That Dáil Éireann takes note of the White Paper entitled "Treatment of persons in custody in Garda stations": proposals for regulations to be made by the Minister for Justice.
The White Paper which the motion asks the Dáil to take note of contain proposals for regulations to be made by me about the treatment of persons in custody in Garda stations. Section 7 of the Criminal Justice Act of 1984 requires me to lay these regulations in draft form before each House and provides that the regulations cannot be made until they have been approved by both Houses. The House may wonder, therefore, why there should be a debate on the proposals when there will be, in any event, a further debate on the draft regulations themselves.
The reason is that section 7 of the 1984 Act does not provide that the House may make amendments to the draft regulations. Without a motion of the kind we have here this evening, there would be no opportunity for the House to make its views known on the proposals and to have them taken into account before the draft regulations are made and laid before it for approval. I therefore decided, with the agreement of the Opposition spokesman, to follow this particular procedure so that we would have the opportunity of having a substantive debate before the draft regulations come before the House.
As regards the proposals themselves, the most important are, perhaps, those dealing with the responsibilities of the member in charge, the provision of a custody record for each person in custody, the information to be given to arrested persons and the special provisions for persons under 17 years and the mentally handicapped. The proposals also deal with a wide variety of other matters such as the circumstances in which persons in custody can be questioned and the procedure to be followed in relation to visits, foreign nationals, searches, medical treatment and complaints.
The key provision is that making a readily identifiable member of the Garda Síochána responsible for overseeing the application of the regulations. This member, the member in charge, will normally be a sergeant and a written record must be maintained in each station containing the name and rank of the member in charge at any given time. Except where the number of persons in custody make it impracticable, the regulations will require the member in charge to visit persons in custody from time to time and make any necessary inquiries. The member in charge will also be responsible for contacting solicitors and other persons requested by the person in custody and, where the regulations allow a departure from the standard procedures as, for example, where a person is to be questioned at night, that member's authority will be required before questioning can take place.
The custody record will provide a full account of the detention of the person to whom it relates. The information to be recorded in it includes such matters as details of the arrest, interviews, searches conducted and any requests made by the person and the action taken. The member in charge will be responsible for the accuracy and completeness of all entries in the record and this will be without prejudice to the responsibility of any other member for the accuracy and completeness of any entry which he or she has made.
In line with the provisions of the Criminal Justice Act, 1984, arrested persons must be informed of their entitlement to consult a solicitor and to have one other person notified of their detention. A person under 17 years of age will also be informed that a parent or guardian is being told of the detention. These provisions will apply to all persons in custody and in this respect they go beyond what is required by the Act, which applies only to those detained under section 4 of the Act or section 30 of the Offences Against the State Act. The giving of that information and the time it takes place will be recorded in the custody record. In addition, the regulations will provide for arrested persons to be informed of the offences for which they have been taken into custody. There is also provision for reasonable access to solicitors.
Special provision is made for young persons in custody. This includes a prohibition on questioning in the absence of a parent or guardian except in certain limited circumstances. Where, exceptionally, a young person is to be questioned in the absence of a parent or guardian, arrangements must be made for the attendance of some other responsible adult, not a garda, if this is practicable. These special provisions also apply to those over 17 years who may be mentally handicapped.
In preparing these proposals regard was had to the various suggestions put forward by Members of this House during the debate on the Criminal Justice Bill, to the code of practice recently adopted in England and Wales and to the recommendations of the Ó Briain Committee. That committee was appointed to recommend safeguards for persons in custody and for members of the Garda Síochána and it reported in April 1978. Following publication of its report the then Government indicated that it had decided to accept the recommendations subject to a number of exceptions and reservations. The relevant chapter of the Garda code dealing with the treatment of prisoners was subsequently revised to incorporate the recommendations that were accepted. Some of the recommendations are of course outside the scope of the regulations now proposed.
The Ó Briain recommendations that are relevant to the treatment of arrested persons are, with very few exceptions, being implemented in the proposed regulations, with minor modifications in some cases. The regulations go further in several aspects and cover matters not dealt with in the Ó Briain report — for example, searches, medical treatment, special provision for young persons and the mentally handicapped, and so on.
There are two recommendations relevant to the regulations that are not being implemented. The first is that, where the person in custody asks for a named solicitor, questioning should not commence until a reasonable time, between one and two hours in most cases, has elapsed for his attendance. The second is that a solicitor should be entitled, as of right, to attend questioning as an observer. In considering these recommendations the Government — as also the Government then in office — had to bear in mind the interests not only of arrested persons but also of the community at large in having crimes properly investigated.
The fixing of any particular period before which questioning could not commence, such as was suggested in the report, would give rise to obvious practical difficulties. It could bring into question admissions volunteered by the suspect while waiting for the solicitor to arrive. And it would prohibit questioning even where that was urgently necessary to avoid, say, a risk of injury to persons, serious damage to property, destruction of evidence or escape of accomplices. The then Government agreed that a reasonable time for the attendance of a solicitor should be allowed before the person in custody was asked to give a written statement and the regulations propose to continue the practice which has existed since then.
With regard to the recommendation that a solicitor should be entitled to attend the questioning a person in custody as an observer, the Government is not disposed to accept this proposal. It must be borne in mind that when a solicitor arrives at a station, a suspect will have the opportunity to consult with the solicitor privately and to receive appropriate advice. In the context of the report of solicitor's subsequent presence as an observer during the interview must only be intended to provide a guarantee against oppressive questioning or false allegations against the gardaí conducting the interview. In the Government's view this objective is adequately secured by the safeguards proposed to be provided in the regulations, particularly the responsibility placed on the member in charge, by periodic visits to the person in custody and otherwise, to ensure that the regulations are being complied with. Of course the only definitive and objective answer to providing such a guarantee is the introduction of electronic recording of questioning of suspects to which I will refer later. In all this it is necessary to strike a balance between the public interest in the fair treatment of suspected persons and the public interest in the detection of crime, particularly serious crime, and bringing to justice those who commit it. We have to take into account also the fact that, as compared with other countries, the period for which the Garda will be able to detain persons suspected of non-subversive crime is comparatively short — a maximum of 12 hours during which questioning may take place.
The Ó Briain Committee also recommended that a person arrested and brought to a station should have a custodial guardian assigned to him or her by the station sergeant or senior garda present; in section 30 cases, the custodial guardian was to be assigned by a chief superintendent and to be at least of inspector rank. The proposals do not give effect to this recommendation in so far as it appears to have been the committee's intention to have an individual custodial guardian assigned to each person in custody. Such an arrangement would be impracticable. Under the proposals, which give effect to section 7 of the Criminal Justice Act, the member in charge of the station will be generally responsible for the welfare of all persons in custody in that station. No special provision is being made in this respect for section 30 cases.
I do not think the House will want me to go into the details of the proposals at this stage. Most of them are, of their nature, self-explanatory, but there is one reference that appears to have caused some difficulty and that is the reference in regulation 16 to, "persons other than arrested persons". This has been interpreted as meaning persons who have come voluntarily to a station and are not under arrest. However, it is clear from the text of the regulation itself that the persons referred to in it are persons who are in custody so that it could not apply in the type of case mentioned. The confusion may have arisen because the heading to the regulation does not contain a reference to the persons in question being in custody.
At all events, the persons covered by this regulation are mainly those who are in custody in a Garda station after being remanded in custody by a court or peace commissioner. They would be persons in custody awaiting transfer from the courts to prison or persons in transit from prison to the courts. Many of the provisions relating to arrested persons would not be appropriate to those persons, for example, the provisions about questioning. Regulation 16 makes the necessary modifications. Of course, the subsequent regulations, Nos. 17 to 24, apply to all persons in custody, whether they have just been arrested or not.
Another point I should make clear is that the proposals do not affect the Judges' Rules in any way. The new regulations will supplement the rules, not replace them. At one time consideration was being given to incorporating the rules, in an up to date form, in the regulations but this was decided against because, for one thing, the regulations can be made to apply only to persons in custody in Garda stations whereas the rules apply also to persons suspected of crime who either are not in custody or are in custody elsewhere than in a Garda station.
The proposed regulations are part of a series of measures undertaken by the Government in fulfilment of their programme on taking office. They are designed to strengthen the powers of the Garda Síochána in investigating serious crime while, at the same time, providing adequate safeguards for persons in custody as well as for the gardaí, who are frequently the object of false accusations of ill-treatment by persons who hope that by making them they will have their confessions declared inadmissible. These measures are the Criminal Justice Act, the Garda Síochána (Complaints) Bill and the proposed regulations we are now considering.
The new complaints machinery and the regulations must be in operation before the detention and certain other provisions of the Criminal Justice Act can be brought into force. When that has been done — and I hope the complaints Bill can be passed and the regulations made before the summer recess — we shall have in place a statutory framework that can I think be claimed to achieve a proper balance between the interests of accused persons and the interests of the community — on whose behalf the gardaí act — in investigating crime and bringing those who commit it to trial.
There is one more safeguard which is also provided for in the Criminal Justice Act and which is still to come. That is the provision of electronic recording of the questioning of persons in custody. The committee which my predecessor, Deputy Noonan, appointed to consider the matter propose — with my approval — to conduct field trials in this area once the detention provisions of the Criminal Justice Act are in operation. I hope these trials will provide within a reasonably short time sufficient information to enable a satisfactory system to be adopted generally. In the meantime the committee are profiting from the experience of other countries which have already adopted recording systems or are carrying out pilot studies. I believe that recording of questioning is the most effective means of protecting the gardaí from false allegations of oppressive treatment and I look forward to the time when it is in general use.
As I said at the beginning, I am moving this motion so as to be able to ascertain the views of Deputies on the proposals in the White Paper before coming back to them with draft regulations for approval. I want to assure the House that when the regulations are being finally drafted I shall give very careful consideration to any suggestions that Members may make in the House.