply to. Our problem is that we are discussing something we cannot deal with fully. The Garda will continue to have their existing powers in regard to those aged between seven and 11 years.

There is no reason why the House has not been presented with a Bill to reform the entire juvenile justice area and fixing a new age of criminal responsibility. That cannot be done in a vacuum but in the context of a children's Bill. That Bill will have to provide new legal mechanisms for dealing with children under the age of criminal responsibility who commit antisocial acts, who may need care and attention or be required to do some form of community service. In a sense we are putting the cart before the horse but we must deal with it because it arises in the context of this Bill.

I hope that in the next Dáil session a Bill will be introduced to deal with the criminal justice area as it affects children and that we will be providing for a new age of criminal responsibility. I understand the concern expressed by CARE in the document Deputy Andrews quoted from. In a sense it could be taken that the new age of criminal responsibility is being fixed at 12 years but that is not what the Bill states. There is a danger, however, that it will be misinterpreted in that way. The Bill restricts detention in the context of young people. To some extent I have a preference that the age should be higher than 12 years and that we should be considering the age suggested by Deputy De Rossa, 15 years. I accept that the Minister is in a predicament in that if he puts in a higher age than 12 years he is predetermining the new age of criminal responsibility outside the provision of a new children's Bill. The Minister does not have any choice but to fix the age at 12 because that is the absolute minimum age of criminal responsibility although I hope it will be higher. If a children's Bill introduced in the autumn sets 14 years or 15 years as the new age of criminal responsibility no children under that age can be detained under the provisions of this Bill.

In a sense we have two problems but we can deal only with one of them in the Bill. I welcome the Minister's flexibility in providing a minimum age but I regret we do not have a children's Bill dealing with juveniles who come in contact with the law and commit crimes. It is my hope that before the end of the year the House will fix a new general age of criminal responsibility in excess of 12 years. We all have difficulty with the age limit. It is easy to criticise Deputy Woods in regard to this. He put in 12 years as the minimum age but when the Minister put in 12 years he hopped in and suggested 14 years. I do not know why he has done that although I accept his bona fides in the same way as the Minister's. Deputy Woods is entitled to the same degree of flexibility in his conclusions about the Bill as the Minister is. However, it seems a little opportune that after the Minister had virtually accepted Deputy Woods's proposal that 12 years be the minimum age he should insert 14 years. In my view Deputy De Rossa is correct in suggesting that 15 years should be the age of criminal responsiblity. It is unfortunate that our problem is that to some extent we are plucking ages out of the heavens without having an ideal age when a young person should be regarded as criminally responsible. It is a subjective decision.

All moves in regard to the age of criminal responsibility depend on the Minister for Health who has made long speeches and promises about producing a children's Bill. He should stop making speeches and promises and produce the legislation. Some of us are a little tired of hearing such speeches and promises. We want to see that legislation through the House. It is a long overdue reforming measure that successive Governments have failed to tackle. The Government are committed to tackling it and I hope that is done before the end of the year. I accept the Minister's point that he does not have any choice but to leave the options open so that the House can deal with the age of criminal responsibility under the children's legislation. We cannot deal with it indirectly in this legislation. I hope organisations such as CARE do not take it that because the age of 12 years is inserted in the Bill it will automatically be the age of criminal responsibility because we are not making that decision today. I thank the Minister for his flexibility in introducing this amendment which has been welcomed outside the House. He should call on his colleague, the Minister for Health, to deal with the juvenile justice area comprehensively.

Mrs. Barnes

Throughout the debate regrets have been expressed that this legislation is being dealt with without any reference to reform of the penal or judicial system. There is another example of that in this provision which deals with the most vulnerable group in our society, our children. Flexibility has to be introduced because a children's Bill has not been introduced. I regret that more time has not been spent reforming legislation. Had we done that we might not have the painful experience of having to pass this legislation.

Mr. G. Mitchell

I am happy an age has been inserted in the Bill because, like Deputy Shatter, I have been pursuing the need for a children's Bill for some time. We were told it would be introduced after Easter and then in the summer but, hopefully, this will be the last delay and the Minister for Health will introduce it in the autumn. Given the fact that we do not have a definition of the age of criminal responsibility we must pick some age. The Minister's choice is not unreasonable given the circumstances our communities find themselves in. The amendment states that where a member in charge of a Garda station has reasonable grounds for believing a person is not below the age of 12 years the subsection shall apply to him as if he were of that age. Suppose that section is abused and a child of eight or nine is detained on the basis that the garda was "of the opinion" will such an abuse be a suitable matter for consideration by the proposed complaints tribunal?

Mr. Tunney

I have a concern about deciding on a particular age and I would hope that it would be higher rather than lower. In the educational system there is an acceptance of the fact that any two boys or girls at the age of 12 are not equally responsible and because of that we have special schools. I understand that a member of the Garda will have some right to decide whether a young person who is in excess of that age is the kind of person with whom we are here concerned. My difficulty is that members of the Garda show a reluctance to take any chance at all. Is it possible that this section could apply to a young person over the age of 12 who was retarded, either mildly or profoundly handicapped? Bearing in mind the reaction of the Garda to certain of these measures already, I am not sure that there is sufficient protection for that type of child.

An Leas-Cheann Comhairle

Deputy De Rossa to conclude on amendments Nos. 15 (1), 15 (3) and 18 (1).

Mr. De Rossa

A number of points have been strongly made that while generally people are pleased that the Minister has raised the age from 7 years, they are not happy that he has gone far enough. I am one of those persons. The age of 15 is a reasonable age below which a person should not be detained under this section. The Minister said that more than 3,000 young people under the age of 14 had been engaged in offences or convicted in 1983. My reading of the crime report is that 442 such children were engaged in crime. Perhaps the Minister would clarify that. There is a huge difference in the figures.

The important point to keep in mind is that when we set the age of 12, any young person over that age, and some younger children who may look to be that age, will be subject to the rigours of this section, enabling them to be detained for up to 20 hours, enabling fingerprints to be taken, questioning and so forth. Given our experience and knowledge of how detention has been used in the past, we can expect that most of those detained will not be guilty of any crime. I would caution against any acceptance of the age of 12 and would urge the Minister to reconsider this and raise it to 15.

The other point in relation to these three amendments is that the Garda should be obliged to take reasonable measures to establish the age of the person being detained. That is a reasonable request. Young persons develop at different rates, particularly when they are beginning to enter into adolescence. I would appeal to the Minister not to confine it to 12 years of age and to accept the amendments relating to the responsibility being placed on the Garda to take reasonable steps to establish age.

An Leas-Cheann Comhairle

Deputy Woods to conclude on amendments Nos. 15 (2) and 15 (4).

Dr. Woods

Deputy Shatter unfortunately missed the beginning of the debate on this section and did not hear what I had to say. It was similar to what he said himself — that the absolute minimum was 12. The Committee Stage debate on this section took place in April and we had to put down these amendments. It is now July and we are now a lot wiser, having discussed the Bill widely. I also said we were prepared to talk about whether we wanted 12, 13 or 14 but were not prepared to accept it as applying under 12. That was the minimum possible. We appreciated the difficulties in deciding between 12, 14 and 15. I mentioned doli incapax and doli capax and said that it raised the question of criminal responsibility. We are taking a political risk because somebody who wanted to make a political issue of it could say that we got the Minister to go up to 12 and that therefore we should not be talking about anything beyond that. I considered that point but I put down 14 in order to have the question aired and discussed. We are not in a position to discuss a section unless an amendment has been put down. I appreciate that the Minister for Health is to come forward with a measure dealing with the age of criminal responsibility. I note the attacks that have been made on the Minister for Justice this afternoon in relation to that matter. I want to get the record straight because people keep blaming successive Governments or whoever. I might point out that I managed to get the task force report published at the time with considerable difficulty — there had been much delay over a number, of years — but immediately on its publication we drew up a draft Children Bill which was circulated in October 1982.

Mr. G. Mitchell

What was the age of responsibility in that Bill?

Dr. Woods

The draft Bill had been prepared at that time but it had not been debated at Cabinet level or anything else done. The Minister says now that he will introduce three separate Bills. I want to make it clear that the groundwork in order to arrive at a stage at which one would take decisions on these matters was done in quite a hurry at that point. Having just received the task force report I spent the summer of 1982 working on it. Ultimately the only way I could get that task force report was to say to them, "bring out as large a minority report as you wish; if you agree on various elements, just issue the various minority opinions and let us have a report which can then be considered by the legislators". There are various contentious elements in that report. But as far as we are concerned we should like now that consideration be given to a higher age. We welcome the Minister's move from age 7 to 12, which is appreciated, but that is the absolute minimum in our view. However, we are happy he has taken that step. Also we should like early consideration to be given to the position between ages 12 and, say, 14, particularly in relation to the provisions here. I would welcome that aspect coming before the House at as early a date as possible.

There have been various contributions in relation to the dangers of children being brought in who are under the age of criminal responsibility. That is the reason I put down this amendment and, though I say so myself, it is a fairly good one. If we were not in this rush situation it is one that perhaps the Minister could take on board, be considering and even do so in the Seanad. I might read the new paragraph 14 proposed:

"(c) Nothing in this section shall render admissible at the trial of an accused person any statement, oral or written, made by him when arrested or detained pursuant to this section, if at the time of his said arrest he was below the age of fourteen years."

Twelve is the age the Minister is proposing whereas my amendment proposed 14. That is an important amendment because it renders it less attractive for anybody to take someone in, carry out an interrogation and then discover later that the person interrogated was under the age of criminal responsibility, then saying: "we will let you go but we do have certain evidence at this stage". It would tend to preclude that type of situation evolving and, rendering it less attractive. If the Minister cannot consider it now perhaps he would do so in the Seanad. Having listened to the discussion here perhaps the wisdom of that kind of approach is highlighted all the more. The Minister might consider that as a potential safeguard.

Mr. Noonan

(Limerick East): There are three outstanding issues on the amendments themselves and a number of points raised by various Deputies. First of all there was a discussion on what is the appropriate age under which children should be excluded from the provisions of section 3 and we have a variation from 12 to 15. Secondly, there is amendment No. 3 to amendment No. 15 to paragraph (b) of my amendment put down by The Workers' Party. Then there is amendment No. 4 which would have the effect of inserting an additional paragraph — (c) — tabled by Deputy Woods.

In selecting the age of 12 I was certainly influenced by the amendment put down by Deputy Woods on behalf of his party on Committee Stage, which also provided for the exclusion from the scope of section 3 children under 12 years of age. I was also influenced by the fact that I did not want to pre-empt the debate on the age of criminal responsibility in which I am sure the House will engage before very long. I could foresee a situation in which, say, if I selected the age of 15 or 14 that would place the Minister for Health in a position in which he would find it very difficult to argue for any other age even though the question of age here applies only to the detention provisions of the Bill, and is not relevant to the age of criminal responsibility. This amendment is not relevant to the age of criminal responsibility. The way in which the debate has been conducted on Second and Committee Stages, and again here today, has formed a link in the minds of Deputies as well as in the minds of the public who read the debates, between this age here which we are applying and the age of criminal responsibility.

I do not want to open the debate on the age of criminal responsibility here. It is important to point out that, whatever age we select as the age of criminal responsibility, we are giving an immunity from prosecution under that age. If one thinks it should be 16 years old or 15 years old, one should remember what one is talking about, that people under that age would be immune from prosecution. Many Deputies here represent urban constituencies and know what is the situation on the ground. It is something one would not rush into. I would hesitate to be dogmatic about the age of criminal responsibility. Certainly it is too low at present at seven years of age. The amending legislation in Britain brought it to ten years of age. I am talking about 12 years of age in this Bill but that is not the age of criminal responsibility. The Minister for Health should be in a position in which he can evaluate the situation and come forward with his proposals. If it transpires subsequently that there is a recommendation to this House, under a Children Bill that the age of criminal responsibility should be 13 or 14 years, for example, then this amendment I am moving here will no longer be relevant. For those reasons I am staying with the age of 12 here. I thought there was reasonable consensus in the House on Committee Stage that 12 was the appropriate age. I appreciate that Deputies are free to change their minds and we have all had second thoughts about certain aspects of the Bill.

Another general point I should like to take up is the suggestion that we are rushing the Bill. Whatever can be said about this Bill, I do not think we have been rushing it. It was published in October last and, if Deputies engaged in some comparative study, they would probably find that we have had one of the longest Second Stages ever, together with a very long and intense Committee Stage. I thought Report and the Final Stages could be debated here today over a full day, and we have agreement between the two main parties to do that. I think we can give it adequate discussion. I know people have concerns about this area, which has taken a considerable amount of time. But there are other amendments on which I think we shall have agreement and which will not require a lot of discussion. As the day progresses, by the time we come to 10.30 p.m., I think we shall have given it fair discussion.

The other two matters to which I should like to refer is Deputy De Rossa's amendment No. 3 to amendment No. 15 to paragraph (b) of my amendment. This would go farther than requiring the member in charge of the station to have reasonable grounds for believing that a person is not below the age of 12 years. He would also have to take reasonable measures to establish that the person was not under that age. Strictly speaking I do not think it necessary to go this far because once he must have reasonable grounds for believing it follows that he must act reasonably in arriving at his belief. I do not think mere observation of a child would be sufficient. It should be remembered that there is also an obligation under the Bill to notify parents. They must be allowed attend any questioning if somebody is under 17 years of age. Deputies seem to have forgotten this. If people under 17 years of age are detained their parents must be informed. I quoted on Committee Stage the relevant case law which makes it impossible for them to be questioned unless their parents or guardians are present. If the parent or guardian has to be present during the questioning of a young person whether he is 11¾ years of age and detained by mistake or 13½ years of age the parents have to be there. It seems to me to be a relatively easy matter to check the age provided that the parents give a truthful account of the age. Therefore, this amendment is not necessary and I am opposed to it.

Deputy Woods's amendment No. 4 to amendment No. 15 would cut across paragraph (b) of the amendment I am introducing. The amendment I am introducing validates detention where the Garda act bona fide and on reasonable grounds but it transpires that the child is under 12 years of age and has to be released and the fact does not come to light until afterwards. Deputy Woods's amendment does not alter that but it rules out any statement made as being inadmissible, no matter if it were completely voluntary, obtained with parents present and so on. There is no compelling reason for this as the Garda would have acted properly in that situation. The original raison d'etre of the rule of non-admissibility was to deprive the police of their ill-gotten gains when they had acted unlawfully on the basis that they acted incorrectly and obtained a statement but should not benefit by that. Therefore, that statement would be ruled inadmissible. That is not the situation here. Here the Garda are acting in a bona fide way and a statement would be made and then we are saying that that statement, regardless of culpability, would not be admissible in evidence. I am not sure that that is the correct approach. It is not right to deprive the community of the possibility of a conviction in a case like this unless there is good reason for it. If it was to discipline the police, to rap gardaí on the knuckles and say, “What you did was wrong, therefore, what you gained by it cannot be admitted in evidence, so you lose your conviction”; that would be a valid line of argument. The situation here is not a question of the Garda acting incorrectly, it is the Garda making a bona fide mistake, and for that we are ruling out a statement which could be of benefit. The police would not have acted improperly in this situation. I share Deputy Woods's concern and I will look at this between now and when the Bill goes to the Seanad. Those of us who talk about rushing the legislation through should remember that there is another House in another place.

Mr. Skelly

With fewer Members.

Mrs. Barnes

And fewer speakers.

Mr. Noonan

(Limerick East): Not necessarily when it comes to debating Committee Stage of the Criminal Justice Bill. They might be fewer in toto but I would not be surprised if more were in attendance. I do not think that the Bill will have a quick passage through the Seanad. I am sure that Senators will follow the good example of the Dáil and give it an intense examination also. Deputy Woods's amendment No. 4 to amendment No. 15 is not necessary and I am not too sure if it is even desirable. However, he has made a strong case for it and I will have it examined before I go to the Seanad.

Mr. G. Mitchell

And the question I asked?

Mr. Noonan

(Limerick East): In regard to Deputy Mitchell's question, yes, of course it would be an appropriate matter for a complaints procedure but it would be even more appropriate for a civil case because it would be unlawful detention. Deputies raised other points but I dealt with most of them either in my introductory remarks or on Committee Stage because we had in effect the same type of debate on the age whether it be ten, 11, 12, 16 or whatever.

Deputy Tunney talked about the difficulties that arise from not differentiating between mental age and chronological age. That is a problem all the time. That would be a very relevant factor in court. The capacity of the child to commit a criminal offence would come into question in court and then the question of mental age rather than chronological age would be very relevant. For the purposes of the Bill I do not think there is any way whatsoever that it could be drafted in terms of mental age rather than chronological age. Another difficulty is that there is no exact correspondence between mental age and maturity. Children with a reasonably low IQ might be quite mature and people with a high IQ might not be mature. I do not think that there is an easy solution to that but the court would certainly take into account the capacity of anybody, of any underage person, any adult, to perform a criminal act. The voluntariness of their action and the full knowledge of what they were doing would be taken into account in court.

Mr. Tunney

I was making a case in respect of detention.

Mr. Noonan

(Limerick East): The point about the detention provision is that once somebody is under 17 years of age, the parent or guardian must be present anyway before the person is questioned.

Dr. Woods

In view of the Minister's undertaking in relation to amendment No. 4 to amendment No. 15, I will withdraw amendments Nos. 2 and 4 to amendment No. 15.

Mr. Noonan

(Limerick East): Another point I was about to make was in relation to statistics about which Deputy De Rossa asked me. The 3,371 indictible offences committed by children under 14 years of age is for the five-year period from 1979 to 1983. It is not a one-year figure, but is the total for five years. In 1979 it was 684; in 1980 it was 796; in 1981 it was 1,133; in 1982 it was 316; in 1983 it was 442, giving a total of 3,371 over that five-year period. That was what I quoted.

Amendment agreed to.

An Leas-Cheann Comhairle

On amendment No. 1 to amendment No. 15 I am putting the question: "That the words proposed to be deleted stand.". Will those Deputies demanding a division please rise in their places?

Deputies De Rossa and Mac Giolla rose.

An Leas-Cheann Comhairle

In accordance with Standing Order No. 59 the names of the Deputies dissenting will be recorded in the journal of the proceedings of the Dáil.

Amendment declared lost.

Amendment No. 2 to amendment No. 15 not moved.

Mr. De Rossa

I move amendment No. 3 to amendment No. 15:

To insert after "believing" where it first occurs "and has taken reasonable measures to establish".

Amendment put and declared lost.

Amendment No. 4 to amendment No. 15 not moved.

Dr. Woods

I move amendment No. 16:

In page 5, between lines 46 and 47, to insert the following:

"(9) Where proceedings are taken against a person in respect of an offence for which he was detained pursuant to this section or where such person has commenced Civil Proceedings against the State or its Servants or agents in respect of such arrest or detention, or in respect of his treatment during such arrest or detention such person shall, on giving reasonable notice, be entitled, by himself or his Solicitor, to inspect any records kept in pursuance of paragraph (6) (d) and any other records kept in the Garda Síochána station pursuant to regulation or otherwise in respect of his said arrest or detention.".

An Leas-Cheann Comhairle

Amendments Nos. 16 and 17 are related and may be discussed together.

Dr. Woods

The intention of this amendment is to enable a citizen or his solicitor to have sight of the records which relate to a case being pursued against the citizen. The reason for suggesting the amendment is to ensure that there is a balance of justice. There is a principle known as the equality of arms whereby the parties should meet on fair terms, one party not being in a stronger position than the other. Citizens will now be bound to disclose information which they were not bound up to now to disclose or to comply with requests that they were not bound to comply with up to now. Therefore, it is only reasonable that they should have the opportunity of having sight of the records which relate to their detention or arrest in circumstances in which those records are relevant or are needed by the person concerned. The European Convention on Human Rights provides that this should be the position.

Amendment No. 17 is to ensure that the relevant information should be available to the complaints procedure body so that in the event of someone wishing to bring a complaint to that body he should have the right to have sight of the documents which relate to the complaint being made. Certainly that should be available to the people who are conducting the investigation. For that reason they would need to be preserved until such time. So where a notification has been given that a complaint is being made the records should be kept and maintained for the purposes of that investigation. That is the intention of No. 17.

Mr. Noonan

(Limerick East): I am opposed to amendment No. 16 which I think is potentially a very dangerous provision and one that I would not accept without very careful consideration. The implications of it seem to be quite far reaching. It would mean that a person in any of the categories mentioned could walk into a Garda station and demand to see any records relating to his detention. These might be confidential reports, for example, affecting security. They could be anything once they are related to the person. This seems to be unacceptable and there seems to be no need to go beyond paragraph (e). If a person charged with an offence disputes any evidence relating to subsection (6) in court the records can be produced in court as evidence. And in relation to civil proceedings there are procedures such as an order for discovery of documents whereby relevant records held by the other side must in certain circumstances be disclosed. I would not contemplate at this stage going further than that. I do not see the need for it.

I think amendment No. 17 is more appropriate to a Complaints Bill. It deals with matters relevant to a complaints investigation. Accordingly, if it is to be made part of law it is relevant to the proposed Complaints Bill and not to the Criminal Justice Bill. I am sympathetic to the idea behind it and I shall examine it in the context of the Complaints Bill but I could not accept it for this Bill and I would ask the Deputy to withdraw it.

Mr. Taylor

I think there is considerable merit in at least part of amendment No. 16. Possibly the wording of it goes too far when it speaks of all other records kept in a Garda station pursuant to regulations. I think it would be quite unreasonable to deny any person information entered in the Garda station records pursuant to paragraph (6) (d). In my view there should be an openness about records of a formal nature of that kind kept pursuant to statute. It is a well-known, traditional fact that in official circles, Government Departments, Civil Service, Garda or any official circles there is and always has been an incredible reluctance to open to the public view matters that they like to regard as within their own private preserve of officialdom. They will resist to the last to the utmost of their ability openness and access of the public to what they like to term official documentation. It is a situation much beloved of the Civil Service. It is not a new phenomenon; it goes back hundreds of years to the old days of the British Civil Service and we have inherited it unfortunately to far too great an extent.

The courts on occasion do breach that through the discovery of documents procedure but even then there are situations where if the Minister gives certificates in respect of certain documentation the courts are precluded from and will not look behind them. I would urge the Minister to think again about this, particularly as regards paragraph (6) (d) which refers to the formal entries in the Garda records when a person is detained. I can see no basis for not having those freely available to the legal representatives of a person who would be aggrieved by them. The purpose of bringing in a provision that these records have to be entered up in the Garda station is to ensure that the matter be dealt with in a proper manner and that the requirements of the Act should be complied with. Surely that is the purpose of the provision in the Bill. If so, why should there be any reluctance to have such items open to public view so that the legal representative of a person who says that something was not done in a proper manner should have this information available to him for checking? We all talk about open Government and having things on a full and free basis. This is a classic example of this kind of situation where there is no reason to deny openness and freedom of access. There can be nothing in these records that would put the security of the State at risk. All it is directed to is ensuring that the formalities required in the interests of a detained person have been complied with. A person should be entitled to ensure that that has been done.

Dr. Woods

First, in regard to amendment No. 17, I welcome the Minister's sympathetic approach. I realise that since we are not having the complaints procedure at this stage there is difficulty in relation to the inclusion of this amendment which relates to references which would be required by the Garda Complaints Commission — and we do not know at present what exactly it will be called. It will not be Garda Complaints Commission but a different name. On that basis I am prepared to withdraw that amendment since the Minister is prepared to consider it for the complaints procedure.

The purpose of amendment No. 16 is to ensure that sight of these formal records or any of the records necessary under the regulations will be available to the individual concerned or his solicitor. It was my intention that an individual should be able to have sight of these and that they would be preserved in the event of such proceedings taking place. The Minister says an individual is entitled to seek an order for discovery of documents. Why should he have to do that? When we are setting up the system why can we not build into it the fairness and equity that we believe to be appropriate? If there is something in the drafting that should be altered why not suggest that the Minister is not against this in principle but that he would like to consider redrafting it? Take, for instance, paragraph (6) (d) where the records prescribed are the time of the giving of a notice under paragraph (a) and the time specified therein as the time up to which the questioning is being suspended: whether the person being detained acknowledged that he received the notice and the time of the giving of any notice under paragraph (b). Paragraph (b) refers to the fact that a notice under paragraph (a) may for serious reasons be withdrawn by a subsequent notice given in like manner and in that event any time subsequent to the giving of the second notice shall not be excluded under the paragraph.

These are all part of the mechanics of the legislation which we are debating now. I can see that the Minister might say in relation to certain information that he would not want to make certain kinds of information available. The intention was to have records kept pursuant to regulations which the Minister will bring in. If that is too broad why does the Minister not say that he appreciates the point in principle but feels it needs to be clarified? We had very little time to consider when we drafted this.

The basic principle is a sound one. The Minister often spoke about the importance of getting the balance right and this would ensure that the balance was right. Formal records should be available and they should have sight of them. As we saw on "Panorama" last night the documents are very straightforward and simply state at what time something began and at what time it finished. There is nothing very secretive about the documents. It is just, as Deputy Taylor said, that they belong to the bureaucracy. They are hard to get at subsequently but they could be very helpful to the individual in this unhappy position.

I ask the Minister to look at the question in principle and see how it could be advanced. I know we are finishing the Bill this evening and that there will not be another opportunity to come back with a redraft but the Minister will have an opportunity to look at it in the Seanad. I ask him to look at it again and change his attitude towards it. Perhaps he might see if it could be redrafted to keep it within particular limits.

Mr. Noonan

(Limerick East): If something emerged in the Seanad which would not endanger other people's privacy or confidential security records I would be prepared to look at it in a more confined way in the Seanad.

Amendment, by leave, withdrawn.

Amendment No. 17, not moved.

Mr. De Rossa

I move amendment No. 1 to amendment No. 18:

To insert after "believing", "and has taken reasonable measures to establish".

Amendment put and declared lost.

Mr. Noonan

(Limerick East): I move amendment No. 18:

In page 6, between lines 29 and 30, to insert the following:

"(3) If and for so long as the member of the Garda Síochána in charge of a Garda Síochána station in which a person is detained pursuant to section 4 has reasonable grounds for believing that the person is not below the age of seventeen years, the provisions of subsection (1) shall apply as if he were of that age.".

Amendment agreed to.

Acting Chairman (Mr. Wyse)

Amendments Nos. 19 and 21 may be discussed together.

Mr. De Rossa

I move amendment No. 19:

In page 6, between lines 29 and 30, to insert the following:

"(3) Where a solicitor named by a detained person is not available, or where a detained person is unable to name a solicitor, the member of the Garda Síochána in charge of the station shall be required to provide him with a copy of the panel of solicitors maintained by the County Registrar for that area under the Criminal Justice (Legal Aid) Act, 1982.".

This amendment seeks to add a subsection to section 5 which deals with access by a solicitor to a detained person. The amendment is designed to avoid the situation where, particularly young people, would not be in a position to name a specific solicitor or would not know if the solicitor they named would have expertise in the area of criminal law which they are suspected of having breached. The Minister indicated on Committee Stage that he felt sure if a solicitor on the legal aid panel was called out and the case resulted in a prosecution, the solicitor would be in line to be paid by the State if the person concerned could not afford to pay himself. Most solicitors would be prepared to take the chance and would be only too pleased to offer their services to a person in detention.

I ask the Minister to accept this amendment. It is necessary to protect what I believe is a large number of people who would not be in the position to name a solicitor.

Dr. Woods

Amendment No. 21 states that the Minister shall make regulations providing for a scheme of legal aid for persons detained pursuant to section 4 so that persons who do not have the financial means to engage a solicitor shall be able to do so. The Ó Briain Report dealt with the question of duty solicitors. At paragraph 62 they stated:

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.

Our intention was to empower the Minister to make regulations to provide for a scheme. There is a major problem in relation to those who are on lower incomes. We made it clear on Committee Stage that the legal aid scheme does not come into operation until one is charged. In the period before free legal aid would apply, that is before the person is charged, if the person has an income they can call on a solicitor who could make some recommendation on their behalf. Those who do not have an income cannot do that and they would be at a disadvantage compared to those who are better off.

One of the fears has been that those who are less well off will be disadvantaged because of their inability to protect themselves and take whatever remedies are available under the legislation. This is an instance in which they would be at such a disadvantage. The kind of scheme is a matter for consideration. For periods of one or two hours there would not be a need for a solicitor to be present. However, when a detainee reaches a stage when he feels the need to have a solicitor present, it should be possible to consult one. That will not be possible through the present legal aid system which operates only from the time at which a person is charged.

In this amendment we are leaving it to the Minister, to say that he shall make regulations providing for a scheme of legal aid for people who are detained under section 4, which is detention on suspicion. This difficult problem must be faced up to somehow. The Incorporated Law Society appear willing to participate in discussions on the feasibility of a scheme providing duty solicitors. Even if it were only that a solicitor would be made aware of the fact that a person was being detained, that would be something.

Mr. O'Dea

The amendments in the name of Deputy Woods are eminently reasonable and I hope that the Minister will give them reasonable consideration. The problem to which he referred arising from the legal aid situation is quite obvious. There is not much use in having a provision in legislation which makes it obligatory to allow a detainee to inform a solicitor that he is being detained in a particular Garda station when the reality is that many of the legal profession respond only where there is an obvious financial reward at the end of the day. If the detainee is not in a position to afford the services of a solicitor, it will be useless telling a solicitor that he is being detained, because the solicitor will not respond. That is the first and very logical point arising in Deputy Woods's amendment. The Minister will have to deal with it immediately.

Secondly, the legislation as it stands is seriously deficient. The provision is there that the detainee must be informed of his right to have his solicitor contacted. The situation is akin to a lucky dip. If the detainee picks the right solicitor, who can be contacted and will respond, he is well away, otherwise he is doomed, deprived for the entire period of questioning from access to a solicitor. Surely that cannot be right? What is the fallback provision? The gap in the legislation is so obvious that I hope the Minister will forgive my being suspicious that it is deliberate.

Thirdly, various questions arose on Committee Stage about the right of a detainee to be questioned only when a solicitor arrives, particularly if the Garda are aware that the solicitor is on his way. I am not happy with the Minister's response to that suggestion. I hope that he will give a more adequate response at this stage, having more fully considered the matter.

Mr. Taylor

As Deputy O'Dea pointed out — and I absolutely agree — it is a noble and fine gesture to include a provision in a Bill saying that a person detained has the right to send for a solicitor. One must consider in how many cases that noble intent is likely to be fulfilled — in precious few, I would think. I have heard it said that the standards in both the legal and medical professions, in so far as they show a degree of service and responsibility towards the community generally, have been decreasing sadly in the past decades. To take the medical profession, for example, it was the standard years ago that any doctor was quite happy to do night calls but it seems that the position now is that even fewer are prepared to do night calls and the situation in the legal profession also has deteriorated in like manner. There is even less of a feeling of service toward the community.

For those who are well connected and have their own family solicitor, there is no problem. A solicitor will be readily on call and will come out. For those who are not well connected — and most people who would be detained under this Bill would fall into that category — I would say that they would have great difficulty in getting a solicitor to come out. Even if they did, the calibre of the solicitor with regard to the degree of his skill in criminal matters would be lower. One who was very skilful in criminal matters obviously would be a very busy person who quite likely, and almost certainly, would be engaged elsewhere in one court or another if it were during the day, or would have possibly an understandable reluctance to come out at night. Although the intent is there to provide this service for a person detained — and it is very laudable that it should be there as an intent — the capacity to achieve fulfilment is not great, unless something more is done about it. Reasonably, we could expect something more to be done about it. Both amendments could be regarded as a minimum towards that end.

Very many lawyers, both solicitors and barristers, do extremely well out of the present legal aid system. We have seen lists published from time to time giving the earnings of solicitors and barristers. Quite a few do very well, indeed, out of that free legal aid service. Would it be that unreasonable to expect those solicitors who are at least in the upper echelons of earnings through that scheme, and there are quite a few, among themselves, in consultation with the Law Society and the Department of Justice, to organise a duty scheme of some sort that would provide a basic on-call service, even if given no more than some token addition for providing this service? If the provision for calling a solicitor is to have any meaning at all in reality something of that nature will have to be done.

Let us not delude ourselves by saying that we are doing a good day's work here in the interest of civil liberties by putting in a provision that a solicitor can be sent for and all be satisfied and go home in the reasonable expectation that in all, or even most, cases it will be fulfilled. I would say not. I suggest that the Minister might consider, between now and the Seanad debate on the Bill, making approaches to the Law Society, which approaches I am sure would be welcomed, to see if some scheme could be devised under which those solicitors — who do very well, thank you — on that panel would be prepared to give that little bit to enable a basic right given under this Bill to be fulfilled.

Mr. Skelly

I remember during Committee Stage of the Bill having a very acrimonious debate on this section.

Dr. Woods

I always forget acrimonious debates. The Deputy should put these behind him.

Mr. Skelly

I am reminded about it now.

Dr. Woods

Deputies should not bring acrimonious debates away with them.

Mr. Skelly

Certain pleas were made at that time to remember the detainees who would not have access to a solicitor. We have to educate some Members of the House. Well-heeled Members of the House stuck adamantly to the point that people could easily ask for a solicitor. They were surprised when it was pointed out that in most cases they would not even know a solicitor. As reported at column 1920, volume 350, of the Official Report, I said:

... Deputies stand up here and betray their sheltered backgrounds when they talk about people who come to Garda stations and can contact a solicitor, know a solicitor, can telephone home or get in touch with somebody. The chances of that happening normally are very slim because these people do not know solicitors. They certainly will not be their pals nor will they have gone to school with them, and they would not be able to name a solicitor off the top of their head.

I referred to paragraph 62 of the Ó Briain Report where there is a reference to a duty roster of solicitors. I reminded the House that doctors provide such a service. Doctors are on call to Garda stations and a person who is suspected of being drunk can get a doctor at any hour of the night to come and take samples, and not for an exorbitant fee. We could set up a duty panel of solicitors. Being a solicitor Deputy Taylor is in a position to verify what he has just said. Medical doctors could be regarded as well-heeled members of the community. With all their expertise, their education, their commitment and responsibility to the community, if they can provide the service they do provide to the population at large, I do not see any reason why solicitors could not provide a similar type service without looking for fees of several hundreds of pounds.

I do not see why it is not possible to have a duty panel of solicitors. We have many unemployed people. I understand we have unemployed solicitors, even though the number admitted to the profession is very restricted. This would be one way for them to allow an increase in the numbers admitted to the profession. People could make a living out of this, and then go on to better things. A medical consultant does not come out to take a sample from a person in a Garda station suspected of being drunk. Neither would we expect a senior counsel or a very senior solicitor to provide this service for a detained person.

That point was made very forcibly and I am surprised it was not taken on board and that it was necessary for Deputy Mac Giolla and Deputy De Rossa to put down an amendment again. I have not put down any amendments. I am on the wrong side of the House for doing that. The Minister puts down amendments. The contribution from Fianna Fáil and The Workers' Party on the Report Stage of the Bill is another example of their commitment to ensuring that we get maximum possible protection in this legislation for people affected by the Bill. After the Committee Stage debate I did not hear anybody disagreeing with the contention that solicitors are not known and are not available to the type of people who will be affected by this section. Therefore it is reasonable to suggest that this should be corrected. I do not see any administrative difficulty in doing that.

On the question of costs and fees, the legal profession cannot put themselves on a pedestal and remove themselves from reality and from the rest of the population. We all have a duty to the community. Their duty is no less than the duty of anybody else. Who would argue that solicitors and barristers are better educated or more qualified than the medical profession? The medical profession provide a service for all the people. They get very small fees and have to get a very large number of fees to give them a respectable salary. With very few cases, or even with one case, a solicitor can get the same remuneration as a doctor gets from treating 20, or 40, or more patients.

The law society have made it known that they would be willing to examine this suggestion and perhaps provide such a service. A service could and should be provided. Amendment No. 21 in the name of Deputy Woods reads:

In page 6, between lines 29 and 30, to insert the following:

"(4) The Minister shall make regulations providing for a scheme of legal aid for persons detained pursuant to Section 4 so that persons who do not have the financial means to engage a Solicitor shall be able to do."

This brings me back to what I was saying about solicitors bring available and to other sections of the Bill which will affect the less well off members of our community. Some people are so poor that they would not even dream of asking for a solicitor, or any professional person, or anything that would cost money. They are used to doing without. In this case the poor unfortunate souls will know it will cost them money which they have not got, or their parents, brothers, sisters or friends. They will feel so hopeless that they will throw up their hands and suffer as a result of this type of sectional legislation. If we want to have this convenient form of sectional legislation we will have to pay a price. If the price is that we have to give us some of our liberties, other people say we will have to pay it.

We will also have to put our hands in our pockets and pay for this. As has been demonstrated beyond question during the course of this debate, in more than 90 per cent of the cases we will be dealing with innocent people and young people under the age of 12 years who will not be able to afford any kind of professional advice. I would support both amendments if they could at least ease the deprivation and the punishment that innocent people may suffer under this section.

Mrs. Barnes

We spent much time on this matter on Committee Stage but we must spend more time reiterating what we said because of its importance. The reality of the situation is that many young people and their parents do not know solicitors and are intimidated at the very thought of having to seek one. Many of them do not even have enough information on how to go about getting a solicitor. We will not go over all that was said on this matter except to establish the reality of the situation.

What we have done here today is to move forward a practical step. In the long debate we had on this matter the Minister referred to the high cost of the criminal legal aid being afforded at the moment. However, the question must be asked, can we afford not to give this help in terms of justice and equity? This Bill cannot go through this House and the other House if we do not make available the legal advice and support of solicitors. We have been lobbied by several branches of the legal profession. I ask them to help in this matter, as Deputy Taylor and Deputy Skelly requested also.

In amendment No. 19, Deputy Mac Giolla and Deputy De Rossa have referred to the Criminal Justice (Legal Aid) Act, 1982. All of us hope that people will not be in detention for long enough to need help. The question must be asked if there is an appropriate network in rural areas to enable the suggested panel of solicitors to operate within easy access of a detention centre. In Dublin we are inclined to regard this city as the centre of the world but there are Garda stations outside Dublin and we must ask if there will be a network of free legal aid centres operating in rural areas.

We must give people equality of opportunity to be represented when they are detained and this Bill will not do that unless we have available a panel providing free legal aid. It is pointless to talk about regulations now. In the future debates we will have on regulations, attention will be focused on this area and I hope that by the time the regulations are discussed and agreed here the network we are asking for will be established. We cannot have a situation that a citizen will be denied his legal rights and support, as mentioned by Deputy Skelly. We should never base our system of justice on whether people can afford legal aid.

We have referred already to the sense of alienation, fear and disorientation experienced by people when detained. The most reassuring presence such people could have is some qualified person whom they know will be able to represent them properly in an area of which they know very little and of which they may be fearful. We cannot emphasise too much the special circumstances and the psychological pressures of people in such situations. Equity and justice demand that they get the necessary support at that time.

Mr. Shatter

I welcome both amendments. I and other Deputies raised this matter on other Stages and we spent some time discussing it on Committee Stage. Perhaps the amendment of The Workers' Party was pinched from an idea I had, or it may be that we were thinking on the same lines. Amendment No. 19 is unexceptional in that what it is asking is that if a person is detained in a Garda station and if he cannot name a solicitor he should be given a list of solicitors on the legal aid panel. I do not see any strong reasons for objecting to that. The Minister has a different problem having regard to the way the legal aid system stands at the moment. Under the 1962 Act the criminal aid legal scheme does not extend to people detained, they have to be charged with an offence. The amendment tabled by The Workers' Party would make available to a detained person a list of solicitors, presumably with addresses and phone numbers. In this way a solicitor could be contacted by the person detained in a Garda station.

What is suggested is desirable but it would not extend free legal aid or criminal legal aid to the person detained because the solicitor concerned would not go to the Garda station as a member of the criminal legal aid panel because no fee would be paid to him. The difficulty referred to by Deputy Skelly would still exist, namely, whether a solicitor would attend at a Garda station in those circumstances if the criminal legal aid scheme was not extended. I do not know but I anticipate that the majority would attend. I hope the Minister will consider seriously this amendment. His original worry in this area was with regard to the financial problems concerning the scheme. Acceptance of the amendment would not extend the scheme financially but would merely provide a facility to make available a list of names of local solicitors who practise in the area of criminal law. I hope the Minister will consider seriously accepting the amendment but it still leaves the problem because it does not extend the criminal legal aid scheme as such.

Members who spoke here this afternoon and in previous debates on the Criminal Justice Bill have pointed out that the problem is that for some people the right of access to a solicitor is more theoretical than real because they may not have the wherewithal to pay for a solicitor. I suggested to the Minister that he would consider on Committee Stage the possibility of extending the criminal legal aid scheme specifically to deal with the position where somebody is being detained, so that they could get assistance under that scheme. However, I see a problem in that area as the criminal legal aid scheme is based on a means test and is not available to those who can fully and properly afford to pay for legal advice. I can see the Minister having a problem in extending it to anybody who is detained. If that was done without a means testing mechanism, many people who could afford to pay for legal aid would benefit under this scheme. Of course that would apply to a very small proportion of people; the majority of criminal prosecutions take place with people being represented through the criminal legal aid system. It is important to ensure an equality of justice and protection in this area.

Deputy Woods's amendment regards it as a charging section although I do not think you can formally table amendments that would be regarded as a charge on the Exchequer. I am not sure about the technicalities but I think he intends, through his amendment, to extend the legal aid system to people in detention. This is a lacuna in the law which can cause a problem. If we provide for the right of access to people in detention and for an obligation on the Garda to telephone or make contact with a solicitor named by someone, that is fine for those who know solicitors and can afford to pay their fees but it is no help to those who do not know solicitors and cannot afford their fees.

Initially, I would like to see the Minister adopting Deputy De Rossa's amendment. I do not know if the Minister can accept the amendment tabled by Deputy Woods because it is somewhat vague and does not seem to be in the context of the Criminal Legal Aid Act, 1962. It seems to be a separate provision under this Act. He is talking about making regulations and the Minister should seriously consider this area. I understand his reservations and concern but there is also concern that there will not be equality of justice or of access to the law in the context of people being detained and that if we provide that equality at the charge stage, we will not be providing it at the detention stage.

I welcome the fact that these amendments have given us an opportunity to voice our concern in these areas and possibly given the Minister another opportunity to hear them being aired and to consider them with a view to looking again at the Criminal Legal Aid Act, 1962, to see how it can accommodate the new situation which arises with the detention provisions in this legislation.

Mr. Noonan

(Limerick East): Deputies who contributed here moved from a premise that the Bill is providing for access to a solicitor for detained persons as one of the safeguards in the Bill. Of course that is not so. This Bill is not providing for the right of access to a solicitor because this right exists already and case law has established that. What is being provided here is the right to be informed of one's right of access to a solicitor, which is a different thing. I make that point because Deputies are carrying the argument forward on the basis that I am willing the ends but that I am not willing the means to those ends. I am not; I am putting an explicit provision in the Bill that people will be informed of their existing legal right of access to a solicitor. The debate on Committee Stage covered the same ground. I refer Deputies to columns 205, 207, 228 and 229 of the Official Report of 6 June 1984 when we discussed these matters.

With regard to the amendments put forward by Deputy De Rossa and Deputy Mac Giolla, I do not think it necessary to have such a provision in the Bill. This is a matter of detail and it can be dealt with adequately, if it needs to be dealt with, as many Deputies think it does, in the regulations relating to the treatment of persons in custody. What is at issue essentially is that a person who has no solicitor and who does not know one but wants to consult a solicitor should be given the names of solicitors who would be available to attend the Garda station. However, the amendment refers to solicitors who are on the list drawn up by county registrars under the Legal Aid Act. These are solicitors who have agreed to provide legal aid for people who are granted legal aid certificates in the courts. It is not simply a matter of the Garda handing the detained person such a list. The people on the list would not have agreed to provide services in Garda stations. Accordingly, there would have to be agreement in advance on the part of the solicitor that they were willing to attend in these cases. Some prior arrangements would have to be entered into with the law society and the local Bar association. I will see what can be done in this regard but I do not think it necessary to write it into the Bill. It can be done adequately if the legal profession are willing to co-operate.

There can be no question, in the present financial circumstances, of the State paying out of public funds for the services of solicitors in these circumstances. It is a very difficult issue and raises questions of principle and the relative priorities in Government spending. The idea which was mentioned on Committee Stage and put forward here by way of amendment by The Workers' Party can be achieved in the regulations but it will need the co-operation of the legal profession. Deputy Taylor talked about the noble and fine gesture of the Minister in putting the right of access to a solicitor into the Bill. Of course I did not but it may be a noble and fine gesture to inform people of the right of access to a solicitor. Could we not have a noble and fine gesture from the legal profession? On the question of access to law in general, people below a certain level of income have access to the law because they have civil legal aid and criminal legal aid if they get into trouble. People above a certain level of income can choose to spend that income on legal advice if they wish to bring cases to court but the middle income people are terrified of bringing anything to court on the civil side because they would be liable for enormous legal fees, especially to barristers, and they would not be able to afford it.

With regard to amendment No. 21 which Deputy Woods tabled, as I have said with regard to amendment No. 19, in the present financial circumstances there is little prospect of new services like this being introduced. Even if financial circumstances were otherwise I do not want to give a view on whether the State should supply this but certainly it is arguable. It is unrealistic, however, to think that there is any real prospect of solicitors giving their services free of charge under such a scheme. They would be required to attend in uncongenial circumstances and at different hours of the day and night. I am sure the Incorporated Law Society will take note of the views of Deputies and if the Incorporated Law Society come forward with a scheme, I will give it very careful consideration.

Mr. D. Andrews

I do not think the Minister has treated these two very worthy amendments properly. This is a dreadful Bill and additional safeguards couched in simple language should be put into it. The Minister has not presented a reasonable argument as to why these two amendments should not be included. This is a lousy Bill in so many ways and is open to the prospect of abuse. I support the Garda 100 per cent and what I am saying here is in support of the Garda, but we have to balance the right of the individual and his liberty. We have an obligation, within our competence as lay people dealing with this type of legislation, to reach perfection in drafting these sections. I consider this to be one of the dangerous sections where the ordinary citizen will find difficulty both in its interpretation and its operation.

The Minister draws a very fine line between the suggestion that the section seeks to inform people of their rights and the fact that people are already entitled to representation, but if the Minister is prepared to enshrine in the Bill the fact that people are entitled to information about access to solicitors, is there any reason why he does not accept amendment No. 19 where a solicitor named by a detained person is not available or when the detained person is unable to name a solicitor, the member of the Garda Síochána in charge of the station shall be required to provide him with a copy of a panel of solicitors maintained by the county registrar for that area? That appears to be a very simple requirement, unless there is a sinister intention behind the amendment which I cannot comprehend at this stage. If the Minister is prepared to inform the average citizen, surely he is prepared to allow the presiding garda, a servant of the State, to provide him with a copy of a panel of solicitors?

As Deputy Barnes said in her very worthy contribution, we are dealing with people who are in awe of the law, who are terrified at the prospect of a garda calling to their homes. Innocent people may be brought to a Garda station in a state of mental trauma. That is the reality. We should give these people any help we can by providing the information amendment 19 seeks to give. That amendment is as important and as relevant as section 5 (1).

Under Deputy Woods's amendment the Minister shall make regulations providing for a scheme of legal aid for persons detained pursuant to section 4 so that persons who do not have the financial means to engage a solicitor shall be able to do so. Of course there are people who can afford to defend themselves. The lower income group and the middle income group, the new poor, would not have the money to defend themselves. The middle income group do not have a buck. They are put to the pin of their collars to maintain their homes, which are under attack by a spurious house tax proposed by the socialists who contributed damn all to this debate, with the exception of the fleeting, but very worthy contributions of Deputy Mervyn Taylor. Some form of free legal aid should be available for these people, but if we take social justice into account we may deny them the right of access to legal aid. There is no way the lower income group can provide for themselves. The Minister should accept this amendment to improve this dreadful Bill and to make it more comprehensible and more human, if one can use those terms. We are very concerned about this section and the Minister's attitude to these two amendments.

I strongly urge our spokesman to support his own amendment because it is very important and, if possible, to support Deputy De Rossa's amendment. I do not think we should politicise this debate. We are here to do the best we can, attempting to make this Bill as perfect as possible. I would prefer not to discuss this Bill but we are stuck with it and we must do what were elected to do, legislate. We will do the best we can, but the Minister should not come in here with weak arguments. These two amendments can only do good because they are giving additional information to people who are genuinely afraid of the law.

I do not go along with the suggestion that the legal profession will not operate this scheme. There is a very strong tradition at the Bar that where a deprived person does not have the wherewithal to pursue his or her case, more lucrative cases are handed on and that person is given representation. I have seen this operate.

Mr. Skelly

Money up front ——

Mr. D. Andrews

There are traditions at the Bar which still exist, and that is one of them. I am not engaged in defending the Bar because they are able to defend themselves; they do not need me to do it. If they want to defend the allegations made during this debate they can do so more effectively than I can. I have seen cases where people were represented without a fee. I am not suggesting for one moment that barristers should be given credit for doing that because they must do it, and they should be seen to be doing it. Sometimes they do not proclaim their goodness in that regard. Perhaps the Bar needs a public relations officer to do the job of proclaiming their goodness in helping the deprived in our society. I have seen barristers representing accused persons day in day out much to their financial embarrassment. It is not my function to comment on that but I am asking the Minister to reconsider his position in relation to these amendments. He has been extremely reasonable on other sections of the Bill.

Mr. De Rossa

I agree with a number of the points made on these amendments. The purpose of our amendment is to ensure that a person in detention would have access to a solicitor. We were anxious to table an amendment that legal aid would be provided but were of the opinion that it would be ruled out of order and we were anxious to have a debate on the section.

The important thing is that the panel of solicitors under the 1982 Act is readily available in regard to criminal law. I said on Committee Stage that most of the solicitors known to the majority of people who will be detained under this Act are experienced in conveyancing, house purchase and so on and do not have interest or experience in the practice of criminal law. Such solicitors would not be expected to respond to calls for assistance under this Act.

The point made by the Minister to the effect that he is not creating anything new here in relation to access to solicitors is not very valid. Section 4 gives power of detention and the fact that it exists in the Act will have fairly wide effects. Therefore, it is only reasonable that we should include in it as much protection as possible for ordinary citizens. It has been said that Deputies are not here to defend hardened criminals but the rights of innocent persons who become caught up in the procedure of this law. Habitual criminals will be well acquainted with solicitors who would be available to act for them and will not be affected one way or the other by our amendment.

We are anxious to ensure that persons brought to Garda stations for the first time under the provisions of the Act will not be at a loss to know whom to contact and therefore the Garda should have a list of criminal lawyers which can be handed to such persons. I do not accept that the Minister must have an arrangement with the Bar Council or whichever society run these things. The list is there under the 1982 Act and the solicitors on it are active or they would not be on the list. Therefore I ask the Minister to accept my amendment. Its proposals could be included in the regulations, but the Minister has not given us an assurance that it will be so included, he said he will look at it. I would be happy if he had said he would include it during the debate in the Seanad. I will be pressing my amendment.

Dr. Woods

I agree with the Minister that this is a matter for the regulations, but as Deputy De Rossa has said, one would have liked a firmer assurance on that. The purpose of amendment No. 21 is to require the Minister to make regulations. We put it down because we realised it was a matter for the Minister to make some arrangements and we did not want to tie him down in the Bill. However, we want to require him to make regulations for a scheme of legal aid for persons caught up in this Act.

The Minister will have prepared his possibilities for the scheme he will adopt and we know that the Law Society have said they will co-operate with the Minister in the making of arrangements under the Act. This is not necessarily something that should cost a great deal of money. There are to be a limited number of centres throughout the country in which this type of interrogation will take place. The Minister has to designate them in due course and that should facilitate the making available of solicitors when they are needed at such centres.

Persons detained may say they are prepared to answer questions but the matter might become serious for them and in that case they should be able to call in somebody. There is a gap here to the disadvantage of people on lower incomes and it is not fair to say that we will ignore that part of the population in the powers we are giving. The Minister did not attempt to deny that but he pointed out that the State cannot consider these matters. We are the State, we make laws for the State and the State will have to do what we say. We know we have to deal with bureaucracy and that is a problem in our democracy, but it is our duty to try to offset and manage a balance by trying to find arrangements to meet these situations. That is why we could not allow this occasion to pass without looking seriously at the preparation of some sort of scheme. It is open to the Minister to decide on the form the scheme will take.

Amendment put.

The Dáil divided: Tá, 58; Níl, 70.

Tá

• Ahern, Bertie.
• Ahern, Michael.
• Andrews, David.
• Andrews, Niall.
• Aylward, Liam.
• Barrett, Michael.
• Barrett, Sylvester.
• Brady, Vincent.
• Brennan, Mattie.
• Brennan, Paudge.
• Brennan, Séamus.
• Burke, Raphael P.
• Byrne, Hugh.
• Byrne, Seán.
• Calleary, Seán.
• Conaghan, Hugh.
• Connolly, Ger.
• Cowen, Brian.
• Daly, Brendan.
• De Rossa, Proinsias.
• Faulkner, Pádraig.
• Fitzgerald, Liam Joseph.
• Fitzsimons, Jim.
• Flynn, Pádraig.
• Gallagher, Denis.
• Gallagher, Pat Cope.
• Geoghegan-Quinn, Máire.
• Hilliard, Colm.
• Hyland, Liam.
• Kirk, Séamus.
• Kitt, Michael.
• Lemass, Eileen.
• Lenihan, Brian.
• Leonard, Jimmy.
• Leonard, Tom.
• Leyden, Terry.
• McCarthy, Seán.
• McEllistrim, Tom.
• Mac Giolla, Tomás.
• MacSharry, Ray.
• Molloy, Robert.
• Morley, P. J.
• Moynihan, Donal.
• O'Dea, William.
• O'Hanlon, Rory.
• O'Keeffe, Edmond.
• O'Kennedy, Michael.
• O'Leary, John.
• Ormonde, Donal.
• O'Rourke, Mary.
• Power, Paddy.
• Treacy, Noel.
• Tunney, Jim.
• Wallace, Dan.
• Walsh, Seán.
• Wilson, John P.
• Woods, Michael.
• Wyse, Pearse.

Níl

• Allen, Bernard.
• Barnes, Monica.
• Barrett, Seán.
• Barry, Myra.
• Barry, Peter.
• Bell, Michael.
• Connaughton, Paul.
• Cooney, Patrick Mark.
• Cosgrave, Liam T.
• Cosgrave, Michael Joe.
• Coveney, Hugh.
• Creed, Donal.
• Crotty, Kieran.
• Crowley, Frank.
• D'Arcy, Michael.
• Deasy, Martin Austin.
• Desmond, Eileen.
• Dowling, Dick.
• Doyle, Joe.
• Dukes, Alan.
• Durkan, Bernard J.
• Enright, Thomas W.
• Farrelly, John V.
• Fennell, Nuala.
• FitzGerald, Garret.
• Flaherty, Mary.
• Flanagan, Oliver J.
• Glenn, Alice.
• Griffin, Brendan.
• Harte, Patrick D.
• Hegarty, Paddy.
• Hussey, Gemma.
• Kavanagh, Liam.
• Keating, Michael.
• Kenny, Enda.
• McCartin, Joe.
• Bermingham, Joe.
• Birmingham, George Martin.
• Boland, John.
• Bruton, John.
• Carey, Donal.
• Conlon, John F.
• McGahon, Brendan.
• McGinley, Dinny.
• McLoughlin, Frank.
• Manning, Maurice.
• Mitchell, Gay.
• Mitchell, Jim.
• Molony, David.
• Moynihan, Michael.
• Naughten, Liam.
• Nealon, Ted.
• Noonan, Michael.
• (Limerick East)
• O'Brien, Fergus.
• O'Brien, Willie.
• O'Donnell, Tom.
• O'Keeffe, Jim.
• O'Leary, Michael.
• O'Sullivan, Toddy.
• Owen, Nora.
• Pattison, Séamus.
• Prendergast, Frank.
• Quinn, Ruairí.
• Shatter, Alan.
• Spring, Dick.
• Taylor, Mervyn.
• Taylor-Quinn, Madeline.
• Timmins, Godfrey.
• Treacy, Seán.
• Yates, Ivan.

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

Amendment declared lost.

Dr. Woods

I move amendment No. 20:

In page 6, between lines 29 and 30, to insert the following:

"(3) In each divisional area of the Garda Síochána there shall be a Garda Síochána Station designated as a Central Information Office in respect of the detention of persons pursuant to this section. The Minister shall by regulation make provision for the following matters in relation to such central information offices:—

(a) The designation of a Garda Síochána Station in each Garda Division as such office, its functions and administration.

(b) The procedures to be followed so that a member of the Garda Síochána concerned with the carrying out of the functions of such office is informed as soon as practicable of the detention or release of a person pursuant to section 4 and the Garda Síochána at which he is detained whether it be the same Garda Station or not.

(c) The communication to the Central Information Office by the members concerned with or responsible for the detention of a person under the said section such other information relating to the said detention as the Minister may specify.

(d) The keeping of records in the said Central Information Office.

(e) The circumstances in which information in respect of the place of detention or any other matter concerning the detention of a person pursuant to section 4 may be disclosed to other persons and the persons to whom any such information may be disclosed.

Nothing in this section or in regulations made hereunder shall affect any existing duty or obligation which may exist in law to furnish any such information."

The purpose of this amendment is to ensure that there will always be information available about anyone who is detained. We had the suggestion earlier that persons detained should not be moved more than once, that they should not be moved to more than one other station. This amendment proposes that whatever moves take place for whatever reasons information on the people detained should be available at a central information office in a division, that office to be designated by the Minister in each Garda division. There have been cases in the past where it was claimed that a person detained was moved from one place to another and that those who were trying to get information had considerable difficulty over a number of hours. This measure is designed to ensure that the information will be supplied to a central office in the division.

In any event it will be necessary because the Minister will be gathering statistics about the numbers of persons detained, where they have been detained, the length of time they have been detained and so on. Certainly this would make quite clear where everybody was and there would be no question of anybody being upset by the fact that they could not find the person involved.

Mr. Noonan

(Limerick East): This amendment proposes to set up a central information office in each Garda division to provide information about detained persons. The idea is that arresting or detaining Garda would pass on information to the central office about the location of persons detained. Records would have to be kept, relatives informed and so on. On Committee Stage I indicated that I would consider the basic idea in the treatment of regulations I would be introducing. Basically the idea is sound but it is more proper and appropriate to the regulations. As a matter of fact it is something that operates at present under the internal Garda regulations and is working quite effectively. It was introduced as a result of a recommendation of the Ó Briain Committee.

I would ask the Deputy not to press this amendment for inclusion in the Bill. For one thing the drafting will have to be looked at. I accept its spirit and will certainly consider it for the regulations.

Mr. D. Andrews

From as much as I could hear of the Minister with the noise in the division lobbies and so on, I understand he has given an undertaking that he will embody Deputy Woods' amendment in the regulations. From any point of view I expect that that is relatively satisfactory.

I should have thought that this was the type of Bill requiring as much information up front as was possible, that it would require comprehensible information readily accessible in the substantive Bill itself rather than having to refer to these regulations. The amendment is a very reasonable one. It seeks to ensure that in each divisional area of the Garda Síochána there shall be a Garda station designated as a central information office in respect of the detention of persons pursuant to this section and that the Minister shall by regulation make provision for the following matters in relation to such central information offices and so on. That appears to me to be eminently sensible, reasonable and practical. Again it is merely a matter of will. While the Minister has given undertakings I feel we should stick by our last in this regard and that we should press this matter to a vote. This is another of those amendments which occasioned considerable soul-searching in its formulation in recent days — I am not taking any credit for that — but Deputy Woods, Deputy O'Dea and myself spent a considerable period of time together gathering, with the limited services available to us, as much information as we could in order to give some credibility to our amendments. With all the defects and inefficiencies of the services available to us in Opposition we have given considerable credibility to the amendments drafted. We do not have any special knowledge or expertise. If some amendments appear to be drafted defectively that defect should not devalue our effort at drafting.

I would suggest that the Minister might re-examine Deputy Woods' amendment giving it effect by proclaiming it in the Bill itself. I do not think it unreasonable that he should do so.

Mr. O'Dea

I thought I heard the Minister say that it was more a matter for regulations but I do not think I heard him give a definite commitment to include this in the regulations he will be introducing. The obligation to allow a person's relatives to establish where he or she is being detained should be central under the powers given in this Bill. The basic obligation should be contained in the Bill. The mechanism of how it is to be implemented can easily appear in regulations but the basic obligation should appear in legislation. If it appears in regulations then a situation could evolve in which a person is taken away for perhaps six or 12 hours without anybody being able to contact him or knowing where he is, nobody being able to locate him. Even if that obligation appears in regulations the fact that the Garda deliberately bring about a situation in which he or she cannot be contacted will not render any evidence thereby obtained by them inadmissable in a court of law. The basic obligation on the Garda to make information available as to where a person is being detained should be contained in the primary legislation and the means and mechanism by which it is to be carried out in practice would be more appropriate to regulations.

Dr. Woods

Deputy O'Dea has put his finger on the point: that all we are here requiring of the Minister is that he shall make regulations. This is a central issue and one which, as Deputy D. Andrews has said, has caused us much soul-searching. In bringing in these new powers and powers of detention and in agreeing with the Minister, as we did earlier, that he may shift a person from one station to another, it becomes crucial then that there be a central information office in a division to which people could apply to find out where a person is and that there would be an obligation to provide the inquiring individuals with that information. That would overcome this problem which admittedly arises only from time to time; I accept that it is an occasional problem only. But we are here requiring and empowering the Minister to make regulations and showing that it is the view of this House that the Minister should be making regulations. On a matter as central as this we have no alternative but to press it to a vote.

Mr. Noonan

(Limerick East): I think there was a conversation going on when I was replying and a great deal of noise in the House. I came very near giving a commitment. I see no difficulty in covering this aspect of what Deputy Woods suggested by regulations. I will give that commitment, that I will cover it by regulations.

An Leas-Cheann Comhairle

Is the Deputy pressing the amendment?

Dr. Woods

I accept the Minister's firm commitment now that he will make the regulations. In view of his co-operation on the various aspects I will accept that.

Amendment, by leave, withdrawn.

Mr. Noonan

(Limerick East): I would propose that we adjourn until, say, 7.40 p.m.

Dr. Woods

Could we take amendment No. 21?

An Leas-Cheann Comhairle

Amendment No. 21 has been fully discussed already with amendment No. 19. Is Deputy Woods pressing the amendment?

Dr. Woods

Yes. I move amendment No. 21:

In page 6, between lines 29 and 30, to insert the following:

"(4) The Minister shall make regulations providing for a scheme of legal aid for persons detained pursuant to Section 4 so that persons who do not have the financial means to engage a Solicitor shall be able to do."

An Leas-Cheann Comhairle

I am putting the question: "That the amendment be made".

Question put.

The Dáil divided: Tá, 59; Níl, 71.

Tá

• Ahern, Bertie.
• Ahern, Michael.
• Andrews, David.
• Andrews, Niall.
• Aylward, Liam.
• Barrett, Michael.
• Barrett, Sylvester.
• Brady, Vincent.
• Brennan, Mattie.
• Brennan, Paudge.
• Brennan, Séamus.
• Burke, Raphael P.
• Byrne, Hugh.
• Byrne, Seán.
• Calleary, Seán.
• Conaghan, Hugh.
• Connolly, Ger.
• Cowen, Brian.
• Daly, Brendan.
• De Rossa, Proinsias.
• Faulkner, Pádraig.
• Fitzgerald, Liam Joseph.
• Fitzsimons, Jim.
• Flynn, Pádraig.
• Gallagher, Denis.
• Gallagher, Pat Cope.
• Geoghegan-Quinn, Máire.
• Hilliard, Colm.
• Hyland, Liam.
• Kirk, Séamus.
• Kitt, Michael.
• Lemass, Eileen.
• Lenihan, Brian.
• Leonard, Jimmy.
• Leonard, Tom.
• Leyden, Terry.
• McCarthy, Seán.
• McEllistrim, Tom.
• Mac Giolla, Tomás.
• MacSharry, Ray.
• Molloy, Robert.
• Morley, P. J.
• Moynihan, Donal.
• Noonan, Michael J.
• (Limerick West)
• O'Dea, William.
• O'Hanlon, Rory.
• O'Keeffe, Edmond.
• O'Kennedy, Michael.
• O'Leary, John.
• Ormonde, Donal.
• O'Rourke, Mary.
• Power, Paddy.
• Treacy, Noel.
• Tunney, Jim.
• Wallace, Dan.
• Walsh, Seán.
• Wilson, John P.
• Woods, Michael.
• Wyse, Pearse.

Níl

• Allen, Bernard.
• Barnes, Monica.
• Barrett, Seán.
• Barry, Myra.
• Barry, Peter.
• Bell, Michael.
• Bermingham, Joe.
• Birmingham, George Martin.
• Boland, John.
• Bruton, John.
• Carey, Donal.
• Conlon, John F.
• Connaughton, Paul.
• Durkan, Bernard J.
• Enright, Thomas W.
• Farrelly, John V.
• Fennell, Nuala.
• FitzGerald, Garret.
• Flaherty, Mary.
• Flanagan, Oliver J.
• Glenn, Alice.
• Griffin, Brendan.
• Harte, Patrick D.
• Hegarty, Paddy.
• Kavanagh, Liam.
• Keating, Michael.
• Kenny, Enda.
• McCartin, Joe.
• McGahon, Brendan.
• McGinley, Dinny.
• McLoughlin, Frank.
• Manning, Maurice.
• Mitchell, Gay.
• Mitchell, Jim.
• Molony, David.
• Moynihan, Michael.
• Cooney, Patrick Mark.
• Cosgrave, Liam T.
• Cosgrave, Michael Joe.
• Coveney, Hugh.
• Creed, Donal.
• Crotty, Kieran.
• Crowley, Frank.
• D'Arcy, Michael.
• Deasy, Martin Austin.
• Desmond, Barry.
• Desmond, Eileen.
• Dowling, Dick.
• Doyle, Joe.
• Dukes, Alan.
• Naughten, Liam.
• Nealon, Ted.
• Noonan, Michael.
• (Limerick East)
• O'Brien, Fergus.
• O'Brien, Willie.
• O'Donnell, Tom.
• O'Keeffe, Jim.
• O'Leary, Michael.
• O'Sullivan, Toddy.
• Owen, Nora.
• Pattison, Séamus.
• Prendergast, Frank.
• Quinn, Ruairí.
• Shatter, Alan.
• Skelly, Liam.
• Spring, Dick.
• Taylor, Mervyn.
• Taylor-Quinn, Madeline.
• Timmins, Godfrey.
• Treacy, Seán.
• Yates, Ivan.

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

Question declared lost.

Sitting suspended at 7.20 p.m. and resumed at 8 p.m.

Dr. Woods

I move amendment No. 22:

In page 6, after line 43, to insert the following:

"(2) Where a member of the Garda Síochána proposes to exercise any of the powers conferred by this Section he shall, before doing so, explain to the person concerned in ordinary language the effect of the section including the penalties which the person may incur through failing to comply with a demand for his name and address or for obstructing or attempting to obstruct any members acting under the powers conferred by this section.".

Basically this amendment proposes that there be provision for a warning in respect of the new penalty of 12 months imprisonment or a £1,000 fine in the event of a person failing to give his name and address. It would be important for people to know that they could incur such a penalty.

Mr. Noonan

(Limerick East): It is not easy to argue against the reasonableness of the amendment in principle. It is, after all, very similar to the “ordinary language warnings” required to be given under sections 15, 16, 18 and 19. Indeed it is probable that some gardaí exercising like powers at present would inform persons that they were obliged to comply — although some might not.

There are differences, however, between this and the other sections mentioned that I should perhaps allude to. The sections mentioned are introducing new concepts or at least concepts that have few precedents in law and, accordingly, a person could not reasonably be expected to know that, for example, an inference of guilt could be drawn from failure to account for a mark. It would be important that communication of this fact would be necessary as we have provided in the Bill.

Here we are dealing with provisions that have counterparts in other areas of law. Section 6 is similar to section 7 of the Criminal Law Act, 1976, which applies to section 30 cases. Therefore, the case for giving this warning is not compelling. This provision in relation to section 30 cases has applied since the coming into operation of the Criminal Law Act, 1976, and does not appear to have given rise to any difficulties. The Deputy's proposal would create a precedent for all other areas of law where new offences were being created or new powers given. For example, in the Bill there is the power to take fingerprints of convicted persons. To be logical, something similar would have to be included in that respect. While I would not like to see such a provision included in the Bill but while I can see that a logical case can be made for its inclusion and I will look at it again without commitment between now and the Committee Stage in the Seanad.

Mr. D. Andrews

The Minister has been very forthcoming in relation to this section. We accept his bona fides but at the same time he should not consider himself to be bound by precedent. It is one of the tragedies of this House that we are so often bound by precedent. While in some instances precedent may be important it can also make for inflexibility. There is an opportunity for the Minister here to abandon precedent, even if it may be a good precedent, but in order to be consistent the proposed provision should be included in the Bill. The Minister admits very fairly that it is difficult to argue against the amendment but though he agrees to reconsider the matter between now and Committee Stage in the Seanad, he is saying that he will not commit himself to the proposal. That is a very honest approach and it is consistent with the Minister's attitude generally to this dreadful Bill.

Dr. Woods

I accept the Minister's undertaking to consider the matter before the Committee Stage is taken in the Seanad. Section 30 of the Offences Against the State Act relates to serious crime, for which there are very special powers. There was also a schedule of the offences in that case but in respect of this Bill we are talking about a very wide range of crime and about many people, including very young people, so it would be reasonable to warn people of the new departure whereby they can incur the penalty by failure to give their names or to obstruct the Garda in relation to the other operations outlined. If a simple warning is given people will know where they stand. They should be aware that if they are not prepared to give their names and addresses or that if they give false information in that regard they may incur a penalty of 12 months imprisonment or of a £1,000 fine. I submit that it would be reasonable to include such a warning at some stage so as to ensure that in practice the warning would be given but in the light of the Minister's undertaking I am prepared to withdraw the amendment.

Amendment, by leave, withdrawn.

Acting Chairman (Mr. Prendergast)

Amendments Nos. 23 and 59 are related and may be taken together.

Mr. Noonan

(Limerick-East): I move Amendment No. 23:

In page 7, between lines 36 and 37, to insert the following:

"(5) A draft of every regulation proposed to be made under this section shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving the draft has been passed by each such House.".

During the Committee Stage debate, Deputy Shatter and other Deputies made the suggestion that it would be desirable for these Houses to have an opportunity to consider and debate the proposed regulations regarding the treatment of persons in custody before they were brought into effect.

I agreed to consider whether it would be possible to replace the usual procedure whereby regulations are made and continue to have effect unless annulled by a motion passed in either House — what might be termed the "negative" form of approval — by a more positive mechanism. What I am now proposing is that the regulations shall be laid in draft form before each House and that they will not be made until each House has passed a resolution approving the draft. Both Houses will therefore be given an opportunity of debating the proposed regulations before they are made.

Amendment No. 59 is consequential. It removes from the scope of section 29 the regulations to be made under section 7 dealing with the treatment of persons in custody.

Dr. Woods

We welcome unreservedly this amendment and we recognise the Minister's bona fides in bringing the amendment forward. It is consequential on the discussions which took place or at Committee Stage. The amendment will ensure that the regulations will be thoroughly discussed here, that they will be discussed in a positive way as opposed to discussion of the normal negative motion which would have to be put down.

Amendment agreed to.

Acting Chairman

Amendments Nos. 24 and 25 are related and may be discussed together.

Mr. Noonan

(Limerick East): I move amendment No. 24:

In page 7, to delete lines 47 to 50 and in page 8, to delete lines 1 to 5 and substitute the following:

"(3) Where proceedings have been so instituted and the person is acquitted or discharged or the proceedings are discontinued, the destruction shall be carried out on the acquittal, discharge or discontinuance".

The purpose of amendment No. 24 is to make it clear that the destruction of any fingerprints or photographs taken by the Garda under section 6 will be carried out in all cases where a person is acquitted or discharged or where proceedings are discontinued.

It was Deputies Woods and Taylor I think who pointed out during the Committee Stage debate that the original draft was open to a different interpretation in the case of a person successfully appealing a District Court conviction or where the prosecution had entered a nolle prosequi. I am satisfied, having re-examined the provision that the original draft did not provide for destruction in those two cases. These are now covered and fingerprints or photographs will have to be destroyed in the same way as on acquittal.

Amendment agreed to.

Mr. Noonan

(Limerick East): I move amendment No. 25:

In page 8, between lines 5 and 6, to insert the following:

"(4) (a) Where a person is the subject of an order under subsection (1) or (2) of section 1 of the Probation of Offenders Act, 1907, the destruction shall be carried out at the expiration of three years from the making of the order provided that he has not been charged with an offence during that period.

(b) Paragraph (a) shall not apply to an order under section 1 (2) of that Act discharged on the appeal of a person against conviction if on appeal his conviction is affirmed.".

This amendment takes account of the views expressed by several Deputies during the Committee Stage debate that photographs or fingerprints of a detained person who is dealt with subsequently under the Probation of Offenders Act, 1907, should not be retained indefinitely but should be destroyed if the person did not come before the courts again during a certain period. Statistics obtained from the Garda show that the level of recidivism among persons dealt with under the Probation Act is high. For example, out of 4,771 persons dealt with in this way in 1980 some 36 per cent reappeared in the court within three years. Accordingly, it is my view that the Garda should have these records available to them for at least three years to enable them to deal effectively with crimes committed by persons who are the subject of probation orders. Three years is also the maximum period for which a person can be put on probation under the Act. This is an additional reason for selecting that period.

Paragraph (a) of the amendment therefore provides that the record must be destroyed at the expiration of three years after the making of a probation order if a person has not been charged with an offence during the period. The paragraph refers to two subsections of section 1 of the Probation of Offenders Act, 1907. Subsection 1 relates to probation orders made in respect of a person dealt with summarily against whom the facts of the case have been proved without proceeding to conviction. Subsection 2 relates to a person who has been convicted on indictment but is given the benefit of the terms of the Act because of the relative triviality of the offence or other extenuating circumstances. Paragraph (b) of the amendment caters for the position where a person in the latter category appeals against his conviction and the conviction is confirmed by the court of appeal and a penalty of a fine or imprisonment is substituted for the probation or other order made under the Act. In such a case the records will not be destroyed since the person will have been convicted and punished.

Dr. Woods

We welcome this amendment. In the discussions earlier we suggested a two-year period but we accept that three years is a practical gesture on the part of the Minister. He has given good reason for it in the fact that the maximum probation period can be three years. It is very welcome to have a stated period after which destruction will take place and that the person who has got the benefit of the Probation Act after that will be taken out of the records.

Amendment agreed to.

Mr. Noonan

(Limerick East): I move amendment No. 26:

In page 8, between lines 8 and 9, to insert the following:

"(5) Where civil proceedings are instituted before a particular photograph or print is required to be destroyed under this section and a party to the proceedings serves notice on the Commissioner of the Garda Síochána that it may be required in connection with the proceedings, then, notwitstanding anything in this section, the photograph or print shall be preserved until six months from the conclusion of the proceedings or until the conclusion of any proceedings on appeal, whichever is the later.".

This amendment takes account of points made by Deputy Woods on Committee Stage. It provides for the possibility that photographs or fingerprints taken under section 6 and required to be destroyed may be required by a party to civil proceedings. It ensures that in that event they will not be destroyed until six months after the conclusion of those proceedings or of any appeal relating to them, whichever is the later.

Dr. Woods

This is very welcome and agreed.

Amendment agreed to.

Mr. Noonan

(Limerick East): I move amendment No. 27:

In page 8, line 32, after "offence" to insert "for which his arrest is sought".

This is purely a drafting amendment.

Amendment agreed to.

Acting Chairman

Amendments No. 27 (a) and 28 which are related may be discussed together by agreement.

Mr. Noonan

(Limerick East): I move amendment No. 27a:

In page 8, line 33, to delete "may be detained" and substitute "shall be dealt with".

Dr. Woods

In our amendment No. 28 we are concerned with the case where a person who has been arrested and detained under section 4 in connection with an offence, is within a period of 48 hours subsequently arrested or detained pursuant to section 30 of the Offences Against the State Act. The Minister has taken great pains to ensure that there would not be multiple arrests under these sections. We recognise that fully but there seems to us to be a gap in that when a person has been arrested under section 4 and is subsequently arrested in connection with the Offences Against the State Act, the period combined could go beyond the 48-hour total. It could be 48 hours plus six or plus 12 or plus 20 depending on what the case might be. This would apply in connection with the first-mentioned offence or, as our amendment No. 28 says:

(b) in connection with any other offence of which, at the time of his arrest for the prior-mentioned offence the member of the Garda Síochána by whom he was arrested suspected him or reasonably ought to have suspected him,

the period for which he was detained pursuant to section 4 of this Act shall be taken into account in determining the permissible period of detention pursuant to the act of 1939.

We want allowance to be made for the fact that the person had been detained for six hours or 12 hours in calculating the total time detained under the Offences Against the State Act. This brings us back to the basic contention that no person should be detained longer than the maximum which applies at the moment, 48 hours. The provisions we are involved with in this Bill allow for different kinds of offences, a wide range of offences having nothing to do with Offences Against the State Act and they should not be related to them. We accept that in certain circumstances it may arise that information is obtained in the course of a section 4 detention and interrogation which would lead to an arrest subsequently under section 30 of the Act. We are trying to ensure that if this happens the total number of hours involved in the detention and interrogation would not exceed 48.

Mr. Noonan

(Limerick East): Amendment No. 27a will obviate the need for Deputy Woods's amendment on which I should like to say a few words. The amendment would seem to be based on a particular interpretation of subsection (1) of section 10. The interpretation is that it is permissible to arrest and detain a person under section 30 notwithstanding that he may previously have been arrested and detained under section 4. I think that is wrong because section 10 makes it clear that a person arrested under section 4 and released without charge cannot be arrested again. This is unqualified and does not refer only to section 4. It applies to all arrest provisions, to common law provisions, section 30 provisions or whatever.

However, it may be argued that the procedure for rearrest on new information in section 10 could be used to effect the arrest of a person and that he then could be detained under section 30. This would be based on an interpretation of the last line of subsection (1) which says "a person arrested under that authority may be detained pursuant to section 4". On a particular interpretation of "may" rather than "shall" it might appear to some Deputies that it opens the possibility for the person to be detained under section 30. This difficulty about the combination of section 4 and section 30 of the Offences Against the State Act would arise. The implication would be that he might be detained under section 30 because it is not explicitly prohibited in the form of words used. I think that is an erroneous interpretation and there is no authority for detaining a person under section 30 to whom the procedure under section 4 has been applied but I think it is better to remove any doubt. The amendment I am proposing here in page 8, line 33 to delete "may be detained" and substitute "shall be dealt with". This will make it clear that a person whose arrest is authorised by a district justice under section 10 on new information being provided must be dealt with under section 4. This prohibits the person being dealt with under section 30 so that the idea of a possible 48-hour period of detention being additional on a 12-hour period of detention could not arise if the House accepts the amendment.

One might ask what does "dealt with" mean. It means taken to a Garda station and, if appropriate, detained there for the purpose of the investigation. "May" is mentioned in the present draft rather than "shall". It could happen that a person who was rearrested on the authority of a district justice might not be detained under section 4. It could happen that when rearrested he would say he committed the offence and when taken to the station the member in charge would decide there were no grounds for detaining him for the purpose of the investigation. In that event he would be charged straight away and brought before a peace commissioner or district justice. That is why "may" was in the original draft. It was not an attempt to give alternatives to the Garda to use section 4 or section 30. It was to allow for the possibility that a person could be rearrested, taken to a Garda station and immediately charged. He would not have to be dealt with under section 4 because no investigation process would be involved. This amendment removes any doubt there may have been in relation to the section and it obviates the need for Deputy Woods's amendment which is intended to achieve the same result.

Dr. Woods

Does the Minister believe it will not be possible to detain someone under section 30 after he has been detained for 12 hours under section 4?

Mr. Noonan

(Limerick East): That is correct — not for the same offence.

Dr. Woods

Or for new information arising?

Mr. Noonan

(Limerick East): Not if this amendment is passed.

Dr. Woods

It could happen that if there was new information it would be necessary to detain a person further. I am trying to see the difficulty gardaí might have. In the course of their section 4 investigation they might come on new information which would entitle them to use section 30. I was anxious to ensure they would be able to do that but that in doing so they could not exceed 48 hours in total.

Mr. Noonan

(Limerick East): We have tightened it to the degree where that option is taken away.

Dr. Woods

The Garda may need to have that power for a limited number of cases.

Mr. Noonan

(Limerick East): We cannot back the horse both ways. I am not suggesting that is what the Deputy is trying to do. If we want to make it so watertight as to prohibit any possibility of abuse then we take away the flexibility the Garda might need in a minority of cases.

Dr. Woods

My amendment would give them that flexibility but would not give much scope for abusing it. The Minister might look at this again in the Seanad. I will accept his amendment. We do not want to restrict the Garda. If through an amendment like mine it is possible to provide them with the flexibility which is necessary the Minister might consider that.

Mr. Noonan

(Limerick East): I will have another look at it between now and the time it goes to the Seanad.

Amendment agreed to.

Amendment No. 28 not moved.

Dr. Woods

I move amendment No. 29:

In page 9, between lines 34 and 35, to insert the following:

"(4) Where a person has failed to appear before a Court in answer to his bail and the Court has directed that a warrant be issued for the arrest of that person by reason of his failure to answer his bail, a member of the Garda Síochána may arrest such a person notwithstanding that he does not have the warrant in his possession at the time of the arrest.

(5) Where a person is arrested pursuant to subsection 4 the member arresting him shall as soon as practicable produce and serve on said person the said warrant.".

This is something the Association of Garda Sergeants and Inspectors were keen on. It deals with someone who has refused to turn up to answer bail. They are already within the court system. They know their position very well and know that it is their duty to turn up in response to bail but refuse to do so. If a Garda on the beat sees the person, he must get the warrant to serve it on the person in order to comply with the law. The person may abscond or not be available when the Garda comes back for him. Another garda might see him in a different part of the country or city and would not have the warrant. In those limited circumstances it seems reasonable that a garda should be empowered to arrest the person without having the warrant in his possession.

I have heard of gardaí being told that a warrant was ready for such-and-such a person. They often hear this on their car radios and are asked to collect it. That is fair enough if it is in the first instance where a person is being arrested but if a person has been through the system and refuses to answer bail it would seem reasonable that gardaí should be able to arrest him and then serve the warrant as soon as practicable.

Mr. Noonan

(Limerick East): This is a provision which was advocated by the AGSI and is acceptable in principle. It would be better to have a general provision to cover any case where a garda knew there was a warrant in existence for a person's arrest but did not have it in his possession when he came across the person concerned. My intention was to include it in a Miscellaneous Provisions Bill.

This amendment does not go far enough to meet the general problem. There are examples of other cases where the problem would arise, for example, if an extradition warrant was out for a person or a warrant was granted on the basis that a person was about to abscond. The amendment is confined to cases where a person fails to answer bail and the court issues a bench warrant. There are other cases which need to be covered.

It has not been possible to check out the Deputy's draft with the draftsman. We have had good co-operation throughout the debate. I will accept the amendment as drafted on the understanding that I will replace it with a more general amendment in the Seanad to take account of the other cases I have mentione.

Dr. Woods

This section deals with bail and failure to surrender bail. It is reasonable to have it in this section whatever about bringing in a more general one. If the Minister wants to do that in the Seanad that is fine. In this section the Minister is taking action in relation to the question of bail, which is very welcome. In relation to these actions, it might be worth while.

Amendment agreed to.

Dr. Woods

I move amendment No. 30:

In page 9, before Section 14, to insert the following new Section:

"14. — Section 29 of the Criminal Procedure Act, 1967, is amended by the addition of the following subparagraph (g) to subsection (1) of the said Section—

"(g) an offence under section 15, of the Misuse of Drugs Act, 1977, and of an offence of conspiring or attempting to commit any such offence under the said Act".

The purpose here again is to ensure that where bail applies the persons concerned under this section, which deals with distribution of, pushing and dealing with drugs as at present defined who are brought to court for such offences must apply to the High Court for bail. This is reasonable because we are dealing with bail and with the revision of the Criminal Procedure Act, 1967. There have been a number of instances where bail applications have had to go to the High Court. There was a long discussion on this subject on Committee Stage and we are fairly agreed that we should look fairly closely at cases which involve distribution of, or dealing in drugs. This amendment would ensure that the godfathers and big dealers would go to the High Court before obtaining bail.

As the Minister saw it earlier, the problem was that people pushing drugs at a lower level would be drawn into this net but there does not seem any way over that difficulty. The definition is that which applies under the Misuse of Drugs Act, 1977. That is there, obviously, for a good reason and is an appropriate definition. Perhaps there would be nothing wrong in the lower distributors of drugs having to come before the High Court. In any event, when looking at the question of bail this is one aspect which could be re-examined.

Mr. Noonan

(Limerick East): This is a repeat of amendment No. 29 put down by Deputy Woods on Committee Stage. At that time I took the line that I would have to have more time to think about the matter and have it examined. What the Deputy wanted, in effect, was very wide-ranging, embracing offences of differing degrees of seriousness, even though they are dealt with under section 15 of the Misuse of Drugs Act. I accepted that there was some merit in it but thought that it would be more appropriate to the Misuse of Drugs Bill before the House. Since then we have been in communication with the Department of Health. We referred to the debate and asked them to consider the matter. The response of that Department was that their Minister would not be moving an amendment to deal with this on Committee Stage. They had taken legal advice and could see no way of separating the more heinous offences under section 15 from the less serious. That is the real difficulty with this amendment. Section 15 creates what are known colloquially as hybrid offences — that is offences for which people may be tried summarily or on indictment. Section 27 (3) specifies the penalties. It is the DPP who decides whether to prosecute summarily in the District Court or on indictment before a judge and jury, depending on the seriousness of the case.

The maximum penalties for an offence under section 15, when it is tried summarily, are at present £250, or 12 months' imprisonment, or both. This is being increased under the amending Bill to £1,000, or 12 months' imprisonment, or both. I understand that in practice quite a number of these cases are tried summarily in the District Court. It would seem to be incongruous that a person charged with a summary offence in the District Court should have to go to the High Court for bail. It appears wrong to classify a summary offence with that of murder or treason in this way.

I fully accept that at the other end of the offence one gets the godfathers of the godfathers of the drugs market and serious offences are involved. The difficulty arises from the fact that quite a number of offences under section 15 are tried in the District Court and the summary offences about which I am speaking are those which carry a 12 months maximum sentence. I shall examine the matter if anyone can come up with a useful suggestion as to how we could separate the more serious drug pushing from the less serious offence. At the moment I must reject the amendment for the reasons which I have outlined. There is a real problem in trying to find a solution to the genuine concern expressed by Deputy Woods.

Dr. Woods

I accept what the Minister says in this respect. The definition is the current one under the Misuse of Drugs Act. I agree that it would require more time to look for a suitable definition to take out the major dealers and distributors and to ensure that these, who are often thought of as godfathers, would go before the High Court. We are caught with the difficulty of a definition which has gone before us and which perhaps needs reconsideration. I have not had sufficient time to consider it now, but I agree with the Minister that the best way to approach the matter would be to look at that definition. It is appropriate to this Bill because we are talking about criminal procedure and the question of bail. We should try to reach a definition which is tenable and which meets the requirements of both sides of the House and would have the support of both sides. It would be our objective that those who are dealing in any major way in drugs would have to go before the High Court and would come under the most stringent assessment before being granted bail. I accept what the Minister has said in this respect and withdraw amendment No. 30 in view of that.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

Amendment 31 is in the name of Deputy Woods. Amendments Nos. 32, 33, 36, 37 and 39 are related. Is it agreed that we discuss these together?

Dr. Woods

It is agreed. I move amendment No. 31:

In page 10, line 15, after "he may require" to insert the words "subject to subsection (2)".

This involves inserting "subject to subsection (2)" after the words "he may require" in relation to the withholding of information. Amendment No. 32 reads:

In page 10, between lines 18 and 19, to insert the following:—

"(2) Nothing in this section shall require the person referred to in subsection 1 to give information concerning his spouse.".

I raised this matter on Committee Stage. As it stands, the section requires a spouse to give information under penalty. Admittedly the penalty has been reduced. We regard this as an unnecessary intrusion into the privacy of the married relationship. We feel that it is undesirable and unnecessary. This section deals with withholding information regarding firearms or ammunition. It is giving the Minister considerable power and it is unnecessary to enter into the husband and wife relationship. We know the information cannot be used, that the husband cannot give evidence against the wife. That is still the position, but this section would require the spouse to give information under penalty of 12 months in jail or £1,000 fine. This is a very undesirable development and a retrograde step. The Minister will get a great deal of information in other ways as we will see under section 16. We are not in favour of this development.

Amendment No. 37 reads:

In page 11, between lines 2 and 3, to insert the following:

"(2) Nothing in this section shall require the person referred to in subsection 1 to give information concerning his spouse.".

This relates to the withholding of information regarding stolen property and will have a much wider application. The individual will be required under pain of similar penalty to give information about the spouse. The section makes it an offence to withhold information regarding stolen property. We go along with that, and welcome it. The fact that it also applies to the husband and wife relationship is undesirable, and we feel we should not be intruding into the privacy of marriage. The law does not support that in relation to the giving of evidence in general. We should not do it here either.

Information might be given falsely to make mischief and difficulty. Elsewhere in the House we have been discussing the problem of broken marriages which has developed enormously and grown very extensively. One spouse might have a grudge against the other, but the fundamental principle of an intrusion into the privacy of marriage is repugnant and I do not think we should go so far as to create a penalty in that instance.

We welcome the other amendments and the effect they will have. The Minister has two amendments, No. 33 and No. 39. The sentence was five years and the fine was £10,000 for not supplying information about a spouse. The five years brought it within the category of section 4 and arrest on suspicion and detention for a number of hours. The Minister is removing that from the provision in regard to withholding information regarding firearms and ammunition and withholding information regarding stolen property. Presumably when he is speaking he will tell us why he is taking this step. It will take it out of the area of arrest and detention of suspicion. That is desirable in the husband and wife relationship. The Minister will tell us more about it when he speaks on this amendment.

Mr. Noonan

(Limerick East): I should like to take amendments Nos. 33 and 39 first and then come back to the amendments in the name of Deputy Woods — Nos. 31, 32, 36 and 37. The amendments I am proposing make the offence introduced in both sections purely summary offences. It will be a summary offence to fail or refuse to give information when required about the source of illegally held firearms or stolen property. The amendments arise out of the discussion we had on Committee Stage. I am sure people have a clear memory of that discussion on sections 15 and 16 as they are now numbered.

On that occasion a number of points were raised of which perhaps the most important were: first, that the sections could compel spouses to disclose, under threat of very severe penalties, communications made during marriage whereas they cannot be compelled to do so in criminal proceedings in court. Second, because provision is made for a penalty of five years imprisonment on conviction on indictment, the person concerned could be detained under section 4.

As regards the possibility of disclosure of communications made during marriage, I appreciate the concern expressed by Deputies about this. However, there are at least two precedents for such a provision, as I mentioned in Committee. Under section 17 of the Official Secrets Act, 1963, the Garda can be authorised to require a person to give information relating to an offence or suspected offence under section 9 of that Act. Failure to comply with the requirement or knowingly to give false information is an offence punishable on summary conviction. Section 107 (4) of the Road Traffic Act, 1961, is another example. The registered owner of a vehicle may be required by the Garda to say who is actually using the vehicle at the time an offence under the Act involving the vehicle is reasonably believed to have occurred. That could be a minor driving offence or a charge involving the death of one or more people. It could be a manslaughter offence, in effect. Again, it is a purely summary offence not to give the information. In neither case is there any exception or other special provision so far as a spouse is concerned.

Another example which I referred to on Committee Stage was section 2 of the Offences Against the State (Amendment) Act, 1972, which dealt with the power to question a person found near the place of commission of a scheduled offence but that may not be as appropriate a precedent as the other two I have mentioned. By making the offence under sections 15 and 16 a purely summary offence I am bringing the sections into line with these provisions.

Moreover, there is no question of any interference with the provision in the existing law that a spouse cannot be compelled in criminal proceedings to disclose any communication between the spouses during the marriage. Indeed there is a specific provision prohibiting information given by a spouse in compliance with these sections being used in evidence against either spouse in any criminal proceedings except, of course, proceedings for the offence of knowingly giving false or misleading information. I should mention also that the non-compellability of spouses to disclose in court communications made during marriage does not extend to information otherwise acquired by them about each other.

On Committee Stage I referred to the broader implications of this question and it may be no harm to mention them again. The problem is to keep a reasonable balance between two important principles: the need to get information about suppliers of firearms and dealers in stolen property and, on the other hand, the reasonable need to protect marriage. There is a conflict of principles between the sanctity of marriage and, in the case of firearms, the sanctity of human life. Larceny and trading in stolen goods can frequently become a family business. Where does one draw the line? The sections require information to be given unless there is a reasonable excuse. What is a reasonable excuse is a matter for the courts to decide and they will decide it in the particular circumstances of each case.

The second main point made on Committee Stage was that liability to a penalty of five years imprisonment would make a person liable to be detained under section 4. That is not the case because detention applies only where a person has been arrested without warrant and there is no power to do so under sections 15 and 16. However, making the offence purely summary will remove any practical possibility that they could at any future time attract the detention provisions. By making the maximum penalty 12 months, any fears of any Deputy that the detention section would apply have been removed.

I repeat the objective of sections 15 and 16 is to help to trace the source of supply of illegally held firearms or ammunition and to do something effective about enormous trade in stolen goods which is nothing short of scandalous at the moment.

What I have said when moving my amendments is appropriate. I am making the offence purely summary. It is lining it up with other information-gathering provisions in the existing law where there is no such exlusion for spouses or exception for information involving spouses. This has caused no problems in the laws I have enumerated. The one most frequently invoked is the road traffic legislation but I have never heard an argument that the provisions to disclose information which does not exclude a provision about one's spouse has put any particular strain on the institution of marriage.

The sections here prohibit the use of information in any criminal proceedings against a spouse, apart obviously from the offence under the section. We have to protect the institution of marriage and I share the concern of Deputy Woods on that point but we have a constitutional obligation placed on us also. By its laws the State must protect as best it can every citizen from unjust attack and in the case of an injustice done it must vindicate the life, person, good name and property rights of every citizen. There is the conflict here between the sanctity of marriage on the one hand and the right to life and property which are guaranteed under the Constitution. It is up to us to make the choices.

The main difficulty regarding the amendment tabled in the name of Deputy Woods is that it nullifies the two sections in so far as they relate to a married person. If I accept the amendment, a husband has simply to say to the garda, "If I give information about that gun or about that stolen property I incriminate my wife", and the same could apply to the wife. In effect, the sections would be useless in relation to married people.

In the light of Committee Stage debate, I have made these offences purely summary in the hope that this may help Deputies to decide on the matter. We have to make a choice. There is an obligation under the sections to provide information and that obligation is to provide it simpliciter. There is no immunity given to the person providing the information. A person can give information about himself. There is no immunity given either with regard to giving information about one's spouse, children or parents. This raises another question, whether we should extend it to family relations.

If I accept the amendment the sections will not work because there would be too easy an excuse for the person involved. This is especially so in the case of stolen goods. We all know that frequently it is a family racket, where husband and wife are involved in the trade in stolen goods. It must also be pointed out that the statement made is not admissible in evidence against a spouse. While one is required to give information about a spouse, that statement is not admissible in evidence if a charge is taken against a spouse.

I do not think I can go beyond what I have done. I have listened carefully to the debate and I have given the matter much thought. The reduction in the penalty is the best I can offer and I hope it satisfies the House.

Dr. Woods

I accept that the Minister has gone a long way in what he has done. That aspect was the most obnoxious part of the Bill as it stood in that the offence carried a sentence of five years and it brought the whole matter into the area of arrest and detention on suspicion. Once a garda had information he had the basis for such arrest and detention on suspicion and in a marital situation that could cause much difficulty. We made that point on Committee Stage and the Minister accepted it. He has taken much of the sting out of the provision.

Of course the section would work without taking in the husband-wife relationship because as far as they are concerned all other relationships would be open to the provision and the penalty being introduced. Section 1 (c) of the Criminal Justice (Evidence) Act, 1924, states:

the wife or husband of the person charged shall not, save as in this Act mentioned, be called as a witness in pursuance of this Act except upon the application of the person so charged:

Section 1 (d) states:

Nothing in this Act shall make a husband compellable to disclose any communication made to him by his wife during the marriage, or a wife compellable to disclose any communication made to her by her husband during the marriage.

That has been the law since 1924. We are changing that position and making it an offence not to give information regarding the wife or husband, as the case may be. I accept that the Minister has lessened the impact greatly by making it a summary offence but I still feel uneasy about it because it is an intrusion into a wide-ranging area.

The Minister mentioned the Official Secrets Act and we know that there are not many cases where this applies although perhaps nowadays they are increasing. The Road Traffic Act and the Offences Against the State Act are very specific but this relates to the wide area of information regarding stolen property, firearms or ammunition or parts of firearms or ammunition. It is very far-reaching and we must be concerned in case it leads to difficulties. However, I accept that the Minister has difficulties and appreciate the point he is trying to make. He has our full support in these two sections and in relation to firearms, I was a little concerned about removing the five-year sentence in relation to firearms information. I mentioned on Committee Stage that if it was a four-year sentence it would remove out of the special provisions of this Bill and enable it to be dealt with in another way and avoid the arrest on suspicion. In that respect in relation to firearms it may have been better to do what I suggested — to exclude the husband-wife relationship and to leave a fairly stiff penalty there otherwise.

Mr. Noonan

(Limerick East): It takes it into the District Court. It is not just the husband-wife relationship, when a husband is being questioned by the Garda. Even if his wife knows nothing about the gun or the stolen video, if he simply says that he cannot say anything because it would incriminate his wife, that is the end of the matter and the sections become useless.

Dr. Woods

Is the Minister suggesting that those who are knowledgeable in the area would use that as a device to get out?

Mr. Noonan

(Limerick East): Absolutely.

Dr. Woods

We are back to the question of the artful thieves as distinct from the general body and the Minister has our full support in relation to measures which are designed specifically to get at these people. It shows that the devices that can be used by those who are skilled in their use and they seem to be able to drive a coach and four through any legislation. I accept the Minister's bona fides and I also accept that the most obnoxious measures to which I referred on Committee Stage have been removed. I welcome the forthright approach by the Minister in this regard and, consequently, I will not press the amendments which we had tabled.

Amendment, by leave, withdrawn.

Amendment No. 32 not moved.

Mr. Noonan

(Limerick East): I move amendment No. 33:

In page 10, lines 23 to 25, to delete all words from and including "or on conviction" to the end of the subsection.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendments Nos. 34, 35, 38, 40, 43, 44, 48 and 49 are related and may be taken together by agreement.

Dr. Woods

I move amendment No. 34:

In page 10, between lines 25 and 26, to insert the following:

"(3) Before complying with a requirement made under subsection 1 the person concerned shall be entitled to consult a solicitor provided he takes reasonable steps to do so as soon as practicable".

This applies to the question of withholding information of either firearms or stolen property. Under subsection (1), if a member of the Garda Síochána has reasonable grounds for believing that an offence consisting of stealing, fraudulent conversion or embezzlement or unlawful obtaining or receiving of money or other property has been committed and finds any person in possession of any property and has reasonable grounds for believing that the property referred to includes or may include property referred to in paragraph (a) and informs the person of his belief, he may require that person to give him an account of how he came by the property. We are suggesting that if a person wishes to consult a solicitor before giving the account he should be entitled to do so provided he takes reasonable steps to do so as soon as practicable and that it is not a device to delay. That relates to amendments Nos. 34 and 38. Amendment No. 35 is another way of coming at the same problem, that where a request is made it will not be regarded as a failure or refusal to give information. We are also trying to ensure that it would not be regarded as failing to give information if you ask to see a solicitor and take reasonable and practicable steps to do so quickly. Amendment No. 40 is similar to amendment No. 35 regarding the withholding of information regarding stolen property.

Amendment No. 43 reads: "In page 12, between lines 9 and 10, to insert the following". This refers to the inferences from a failure or refusal to account for objects, marks and so on and to a person's alleged refusal to account for an object or a mark under the inferences section. In our view, it should not be considered a refusal if the person says he is prepared to tell about the mark or the object but wants to consult his solicitor before giving that account. We think this is reasonable because people will not wish to incriminate themselves or others by giving a wrong impression. If one consults a solicitor before giving the account one is advised of one's rights, the type of account one should be giving and what is required. A person of whom a request is made should be entitled to consult his solicitor before giving the account requested.

Deputy Mac Giolla's amendment is similar. It suggests that in page 12, between lines 13 and 14, the following be inserted:

(4) A request to consult a solicitor before replying shall not be taken as failure or refusal to comply with this section.

Amendment No. 48 deals with a new subsection (2). One amendment deals with accounting for a mark and the other is accounting for the accused's presence at a particular place. Before giving an account of why he was in a certain place at a particular time, the accused should be entitled to consult his solicitor and this should not be regarded as failure to give an account. Amendment No. 49 is also tied into this area.

Our intention in putting down these amendments was to ensure that, if someone says he wants to speak to a solicitor before giving an account, that will not be regarded as either withholding information regarding arms or stolen property or as failure or refusal to account for a mark or an object or for being at a particular place at a specific time.

Mr. De Rossa

Amendments Nos. 35 and 40 are to sections 15 and 16. Section 15 deals with withholding information regarding firearms or ammunition and section 16 deals with information regarding stolen property. Amendment No. 44 refers to section 18, the section from which inferences will be drawn if a person refuses to give information or fails to reply to questions relating to objects or marks of clothing and so on. Amendment No. 49 relates to section 19 which refers to inferences which can be drawn for a person's failure to reply or refusing to give information about his presence at a particular place.

The purpose of our amendments is to ensure that a person is aware of his right not to incriminate himself. On Committee Stage the Minister indicated that a person was entitled not to incriminate himself. He also indicated that he would consider including a reference in the caution given by the Garda in these circumstances indicating that a person had the right to consult a solicitor before replying. We put down these amendments to enable us to raise this matter again, to find out if the Minister has made any progress in this area and if not, if he intends to proceed with the suggestion made.

Sections 15 and 16 relate to the original section 16 which was withdrawn from the Bill because it was a major attack on a person's right to silence. Sections 15, 16, 18 and 19 retain this diminution of a person's right to silence. It is important that a person is aware of his right to consult a solicitor and not to incriminate himself. I hope the Minister will take steps to ensure that that is the case.

Mr. Taylor

Some consideration should be given to meeting the proposals in the various amendments having regard to the fact that the sections sought to be amended are so wide ranging in extent that an innocent person in certain circumstances could reasonably require guidance from his legal adviser as to what his position would be. Take, for example, a section 16 situation. In theory there could be an appalling infringement of a person's basic rights. The section talks about a member of the Garda Síochána having reasonable grounds for believing that an offence was committed and that a person was in possession of stolen property. A garda arriving on the doorstop of your home with reasonable grounds for believing an offence was committed and the goods were stolen will ask you to account for all the property in your home. Would a person be held, within the meaning of subsection (2), to have a reasonable excuse for not giving an account? It might be quite a troublesome matter to give a proper account of how and where you got all the property in your house. It could require some considerable research.

Would that be a reasonable excuse within the meaning of the subsection? That is what is involved in the expression "if that person fails or refuses without reasonable excuse". I should like to be told about what a reasonable excuse envisages. A person may be completely innocent and know nothing about stolen property and he might be forgiven for thinking he would have a reasonable excuse for sending the garda off about his business —"What are you doing here? I am innocent, I am not involved, some mistake has been made, some false information has been fed to the Garda." Would that be a reasonable excuse? Very likely it would not be and such a person, who has done nothing, conceivably could find himself held. For failing to give a reasonable excuse he has committed an offence, not of stealing or receiving property but of refusing to give information.

Surely such a person in those circumstances must be allowed legal guidance as to what his position would be. Indeed the legal adviser might well find himself in difficulty in interpreting the extent of the subsection. The sections are very wide-ranging and in certain circumstances that could constitute a very serious infringement of the right to liberty of the individual. Obviously it is felt that measures of so draconian a nature are necessary, but at least it should be open to a person who is faced with new situations of this nature to get advice as to what his exact position is, as to the extent to which he is obliged to give an explanation of where and how he got his property. Understandably, a person might have great reluctance to do that. He would feel it is his own affair. He might have some confidential reason for not wishing to have to disclose to a garda he had never seen before where he got the items in his house. In most situations there could be a guilty element involved but in some cases that would not be so. We have to apply our minds to cases in which innocent people would be involved. Such persons would resent being called upon to explain where they got their own property and would reasonably feel it was nobody's business but their own.

Mr. Skelly

Taking a summary of amendments Nos. 34, 35, 38, 43, 48 and 49, it seems a request for legal aid would be reasonable, barring what the Minister said in relation to families in crime. There are many families in crime and perhaps it is those we are talking about. I suggest to the Minister that it is families involved in crime who would be best able to answer when confronted with such a situation. They would be the ones most likely to have prepared alibis if alibis were necessary. If they were involved regularly in crime such a situation would not be unexpected and they would not be unprepared for a visit from the Garda and would be quite adept at answering.

I am not shocked to learn there are families in crime but I am surprised at the suggested extent of it. The Minister did not give any details of the involvement of families in crime and I should like to know if he has any information available. That would leave out the instances suggested by Deputy Taylor. One can think of many situations when it might be advisable not to say anything that might incriminate when there would not have been a crime committed or when the Garda were investigating something which turned out not to be a crime but where some information had been found. It is in such situations that one should be able to get legal advice and I do not see any objection to that being possible. In Ireland wives often do not know the business of husbands, or vice versa, and one could be completely innocent. Given the history of husband and wife relationships in Ireland, with the wife being kept in the dark to a great extent — I find it difficult to believe that that has changed much in the last few years — I would be interested to hear the Minister's response. This is a request for the fundamental right to get legal advice unless there are extenuating reasons. We have the Minister's suggestion that there are many families in crime and this in itself could be a very special problem.

Mr. Noonan

(Limerick East): I do not propose to accept these amendments mainly because I do not believe they are necessary and in some circumstances, given the nature of the sections to which they relate, they could cause insurmountable practical difficulties for the Garda which could defeat the ends for which the provisions in question were designed.

These four sections — two of which, sections 15 and 16 relate to withholding information and two, sections 18 and 19 to inferences from silence — are intended to enable the Garda to put questions to people who are found in different kinds of suspicious circumstances.

Each of these sections, especially sections 15 and 16, are designed to enable the questions to be put "on the spot". The particular language used in the sections makes that very clear. Section 15, for example, deals with persons found in unlawful possession of firearms. When a garda finds a person in unlawful possession of a weapon more often than not that will be in some place other than a Garda station, in a car at a side of the road or at the scene of a crime. The same is true of section 16 which is structured similarly but deals with stolen property.

It makes no sense to give the Garda a power to seek information from persons found in very suspicious circumstances if, at the same time, the person can refuse to answer a question until he consults a solicitor. The purpose and object of the sections could be completely negatived and rendered ineffective if that were the case.

Sections 15 and 16 impose a legal obligation on a person to give certain information. He must give the information unless he has a reasonable excuse for not doing so. What would constitute a reasonable excuse is not and cannot be defined but must be judged in relation to the circumstances of each case. Deputy Taylor put the question to me, what is a reasonable excuse? A reasonable excuse is an excuse that the court would find reasonable if charges are pressed.

Mr. Taylor

What sort of thing would be envisaged by that?

Mr. Noonan

(Limerick East): I am not prepared to attempt to define. It is a matter I want to leave to the courts because they can assess the situation in the light of different circumstances. If one tried to enumerate reasonable excuses they could be taken out of context. An excuse which would be reasonable in one set of circumstances might not be reasonable at all in a different set of circumstances. The court will decide on that. I presume after some initial decisions somebody will be in a better position than I to decide what the courts will take into account.

It is difficult to envisage circumstances in which it would be reasonable to refuse to give information before consulting a solicitor — certainly in circumstances where the person was found on the spot with a weapon and where there might be urgency about finding out about it and great delay in getting a solicitor a court might well conclude that it was not reasonable to refuse and, accordingly, that the information should have been given. It seems to me, therefore, that it would be wrong to say that a refusal to give information before consulting a solicitor should always be treated as excusable and not amounting to a failure or refusal. There would be bound to be a case where it would be so and, correspondingly, there might well be cases where it would not. I believe, therefore, that we should not tie the hands of the Garda in this way and pre-empt the role of the courts. It is far better that the matter should be decided on the basis of the circumstances of each case. If the person is charged with the offence of failing or refusing to give the information it will always be open to him to put forward as part of his defence that he asked to consult a solicitor and that, therefore, he did not fail or refuse within the meaning of the statute.

Since the last amendments were accepted we are talking now about offences that carry a maximum of 12 months rather than the original proposal in the Bill which carried a maximum sentence of five years. That may colour Deputies' attitudes to these amendments. Somewhat different considerations arise in relation to sections 18 and 19 although broadly the effect of the amendments to these sections is the same. The essential difference, of course, is that there is no legal obligation in sections 18 and 19 to give information or to answer questions. Under sections 18 and 19 a person does not have to answer. All that is at issue is that inferences could be drawn in court if the judge decided it was proper to do so from the silence of the individual. There is no obligation to give information or answer questions there but there is an obligation to account for illegal firearms or property if a person is found in possession of goods believed to have been stolen.

What is at issue here is whether a failure or refusal to account for some matter ought to give rise to an adverse inference — whether, in the words of the sections, it would be "proper" to do so. Here again, in my view, the argument is the same as that which I have just outlined in relation to sections 15 and 16. It would be for a court to decide, first of all, whether a refusal to account for some matter before consulting a solicitor was a refusal within the meaning of the section, and if it was, whether, in the circumstances, it would be proper to draw an inference.

We have to bear in mind that a person in custody has a right to consult a solicitor and, obviously, that would be a factor that would be taken into account. Moreover, it could happen that, following consultation with a solicitor, the person would be advised to say nothing. In the end the jury would, subject to the judge's directions, be faced with the question of deciding whether failure or refusal to account for the matter at issue could properly give rise to an inference.

But there could clearly be circumstances in which it would be open to the jury and proper for them to draw an inference notwithstanding that the failure or refusal was due to a request to consult a solicitor and consequently I would not be prepared to accept the amendments.

The amendments tabled by Deputy Woods are similar. Basically, the objection to the amendments is that there would be little point in giving gardaí the power to require information about guns and stolen goods if they could be fobbed off with a reply that the person concerned cannot give the information until he or she consults a solicitor. The person must give the information unless he or she has a reasonable excuse. It is possible that the court would decide if a person said he must consult his solicitor in certain circumstances that would be a reasonable excuse. I am not ruling out that possibility at all but I would hope that in many other circumstances a court would decide that a person saying he was consulting his solicitor when found in possession of an illegal firearm would not be considered to be a reasonable excuse for not giving the information.

The question of what constitutes a reasonable excuse — Deputy Taylor drew attention to this — is an imponderable in the section. If I was to accept Deputy Woods's amendments I would be introducing a further imponderable into the section. Elements of it could make it virtually impossible to prosecute anyone for the offence. The prosecution would have to prove what point in time was "as soon as practicable". This can vary according to the particular circumstances and usually only the defendant can decide how soon it would be practicable to consult a solicitor. The prosecution would also have to prove that "reasonable steps" were not taken. This would introduce imponderables into the sections which might have the result of demolishing the effectiveness of the section. The two sections are being introduced into the Bill for two specific and serious purposes. First of all, there is the trade in firearms and, secondly, the problem of stolen goods. Members are aware of those problems. Anything which could negative the sections completely would not be acceptable to me.

On the question of the sections dealing with inferences, that is a different matter. There is no obligation on someone to answer questions. A person can legitimately remain silent. Whether it would be proper for an inference to be drawn in court or not would be a matter for the judge. There will be situations where a person remains silent and an inference would not be drawn. We have already discussed the right of a person to access to a solicitor. I quoted case law showing that that access to a solicitor can be exercised by a person in private. A person is entitled to have confidential conversations with a solicitor out of the hearing of the Garda Síochána. A person detained for six hours and questioned about a particular matter may refuse or fail to give information required under the sections. The solicitor may arrive one hour or more later and the person may have a confidential conversation with the solicitor. One or two things may happen then. The solicitor may tell the person that he or she has an obligation under the section to answer the questions or give the information or inferences could properly be drawn in court. If a solicitor gave that advice he would probably advise the person whether to answer or not. The solicitor may tell the person that he or she may answer the questions and no interence may be drawn or, on the other hand, in answering the questions the person might incriminate himself, might be better off saying nothing and risk the inferences. The solicitor will certainly enter the scene if a person is detained under section 4. Whether a court would draw an inference or not is difficult to say.

Maybe a court would decide that it would not be proper to draw an inference if somebody was advised by a solicitor not to say anything. That remains to be seen. Regarding the earlier sections relating to firearms and stolen goods, the amendment suggested by Deputy Woods would provide an excuse whereby the person being questioned could fob off the Garda and not give the information required. It would be very difficult to prove that the person had committed any offence in doing so. A solicitor would be available in many cases where a person detained under section 4 would refuse to answer questions. If someone refused initially and then complied following consultation with a solicitor I do not see how an inference could properly be drawn in court.

Mr. De Rossa

The Minister said that my amendment if accepted would render useless the requirement on a person to answer certain questions. The amendment is designed to ensure that where a person responds to a question with the reply that he wishes to consult his solicitor it should not be regarded as a refusal to give information. Having consulted his solicitor and clarified his legal position, clearly the section would operate if he continued to refuse. In my view the amendments I have put down do not negative the effect of the section but protect a person who may be ignorant of the law by giving him the option of consulting a solicitor before replying to questions. The fact that a person would opt to consult a solicitor before replying should not be taken as a refusal or a failure to give information. The section would continue to operate if, having consulted a solicitor, the person adopted a particular attitude to the questions and an inference could be drawn in relation to sections 18 and 19 if the judge saw fit. Presumably the Garda can prosecute under sections 15 and 16 if the person fails to give information. I would ask the Minister to accept the amendments because they do not in any way restrict the effectiveness of sections 15, 16, 18 and 19.

Dr. Woods

The Minister is on the horns of a dilemma. The more I listened to what he had to say the more I realised that the section may be unworkable. We are only trying to provide that a person may ask to see a solicitor so that he can be advised before giving information. The Minister has said it would be up to the courts to decide whether a request to consult a solicitor is reasonable. Under the law as it stands it probably would be fairly likely that the courts would in such situations regard it as reasonable.

Mr. Noonan

(Limerick East): I agree with that but he might say that his solicitor is on holidays in Bunbeg and will be back in three weeks.

Dr. Woods

I tried to cover that by stating that it should be as soon as practicable. I appreciate the point. Immediate steps should be taken to consult a solicitor. In many instances it would be a wise thing to do but in other instances it might not be necessary. The fact that the sentence has been reduced has a major effect. We are not talking about arrest on suspicion now, in the five-year instances in any event, for witholding in relation to arms and ammunition and witholding in relation to stolen property. That is very considerably reduced. The Minister's intention is to enable the Garda to put questions on the spot and to get answers on the spot. If a person says he will give the answers following consultation with his solicitor, it would seem that such a person would be covered in the courts. We will have to wait and see how it works in practice.

Our concerns might not be as great as we suggest in putting down these amendments, but it is only by tabling amendments that we can discuss this matter on Report Stage. I am prepared following this discussion to withdraw the amendments.

Amendment, by leave, withdrawn.

Mr. De Rossa

I move amendment No. 35:

In page 10, between lines 29 and 30, to insert the following:

"(4) A request to consult a solicitor before replying shall not be taken as a failure or refusal to give information.".

Amendment put and declared lost.

Amendments Nos. 36, 37 and 38 not moved.

Mr. Noonan

(Limerick East): I move amendment No. 39:

In page 11, lines 7 to 9, to delete all words from and including "or on conviction" to the end of the subsection.

Amendment agreed to.

Amendment No. 40 not moved.

Acting Chairman (Mr. McGinley)

Is it agreed that amendments Nos. 41, 45, 46 and 50 are related and can be discussed together?

Dr. Woods

Yes. I move amendment No. 41:

In page 11, to delete lines 41 to 45, and on page 12, lines 1 to 7, and substitute the following:

"such failure or refusal may be given in evidence against the accused in any subsequent prosecution against him, in relation to which the failure or refusal is material.".

Under section 18 (1), where a person is arrested without warrant by a member of the Garda Síochána and there is on his person, clothing, footwear, or otherwise in his possession in any place in which he is at the time of the arrest any object, substance, mark and so on and the member informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark, and the person fails or refuses to do so, it is provided:

then if, in any proceedings against the person for the offence, evidence of the said matters is given, the court, in determining whether to send forward the accused for trial or whether there is a case to answer...

instead of that wording, our amendment proposes the following:

such failure or refusal may be given in evidence against the accused in any subsequent prosecution against him, in relation to which the failure or refusal is material.

This is simply to enter in a positive way the fact that the person has failed or refused to give this information. On Committee Stage I know that the person has failed or refused to give this information. On Committee Stage I know the Minister said he did not consider that to be adequate, that he wanted to go further with the inferences which could be drawn therefrom along the lines of the section as at present worded. If the Minister is planning to go further along those lines then my amendment No. 45, which encompasses the safeguards, comes into operation and reads as follows:

In page 12, between lines 13 and 14, to insert the following:

"(4) (a) Any request made pursuant to this section shall be made in writing and given to the arrested person.

(b) The arrested person shall then be informed by the member that he may give his reply in writing or orally and if the latter, his reply shall be taken down in writing.

(c) If the arrested person fails or refuses to give any reply to the request made of him, the fact of such failure or refusal shall be recorded by the member in writing.

(d) When the reply of the arrested person is recorded in writing, or, where there is no reply, the fact of his refusal or failure to reply is recorded, he shall be invited to sign his name on the sheet or sheets containing the written request and written reply or the written record of his refusal to reply, as the case may be, and if he refuses to sign such written record such refusal shall also be recorded by the member concerned.".

The purpose of these safeguards is to ensure that there will be a proper record of what took place, that there will not be difficulty experienced later, when cases come before the court, in saying that a person failed or refused to account, or gave an account which was inadequate or whatever. The case I am making now would refer equally to amendments Nos. 46 and 50 which are related in that they are similar but they deal with the next section which relates to the presence of an accused at a particular place. Therefore, we have the accounting for the object, substance or mark and presence in a particular place and a series of safeguards to be included. In accounting for a person's presence in a place I had said earlier that if a person said, for example: "I was one of those," or "I was only one of those who was in the place", or something like that, but later claimed that what he actually said was: "well, I was not one of those who was there", or some other variation of those words, there would be very close linkages between statements that might be made at a time like that. It would be important that there be clarity on both sides if the Minister is going ahead with this section.

These are what I would term the safeguards, that the request should be made in writing and given to the arrested person so that they would know what they were asked and refused to answer, or what they did actually answer; that they should be informed by the member that they may give their reply orally or in writing; and that the reply should be recorded in writing so that there is no doubt about what has been said. There will be a need to have some record, some safeguard in relation to what is said in either of those two cases because of the importance of the inferences which may be drawn subsequently.

Mr. Skelly

I am wondering if amendment No. 41 places the accused at a disadvantage in all cases because it suggests that the refusal is made material in the subsequent trial whereas under the section, as worded, the court may draw such inferences from failure or refusal as appear proper. On the other hand they may decide not to do so and that affords an option which is a proper one.

With regard to amendment No. 45 I should like to see as many safeguards as possible incorporated in the Bill because there will be many challenges as to what took place, what was said and what was not said in the case of somebody who is detained, where the provisions of section 18 apply and when inferences can be drawn. If possible it would be a good idea to tie down these provisions and if that is the intention of the amendment, which I think it is, it seems to be a good one, unless the Minister has some good reason for not wanting that to happen. The same would apply to amendments Nos. 46 and 50.

Mr. Taylor

So far as Deputy Woods's first proposed amendment is concerned, on balance, I would prefer the original wording of the section because his amendments Nos. 41 and 46 leave it open to a court to convict a person merely on the evidence of refusal to account, whereas the original wording of the section specifically precluded the court from obtaining a conviction on that evidence alone and limits it to the possibility of corroboration of other evidence, which the amendments, as proposed by Deputy Woods, would not do. Therefore, the original wording of the section is sufficiently severe without taking the matter further, as Deputy Woods's amendments would appear to do, possibly unintentionally.

So far as the second pair of amendments is concerned, they are reasonable. They do purport to bring a degree of control, formality and record into the operation of this series of sections which are new and far-reaching. They make some attempt at least to get over what is the hallmark not only of these two sections but also of sections 15 and 16 and equally sections 18 and 19. There is there a particular combination of words repeated remarkably frequently, that is, in reference to a member of the Garda Síochána having reasonable grounds for believing.

That constant theme repeats itself throughout all these sections. A member of the Garda Síochána has reasonable grounds for believing this, that and the other. It may say that, but when one gets down to ground level in a court of law it amounts to, not that a member of the Garda Síochána has reasonable grounds for believing but that the member of the Garda Síochána says that he thinks such and such. Courts do not follow the practice of having any incisive decision-making as to whether a garda had or had not reasonable grounds for believing such and such. If he says so, for a court's purposes the practice is that that suffices.

Therefore, it leaves the matter very wide open and imposes a very high degree of power and consequently of responsibility on the members of the Garda Síochána. They would not be questioned in regard to the basis of their reasonableness in coming to that conclusion. A garda gets into the box and says that he has grounds for believing that such and such a piece of property was stolen, and in practice that is taken as adequate. Apparently, the House has decided that that is the way it must be. At least perhaps some measure of formality should be introduced into the organisation of the procedure, and to that end Deputy Woods's second pair of amendments requiring that one should write down exactly what was said, what the response was and so on, is of some value. The notes taken and the records kept should at any future time be made available to any accused person or his legal representatives. It is some small safeguard that would in some small measure only, but at least in some measure, balance this very new wide-sweeping incursion into the liberty of the individual. It is the least we could do to try to balance that to some small extent.

Mrs. Barnes

I take the points made by Deputy Taylor and Deputy Skelly regarding amendments Nos. 41 and 46. I would hope that these amendments would give the minimum of safequards at least because of the wide-reaching measures in these sections. With no fault on either side, grounds for believing could quite easily become a formula that would be so accepted that it might not be challenged. Therefore, I would support the safeguards as outlined. We come back repeatedly to the question of the need for fairness on both sides, for both the accused and the Garda. In order to avoid misinterpretation some record should be kept to safeguard the rights on both sides.

Mr. Noonan

(Limerick East): I would like to refer to amendments Nos. 41 and 46 and then go on to amendments Nos. 45 and 50. Amendments similar to amendments Nos. 41 and 46 were put down by Deputy Woods on Committee Stage and we had a long debate on them then. I do not intend to over the same ground again. The essential point is that the effect of Deputy Woods's amendments here would be that the Garda could give evidence that the accused refused or failed to explain a stain, for example, but no inference of guilt could be drawn from the refusal and the furthest the trial judge could go in commenting on the silence would be to say that it could take from the weight to be attached to an explanation given by the accused at his trial. I want a provision in these sections that an inference could be drawn in a proper case, and sections 18 and 19 are needed to do that in the manner in which they are drafted. Obviously, it would have to be a proper inference. It would be up to the judge to decide what a proper inference was.

Again, the question of corroboration was dealt with on Committee Stage and I refer Deputies to what was said on Committee Stage about the use of inference as corroboration. It is worth pointing out that nobody could be convicted on inference alone. It would be another piece of evidence which the jury would take into account if the judge thought it proper that they should take that piece of evidence into account when they were assessing some of the parts which made up the totality of the case against the accused. My objection to Deputy Woods's amendments Nos. 41 and 46 is that they do not allow for an inference to be drawn. They simply, as in the present situation, would allow a garda to give evidence that somebody failed to explain the stain or the mark. The furthest a trial judge could go is to advise that it might take away some weight from the explanation given by the accused. He could not advise that an inference could be drawn. The common-sense reaction of a juror might be that clearly an inference in common sense was to be drawn and the judge would be in a position, as he is at the moment, to advise the jury to act against their common sense. I ask Deputy Woods to withdraw those amendments for that reason.

Regarding amendments Nos. 45 and 50, again on Committee Stage an amendment along those lines was suggested by Deputy Woods and Deputy Taylor. Even though amendments were not down, we discussed the substantive issue. I refer Deputies to the Official Report on 19 June 1984, columns 1221 and 1222, Volume 351. In an interchange with Deputy Woods and Deputy Taylor I said, and I quote as at column 1247:

Yes. I see the point being made by both Deputies and it is quite valid. I will give it consideration by including in the treatment regulations a provision which would require the garda to record in the custody records the fact that questions under these sections were asked of the suspect and possibly the nature of his replies.

Deputy Andrews mentioned the danger of turning gardaí into bureaucrats and said the Bill was bureaucratic legislation. He referred to various instances where forms had to be filled and notices had to be served on people. This is another example. However, I will look at the points made.

That is still my position. I gave a commitment on Committee Stage that the regulations would have a provision which would require the garda to record in the custody records the fact that questions under these sections were asked. I pointed out the difficulty of any kind of formal exchange of forms. The section could be invoked in the middle of the night outside a shop with a broken window or on the roadside. Somebody could have blood stains on his shirt and a serious crime might have been committed in the neighbourhood. It does not necessarily happen in the formal setting of a Garda station where forms are available and the formal interchange of documentation can take place. I see the point the Deputies make. I think that the better approach here is through the mechanism of the regulations and putting an obligation on the garda to record after the event if he has invoked these sections, and of course he would have to invoke these sections before an inference could be drawn.

Dr. Woods

Is the Minister accepting the point in principle, and saying that in the regulations he will consider including something along the lines of a safeguard?

Mr. Noonan

(Limerick East): Something along the lines of it. I could not go so far as an interchange of documentation because the event could happen on the roadside, but I will consider the recording of the fact that the questions were put. I will quote again what I said:

I will give it consideration by including in the treatment regulations a provision which would require the garda to record in the custody records the fact that questions under these sections were asked of the suspect....

That is still my position and I will do that.

Dr. Woods

Would these be available to the person subsequently? If he goes to court he will have to know what he is supposed to have said at that stage.

Mr. Noonan

(Limerick East): They would have to be produced in court because this would be part of the documentation the court could validly look for.

Mr. Taylor

The entry should be made within a reasonable time after the event.

Dr. Woods

I seem to be coming between Deputies Skelly and Taylor on the one hand and the Minister on the other hand. Deputy Skelly seems to think that what I am suggesting would tighten the situation but I do not agree, while the Minister tends to be of the opinion that my proposal would weaken his position. I would be more inclined to agree with the Minister but the intention was merely to have the entry made as evidence and to allow the appropriate inferences to be drawn. However, the Minister is anxious that these inferences be available because they may be the element which tips the scalies in any case. This is something we discussed at length on Committee Stage. I am not pressing Nos. 41 and 46 and I accept the Minister's undertakings in relation to Nos. 45 and 50.

Amendment, by leave, withdrawn.

Acting Chairman (Mr. McGinley)

Amendments Nos. 42 and 47 are related and may be taken together.

Mr. Noonan

(Limerick East): I move amendment No. 42:

In page 12, between lines 7 and 8, to insert the following:

"(2) References in subsection (1) to evidence shall, in relation to the preliminary examination of a charge, be taken to include a statement of the evidence to be given by a witness at the trial."

These amendments are intended to meet a point made by Deputy Woods in the Committee Stage debate.

The point is that, in the preliminary examination of an indictable offence, normally the prosecution do not call for evidence to be given on deposition, although the possibility of doing so still exists. Instead various documents are produced to the justice, including a statement of the evidence that is to be given at the trial by each of the prosecution witnesses, and it is on the basis of these documents that the justice forms an opinion as to whether there is a sufficient case to put the accused on trial.

Sections 18 and 19 — the "inference" sections — require evidence to be given of certain matters before the court can take them into account in determining whether to send an accused forward for trial. That is clearly a reference to oral evidence and, as Deputy Woods pointed out, it would not cover the statement of evidence contained in the documentation before the justice. In other words, it would be necessary for the prosecution to have the arresting garda attend and give evidence on deposition about asking the accused to account for objects, marks and so on and his failure or refusal to do so.

The amendments to these sections therefore provide that a statement of the evidence to be given by the Garda about these matters at the trial and produced at the preliminary examination can be taken into account by the justice when deciding whether to send an accused forward for trial, in the same way as he takes into account statements of any other evidence.

Dr. Woods

I welcome this amendment.

Amendment agreed to.

Amendment No. 43 not moved.

Mr. De Rossa

I move amendment No. 44:

In page 12, between lines 13 and 14, to insert the following:

"(4) A request to consult a solicitor before replying shall not be taken as failure or refusal to comply with this section."

Amendment put and declared lost.

Amendments Nos. 45 and 46 not moved.

Mr. Noonan

(Limerick East): I move amendment No. 47:

In page 12, between lines 43 and 44, to insert:

"(2) Reference in subsection (1) to evidence shall, in relation to the preliminary examination of a charge, be taken to include a statement of the evidence to be given by a witness at the trial."

Amendment agreed to.

Amendment No. 48 not moved.

Mr. De Rossa

I move amendment No. 49:

In page 12, between lines 47 and 48, to insert the following:

"(3) A request to consult a solicitor before replying shall not be taken as a failure or refusal to comply with this section."

Amendment put and declared lost.

Amendment No. 50 not moved.

Acting Chairman

Amendments Nos. 51 and 53 are related and may be taken together.

Mr. Noonan

(Limerick East): I move amendment No. 51:

In page 14, line 18, to delete "ten" and substitute "fourteen".

The amendments provide that the prescribed period in paragraphs (a) and (b) of subsection (8) of section 20 for giving notice of an alibi will be 14 days instead of ten as originally proposed. Deputy Woods wanted to provide for a period of 21 days' notice and he put down an amendment to this effect on Committee Stage. I thought that ten days was about right but undertook to look at it again. In a spirit of compromise, I am proposing 14 days and I hope this will be acceptable.

Dr. Woods

I thank the Minister for making the amendment. I was anxious that the time be approximately right, so I am very happy to agree to the amendment.

Amendment agreed to.

Mr. Noonan

(Limerick East): I move amendment No. 52:

In page 14, between lines 19 and 20, to insert the following:

"(b) Where the accused waives a preliminary examination, the period of fourteen days from the date of the waiver, or"

This amendment rectifies a defect in subsection (8) of section 20 to which I referred on Committee Stage. It provides for the giving of notice of alibi where an accused waives his right to a preliminary examination. A period of 14 days is required and this will commence on the date of that waiver.

Amendment agreed to.

Mr. Noonan

(Limerick East): I move amendment No. 53:

In page 14, line 21, to delete "ten" and substitute "fourteen".

Amendment agreed to.

Acting Chairman

Amendments Nos. 54, 55 and 56 are related and may be taken together.

Mr. Noonan

(Limerick East): I move amendment No. 54:

In page 15, line 40, to delete "may be served" and substitute "may, subject to subsection (10), be served—".

These amendments arise from consideration of Committee Stage amendments in the name of Deputy Woods in which he proposed that a document required to be served on the accused should be served personally and, if he were legally represented, by delivering it to his solicitor.

Section 21, as it stands, allows a document to be delivered to the accused and his solicitor. It does not require it to be delivered and it authorises other forms of service, including service by registered post. However, there is no danger that an accused could be prejudiced by not having a document brought to his attention because subsection (5) gives him the right to apply to the court to require the person who made the statement to attend before the court and give oral evidence.

Nevertheless I accepted that there was a need to have a requirement of personal service in any case where the accused was not represented by a solicitor, and this requirement is being imposed by these amendments.

Dr. Woods

This relates to the question of proof by written statement. The Minister has gone half way in meeting the proposal I made on Committee Stage and I welcome that. He indicated then that he would do so but I still think that the document should be served on the accused personally one way or the other and if he is represented by a solicitor that the document should be delivered also to his solicitor. We are talking about allowing a proof by written statement and with the time scales involved it is important that the person concerned know what is included in the written statement and be fully aware of what is happening. I can see that from the bureaucratic point of view it would be desirable to send the documentation normally to a solicitor but to the individual when he is not represented. This is a big step ahead and would cover many instances. However, I would ask the Minister to think further about it in the context of whether it is desirable in any event to serve such a notice personally on someone. There can be situations in which the solicitor is not the fastest person to communicate with the individual, with the result that the person may not be fully aware of what is happening. I can appreciate that more difficulty might be created by serving the document both on the individual and on his solicitor but it would be a considerable saving of time so far as the courts are concerned. We see these measures saving millions of pounds and being very worth while. I welcome the Minister's two amendments and I appreciate what he is doing and how far he is going to meet the points we make. I would, however, ask him to look again at the question of serving in all cases personally as well as on the solicitor in considering the matter in the Seanad.

Mr. Noonan

(Limerick East): I am glad Deputy Woods has accepted my amendment. I shall certainly look again at amendment No. 56. I think what needs to be pointed out is that the accused would be at absolutely no risk because subsection (5) provides the fail-safe device where the accused person can insist on the evidence being given orally in court which is a party to the proceedings and the court would grant that request. Even if there was some mix-up between the solicitor and the accused, and the accused was not quite sure what the solicitor had done, that would not put the accused at risk but it might reduce the efficacy of the section if it happened frequently. The purpose of the section is in ease of many people who are party to court cases and it is also in ease of the public purse and will make trials shorter and consequently less expensive. If the import of the Deputy's case on amendment No. 56 is not that the accused would be at risk but that the section may be less effective without this procedure, I shall look at it again in the Seanad.

Amendment agreed to.

Mr. Noonan

(Limerick East): I move amendment No. 55:

In page 16, between lines 6 and 7, to insert the following:

"(10) A document required by this section to be served on an accused shall, if the accused is not represented by a solicitor, be served personally on the accused."

Amendment No. 56 not moved.

An Leas-Cheann Comhairle

Amendments Nos. 57 and 58 are related and may be taken together.

Mr. Noonan

(Limerick East): I move amendment No. 57:

In page 19, lines 17 and 18, to delete "is dealt with under the Probation of Offenders Act, 1907, or convicted," and substitute "is the subject of an order under subsection (1) or (2) of section 1 of the Probation of Offenders Act, 1907, or is convicted and otherwise dealt with,".

The amendment of subsection (1) of the section is purely a drafting change and it does not affect the substance of the section. It makes it clear that the power to take fingerprints will apply in the following circumstances: (a) where a person is charged with an indictable offence in the District Court and the facts are provided where a conviction is not recorded and the person is dealt with under section 1 (1) of the Probation Act, 1907, that is a case dismissed, a person bound to the peace or placed on probation; (b) where the accused is charged on indictment, convicted and is dealt with under section 1 (2) of the 1907 Act, that is where the person is bound to the peace or placed on probation; and (c) where the accused is convicted and is dealt with otherwise than under the Probation Act, for example, by fine, imprisonment or suspended sentence. The difficulty with the draft as it stands is that it implies that persons dealt with under the Probation Act are not convicted whereas this is only the case with those dealt with under section 1 (1) of the Act.

Amendment No. 58 inserts a new subsection (3) applying the provisions of section 8 to fingerprints taken under section 28. The result will be that fingerprints taken under section 28 from an accused who is dealt with under the Probation Act must be destroyed on the expiry of a period of three years from the making of an order under the Act if the person is not charged with an offence during that period. Prints will not be destroyed if notice of civil proceedings is given to the Garda Commissioner before the date on which they would otherwise require to be destroyed. The person or his solicitor will be entitled to witness the destruction of the prints.

Mr. Skelly

I should like to say briefly that I am glad there is so much agreement towards the end of this debate and that while the Minister has been very concerned all through it regarding any difficulties that might arise for the Garda in the implementation of any of the sections it was with very genuine concern and worry that we debated this measure particularly sections 4 to 6, 8 to 10, 15, 16, 18 and 19. While anybody who supported the Minister in the course of the debate received fulsome praise and thanks from the Minister, I would like to point out that the real contribution to this Bill was made by people who did not always support him.

Amendment agreed to.

Mr. Noonan

(Limerick East): I move amendment No. 58:

In page 19, between lines 25 and 26, to insert the following:

"(3) The provisions of section 8 shall apply to the fingerprints taken pursuant to this section of a person who is the subject of an order under subsection (1) or (2) of section 1 of the Probation of Offenders Act, 1907, as they apply to fingerprints taken in pursuance of the powers conferred by section 6.".

Mr. Noonan

(Limerick East): I move amendment No. 59:

In page 19, line 35, after "Act" to insert "(other than a regulation under section 7)".

An Leas-Cheann Comhairle

This amendment has already been discussed.

Amendment agreed to.

Question, "That the Bill, as amended, be received for first consideration," put and agreed to.

Question proposed: "That the Bill do now pass."

Mr. Noonan

(Limerick East): I do not intend going back to a Second Stage speech in the time available and applying it to the Fifth Stage but I would like to thank all the Deputies for contributing to the debate. Especially on Committee Stage, the debate was a great help to me and in thanking all Deputies I thank Deputy Woods in particular for his co-operation and his contributions through all Stages. I also thank various other members of the team — they have almost become a team — Deputy Barnes, Deputy Skelly and Deputy De Rossa and various other Deputies, Deputy O'Dea and Deputy Andrews who also played a major part in the debate. Deputy Taylor paid us frequent visits and spoke most incisively. He was not present as often as others but when he came he was worth listening to. A number of other Deputies on the Fine Gael side and all around the House made contributions. There was a lot of criticism of some sections but I think we have ended up with a better Bill than when it was first published. Whatever the perception of us is outside the House we made an honest effort to do the job for which we are here on this occasion, to act as legislators. I presume the procedure will continue when I go to the Seanad.

Dr. Woods

I would like to wish the Minister the best of luck in the Seanad. We have here a legislative bird without two wings, the regulations and the complaints procedure which we look forward to seeing in due course. The special measures cannot go anywhere until the autumn until these matters come before the House. From the outset we supported this Bill in principle and throughout the debate we offered, as far as we could, our constructive views on the different sections. I wish to pay tribute to the Minister for the way in which he has accepted and reacted to the Second Stage debate, the Committee Stage debate and for the many amendments which he made following those debates. We saw quite a few further amendments on Report Stage when the Minister brought forward amendments in accordance with the spirit of the debate. That has helped to make the Bill so much better.

The Bill in many respects has been something of a classic. It has received very detailed examination in the House and we have had substantial and sincere contributions from Members on both sides and these have been taken in the spirit in which they were offered to the Minister. We have also seen the situation that should be noted by people outside the House: many groups outside made major contributions to the work on this Bill and provided us with views from various sides. That was a very useful exercise in democracy. We saw the system of pressure groups in the best sense of the word operating and bringing their views to the attention of the representatives in the House and these views then being debated on the floor of the House. We have our reservations but I think we have done the teasing-out of the Bill which it is our duty to do and we will await the complaints procedure and the regulations. We will give all our time to them when they are brought in and will approach them in the spirit in which we have approached this Bill so that they will add to the Bill. I wish the Minister success with the Bill in the Seanad.

Mr. De Rossa

While the debate has been very interesting and long and while we have achieved substantial changes in it, the main thrust of the Bill still retains the detention sections and restrictions on the right to silence. I am not in a position to support the Bill in its present form because it retains those sections. The Bill could have been better if more Deputies had contributed to it. I recognise that my calling a vote aggravates a number of Deputies in the House, nevertheless I propose to call one.

Question: "That the Bill do now pass" put.

An Leas-Cheann Comhairle

Will those Members who are demanding a division please rise in their places?

Deputies Mac Giolla, De Rossa and Gregory-Independent rose.

An Leas-Cheann Comhairle

In accordance with Standing Order No. 59 the names of the Deputies dissenting will be recorded in the Journal of the Proceedings of the Dáil.

Question agreed to.