Dáil Éireann debate -
Tuesday, 14 Jun 2022

Vol. 1023 No. 4

Garda Síochána (Amendment) Bill 2022: Second Stage

Minister of State at the Department of Justice (Deputy James Browne)

I move: "That the Bill be now read a Second Time".

The Bill which I am proposing on behalf of the Minister for Justice, Deputy McEntee, is short in length but very important. It is necessary to address an urgent lacuna in the law regarding the legal basis for Garda court presenters. The specific purpose of the Bill is to establish clearly a right of any member of An Garda Síochána to conduct a prosecution, whether or not that member initiated the prosecution. It restores the system of court presenters which existed prior to a determination of the High Court on 31 May.

The circumstances that the provisions are designed to address are of an exceptional nature. They arise from a judgment in a case stated from the District Court to the High Court. The legislation will restore the status quo for the Garda court presenters, allow the District Courts to function effectively and address the needs of accused persons and victims to have their cases heard before courts of summary jurisdiction. Consideration is being given to appeal the judgment.

The amendment will come into effect on enactment and applies to prosecutions currently in progress as well as future prosecutions.

First, I will outline the background to the Bill and why there is a need for emergency legislation. In a judgment in a consultative case stated from the District Court in the case of the DPP at the suit of Garda Liam Varley v. Ciarán Davitt, the High Court found there to be no legal basis underpinning the system of Garda court presenters.

Court presenters are members of An Garda Síochána who specialise in court work in the District Court dealing with important procedural matters including evidence of arrest, charge and caution in first appearances in court, remands, bail applications and presenting a summary of evidence in guilty pleas. The practice of allowing separate Garda members to perform these roles is well established and widely relied upon in the State. It enables more efficient use of police resources by reducing the need for individual gardaí to attend court to prosecute every criminal offence they detect. These prosecutorial functions are carried out on behalf of the DPP under section 8 of the Garda Síochána Act 2005. Section 8(1) of the 2005 Act removes the right of a Garda to prosecute as a common informer, and section 8(2) supports this by providing that Gardaí may bring summary prosecutions only in the name of the DPP.

Section 8(2) of the Garda Síochána Act 2005 states that: (2) Subject to subsection (3), any member of the Garda Síochána may institute and conduct prosecutions in a court of summary jurisdiction, but only in the name of the Director of Public Prosecutions.

In the judgment in the Davitt case, the High Court held that the ordinary and natural meaning of the word "and" in the phrase "institute and conduct" in section 8(2) is that the word must be read conjunctively. To state it another way is to say that the same Garda member must perform both actions - "initiate" and "conduct". Accordingly, a Garda member has a right of audience to conduct any proceedings that he or she has instituted, but the section does not confer a right of audience on a Garda in any other proceedings.

Given this interpretation of section 8(2) of the 2005 Act, the court held that order 6, rule 1 of the District Court rules, which confers a right of audience on all members of An Garda Síochána and not just the Garda who initiated the prosecution, is an impermissible amendment of the 2005 Act concluding that the rule is ultra vires the enabling legislation and could not be relied on by the District Court judge in affording a right of audience to a Garda who had no involvement in initiating the prosecution. The net effect of the judgment is that no Garda, acting in a case other than one where he is the named complainant may address a court as presenter. This includes bail applications and guilty pleas. The court presenters, therefore, are now no differently positioned than civilians when dealing with a court. In such circumstances the presence of a solicitor or counsel, or the actual prosecuting Garda is a prerequisite in all District Court cases for the time being. On 2 June the High Court judge clarified that the judgment does not take effect until the final orders are made. The case was adjourned until 16 June.

So far, I have set out the legal implications of the judgment. Now I turn my attention to the impact on the actual workings of the District Court following the judgment. The ruling has immediate and serious implications for the conduct of criminal prosecutions in the State as the system of Garda court presenters is well established and widely relied upon across the State. The contingency measures put in place after the judgment issued and prior to the clarification made by the judge as to the effect of the judgment, and the ensuing disruption in that period, give an indication of the impact the judgment will have if remedial legislation is not enacted before the judgment comes into effect.

In Dublin, the DPP had to arrange for court solicitors to be present at all sittings of the 13 District Courts and instructions issued to State solicitors outside of Dublin to cover courts, where possible. The instituting Garda member was also to be present wherever possible. Further mitigating measures were also considered including the use of counsel from the DPP's High Court bail panel to cover the Dublin districts with ongoing liaison with Garda headquarters to ensure that Garda directives were in-line with the approach being taken by the DPP.

In a single day, 2 June, over 2,131 cases were before the District Courts across the country, and notwithstanding the measures outlined above, hundreds of cases had to be adjourned. In one court alone, 130 cases had to be adjourned. Once the judgment comes into effect, this impact will be magnified for each District court, in each county, for each day that the legislation is not amended.

In addition to the substantial impact on the work of court and State solicitors and prosecuting gardaí, the adjournment of cases has caused significant distress and upset to victims and accused persons. There will be a knock-on effect in terms of delays in preparing books of evidence in other potentially more serious trials, work that would ordinarily be undertaken by deployed staff from the Office of the Director of Public Prosecutions, DPP.

The judgment also gives rise to a risk of Article 40 applications by persons remanded in custody or refused bail in the District Court where the DPP was represented by the court presenter and not a prosecuting Garda member. Article 40 of the Constitution permits persons to apply to the High Court for release on the basis they are unlawfully detained. Mitigating arrangements cannot be sustained over the long term from a cost and effectiveness perspective, and there remains a risk of Article 40 applications to the High Court.

I will now briefly outline the contents of the Bill to the House. The purpose of the Bill is to establish clearly a right for any member of An Garda Síochána to conduct a prosecution, whether or not that member initiated the prosecution, restoring the system of court presenters that existed prior to this judgment. A short three-section Bill is proposed that amends the Garda Síochána Act 2005, to amend "institute and conduct" in section 8(2) in order that it reads "institute or conduct" and provide that the prosecution may be conducted by the instituting Garda member or any other member. The amendment will come into effect on enactment and applies to prosecutions currently in progress as well as future prosecutions.

That is where we are at and I look forward to hearing comments from the Deputies.

Deputy Martin Kenny

We are supporting this Bill. When this situation arose a few weeks ago, many Deputies throughout the country would have been contacted by people in the legal profession and by members of An Garda Síochána who were very concerned about the outcome of the amendment and the potential risks it involved. As the Minister of State stated in his remarks, a considerable body of work is carried out through our District Court system throughout the State. We are just after coming out of a Joint Committee on Justice meeting at which we discussed the fact we had waived the pre-legislative scrutiny process. It is very reluctantly we do so because we should, as a norm, carry out pre-legislative scrutiny all the time. In this situation, most members of the committee recognise that this amendment was ensuring what has been common practice up until now can continue. It is a very small amendment to ensure that happens.

However, there are questions at which we need to look. What has been common practice? Is it appropriate that it has been common practice? It is appropriate that members of An Garda Síochána act as prosecutors when the same organisation is the investigator of crime? It needs to be acknowledged that there has to be work done to look at that. In the Commission on the Future of Policing in Ireland document, which has been endorsed by Government and all parties in this Chamber, there is a reference to that whole issue needing to be looked at and examined.

That is not to recognise that the vast majority of these cases, especially in the District Court, are for minor offences. However, some of the cases are serious offences that can have a serious impact on the individuals who are charged. It is something we need to recognise. Change needs to happen in that area because members of An Garda Síochána are better out in the community keeping people safe and making sure that crime does not happen, rather than being caught up in court proceedings. I think all of us would acknowledge that is the case. However, to make that happen, a process of change needs to come about over a period of time. In that situation, certain more serious categories may be removed from the Garda court presenter and there would then be a staged element where the Government would, I hope, up the capacity of the State Solicitor's office to deal with these issues on an ongoing basis across the District Court system.

The reality is that, for the majority of members of An Garda Síochána who engage in this work, there are usually one or two who specialise in it in each area. From my understanding, it is always sergeants who do this. They have experience and knowledge and know what they are doing. They have been there before, are known to the court system and know the system very well. In that context, we have proposed an amendment for Committee Stage that specifies any member of An Garda Síochána above the rank of sergeant. It would be appropriate to include that and I hope the Minister recognises that would be an appropriate amendment, because it is in standing with what is and continues to be common practice across the board.

Our courts system, especially our District Court system, is under considerable pressure. The outcome of this judgment was going to put it under even more pressure. We recognise the District Court system is very slow due to the number of judges we have in place. There is a recognition we need to expand that. We need to ensure justice is not only done effectively but also efficiently. People face very long waiting times to have their cases proceed. Much of that is down to the fact we do not have enough judges in the system. There are also other aspects of it that need to improve. The pressure the pandemic put on the system meant the system had to respond. The system responded quite well in many cases and there were situations in which technology and innovative practices came into play that made it more effective and efficient. That is all to be welcomed and they need to be mainstreamed. We recognise that and will work with Government to make that happen.

Primarily, the issue we are dealing with in this Bill, to ensure what has been common practice up to now is maintained, should be short-lived legislation. We need to look at it as we go forward. If we are to implement the vision for policing document, we certainly have to look at this as a short-term measure and look at a way of relieving these duties from members of An Garda Síochána, ensure it moves into the State Solicitor's office and ensure that office is properly resourced to deal with it.

The issues several members of the committee had with regard to not waiving pre-legislative scrutiny were appropriate. It is unfortunate that a mechanism is not found to ensure members of the Joint Committee on Justice are not given at least a technical briefing with regard to issues such as this when they come up. That should happen. I ask the Minister of State to ensure we do not have this situation in the future. I know this is an emergency and last week was not a sitting week. We had all those factors into play. In broad terms, it is poor practice that things such as this should be sprung on the Joint Committee on Justice and the Houses of the Oireachtas in that manner and that we would move them so fast without being able to take a breath and look at them closely. It is poor practice, especially if it is something that is more complex that may need a little more scrutiny. I accept this is very simple legislation that keeps in place the process we have at present, but it is not good practice to continue behaving in that manner into the future.

The overall District Court system needs to be dealt with adequately. Once this Bill is through, and I expect it will be worked very quickly through the process here because it is very simple and understandable for people what the amendment is trying to do, then the broader picture needs to be looked at in detail. There needs to be a firm commitment from Government to ensure we get our District Court system right, that it practises well, delivers for everyone and is effective and efficient for people who are before the courts and who are working in that system. I hope the Minister will take our amendment on board when it comes forward.

Deputy Patricia Ryan

The Bill restores the right of Garda court presenters to bring prosecutions by giving it a legal basis. Two weeks ago, the case of Garda Liam Varley and Mr. Ciarán Davitt came before the High Court. The judgment in this case was that there is no legal basis underpinning the system of Garda court presenters at District Court level. The effect of the decision is that no Garda other than the prosecuting Garda has a right of audience in respect of a case. This issue needs to be addressed by this Thursday, which is why we are here today discussing the emergency legislation. Having examined the Bill, Sinn Féin has submitted an amendment to ensure Garda court presenters are not below the rank of sergeant. If the Minister of State does not accept the amendment, the unintended consequence of the Bill will be that probationary gardaí will given the ability to act as court presenters.

We have grave concerns about this. Currently, Garda court presenters are mostly local sergeants. They represent the State in court proceedings by setting out the offence committed, including details of an arrest, charge and caution, along with an outline of the circumstances of the offence. They do this whether they are the prosecuting garda or not. This allows the State prosecutor to focus on the more serious cases in the higher courts. This is a well-established system across the State and has been in place since 1948. We in Sinn Féin have not opposed this Bill due to the emergency nature of the amendment required to restore the power of Garda court presenters. We will support the passage of the Bill through both Houses. However, this is an unsatisfactory way for the Minister for Justice and the Government to conduct business, especially with regard to the prosecution of those before the courts.

I also raise the issue of Garda numbers and visibility. If a garda from Rathangan in County Kildare is in court, one other garda is left in the station. If that other garda has a day off, there is nobody in that station. It is the same in Castledermot in County Kildare. Recently, a garda was on the street in Kildare town. Several people said to me that is rare. That is shocking. We need more gardaí. They need to be more visible. There needs to be less red tape, which ties gardaí up.

We need to look at court conditions and the capacity of the courts. Deputy Martin Kenny spoke about that. We have courts in antiquated buildings. We only have one judge in Kildare. He is doing the best he can in difficult circumstances but he is under immense pressure. The list often stretches to double figures and it needs to be addressed.

I recently discovered there are just nine drugs personnel in County Kildare. They do amazing work and punch well above their weight with the number of seizures, but we need more than nine. There is currently a drugs epidemic in south Kildare. We need to do something about it.

Deputy Ruairí Ó Murchú

My colleagues have stated our position. We will obviously support this. We cannot have a case where we do not facilitate court presenters. I think Deputy Kenny stated we will table an amendment. It does not make sense to us that these presenters would not be sergeants or higher, because they need to be. We need to make sure we do not end up with a novice or probationary garda in that position. I also reiterate that we need to move this on. This function should be operated by the Office of the Chief State Solicitor. That would free up gardaí to do the specific work we need them to do.

This is hardly the first time any of us have spoken about the backlog in courts, particularly in the Circuit Court and higher courts. Any sort of serious criminal activity is generally handled in them. Even when gardaí have done really decent work to deal with dangerous criminals, especially drug-dealing criminals who engage in violent activity, when action is taken, there is often a battle a day about remand, whether people are going to be released, and their specific conditions, especially if there has been violence or threats of violence. From time to time, we get satisfactory results in the sense that people are barred from certain areas or regions. That can be incredibly beneficial but it takes far too long. It could take four or five years.

On the wider issue of organised crime and drugs, as much as we welcome the increased resources for drugs squad activities, particularly in Dundalk and Drogheda, where there have been major disruptions to the drugs supply, the problem has got beyond us. We need work on the citizens' assembly and more novel ways of dealing with this. The local superintendent attended a community meeting and the drugs squad was reformed in Dundalk. There were significant results. He said at the time it could do with more numbers, whether 50 or 100 more gardaí. Then he stopped himself and said to show him anywhere where someone has actually taken on and won the war on drugs. We all accept that dangerous criminals need to be dealt with and the courts system has sufficient resources to make sure the process does not take forever, but there is wider work to do. It goes without saying we have to deal with the wider issue of poverty.

My biggest concern is we have failed to deliver the required community and family supports. Even though there is a cost to doing these, we have seen pilot projects that have worked for many years. We have a very unfortunate history in this State of operating pilot schemes and leaving them in a small number of areas and not necessarily rolling them out. Sometimes, where they are working in small areas with limited numbers, we do not expand their resources but we expand the region they have to deal with. They then have the same issue as in all other under-resourced services that are under pressure and they cannot deliver for the people.

We need a sufficient number of gardaí, resources in court and addiction services to address the drugs issue. We have work to do on diversion programmes. We are failing early on by not investing enough resources in young people, their families and the wider community so that we can get to a better place. We have a complete multi-agency response to education and health. It is also about ensuring we can bridge a gap so that marginalised people, in particular, can get employment or into further education. We have many of the correct pieces. We just have not put them and the system together.

On the matter of sergeants, I will talk about Dundalk. We have had insufficient supervision because we have not had enough sergeants. I am glad the number has been increased, but it is not enough. I am glad we now have a sergeant who has taken responsibility for community policing. I have spoken to both the new chief superintendent and superintendent about that. It is vital work. We do not have sufficient community policing and more interaction between the community policing service, the drugs squad and so on is needed. Relationships between gardaí and the communities they police are not always how they need to be. Sometimes, very good work is done, but at other times, it is not so good and they are missing vital information. One could call it intelligence. I have seen people being stopped and searched, which I have no difficulty with, but sometimes the gardaí miss that a person might not be causing any particular issue and may just be going to his or her granny's house. We know there are other more problematic cases.

It goes without saying that the more pressure can be brought to bear quickly on drugs operations, the better. I am looking for that while accepting we have more work to do. Even if we have a citizens' assembly and the perfect proposals are put together, I feel that even a 32-county Ireland is very small and we probably need to look at a solution on a European level or higher. We know the situation outside and inside every District Court. We know people who have not access to or cannot access drug addiction services are caught up in minor crime.

Some of them can be incredibly significant for those who are impacted. All it indicates to me is the failure of the system. We need to have that piece of work. We will make the attempt at local level, dealing with the Garda and other stakeholders to increase community policing and ensure it is integrated through the entire operations of the Garda as much as is possible. I get that the service is absolutely under pressure. We need to put the resources where they are needed.

As I stated earlier, we have to be able to deal with the backlog in the courts system, which causes great unease and difficulty. Even in respect of ensuring witnesses are going to provide information that is necessary, the longer the time goes on, the more room there is for things we would not like to see happen. Witnesses sometimes feel under too much pressure and step away from situations. I am thinking of a number of instances where this has happened or may happen. There is a cost to all these things. We need to ensure we can put a proper system together. That is the bit that is missing.

Sinn Féin supports the legislation. It is absolutely necessary. I hope the Government will listen to our proposed amendment in respect of sergeants. It is just sensible. We really need to get to the end of this. I have slight worries in respect of the Louth Garda division that the chief superintendent is going to be responsible for Louth and Cavan-Monaghan. It is a huge area and this may create difficulties into the future.

Deputy Aodhán Ó Ríordáin

The Labour Party welcomes this legislation, which is coming from the High Court ruling on court presenters. I am taken by the letter written by the Minister, Deputy McEntee, to the Ceann Comhairle. She states that on a single day, 2 June, more than 2,131 cases were before the District Court throughout the country. Notwithstanding contingency measures put in place, hundreds of cases had to be adjourned. In one court alone, 130 cases had to be adjourned, which has caused significant distress and upset to victims and accused persons. These cases will be added to the already lengthy backlog of cases arising from Covid disruption. Clearly, the court presenter system, without any legislative underpinning, was holding the District Court system together. If it is struck down by the High Court, the legislative body of the Oireachtas then needs to act. The Government is acting and we support that action.

I do not necessarily agree, however, with the Minister's suggestion that delays are purely down to Covid. Anybody who works in the system will attest to the fact there is a lack of judges. That has to be addressed. It is part of the issue that is leading to such delays in our District Court system. It is slightly alarming that a ruling like this can shine a light on a practice that is holding the District Court system together and maintain that it does not have legislative underpinning. Are the Office of the Attorney General and the Department of Justice analysing our systems so there is no other issue that may come to light in future that could be struck down by the High Court? It is important there is robust analysis of how our system of justice operates. If something so fundamental to how a case proceeds through a District Court process can be identified by a High Court judge as not having legislative underpinning, is there anything else? As a result of this judgment, is the Government, the Office of the Attorney General, the Department of Justice or any agency conducting a robust analysis of how the District Court operates so that we do not find ourselves in this situation again? It does not reflect well on us as an Oireachtas that such legislation has to come before us without pre-legislative scrutiny and has to be rushed through the Houses so quickly. If someone is in front of a District Court, this may be his or her only chance to get a level of justice, be that person an accused person or somebody on the other side of the issue. It would cause me and, I am sure, the Minister and the Government, disquiet that such a fundamental element of how this is run could be deemed to be without a legislative underpinning. The lack of judges is part of the problem. We need a robust analysis of how our District Court system is operating.

I am heartened by the words of Deputy Ó Murchú when he speaks to how drug offences are dealt with. I feel that across the Oireachtas we have potential for great change here. As the Deputy said, there is a citizens' assembly due in the new year on the issue of drugs. Those who work in this area know a massive number of the drug possession cases that have come before our courts do not need to be there at all. Some 70% of drug cases are for possession for personal use. The vast majority of cases are against people who are addicted to something or who use something. In other jurisdictions, they are funnelled through a very different path. We talk about harm reduction and using the health system primarily, not the courts system. If the Minister takes a trip to the drug court, which has a certain level of success, she will observe a courtroom full of sick people. They should not be sitting in a courtroom looking at a judge. Those who have an addiction fundamentally do not belong in a courtroom interacting with the criminal justice system, gardaí and judges. That is not where they should be. The citizens' assembly, as indicated by Deputy Ó Murchú, is the right forum for us to analyse properly how other jurisdictions are dealing with this issue. I refer to Portugal and various states in America. We should take issues of personal use and addiction out of our courts system. They do not belong there. We need to find another mechanism for dealing with them. If we were to do that, we would free up a lot of court time and Garda time that could be spent tackling the pushers, the gangs and the industry rather than the victims, who are the ones inevitably in front of the courts.

We appreciate the Government had to act and is acting. The Minister is bringing forward legislation without pre-legislative scrutiny because there is a time issue and that is fair enough. However, the Government has to recognise that if a High Court judge has struck down something so fundamental to the operation of our courts system, what else is there? What else could there be? Are there other legal loopholes that need to be strengthened so we do not find ourselves in this position again? If we are back here again in six months' time because a High Court judge sees something else that does not have a legal underpinning, it is not going to reflect well on us at all.

On the day-to-day operation of a court, I encourage the Minister to go down to the drug court or any court. For any Member of the Oireachtas or member of the public who is not familiar with what happens there, whenever I have taken the opportunity to witness it at first hand, it is really striking how those who are in the accused position need an awful lot more help, compassion, understanding, medical intervention and counselling than is being afforded to them. Many of these cases could be dealt with in a very different way. Other jurisdictions that have dealt with it in a different way have seen the number of drug cases and overdoses collapse. They have seen the number of people in heroin dependency programmes collapse as well. That is my main point. Let us not be here again because of something else we overlooked. Let us deal with the lack of judges, because it is leading to delays within the courts system.

If we have the opportunity and if there is goodwill, as Deputy Ó Murchú indicated, across the parties in this House to deal with the issue of drug offences differently, we will have a radically reformed courts system and a much better way to empower somebody with a drug use or addiction issue. As any observer knows, the last person to whom somebody with a drug use or addiction issue needs to be talking is a garda or judge. I will leave it at that.

Deputy James Lawless

I thank the Minister of State for introducing the Bill and speaking about its provisions. As stated by colleagues on the justice committee and others, the committee considered this matter at its meeting this afternoon, obviously after the fact in the sense that we granted the waiver last week in incorporeal fashion. We were happy to do so as the volume of cases going through the courts was such that the system was threatening to grind to a halt. I considered the figures earlier and concluded 30,000 cases are being processed per week. The figures provided by the Minister of State indicate there were 2,100 in one day. It could be a bit higher on some days. Naas alone processes 300 cases. There are 13 District Courts in Dublin. Every county in the country outside Dublin has at least one, if not two. The lists would have between 100 and 300. Many weeks could see up to 30,000 or more cases going through the courts. Any of us familiar with the District Court system will know it entails summary justice. In reality, common sense and practical considerations inform the outcomes more than any complex legal theories. Experienced judges get the measure of a case in a couple of moments, and often that is all it takes to make the decisions. However, it is important that cases be processed without delay. We could have had circumstances in which the system ground to a halt for want of action by the Oireachtas.

Waiving pre-legislative scrutiny is not best practice or something we want to do or do regularly. As the House, including the Minister of State, will be aware, we process almost all items that come before us with due diligence and carry out scrutiny. While the Davitt decision was a surprise, the High Court appeal, launched from the Circuit Court, was not. The issue ran for months so there was a period in which to identify the issue. In a previous role, I worked in a legal department doing what was called horizon scanning. Part of my role was to consider upcoming legislation, amendments and decisions that might affect the place of work. The Oireachtas, with all its powers, should have at least one person in a similar role scanning the horizon to see what is coming down the track and to be ready to act quickly when something like the development in question happens. I grant credit on the grounds that action has been taken quickly through the drafting of legislation, but the Department, rather than putting things on the back foot, should keep an eye on cases like the one in question as they go through so we will not voice these considerations again. The committee will not grant waivers willy-nilly; it was a special case.

The role of the court presenter has evolved over time, more by accident than by design. I know a number of court presenters. They are sergeants. They are extremely competent in my experience. Any of the ones I know or have come across perform their duties admirably and honourably. They are at a remove. One of the points made about the system is that it is not best practice for the prosecutor to be directly connected to the investigator. Actually, it is often thought that a criminal court case has a defence against the prosecution. People who watch US television dramas, etc., see that sort of adversarial conflict. Of course, there is an adversarial aspect to a case but in the Irish system the prosecutor has the additional duty of ensuring impartiality and independence. The role overrides everything else and the prosecution has an obligation to put before the court matters that come to its attention, even though they may be detrimental to the prosecution case. Prosecutors do that. Along those lines, best practice suggests that because there are obligations, it is not recommended to have the person discharging the prosecution linked directly or indirectly to the investigating force. Many gardaí carry out the function admirably but it is difficult, even for the best-minded and most skilled and honourable gardaí in the world, to be at a remove from the force they are part of and from their colleagues investigating the crime, who may work in the same station, perhaps at the same desk, on a day-to-day basis. That is an issue. However, having said that, it would be far worse if every investigating officer had to prosecute his or her own cases, which is what would happen if this legislation was not enacted. That is what we would have rowed back to. Instead of having the centralised role of court presenter, every garda would be called in, which would put a strain on Garda resources. Not only would the logjam in the courts be problematic but there would also be a strain on Garda resources, with gardaí on the beat and on other duties all of a sudden having to attend courts.

It is a matter for another day but we must consider the lack of efficiency in courtrooms if people must sit around for hours waiting for cases to be heard, perhaps with them being adjourned time and again. Multiple gardaí could be sitting around for multiple days waiting for their five minutes in the sun. I do not believe any of them would want to do that. That is best avoided. It is being avoided through this Bill.

A Policing Authority report, which is published, imminent or expected, makes a recommendation on the degree of independence. It is recommended that an independent prosecutor, be it a State solicitor, State counsel or otherwise, have a role in the courts. While the committee waived the pre-legislative scrutiny and I am supporting the expeditious passage of the Bill because of the nature of the situation, this subject deserves revisiting. The committee may consider it but the Department should do so also. We should not let the perfect be the enemy of the good in considering the legislation today, but let us not allow an imperfect situation to prevail in the long term either.

While we are focusing on the prosecution today, the defence situation is also far from perfect. There has been commentary and coverage recently of defence counsel appearing in the District Court. They are paid a pittance for their time and efforts. One reason is the legal aid scheme in the District Court does not apply to counsel but only to solicitors. It is something of an antiquated scheme. It derives from the days when the District Court had much shorter lists and when a solicitor might have covered two or three matters in a court before lunch, before dealing with conveyancing or something like that in the afternoon. In reality, with busy practices and expanding suburbs, a Dublin solicitor is not going to spend an entire day looking after one case. In the Criminal Courts of Justice, for example, a barrister might deal with a number of cases on a given day for different solicitors. The barrister's role has been developed within the District Court but the system that exists recognises only the role of the solicitor and, therefore, the barrister who takes up the mantle depends on the solicitor to pay him or her afterwards, almost through a back-door system. It is very confusing. It is very unfair to those who go down that route. The natural progression is that those concerned will withdraw their services eventually and move on to other things, and the system will be the poorer for it. This should be looked into when the District Court system is being considered.

Deputy Pat Buckley

I welcome this opportunity to speak about the Bill. It is about restoring Garda court presenters and it is more than urgent to pass it. I want to make a few brief points on it. We do not always agree here but when there is a matter of urgency, we can come to a gentleman's or lady's agreement. We do not oppose the Bill. We accept it and the waiving of the requirement to undertake pre-legislative scrutiny, but as has been raised a number of times on the side of the House, one slight amendment is required. I ask the Minister of State to take it on board. If accepted, it would mean the Garda court presenter would not be under the rank of sergeant. The Minister will have heard other speakers speak about trying to streamline the legislation and say the judgment in the High Court may be an opportunity for us all in this House to work together and consider changing practices within the judicial system.

With regard to streamlining services, the drugs courts and so on were mentioned. Funnily enough, the mental health committee, at its meeting this morning, dealt with people who are charged with offences under the drugs Act. Many of these have addiction issues, so maybe there is an alternative to going to court. Individuals could be victims because of addiction. Therefore, there are many things we could change in the legislation.

I have spoken to gardaí about this. We used to have many conversations when we were working in the convention centre.

We should have more of them on the streets on the beat. Their frustration is that they are doing all the administrative work even though they are trained to go out and protect the citizens of this country. It is not happening. Our amendment is to streamline it and make it specific to working gardaí. People can do all the theory tests in the world but once we go onto the practical stuff, that is where we need our gardaí, not inside, acting as deputy clerks or anything like that. I ask the Minister of State to take that amendment on board. It would be of benefit to moving forward within any part of a judicial review or anything to do with the courts. Let us get gardaí onto the streets to protect the people they are supposed to serve.

Deputy Catherine Murphy

I accept this legislation is required. However, I am not an advocate for rushing legislation through this House. Although this is probably an exception, we tend to see this prior to a recess. I hope we are not going to see a whole clatter of things rushed through without adequate scrutiny.

The primary legislation should have made provision for court presenters when the strategy was being developed. It should not have taken a High Court decision to force the justice system to harmonise itself with some basic considerations. I wonder what consideration there was at the point the strategy was being developed. Did nobody in the Department think of this aspect? It may be there are other Bills where we should learn from this shortcoming.

A point I would like to build on is the context of human rights. The court management office and the court presenters must be cognisant of the position relating to Articles 6 and 13 of the European Convention on Human Rights, in summary, the right to a fair and public hearing within a reasonable time. Others have talked, for example, about the number of judges. We are all aware there can be lengthy delays in cases being heard. If there is any violation of the convention in that regard, the person impacted can seek effective remedy before a national authority, notwithstanding that the violation has been committed by persons acting in an official capacity.

I know cases are being adjourned because the High Court decision means the Garda sergeant court presenters may no longer manage criminal prosecutions in the District Court. Ms Justice Bolger’s overturning of the rule under which a large volume of criminal prosecutions were presented by gardaí unconnected to the original investigation could seriously impact the current efficiencies realised by the use of the court presenters and the functioning of the District Court itself. This has the potential to lead to breaches of the convention because of delays but the specialised role of the court presenter could also be redundant, meaning gardaí who would be free to cover ground on their rosters will now find themselves coming back and forth to the courts. We have seen this before. I remember going past Naas courthouse maybe ten years ago and I would see a whole lot of gardaí outside the court and, at the same time, people were looking for visibility in other respects. It is very important that there is efficient use of gardaí.

I keep on stating that there is not equality across the country in the deployment of resources. The more the population grows, the more we stretch those resources, rather than having them added to. That is very much the case in places such as counties Kildare and Meath, which have the lowest ratio of population to gardaí. I suspect that when the new census of population comes out, this will be even more acute.

I want to move on to points raised by the Commission on the Future of Policing in Ireland. The 2018 Commission on the Future of Policing in Ireland report recommended that the new State Prosecution Service should be tasked with bringing cases to the Courts Service. The report also views Garda investigations and prosecutions as two separate jobs, as is the case in other comparable jurisdictions. The report goes further and calls for the immediate cessation of police prosecutions in court because gardaí are not trained to the level of the opposing defence lawyer. During the High Court case, legal counsel for the DPP and the Garda argued that the revised interpretation of the District Court rules on the right to an audience would result in a fundamental overhaul of the court presenters system operating in the District Court, and that the involvement of gardaí in prosecutions and the time they spend in court or preparing for court is enormously wasteful for police resourcing and they should be deployed to core policing duties. It would be quite useful to do some sort of a calculation regarding the time involved. When we consider the resources and we then start taking out things like rosters over whatever number of days and people who are ill or on leave, and we start to look at the actual time available to police areas, the capacity is much less than we might think.

The transfer of court prosecutions to another State department or service has been called for by gardaí themselves, the Garda Inspectorate and the Policing Authority. The Government's implementation plan for the Commission on the Future of Policing in Ireland stated that a review of prosecution decisions would take place by September 2019 and would be implemented by the summer of 2021. Instead, in the summer of 2022, we find ourselves having to enshrine poor practice into law because this recommendation has not been acted on in four and a half years. The Minister of State might outline where he sees that going and what kind of timeframe we are talking about. The Department of Justice put out a tender only last March to research our procedural system and how it compares to other jurisdictions. To go beyond the research, is there a timeline in that regard? The tender document cites the recommendation by the commission and states that it is accepted in principle by the Government, subject to further evaluation, suggesting that this reform, widely acknowledged by all sides as necessary and committed to by this Government and the last, could be sidelined.

The high-level steering group on police reform has yet to make any recommendation to the Government on the prosecution system. The two interim reports submitted by the group to the Minister for Justice in 2021 have not been published yet. The Minister of State might tell us if it is intended to publish those and, if so, when. I ask him to clarify whether there are plans to act on the recommendations of the Commission on the Future of Policing in Ireland. Are court presenters a stopgap to getting to that point and, if so, will the Minister publish those reports and give us some sort of a timeline on that?

Deputy Jim O'Callaghan

This Bill seeks to extend the powers of audience that members of the Garda have before the District Court. Although it is a very short Bill, its brevity should not disguise the fact there is a very complex and lengthy history to the rights of audience that police officers have had before our courts, particularly for minor offences. Prior to independence, it was the case that in respect of all minor offences and some indictable offences, members of the RIC - the constabulary - were the people who were able to give evidence before the courts. The reason they were able to give that evidence was not any statutory power they had but that they had this common law power to give evidence as common informers. The reason they were common informers was they were members of the public and they were in a position to give this evidence before the court.

That was a widespread practice before independence. In fact, it became too widespread and there was criticism of police officers as they then were for effectively becoming advocates before the court. It was slightly different in Ireland where the law officers encouraged it. There were statements to members of the RIC that they should examine and cross-examine witnesses and, in effect, be witnesses. Following independence, all the prosecutorial powers were transferred to the Attorney General of the Irish Free State under the Criminal Justice (Administration) Act 1924. Section 9 set out how the powers of prosecution were to operate in respect of indictable or serious offences but also in respect of minor offences. It is clear from section 9(2) that the power of members of the constabulary to prosecute as common informers continued and was transferred over to the new force, An Garda Síochána. The power for members of An Garda Síochána in this new State to prosecute as common informers continued. It also continued even after the establishment of the Office of the Director of Public Prosecutions, DPP, in 1974. Even though many offences were prosecuted at the suit of the DPP, and before that the Attorney General of the Irish Free State, predominantly gardaí were prosecuting as common informers. We got full recognition and a better understanding of that in 1977 in the Supreme Court decision in the case of DPP v. Roddy. Mr. Justice Griffin stated that gardaí who are prosecuting are prosecuting as common informers. He looked at section 9 of the Criminal Justice (Administration) Act 1924 and noted that the power of gardaí to prosecute as common informers had not been removed.

We are here today because of the recent decision of Ms Justice Bolger in the High Court. It is important we are aware of what happened and why that case was stated to her for her consideration. It related to a minor drugs prosecution in a District Court. A garda was prosecuting but the initiating garda who had arrested and brought the case was not in court. The replacement garda was there and that garda wanted to be able to give evidence if the accused pleaded guilty or wanted the case to be adjourned if that was not the case. The District Court judge was asked by the solicitor representing the accused whether she would state a case. She did state a case and that was whether the substitute garda had a right of audience before the District Court in respect of that prosecution. Ms Justice Bolger answered in the negative and said there was no right of audience. Her reason was she looked at section 8(2) of the Garda Síochána Act 2005. That legislation in effect removed or codified the common law. It provided a statutory basis upon which gardaí could prosecute minor offences in the District Court. That had been recommended by Mr. Justice Griffin in the 1977 case. However, section 8(2) clearly provides that any member of An Garda Síochána may institute and conduct prosecutions in a court of summary prosecution but only in the name of the DPP.

Sometimes we think we get too worked up about words contained within legislation. However, we are here today introducing new legislation because the word “and” was used in that section. Had the word “or” been used, we would not be here. In the case before Ms Justice Bolger, it was argued by the State that the section should be read disjunctively. That does not make sense because in 2005 when whoever was here used the word “and”, they meant to use the word “and”. Had they meant to use the word “or” they would have used the word “or”. Those who have read the decision of Ms Justice Bolger will see that she very correctly assessed the language contained within the statute and said that if the Oireachtas was going to be deliberate in changing how prosecutions are done in the District Court, it clearly would have used very precise language. She rejected the argument put forward by the State that it should be read disjunctively and the word “or” could be substituted for the word “and”.

Obviously that has significant consequences, which is why we are here. I commend the Minister of State, Deputy Browne, on bringing forward this legislation so promptly. It is an example of where legislation needs to be brought forward promptly. A series of prosecutions are going through the District Court throughout the country at present. We do not want to find ourselves in a situation where every initiating garda has to be in the District Court on a particular date, otherwise the proceedings will be struck out. That would be a miscarriage of justice.

We have to go back to what was contained in the report of the Commission on the Future of Policing in Ireland. It recommended getting the gardaí out of court as much as possible in their capacity as presenters. Sitting in courtrooms is a waste of time for gardaí, ultimately becoming advocates in the District Court. None of us wants that. We want gardaí out on the street fighting crime as opposed to presenting cases. Gardaí will obviously have to be in court to give evidence as witnesses. That is different from the issue of court presenter. I would welcome legislation to give effect to the recommendation of the Commission on the Future of Policing in Ireland. We want presenters in court. We do not want the rules of evidence cut short. Direct evidence will have to be given by gardaí who spot things on a particular occasion but this legislation is necessary.

Deputy Donnchadh Ó Laoghaire

Ba mhaith liom fáilte a chur roimh an píosa reachtaíochta seo. Tá roinnt gnéithe de go mbeimid ag iarraidh a leasú, go háirithe go mbeadh gá go mbeadh an garda sa chúirt ag grád an tsáirsint nó níos sinsearaí ná sin. Ach tá sé luachmhar mar phíosa reachtaíochta. It is important legislation. It is logical. It is unfortunate that we have ended up in this situation as it has tied up gardaí who might otherwise be out on the beat. The Garda court presenter is a well-established position. Typically it is the local sergeant. It is important we draw a distinction between gardaí who are called for evidence as Deputy O'Callaghan has done. That is very different animal from that of the court presenter. This legislation makes sense. It is something of an emergency situation and it is being rushed. We will support it albeit we will table amendments. The fact that court presenters currently have to be the prosecuting gardaí and that no decision other than the prosecuting garda has a right of audience as things stand means there are gardaí in the courtroom who might better be out on the street. When training gardaí, which is an expensive and time-consuming job, our focus should be as much as possible to have those skilled people out on the street deterring crime.

Unfortunately, there are a few areas in which that is being tied up. The other relates to the very slow pace of civilianisation, which needs to be expedited. I recently had a conversation with some senior gardaí in Cork. There as much as anywhere else we are not seeing enough civilians coming in. That means gardaí are not out on the street to the extent that they could be. We need to push that on because many jobs are being done by gardaí that could be done by civilian staff. That is having an impact on Garda resources on the ground.

I will again raise the fact that Garda resources in Cork seem to be the poor relation compared with some other urban centres. It has not had the same intake from Templemore as Dublin, Limerick, Drogheda or some other locations. That needs to be changed. I will instance a few areas, in particular Carrigaline, which I have raised often. Of any large town with more than 10,000 people it has the fourth lowest number of gardaí. There are only 20 gardaí, which is actually fewer than there was in March, for more than 15,000 people. The number is very likely higher after the census. That is one garda for every 800 people in the town. That just is not good enough. It is a similar story in other rapidly growing areas such as Douglas, Togher and Ballincollig. That needs to be addressed.

From a policing point of view, the Minister of State might bear in mind that Carrigaline has a huge number of young people but the Garda youth diversion project is operating from a rented premises, well supported by the community association and that is welcome. However, it will ultimately need a permanent location, its own building, for the young population that exists.

Deputy Bernard J. Durkan

This is important legislation and I commend the Minister of State on bringing it forward.

It is only a short Bill. It is short in implications in terms of what it has to say to us now but it is very important in the way it ties it up.

It reminds me of the phrase "and-or" and an issue the House has discussed in the past, that is, the meaning of "may" or "shall" in relation to what authority is given in a Bill. Of course, these words have two distinct and different meanings. "May" means the Minister may or may not, at his or her discretion. That is a simple interpretation of it. We have had countless debates in this House as to whether it meant something else and Deputies insisted on the use of the word "shall", which compels the Minister or whomever to do what is proposed in the particular Bill or section. It gives the Minister no options whatever, whereas "may" gives him or her options.

I realise what is proposed in this case. It is to replace "institute and conduct" so that it reads "institute or conduct" following the amendment. That is good. I accept it will take gardaí out of the courts and put them out on the street. However, what is important is that the person conducting the proceedings should be familiar with the details of the case. If that does not happen, difficulties will arise and people may walk when they should not walk or people may be convicted where they should not be convicted. That is an important definition. I am aware the Minister of State has studied all of this carefully beforehand and that it has been proofed to the extent necessary. However, we need to always recognise that there are exceptions to the rule that may arise in different ways and means from time to time. I mention that for noting at this stage and the Minister of State may have something to say about it.

In general, the courts work in a satisfactory fashion. But for the courts, we would be in very serious difficulty. The only issue I have ever come across is that people who feel aggrieved that the law did not treat them favourably may find themselves equally aggrieved after going to court. They invariably go back before the courts again and again as lay litigants and they never have their cases resolved. They are never happy that the ongoing discourse regarding their case never seems to get resolved. I mention that in the case of people who are deceived in relation to wills and people who inveigle themselves into the confidence of people who are vulnerable and may influence the individual who is vulnerable to the extent that they should not. Depending on the way the case is dealt with, it may well happen that nothing is done to reverse that situation. That should occur. There needs to be an opinion of last resort that examines the victim's situation in a way that gives some solace or recognition that his or her case has been heard. For example, solicitors will say they know the person is the victim and has been wronged but that is in the past and they cannot do anything about it at that stage. The Minister of State is an experienced lawyer and I would not like to get into an entanglement with him. However, I have seen both types of cases overturned, particularly where an injustice was done and the complainant persisted and achieved a result. In another identical case, in the same way, this was done by a judge interpreting what was put before him or her and saying the complainant had a valid case and the court would deal with it. There needs to be some reassurance provided for those people who feel wronged. That also applies in family law cases.

Family law cases are better dealt with than these cases. What we see, as public representatives, in cases we have dealt with is that psychologist's reports sought by the court are viewed by the other side as one-sided. It may be right, accurate or wrong. It may be as a result of discussions with one party only or as a result of discussions with the two parties, as it should be, but that does not always occur. On some occasions, decisions have been reached by the courts with far-reaching consequences whereby an aggrieved party becomes highly aggrieved and feels the system is against him or her. Members of the public need to be reassured in such cases. I am not agitating for anything other than a discussion on that issue at some stage in the future in this House. There are many such cases. Everybody knows about them and we have all tried to resolve them in one way or another. I hope we can do that.

I hope this particular amendment does not run into flak - no pun intended - and serves its purpose. I hope it achieves fair and even-handed handing out of justice in the courts.

Everybody goes to court to get justice but justice does not necessarily come. Justice is viewed from the perspective of the person seeking it and sometimes what people get is the law. The two are not always the same thing. I will leave it at that. I hope the legislation will work well.

Deputy Chris Andrews

I welcome the opportunity to speak on this Bill. It is not an ideal way to process legislation but it is important that we are dealing with it as the alternative would be chaos.

Sinn Féin supports the Bill. We have tabled an amendment to ensure that Garda court presenters are not below the rank of sergeant. This allows prosecuting gardaí to focus on serious crime in higher courts. Gardaí need to be utilised in an efficient and effective way. They play such an important role in communities across the country and the last thing we need is gardaí tied up in court when they could be utilised more effectively.

The same applies when gardaí are tied up, as mentioned previously, doing desk duties and endless paperwork when they could be out doing the jobs they are particularly good at. The amount of paperwork gardaí have to do is madness. The amount of time a simple statement takes makes no sense in an era of technology.

Gardaí need to be working with communities and they need to be resourced to do so. A concrete example of the lack of Garda resources in the south inner city is that Pearse Street Garda station does not have a minibus to work with community groups. Pearse Street Garda station is one of the busiest stations in the country, yet it does not have a minibus. This means the engagement between gardaí and the local community is limited. The work community gardaí do is crucial when it comes to dealing with young people and keeping them engaged in society in a positive way. In many ways, as I have mentioned in the House previously, the Mulvey report has divided the city. It has divided the north inner city community from the south inner city community. They are effectively one community but the Mulvey report has divided it to a point where the north inner city has significant resources to work with communities. On the southside, however, Pearse Street Garda station does not have a minibus to work with local communities. That is a reflection of the lack of the required resources in the inner city. I have said previously that the findings of the Mulvey report should be mirrored on the south inner city.

Again, this is an important Bill and we support it, with an amendment.

An Ceann Comhairle

Deputies Berry and Shanahan are sharing time.

Deputy Cathal Berry

I thank the Minister of State for his opening statement. I very much welcome the opportunity to contribute to the discussion of this Bill. I fully recognise its importance and the urgency associated with it. I take on board as well the points that have been raised by other Deputies. There are two ways of looking at it. First, we would all prefer to not to be here discussing very detailed legislation at short notice with a tight, time-sensitive horizon. The other way of looking at it is that this is probably a good example of two arms of the State, namely, the Judiciary and the Legislature, working in unison but independently to ensure that we have the best law possible.

In general terms I support the Bill. I am supportive of it for five reasons primarily. First, if it is not broke, do not fix it. The current system works well. As the Minister of State alluded to, it is well established. It is well respected, both by victims and by the accused. It is important to bear in mind that the judge, when she made her ruling last week, did not raise any problems with the principle of a court presenter. The issue was with the administrative technicality associated with it. I am glad that this Bill will tie up that administrative technicality.

My second point is that from a law perspective, as a general rule, it is not good to have ambiguity or grey areas. This House should seize any opportunity it has to tie up or to clarify points of law. This is a good example of this and it is a good opportunity to do that. We should grab it with both hands.

The third point is that gardaí do not work as individuals, but as teams. We need to appreciate that. I do not see any difficulty whatsoever with one particular court presenter handing over key information in relation to a case and to allow a second or even a third court presenter to continue with the case, to present it and to prosecute before the courts system.

Fourth, what we are proposing will make the courts system more efficient. All it will do is bring us back to the status quo, to where we were last week. However, it is unreasonable to expect that members of An Garda Síochána should always be inside the courts. This will make the courts system more efficient. In the event that a garda is injured, ill, or if, as we saw only a couple of weeks ago, their house is broken into by criminals, if they are on a course, or if they are annual leave, the court system can continue without an adjournment or without a delay.

Fifth, and most importantly, I am supporting this Bill because I recognise that if it is not passed shortly it will prejudice the outcomes and will delay a number of cases that are already before the courts. In summary, I support the Bill for the reasons that I outlined. I look forward to its passage through the Dáil and to its swift implementation.

Deputy Matt Shanahan

The principle of garda court presenters means that any member of An Garda Síochána can institute and can conduct prosecutions in a court of summary jurisdiction in the name of the Office of the Director of Public Prosecutions. As Members have already said, the system has been well represented, well established and has been working efficiently. For many within the District Court prosecutions, the legal basis for garda court presenters being well understood ensures that gardaí would not be taken off the beat because they are required to present in court to conduct their own prosecutions on every summons that they initiate.

The proposed amendment has been recognised as required due to a recent High Court ruling at the end of May. The High Court found against the State, requiring that a prosecuting garda must be present in court to progress the case that he or she initiated. Such a finding, if left unamended, would completely disrupt the courts, as has been suggested. Therefore, I as a member of the Regional Group, will be welcoming the amendment. It is important to close out this legal loophole.

I will speak for a few minutes about the actions of gardaí, as opposed to the courts, as well as about the difficult job they have in trying to integrate with the court system and to process their own work. We have significant challenges now across the State, not least of which are the increased challenges of anti-social behaviour, drug abuse, criminal theft and damage, attacks upon the person and attacks upon gardaí. Many of those who are accused in the courts of serious crimes are availing of legal aid. I would say that there is an overly accommodative stance in terms of sentencing regimes. It is probably to do with the difficulties with the lack of prison accommodation. However, it is a fact - it has been made public quite a number of times - that there are many people walking around with multiple convictions. They should basically be in a custodial situation and they are not. They are coming up time and again before the courts. This is very challenging for gardaí to be seeing these people out and about when they are trying to prosecute them in the courts.

Much of the discretion that was available, particularly to community and regional gardaí, has been withdrawn in recent years. The result is now that more minor prosecutions are being activated. For many in An Garda Síochána, they are admonished to ensure that the letter of the law is applied without cognisance of the spirit which was intended. This is something that the Minister of State needs to have a look at. It is having a detrimental effect in garda community liaison engagement. It is obstructive to building the relationships that community and gardaí need to facilitate and to share a relationship and information, particularly of information that would expedite the solving of less serious crimes.

In terms of expediting court appearances, we now have a significant problem where summonses are going out and they are not being picked up by An Post. People are not at the addresses that they are being sent to. We have repeated deferral of cases. If you look at air travel at the moment, it is ubiquitous that everybody is getting their boarding cards through their phones. People have no problem accessing travel documents through their phones all the time. The Minister of State needs to look at some integrating technology now that summonses can be issued by means of mobile phones and emails. This would do much to speed up the activities in the courts, to make sure that summons are served and to ensure that people are deemed to have been served.

I also want to mention the issues of my own Garda station, which is now the divisional headquarters for the south east in Waterford. I raised this in the House with the Minister of State some months ago. I was happy in recent days to attend a community engagement down there. It was attended by all of the rescue services and ambulance services in the area. That is only right because Waterford, as the Minister of State probably knows, serves over 12 counties for all areas of emergency, including 999 calls and air-sea rescue. They co-ordinate everything there. As I said to the Minister of State before, there is not room to swing the proverbial cat inside that barracks building. It has had no expansion and no capital development for the past 20 years, even though it has now been designated as a divisional headquarters. More people are due to go into it. More people from the private sector are due to work there. There is no room for these people. There is no room for the members to put their bags. There are very few lockers. I ask the Minister of State again to liaise with the Department of Justice, the Commissioner and the OPW to find the long-requested funding for this barracks. I understand that a capital footprint and a design plan of €3 million or €4 million was given to the Department. I ask the Minister of State to resource that so that members there can do their jobs efficiently.

Deputy Martin Browne

I also welcome the chance to speak on the Bill. The importance of the Bill, brief though it may be, cannot be overstated. It seeks to address the findings in Liam Varley v. Ciarán Davitt that there is no legal basis underpinning the system of garda court presenters at District Court level. This effectively means that no garda, other than the prosecuting garda, has the right of audience in respect of a case. Needless to say, an irregularity of this type can have profound consequences in dealing with crime or with similar matters in a timely, effective way. The consequence of this may not just impact on dealing with cases promptly, but can also impact on faith in the system.

We hear much of dissatisfaction with prosecutions. Not addressing this adequately would only add to these concerns. The High Court decision made an immediate impact on District Court cases. We saw postponements in May and June. This, effectively, was a postponement on the delivery of justice. Not addressing this gap in legislation can also result in areas where depleted Garda numbers can be reduced further by requiring a specific member of the force to appear in court. When Garda duties are taken up in court and numbers are shorter on the ground a system that does not allow any garda, other than their prosecuting garda, to have an audience in respect of a case further restricts the ability of our Garda to operate as effectively as they wish on the ground in our communities.

Take Tipperary, for instance. As of the end of last year, we had a total of 398 gardaí. This is down from 411 a year earlier and is only three more than was the case back in 2009. In my view, we must be mindful of time management and of the prompt working of justice. That is why as a party Sinn Féin agreed not to object to the waiver of the pre-legislative scrutiny on the Oireachtas committee on justice without sight of the Bill. However, it now appears that there is a shortcoming in the Bill that would have unintended consequences that could impinge upon the effective prosecution of a case.

As the Bill is worded, it would see probationary gardaí being given the ability to act as court presenters, which would have consequences that are of particular concern. Na Teachtaí Martin Kenny and Daly have submitted an amendment to rectify this and ensure Garda court prosecutors are not below the rank of sergeant.

I appreciate the opportunity to speak on these proposals, which have potential ramifications for every community in my constituency of Tipperary and all across the country. We need legislation that deals effectively with the matters that impact on communities the most. We also need to ensure Garda numbers are sufficient to meet the current needs of communities with as much urgency as possible.

Deputy Mattie McGrath

I am sharing time with Deputy O'Donoghue. I am pleased to speak broadly in support of this Bill. At the Business Committee and in subsequent communications, we agreed to progress this legislation as a matter of urgency. There is an old saying that justice delayed is justice denied. The Minister of State, as a practitioner of the law, understands the problems that arise from delays. There are many reasons for those delays. The backlogs in all the courts, particularly in Circuit Court sittings, are enormous. It could take seven, eight or even ten years before some Circuit Court cases are held. That type of predicted longevity is not good.

I am not hung up on the question of whether a garda acting as a court presenter must be a sergeant, as proposed in the Sinn Féin amendment, but I would say any participating garda should, obviously, have some relevant experience of the court system. One gets that experience by learning and participating in the Courts Service. Tús maith leath na hoibre. Any time I have been at court sittings, I have seen several members of An Garda Síochána waiting and waiting, whatever the delays are, and perhaps not being called at all in the end. It is a complete and utter waste of Garda time. I am all for proper, fair and speedy justice. However, as Deputy Durkan noted, one might not always get the justice one expects from the justice system, or it might not be justice at all in one's eyes, and it is frightfully expensive for those who have to pay to access it. I will speak about the free legal aid system presently.

It is not acceptable to have ten or 12 gardaí attending court sittings when they have so many other duties to deal with in communities. In the division in my area, especially in the Cahir-Cashel district, the Garda numbers were never as low as they are now. I salute the community gardaí there, who are brilliant. Sergeant Ray Moloney, who has now moved on, was top class, as are the team members, Garda Jenny Gough and Garda Judy Davern. Last Friday, we had the launch of the amalgamation of two schools in Cahir into a new building, which has been 35 years or longer in the planning. It was wonderful to see Garda Kevin McGuinness of the traffic corps, Garda Davern and Garda Gough there, led by a piper. Pupils from the two schools came together in what is known as the old convent yard, which is now a day care centre, and walked the almost half a mile to the new building. There was great excitement and it was lovely that the gardaí were able to give the safety of an escort, led by the piper, to the new school, Bunscoil na Cathrach. It was a momentous day. The new school will have some 380 pupils, although the children in sixth class will only have a couple of weeks there before moving on. The project has come to completion under the stewardship of the principal, Mr. Horan.

It is great to have local gardaí available for events like that. I know that some of them, including in this case, come into work when they are not on duty. In many areas, they don the uniform and do that kind of work. They are with the people, for the people and they stand with the people. No police force in the word can police without the support of the people. It is a two-way street. Community gardaí get down and dirty with the people, visiting them and getting involved in community-focused events, including community alert and neighbourhood watch schemes. The new property marking scheme, which will be starting in my village shortly, with the assistance of former members of Muintir na Tíre and our own SOLAS team, is a very good initiative.

The free legal aid service must be reformed. Why does it take so long to introduce reform to such schemes by way of legislation? I am all for free legal aid for people who are not able to afford the defence under the justice system to which they are entitled in any democratic society. However, I also am in favour of three strikes and you are out. I am not for a revolving door situation whereby people can come back for free legal aid umpteen times. In some cases, individuals have received it 15 or 16 times. They are milking the system. Legal practitioners, too, must take a share of the blame for this revolving system. The victims are lost in all of this. We have a victims' charter and everything else but we have been very slow to support victims. I once helped a family in a case involving a heinous murder. The family members were trying to find out when the person who was convicted would be getting out and possibly returning to the locality. There is no follow-through from the justice system in supporting the families of loved ones whose lives have been taken away and who have been swept from them.

Huge reforms are needed. This Bill deals with only one of those reforms, arising from a ruling by the High Court that the prosecuting garda must be the garda who investigated the offence and issued the summons. That will require more and more gardaí to attend court sittings and the waste of time involved is shocking. I am not saying the current system should be diminished in any way. We have competent gardaí to perform this duty and it is normally experienced members who do so. However, having such a large number of gardaí held up is not acceptable.

I have to mention Clonmel Garda station. I referred to the amalgamation of the schools in Cahir that took 30 or 40 years to achieve. The issue with the Garda station in Clonmel has been going on for 50 or 60 years. We have planning permission and a wonderful design for a brand new station and a site has been found. The project was included in different packages and bundles of stations all over the country, including Sligo, Clonakilty and others. There has been change after change, the latest of which was a gigantic one. Gardaí in Clonmel, under the leadership of Superintendent Willie Leahy, as well as Chief Superintendent Derek Smart in Thurles, have been left bewildered. The design was done and we accepted we were in a bundle with two or three other stations. We understood there would be contractors appointed to build the Garda stations. Now, however, the station has been locked into a tripartite arrangement with the children's court. In my experience - Deputy O'Donoghue has a lot more experience than I do in this area - there are specialised builders who work on court buildings, which normally are very stately buildings with a very finessed finish. I am not saying Garda stations should be any less stately but they are, pardon the phrase, a different animal.

We are concerned that this will lead to further undue delays and prevarications. The Minister for Justice visited two weeks ago and saw the state of the station, as have several of her predecessors, as well as the Taoiseach. It is Dickensian and shameful. We can no longer expect our gardaí to give a service to the public from such a building. It is not acceptable for the public to have to access it. It is just not fit for purpose. The building is leased from the county council, which wants it back for many reasons. As I said, a lovely site has been found, on the location of the old Kickham Barracks, planning permission has been granted and the design and everything else is ready to go. The station should not be bundled with any part of the Courts Service. We have accepted being bundled with other Garda stations around the country. When it comes to tendering for projects, different skill sets are needed for court buildings, requiring different architects and everything else. As I understand it, the court project is not even at design stage. If I am wrong on that, the Minister of State will correct me. The new arrangement is not good enough for the people of Clonmel and south Tipperary and it is not good enough for the members of An Garda Síochána there. It cannot be allowed to carry on.

Deputy Richard O'Donoghue

I welcome the opportunity to speak on this Bill. I agree with most of what is contained in it except for the provision whereby a trainee garda may be called on to present in court. I do not agree with that. Any garda who does so must have experience in that field. That is my one concern. I welcome anything that will free up Garda resources. There are many areas around the country in which gardaí are needed but are being held up for days and weeks participating in court cases.

Often court cases are suspended, when a few days were offered. That takes resources from our local communities. We must invest in the Garda and in technology for the force to combat the type of crime existing now. An Garda Síochána needs major investment in technology. The required technology is there but it is not being used. For our Garda services to be at their best, even though we have depleted numbers, there must be a great deal of investment in our Garda stations. Taking the example of Newcastle West in my own district of Limerick, for three years the Garda station was closed to allow for the building of a new one. Yet that Garda station has not been built. We do not have a headquarters in west Limerick. All I hear every time I mention this is that the matter is being looked into and someone will get back to us. It goes to show what types of things are happening. If it was in Dublin or Cork, that headquarters would have been built. When it is in west Limerick though, the Government seems to think we can wait for years to have this project completed. We all need our headquarters in our areas.

The Gardaí do a hard job. It is one I could not do myself. They leave their families and put their lives on the line. They do not know what they are going to face in any part of the day. Therefore, out of respect for the Garda and for the work the members of the force do, I thank them for everything they do in trying to keep us safe. Investment, though, must come from the Government. The Garda must be provided with the proper equipment, vehicles, technology and premises to allow the members of the force to carry out their work. They do fantastic work in communities. When we have enough gardaí to allow it, they engage with younger people. They try everything they can to help the younger generation growing up to ensure those young people can say a garda is a person you can turn to when in trouble or in need of help.

As I said, we have depleted numbers in An Garda Síochána. It is hoped those numbers will rise in the next couple of years. I believe 1,800 people were called for an interview. I think they are at No. 200 now in the context of the interviews. I welcome this. I also welcome people applying to go for an interview and wanting to join An Garda Síochána. There is no point in having a Garda service, however, if the investment is not there in the premises, the technology and the vehicles required. Equally, we also need numbers. Therefore, I welcome what is in the Bill. I do not agree with a requirement for a sergeant to be involved in this context. I do not believe it has to be a sergeant. A competent garda with experience would suffice, but not a trainee garda.

Deputy Johnny Mythen

We understand the basis of this Bill stems from a recent High Court judgment in which it was determined that the system of Garda court presenters had no legal basis. Garda court presenters, however, have served as a practical and successful working model across the State for many years. They are an integral part of allowing the State prosecutor to work on far more serious cases at High Court level. We recognise the importance of establishing Garda court presenters on a formal legal basis. This is why we did not oppose a waiver of pre-legislative scrutiny of the Bill by the Joint Committee on Justice. My colleagues, Deputies Kenny and Daly, however, have submitted an amendment concerning rank. We believe the Bill can be strengthened via this amendment to allow the legislation to provide for a stronger and more robust system and, above all, a realignment of trust among the public.

We put forward the case that Garda court presenters should be confined to the rank of sergeant and above. We fear the experience and on-the-ground knowledge held by sergeants and higher ranking officers acting as court presenters could be replaced by inexperienced probationary gardaí. This could leave the courts open to hearing numerous appeals. It would be a retrograde step in the court process and would not serve our court systems well. Considering the rushed nature of this legislation and the waiving of pre-legislative scrutiny, I ask that the Minister of State accept the amendment and the bona fide intentions behind it.

Deputy Michael McNamara

I listened carefully to this debate and to the reasons cited for introducing this Bill. Obviously, it has been well reported in the media that the High Court struck down the existing practice, or at least found it lacked a lawful basis. We are now proposing to introduce this system on exactly such a basis. I am convinced it is a considerable waste of Garda time not to have a presenting officer. I am not convinced at all, however, that a return to the status quo is not an equal waste of Garda time. We have this great habit in Ireland of commissioning reports. The Minister of State's Department, apart from the Department of Health, is probably one of the main culprits contributing to global warming in this fashion by commissioning reports. I refer to all the energy it takes to compile a report and then to print and publish it so that it can then sit on a shelf. Even more energy is probably used then because it likely gets dusted every once in a while. These reports remain on the shelf, though, and nothing happens with them.

We have a report, The Future of Policing in Ireland, about which there was much fanfare at the time. It was published in September 2018 and recommended that this idea of a presenting officer be abolished and replaced with a national prosecutorial service or an extension of the existing State Solicitor's office. The report recommended that all "decisions should be taken away from the police and given to an expanded state solicitor or national prosecution service". I refer to decisions on whether to prosecute and the prosecutions themselves. The report also noted the "Gardaí in charge of prosecutions may not be trained to the level of the opposing defence lawyer[s]". This might have been something the Minister of State encountered himself when he was in the District Court. It was also noted in the report that, "Some Gardaí have undoubtedly become skilful prosecutors through experience, but this should not be their job and it does not justify taking them away from front line duties."

This is the most important point in this context. If we have gardaí who are, essentially, prosecutors, then they are not out policing in the community. We have other people who are trained as prosecutors and who go through universities etc. to become prosecutors. Those people could easily be carrying out that function. Gardaí, of course, also have extensive and specialist training they cannot use because they are doing a job they are not trained to do. The idea behind this Bill is we are going to save garda time by, essentially, wasting more Garda time until we get to the point of being able to draft a Bill that will save garda time. That is a bit convoluted. It is a convoluted way of saying this Bill seems to be a waste of time and we are going to end up back where we were, which is not where we wanted to be, but this is happening because the court decision was made more quickly than was anticipated. It is a case of what is another year of waiting for a report to be enacted in the Minister of State's Department.

Before the recess, we brought in legislation that rolled over emergency measures to allow people to drink outdoors. We are only doing that, of course, until the consolidated legislation comes in when we will deal with it all. Everyone had a great chuckle in here, however, about when that might be. People guffawed and agreed we would probably never see that legislation. Therefore, we continue with this farce that it will just be one more piece of legislation that will be rolled over annually. This Bill is in that vein. Contrary to what is being claimed, this Bill is going to continue the practice we have referred to. It is not one that is necessarily wasting Garda time per se, because the role being carried out by those members of the force as prosecuting officers is necessary and better than the alternative that would exist after the High Court judgment in the absence of proper amending legislation, which would see numerous gardaí having to go to court to give the evidence that one presenting officer could do. It is, however, still not a solution.

It is four years after The Future of Policing in Ireland report was duly received by the Minister of State's predecessors in the Department and heralded by the justice committee. I presume there was some fanfare and that someone got photographed with the report and that it was a great day out.

However, at some point it could be about amending the legislation and system. Apart from the waste of Garda time, there is a further problem with the fact that the presenting officers are gardaí. It leads to an impression one might have, if one came from another jurisdiction, that these are Garda courts rather than independent courts because gardaí are making a decision on whether to prosecute and gardaí present evidence, as opposed to merely giving evidence of what they have seen or what their policing duties were. Rather, they are in uniform as gardaí. There might have been a time when it was intended that they might look like Garda courts, but we have moved beyond that in the administration of justice. Certainly, most countries have done so. We are almost unique in retaining this system. More serious consideration needs to be given to this and a more profound change needs to be introduced than that which the Bill proposes.

I want to discuss how we do justice in Ireland. I want bring up a decision of the Garda ombudsman, relating to a protected disclosure under the Protected Disclosures Act 2014. The Act is an unusual creature because if a protected disclosure is made to any of the various Government Departments, guidelines are to be issued. There is an expectation that there would be an investigation into the subject matter of the protected disclosure. In this instance, a former member of An Garda Síochána made a number of rather disturbing complaints. One related to a prosecution in the Special Criminal Court.

We will, of course, come to the Special Criminal Court in about a week's time in the House and it will be put up to us to again roll over the legislation. We had a committee chaired by a former member of the Supreme Court and former Attorney General, no less. In those circumstances, it might be expected to be somebody who would have a fair understanding of how the prosecution of serious offences works and the risks inherent in not having the possibility of non-jury courts. Nevertheless, the committee found that in respect of the operation of the Special Criminal Court, the fact that one could not challenge a decision of the DPP to refer the matter to the Special Criminal Court was legally problematic. His judgment was borne out because it has been subsequently criticised by various UN tribunals over the years.

Notwithstanding all of that, including the reports, the commissioning of a report and the report being published, here we are. I believe there is another independent body. If one does not like the first independent body, one can get another one. When Deputy Charlie Flanagan was Minister for Justice, the votes were looking tight at one point before Sinn Féin decided it would abstain on this issue. He was going to commission another independent body to examine the court, which gave Sinn Féin the opportunity to abstain. I have not heard about the report since, but I presume there are independent experts driving around the country and maybe even taking evidence. God love us if they are taking evidence, because why would anybody waste his or her time giving evidence to a group like that knowing what happened to the last independent group? When it came up with a recommendation that the Department of Justice minions did not like, the report was filed with all of the other reports, including the report on policing we are discussing today.

The case I refer to concerned the prosecution of two subversives, as they would have been called then. They might now be called politicians. Nevertheless, my objection to the Special Criminal Court does not change depending on who is being tried or how one views their offences; the principle is that people are not able to challenge the decision to try them there. Two persons were apprehended in Clare and prosecuted in respect of a bank robbery. The garda to whom I refer made a protected disclosure that he took a statement from a witness. The accused were found guilty in the Special Criminal Court.

The garda alleged that the statement used in court was a very different one from the one he took, and involved the use of marked notes in a bank robbery. Essentially, the two people concerned were accused of stealing money to fund the activities of the IRA. A witness gave evidence to this particular garda that she could not say that there were any marked notes or could not identify the marked notes in question. She was interviewed by a subsequent garda and changed her mind. This evidence was part, but very far from all, of the evidence which was adduced against the accused in the Special Criminal Court, and who were subsequently found guilty.

The garda who gave the evidence was involved in the Shergar investigation. As the House will be aware, a certain amount of ransom money was put in a boot of a car and subsequently went missing. While £80,000 is still a lot of money, it was a vast sum of money in the 1980s in Ireland. The official Garda line would suggest there is very little cover for all of this. A branch of Ulster Bank was opened and £80,000 was taken from it. All of this happened without the involvement of any senior management, An Garda Síochána was led to believe.

Money went missing and somebody had to carry the can. One garda was fired. Disciplinary proceedings were brought against him and he was found guilty on the majority of charges.

An Leas-Cheann Comhairle

Does this relate to the Bill?

Deputy Michael McNamara

This relates to the need for profound reform of the legislation governing An Garda Síochána, rather than putting another sticking plaster over what is increasingly a festering wound.

The Garda Commissioner appointed somebody to investigate the case and it was subsequently found that somebody had been procured to give evidence against the garda concerned. All of this was brought to the attention of the Garda Síochána Ombudsman Commission, GSOC. Having looked at the case, it determined that, as regards the evidence against the persons being tried in the Special Criminal Court, there was other evidence against them and they were legally represented at the time. With regard to the garda's evidence, it was found to be his opinion, the evidence of somebody else, the effluxion of time and all that. It culminated in a decision, taking all of these matters into consideration, that GSOC was of the view that it was not desirable in the public interest to investigate the allegations under the 2005 Act.

Desirability in the public interest is unique to disclosures made to the Garda ombudsman. If it is not in the public interest to investigate corruption in An Garda Síochána, the doctoring of evidence and the singling out of somebody to carry the can, if only to find that everything was being done properly, what is the public interest? Is there no public interest whatsoever? GSOC, as a matter of public record, is very badly funded and unable to carry out its functions, but I understand it has a number of public interests to satisfy and may be tasked with doing a loaves and fishes operation. However, it is important for the integrity of policing in Ireland that a light is shone on all aspects of policing, including matters that occurred some time ago. If we do not look properly at what happened some time ago, how can anybody have confidence in what is happening today?

This Bill is yet another sticking plaster from the Department of Justice. There is very little legislation going through the House at the moment. I do not know why that is, and I have raised this issue on previous occasions. We could have come up with something a little more profound than that which is in this Bill. Essentially, we are trying to preserve a status quo which we have accepted is inadequate. That is a ridiculous proposition for the Minister to bring to the House.

We know the situation is inadequate, and we have had only four years to come up with an alternative. Now the courts have struck down the situation, which we have already accepted is not really up to scratch, but the Government will provide a legal basis to carry on this operation nonetheless. To use a colloquialism, it could be considered whistling past the graveyard. You know when you have the awful sense that things are not really going the way you want them to go? The Government will just keep going for another little while and pretend it is all right. It is not.

We need proper legislation. There is a much more detailed Garda Bill going through the Houses - very slowly, it has to be said. The heads of that Bill were examined by the Committee on Justice at some point last winter, and I have not seen it come to Second Stage yet. That legislation mirrors large pieces of the existing legislation. Major discretion is afforded to the Garda Commissioner. In particular, that legislation mirrors the idea that certain matters will be brought to the attention of the Minister for Justice in order that he or she - at the moment, of course, we have a female Minister for Justice, which is very much to be welcomed - be kept informed of matters that may be of interest to him or her. There was the Phil Hogan incident where the Minister was informed of the fact he had been apprehended with a mobile phone to his ear while driving. It is a long way from the prosecution of people in the Special Criminal Court for bank robberies to raise funding for subversives. It might be of interest to a Minister for Justice to know exactly what is going on in the country or to know that somebody - a political opponent, perhaps, or a thorny political personage - was driving around while carrying a mobile phone. That is political policing, really, and we are to continue with that on the Statute Book without any overhaul of the laws that govern An Garda Síochána.

All of that, of course, leads to a lack of confidence in An Garda Síochána among the population and a lack of confidence in An Garda Síochána and An Garda Síochána management among lower ranking officers, which is a very big problem. Bringing in sticking-plaster legislation in order that we can still have presenting officers in the District Court is not the answer and not what we need. It marks a very disappointing lack of ambition on the part of the Department of Justice - not, I should say, the civil servants in the Department of Justice because it is for Ministers, senior and junior, to lead the Department of Justice. I do not see a whole lot of leadership there at the moment. On that basis I will oppose the Bill.

Minister of State at the Department of Justice (Deputy James Browne)

I thank the Deputies for their contributions. I acknowledge the Committee on Justice for providing a pre-legislative scrutiny waiver in respect of this matter due to its urgency. I take Deputy Martin Kenny's point that where a committee waives pre-legislative scrutiny, perhaps a technical briefing could be provided to spokespersons. I will bring that point back to the Department and the Minister, Deputy McEntee. Currently, court presenters in Dublin are generally sergeants and, outside of Dublin, are generally at a rank higher than sergeant, often at inspector level. The relevant court presenters are given very specific training as well. I am not aware of any situation in which someone below the rank of sergeant has acted as a court presenter.

The Department is not minded to accept Sinn Féin's proposed amendment. I acknowledge its worthiness but, given this is emergency legislation, we simply do not have the time to ensure there are no unintended consequences, no matter how obvious the circumstances may be.

The primary objective of the emergency legislation is to restore the system of court presenters that existed prior to the High Court judgment. There has been insufficient time to ensure there would be no unintended consequences by adopting any alternative approach at this stage.

As the House will be aware, in April 2021 the general scheme of the policing, security and community safety Bill was approved by the Government and published. The scheme provides that the Bill, when enacted, will repeal the Garda Síochána Act 2005, as amended, in its entirety. Head 9 of the scheme provides for the prosecution of offences by An Garda Síochána. It is necessary to restate the existing law as set out in section 8 of the Garda Síochána Act 2005, pending the report of the high-level review group on the role of An Garda Síochána in the public prosecution system and its consideration by the Government. The review group is due to submit its final report within a matter of weeks. Consideration of the group's recommendation is linked to the final report of the review group and its consideration by the Government in due course. Nothing in this Bill should pre-empt the work of the group, and that has informed the approach to the emergency legislation for consideration today.

While I fully recognise the emergency legislation, as proposed, is significant, I believe this Bill represents a necessary, proportionate and carefully balanced response to the current situation and would allow the District Court to function as intended. Further, the legislation comes in response to an emergency, whereby failure to act would deny access to the District Court for accused persons and victims, incur greater costs on the State and prolong the period of uncertainty for all involved. Consideration is being given to appealing the judgment. I commend the Bill to the House and look forward to hearing from Deputies on the matter on subsequent Stages.

Question put and declared carried.