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Joint Committee on Justice debate -
Wednesday, 8 Dec 2021

General Scheme of the Garda Síochána (Powers) Bill 2021

Apologies have been received from Deputy Martin Kenny. I remind all members and witnesses to turn off their mobile phones or place them in flight mode. They can interfere with the sound recording, even though it may not be apparent at the time.

The purpose of our meeting today is to have an engagement with a number of stakeholders, all of whom made written submissions to the committee on the general scheme of the Garda Síochána (powers) Bill 2021. All of our witnesses are appearing virtually before the committee today from a location outside the Leinster House precinct, as is becoming the norm now.

We are joined by a number of witnesses today. I will welcome them in turn. I welcome back Ms Clare Daly MEP, who is known to this parish from previous service. We are also joined by Mr. Dale Sunderland and Mr. Gary Russell of the Data Protection Commission. They are welcome to the meeting. From the Policing Authority, we are joined by Mr. Bob Collins, chairperson, who is a regular attender at our sessions, and Ms Helen Hall, chief executive. They are welcome. We are also joined by Ms Rachel Wood, assistant secretary, and Ms Sarah Sheppard, assistant principal officer, from the Department of Justice. Of course, as per the convention at recent meetings, the representatives of the Department of Justice are here in an observer capacity and will take notes. If there are questions that can be addressed by them, we will direct such questions to them and they will participate, but they will not be making a submission as such. I ask contributors to unmute their devices when they are speaking but to mute them when they are not speaking so that we do not have interference.

I must make the witnesses aware of the following advice on parliamentary privilege. All witnesses are reminded of the long-standing parliamentary practice that they should not criticise nor make charges against any person or entity by name or in such a way as to make him, her or it identifiable or otherwise engage in speech that might be regarded as damaging to the good name of the person or entity. Therefore, if their statements are potentially defamatory in respect of an identifiable person or entity, they may be directed to discontinue their remarks. It is imperative they comply with any such direction. For witnesses attending remotely, there may be some limitations to parliamentary privilege. They may wish to take their own advice on that. We are in a hybrid situation and have committee meetings in this format. Should witnesses have any concerns around the level of privilege that extends to them, I am drawing to their attention the fact it may not be as robust as it would usually be were they physically in the building. There is no way around that; we are where we are.

The format of the meeting today is that I will invite each of the participating organisations to make a three-minute opening statement to the committee. We also have their written submissions in front of us, which members have had the opportunity to read and review in advance of the meeting today. Following the opening statements, I will go round the members of the committee and take questions. Each member who wishes to contribute will have seven minutes, including questions and responses from the witnesses. It is up to each member to decide how they wish to use that time. If a member wishes to give a speech for seven minutes and not allow for any responses, that is his or her prerogative. Equally, if a member wishes to ask short questions and leave a lot of time for the answers, that is also perfectly acceptable.

This is probably preferable, but I do not direct members on how they wish to manage their own time. They have seven minutes each and it is up to them how they use that time. We will start with Ms Daly, who has three minutes to make her opening statement to the committee. She is very welcome.

Ms Clare Daly

I am happy to see everyone again. Extending police powers is a serious matter and it is important we get it right. In the interest of brevity, I will keep my opening remarks short, and I am happy to expand on any of them. Mick Wallace would have attended but when he heard that only one of us would get to speak, I won or lost the toss depending on what way you look at it. I wish to highlight a couple of particularly problematic aspects as we see it.

First, simply placing a general obligation to protect fundamental rights is not enough. That is there already. There should be a definition contained in the Bill, something that reflects the UN International Covenant on Civil and Political Rights or the Charter of Fundamental Rights. Just saying that it is unlawful to breach to fundamental rights is, again, not enough. There needs to be a provision that says what happens if fundamental rights are not respected. Consideration should be given to that being a specific offence with a specific penalty attached. Consideration should also be given to an explicit provision for a timely investigation when abuses occur, to be compliant with the European Convention on Human Rights, ECHR.

What is especially problematic is the stop and search section, including heads 9 and 16, where there is reference to a computer, which could be a smart mobile device, and it being deemed hacking equipment. This is the potential catch-all to cover warrantless searches that could capture anybody. Head 16, which allows the possibility of accessing private information and passwords, is a total breach of data protection norms and fundamental rights provisions.

In terms of head 13, particularly when every police force on the planet has been found to be guilty or responsible for racial profiling, when we deal with the area of stop and search, there should be a requirement to record the ethnicity of those stopped and searched to ward against racial profiling.

Under head 21, we see no justification whatsoever that a senior garda would issue a search warrant. This should be left with the Judiciary. There is no evidence to say it is warranted. In this field of technology, judges are easily accessible, so there should be no urgent situation that would require that.

Briefly, on the question of Garda custody, I was shocked to see head 42 subsections 6 to 8, inclusive. I am very concerned with clauses that deny the right to legal representation based on the vague ground of disruptive behaviour of the solicitor. This is unconstitutional. It is against the charter. The right to legal representation and the right to a fair trial are key. Head 52, which refers to taking fingerprints by force, is a bit dodgy as well.

The biggest problem is with head 68, which sort of undermines all the other previous safeguards. It basically states that any evidence obtained by breaching the provisions of the legislation would not be excluded as evidence. It is a carte blanche to ignore all the good provisions in the Bill and to operate in an unlawful or in a way that is abusive of rights and still have the evidence permitted. We see this as being incredibly damaging and undermining of the Bill.

I am conscious of time. Things were done differently in my day on the committee when the speaker could waffle on for ages. I hope that is as near to three minutes as is possible. There was a lot of other matter in our written submission that I did not touch on, but I am happy to answer questions on that or on the points raised today.

We have Ms Daly's written submission. There will be many opportunities for her to come back in and we look forward to hearing more from her as the meeting goes on. I now call Mr. Sunderland on behalf of the Data Protection Commission.

Mr. Dale Sunderland

I thank the Chair and members for the opportunity to present before the committee and to contribute to its discussions on this proposed legislation. While the proposed Bill gives rise to a broad range of issues from both a policy and legal perspective, I will limit my comments to matters relating to the processing of personal data and the requirements of data protection law.

As a general observation, I would like to emphasise that the obligations on public authorities and bodies processing personal data for law enforcement purposes flow from EU law and, in particular, from the 2016 EU law enforcement directive, which was transposed into Irish law by the Data Protection Act 2018. This Act requires that any legislation enacted concerning the processing of personal data for law enforcement purposes must specify the objectives and purposes of the processing and the personal data to be processed. Legislation must also meet the standards of clarity, precision and foreseeability in accordance with the case law of the Court of Justice of the European Union and the European Court of Human Rights. In addition, legislation can be in both primary and secondary form to meet those standards.

The Data Protection Commission, DPC, has in recent years conducted a number of investigations into public authorities and their processing of personal data, especially in the context of surveillance technologies deployed. What we found in those investigations was a trend that the legislative underpinning for those bodies and their functions has not been updated to reflect the requirements of the law enforcement directive. In my written statement, which members have, I referenced Article 8 of the law enforcement directive, which I shall not read but which sets out the standard in the European directive in terms of the legislative requirements of processing for law enforcement purposes. In the context of this Bill, it is essential the Department, An Garda Síochána and the Oireachtas carefully consider all elements of the powers of An Garda Síochána that necessitate the processing of personal data and include provision for this processing in the legislation or in the proposed statutory codes of practice. While we identified a number of comments in written submissions that we have made on the Bill, the DPC is not best placed to identify if all the powers that will necessitate the processing of personal data have been included as required.

In the time remaining, I will highlight a few of the observations we made in our written submission. Part 1 provides for regulation-making powers, including statutory codes of practice. They will be very important in assisting An Garda Síochána to uphold the data protection rights of individuals when exercising powers contained within the proposed Bill. They will do that by providing further clarity and granularity on the manner in which those powers should be exercised and how the issues around data protection engage with those powers. We recommend that the codes of practice should, as appropriate, be accompanied by a data protection impact assessment and that the approved codes should be made public in a transparent and an easily accessible manner.

With reference to part 2 of the proposed Bill in respect of the protection of fundamental rights, we welcome the objective of this part of the Bill and note that the protection of fundamental rights will also include those rights enumerated by the EU Charter of Fundamental Rights.

(Interruptions).

We have lost the connection to Mr. Sunderland. He is just under three minutes so we leave him suspended, as it were, and move on to the next speaker. He can come back in later. Is Mr. Collins with us?

Mr. Bob Collins

Yes.

Unfortunately, Mr, Sunderland seems to have been suspended mid-sentence, but his time was up, so perhaps I will pretend that I cut him off with my powers as Chair. In any event, Mr. Collins is next. He has three minutes to make his points. I welcome him back to the committee.

Mr. Bob Collins

I thank the Chair on both counts and for the opportunity to make this brief opening statement regarding the Policing Authority's views on the general scheme of the Garda Síochána (powers) Bill.

The Bill is a once-in-a-generation opportunity to carry out a more comprehensive and public assessment of key powers exercised by the Garda Síochána. It is also an opportunity to reflect on these powers from a variety of perspectives, ever mindful that the powers of arrest, detention, search and seizure can as easily - perhaps more easily - infringe and breach than they can protect and vindicate the rights of persons. The authority welcomes the fact that many of the observations it provided previously have found expression in the latest version of the Bill.

In this brief opening session, I want to emphasise five areas of concern that are relevant and significant from a policing oversight perspective. The first is the search warrant in urgent circumstances. Head 21, which enables a Garda member of superintendent rank and above to issue a search warrant in urgent circumstances, is of considerable concern to the authority.

The recommendation of the Law Reform Commission was clear that warrants should be issued only by the courts. It is difficult to envisage circumstances where judicial approval of a warrant could not be urgently obtained electronically. This provision should not be retained. If it is to be retained, its exceptional character should be matched by the seniority of the approving Garda member who should be an officer not below the rank of chief superintendent. The Garda Síochána should also be required to report publicly on a quarterly basis, ideally to the authority - by division and perhaps by county - on the number of warrants issued in this manner.

Regarding custody and the member in charge, all persons detained in police custody, in whatever form, are, by definition, vulnerable and the Garda Síochána has a duty to protect them. This places a great deal of responsibility on the custody officer or the member in charge. Therefore, the authority believes the position of custody officer as set out in head 35 should ideally be restricted to an officer not below a specified rank and, in all circumstances to a member with a specified number of years of experience and with the necessary training. Relevant Garda members should be held accountable for performing their function of protecting the rights of each detainee.

Regarding custody and legal representation, the authority is very concerned by head 42, which allows for the exclusion of legal representation based on a subjective evaluation of possible future behaviour. Nothing should undermine the right to legal assistance which must be practical, effective and unfettered. These provisions should be removed from the head. In head 43, the right to waive legal representation should not be available to anyone under the age of 18.

Arrest without warrant was not covered in our original written submission to the committee. The authority expresses its strong view that the extension of arrest without warrant represents an excessive extension of police powers. No adequate justification is offered for such a radical change.

The authority considers that codes of practice should be statutory instruments. They must be binding and not just exhortations. Any amendments required to reflect this throughout the proposed Bill should be made. Further, any amendment or revocation of a code should attract the same consultation process as its initial introduction.

I hope I have completed my introductory my remarks within three minutes.

I thank Mr. Collins. That was very concise. I just want to make sure Mr. Sunderland can hear us. His connection dropped earlier.

Mr. Dale Sunderland

Yes, I am back. I apologise that my statement was cut short, but the committee has a copy of it anyway.

I was going to compliment Mr. Sunderland on his brevity, which may have been accidental; we will pretend that it was not. The main thing is that he is back in the meeting. We have the written statement and we got the gist of his oral submission so we are all good.

Before calling individual members, I wish to record another apology. Senator Ruane had hoped to join us this evening but is unable to do so. She has sent apologies. I call Deputy Costello. He will be followed by Senator Ward and Deputy Pa Daly. The Deputy has seven minutes for questions and answers.

I have some general comments. I will try to be quick with the speech at the beginning of my contribution. Head 12 relates to the retention of data regarding stop and search. At the moment, the Bill provides that this will be done as part of the code of practice. It is not just the code of practice. The code of practice needs to be rooted in the GDPR and in European Union law on retention of data, which is the subject of the case at the moment. We need to specify that at the top. It is not just about the code of practice; it should be put in consultation on the code of practice.

I am deeply concerned about search warrant in urgent circumstances. I am very conscious of the logic of the Demache case that a garda issuing their own search warrant for their own investigation was not good enough and it had to be a garda of a certain rank independent of the investigation. To achieve true independence, it needs to be somebody outside the Garda Síochána, full stop, and not just outside the investigation. Mr. Collins and Ms Clare Daly made the point that judges are available. There is no reason why we should not enforce that independence. I fully believe that the logic of the Demache case indicates that it should never be given by a garda. My question is for Mr. Collins. How many such warrants are applied for? How many of them are refused? Is there a 100% acceptance rate or is it a black hole that we do not know the number?

The Policing Authority asked about the usefulness of stop and search, and the negative impact it has in communities. Should we even be legislating for stop and search, and making it easier as we are essentially doing now?

The Deputy will be pleased to see the inclusion of DPP v. JC in the submission of Ms Clare Daly. I also smiled when I saw that and I was glad to see it.

Mr. Bob Collins

In respect of the Deputy's first question, I do not know if any figures are available or published on search warrants sought or the extent to which search warrant applications are refused. It is one of the reasons we wanted to ensure that in these circumstances, particularly were it is decided to persist with having a Garda officer issue such a warrant, there should be regular publication of the details of the number of those and the locations in which they were issued.

I could not quite hear the Deputy's second question on stop and search. Was it about collecting data in respect of those people who are being stopped and searched?

No, it is in the context of stop and search being limited. Equally, there was mention of the negative impact on communities and relations with the Garda. In the UK, only 1% of instances where people are stopped and searched result in an arrest. Should we be legislating for it or should we be trying to end the practice?

Mr. Bob Collins

It is very useful that legislative provision is being made on it because it provides the opportunity to set some limits to it. I do not believe that opportunity has been taken in this proposed Bill. It is worth reflecting on the effectiveness of it. There is little, if any, evidence to suggest that it is an effective policing mechanism. As the Deputy has said, the literature suggests a very small percentage of cases result in arrests and a small percentage of those result in any subsequent action.

I was going to make reference to the need for the collection of much more detailed information than we have. We do not have any information at all on the nature and extent of stop and search, and the age, the gender and ethnic indicators of those who are stopped and searched. We would be naïve and self-delusional if we thought that Ireland was a complete outlier in this respect and that there was a precisely proportional representation of the entire population in people who are stopped and searched. Certain protections could be included in this provision.

This is a good opportunity to introduce a requirement to record ethnic identity or at least a facility for facilitating that. I can understand that there may be a reluctance in any particular measure to introduce this when it has implications across the whole of Government. However, this is one area where there is no overspill because no other agency has the capacity or the power to stop and search people. This begins and ends with the Garda Síochána. There is a real virtue in providing the legislative support necessary for a comprehensive process of collecting ethnic data.

Without that, the Garda Síochána will have no sense of the composition of the people with whom it comes into contact. Without that, it will not be possible to set aside the not-unreasonable concern that Ireland will be like other countries and apply this facility disproportionately in respect of particular communities or sections of communities within the population. That would be a critical opportunity lost. If I have omitted something, the Deputy may come back to me.

To pick up on what the witnesses said about detention periods and their extension, the logic that applies to the search warrant applies to the extension of the detention period. There should be independent, external oversight. The Judiciary is best placed to do this. We should not allow what is essentially self-certification regarding search warrants or the extension of periods of detention.

I will start from the end and work my way back. I will start from head 42. I am astonished this has found its way into the draft heads of the Bill. The notion that we would interfere with the right of a person to be represented by legal counsel at the point of questioning is anathema to the system we have. We have a very delicate balance within our criminal justice system, central to which is the right of a person to obtain legal advice. I cannot see a circumstance in which it would be justifiable for a garda to decide a lawyer was being disruptive when that is exactly what his or her job is. A lawyer's job, if it is to be disruptive, is to represent the rights of the person who is being questioned. To say I am disgusted may be a bit strong, but I believe it is extraordinary that this provision has found its way into the heads. To my mind, it is unconstitutional. I am particularly alive to what Mr. Collins said in that I have grave difficulty with this. I would be very unhappy if it found its way into the Bill, when drafted. Equally, the notion that a senior Garda could just decide a lawyer is to be excluded is an absolute no-go area. Therefore, I agree with the submissions made in this regard.

On what Mr. Collins said about the waiver not being available to somebody under the age of 18, I presume he is referring to head 43(4), under which an inspector would step in. I understand from having read the Bill earlier that someone under 18 cannot waive the right to legal counsel anyway. That is as it should be. There should be a right for someone to waive but not in the case of a young person.

On head 21, on a senior garda issuing an emergency warrant, I agree with what has been said. I do not understand how it could ever be the case that one could not find a District Court judge, peace commissioner or somebody else to issue the warrant. I do not think the provision is justifiable. We should not be putting these kinds of powers into the hands of the Garda because, again, urgency will always be found if looked for, or if that is what the Garda decides it wants. The provision compromises gardaí themselves because it will put enormous pressure on gardaí of certain ranks to find reasons to justify actions under it. Ultimately, this will create problems further down the line. When the provisions of this kind of legislation are tested in the context of a criminal trial, judges will be very slow to admit the kind of warrant in question. It is much better to say to gardaí that they must steer themselves into the parameters of getting a proper authority in order to conduct a search in the normal way. Therefore, I have real difficulty with head 21.

On head 16, on the authorisation for a search, I have a query. It may be for the witnesses from the Department of Justice. A single member of An Garda is authorised in a warrant. If the correct channels have been gone through to get a search warrant and that warrant is in the name of a particular member, what happens if he or she is not available? Does that mean the search simply cannot take place? In the normal course, a team of people would conduct a search. If a search cannot take place because the person named on the warrant is not available, it is an unnecessary fettering. There should certainly not be anybody searching the premises who is not named in the warrant but my reading of the head as currently drafted is that the person authorised by the warrant to lead the search must be present for it to take place.

I have a question for Ms Clare Daly on what she said on head 6. I am not saying I disagree with her, specifically concerning the consequences of the breach of rights under the legislation. There is definitely a problem. I would not go so far as Ms Daly has done because my concern is that if nominated penalties or specific sanctions are put in place in respect of a garda who breaks the rules, it might have the effect, unintended though it might be, of discouraging gardaí from conducting the searches. The gardaí might become concerned about their liability if a search must be conducted in a certain way. However, the current reality is that if nothing flows from a search that gardaí have conducted illegally, it does not matter and there are no consequences. No evidence gathered is lost if that evidence is not useful, but that does not discourage the gardaí from conducting the search. It becomes an issue only if something of evidential value arises during the search and it cannot be relied on in court, although the DPP v. JC decision and others have substantially watered down the exclusionary rule, as we would have called it, or the fact that evidence can be excluded when it is illegally obtained.

Having stated my misgivings, my questions are on the issuing of a warrant in the context of multiple members of An Garda and on sanctions for gardaí who flout the rules or choose to go outside the provisions of the legislation. While the latter question is for the witnesses from the Department of Justice, I will be happy to hear from Ms Daly on it.

Let us go back to the witnesses for some feedback.

Ms Clare Daly

I thank the Deputy and Senator for their input. I am happy to see we are on the same page on many of the headline issues concerning heads 42 and 21. This is great. I take Senator Ward's point. It is a matter that we considered ourselves, but from a different point of view. It is a question of whether, if we specify a penalty, we are watering down in some way. I look at this by asking what safeguards we can put in place to achieve what is intended in the Bill, which is to safeguard fundamental rights in the exercise of Garda duties. My concern is less about the evidence found in a search and more about the safeguards we put in place to ensure the Garda

is compliant with its fundamental-rights obligations. Already we have general statements. Already we have general penalties for breaches of ethics. Do we need to consider something more? I do not know the answer. I believe the Senator is correct in that there are two sides, but I would like some penalty to be considered to put firmly on the plate of An Garda Síochána the seriousness of its responsibility. It is particularly needed in the context of head 68, which gives the impression that it does not really matter if fundamental rights obligations are breached or if evidence is obtained in an abusive way because that evidence could still be admissible. I am aware that the DPP v. JC decision has provided for that, but I do not think our adding to it is very helpful. Those are my thoughts on it, but I agree it is not entirely straightforward.

On stop-and-search arrangements, the points made by Deputy Costello were good in respect of discussing whether the relevant provision is needed at all. It probably is but we need a very tight definition. The aspects on computers as hacking devices and accessing private data are very problematic. Again, I draw the committee's attention to head 16, whereby the Garda is being given new stop-and-search powers, particularly to ask for private data, access information, computer passwords and so on.

I am going to move on to the next member because the time allocated to Senator Ward has elapsed, but there will be opportunities to come back in over the course of the discussion.

Perhaps those witnesses who did not get to respond will do so in the next round or subsequent rounds.

I welcome all the witnesses. Like Senator Ward, I will start with head 42 since I worked for 25 years as a solicitor in the court in Dublin, in addition to Garda stations in Dublin and Kerry. I always think back to the introduction of the drug trafficking law with the power to hold people in detention for seven days. The first person I saw who was held under that legislation was a homeless single mother who was living in the Regina Coeli hostel. She informed me, and I believed her, that she was told that if she did not tell gardaí about the three or four deals of heroin that she had in her locker, she could be held for seven days and gardaí could talk to the HSE, or whichever the body was at the time, about taking her child into care. That is what happens on the ground and on the front line. I am staggered by the tone of each and every section of head 42. The whole tone seems to be that solicitors are going into Garda stations with no other attitude than to cause trouble, which is complete rubbish.

For example, subsection 1 of head 42 states that a custody officer shall "cause a legal representative to be notified ... as soon as practicable." As any solicitor who goes into Garda stations will tell you, that gives an opening to gardaí to say that the detained person never asked for a solicitor, or that he or she asked for a solicitor the first time but never asked for one to come in again, or that the gardaí are too busy at the moment and the solicitor is left standing there. Nothing seems to have changed there.

The "Garda custody facility" is mentioned throughout head 42; it is actually the Garda station. It seems to me from reading subsection 2 that the time from when a detained person asks for a legal representative until "the conclusion of such a consultation" will be excluded from the detention period. Is it proposed to add that time on again? There are major dangers in that because it would be open to gardaí to say to detained persons that if they talk to this sharpshooting solicitor who is coming into the Garda station, it will only delay their detention even further. Gardaí already have plenty of time within the massive powers under various legislation, such as the 1984 Act and the Offences Against the State and drug trafficking Acts. Many's the time I was in a Garda station where someone was arrested late in the evening. That person was not interviewed at all, possibly for the first 12 hours of his or her detention, before the actual questioning started. There is potential for blaming the solicitor and I disagree with that. It is a similar case with the phrase "during the course of questioning" used in subsection 3.

Subsection 4 includes the words, "If a legal representative cannot be contacted within a reasonable timeframe". Many's the time I saw, and everybody knows, that gardaí have their own personal favourites they would prefer to have in Garda stations rather than some other solicitors. There is a difficulty at present, even before any of this comes in, in giving a detainee the opportunity to ask for another legal representative. It seems to me that it is problematic to codify that.

I am completely opposed to subsection 6. What is the definition of being "unduly disruptive"? What is all that about? I know solicitors. I spoke to one today who told me that when she indicated to gardaí at the beginning of an interview that her client would be exercising his right to silence, she was nearly put out of the Garda station. She had asked for something that the gardaí say, which is that "You are not obliged to say anything... but...[anything] you say will be taken down in writing and may be given in evidence." Let us face it, when someone goes into a Garda station on the ground, the solicitor's chair is behind the eyeline of the detained person. A solicitor sitting in the interview room who looks across at the detained person will not be able to make eye contact with him or her because of the way the room is designed. By the way, the chair is nailed to the floor. Four or five years ago, criminal solicitors had a meeting with the Law Society and a former Garda Commissioner. We were promised that would be changed but that has not happened. Solicitors have been asked to hand over their mobile phones. All of that is going on. What is the definition of "unduly disruptive"? Will solicitors be asked, or given something in writing, as to why they are being disruptive? I am completely opposed to that. It is rubbish and I do not know where it is coming from. I would love to know what lobby group suggested that that provision go in.

I have probably spoken enough about head 42. There are a lot of others. I agree with much of what Ms Daly said and with what was in Mr. Collins's statement. Head 9 is about stop and search but "reasonable grounds" are not defined. That has caused difficulties over the years when people are stopped and searched. We also saw what happened in areas such as Bristol and London in the 1970s and 1980s, where there were strong ethnic communities. I agree with Mr. Collins's request that ethnic background be included, but so should the area of town that people come from. Anyone who is unfortunate enough to have Snapchat can see where people are. It would be very interesting to have a map indicating the areas of towns or cities where people who are stopped and searched are from.

Head 12 is about keeping a record of a search. I have concerns about head 16. Anyone's phone is a computer and many's the time I have had problems when people were arrested for very minor offences. Let us face it, an arrestable offence is one for which a person can be arrested and held for up to 24 hours in a Garda station. If someone went into Dunnes Stores and stole a Mars bar, that is an arrestable offence because, potentially, if that person went for a judge and jury trial, or the Director of Public Prosecutions sent it forward, that individual could face a penalty of up to five years. Those are the types of powers we are dealing with on the ground. I have had people who were arrested, and possibly questioned for a short period of time, who have a picture gallery on their phone that includes photos of dead children and family members who are now deceased, in addition to lots of other stuff on what is, in effect, their personal computer. When detainees ask for their phone back, they are told it is in a facility where all detained items are sent and they cannot get it back. It is very upsetting. Something has to be done to take that type of scenario into account. There must be proper oversight of the search warrant in urgent circumstances. The constitutional right to the inviolability of a dwelling house is very important and we should not throw it away.

The power of arrest for an offence comes under section 23. I will ask someone from the Department to explain an "offence". How will that be defined? Can an individual be arrested for no tax disc on a car or will it go back to the current situation of an arrestable offence with the possibility of a five-year sentence?

The citizen's arrest referenced under head 25, and what that person believes to be "reasonable", is a complete minefield. Is that carte blanche to security guards and bouncers to start holding and arresting people? I see major problems there.

A number of things are mentioned towards the end of this document that I cannot pick up now. This legislation will have to be amended. We will bring something forward. I ask for an answer to the question regarding what is an "offence" under head 23. Let us flag here and now that there are major problems with this heads of Bill.

I will move on to the next member. The Deputy has made very strong points but he has taken up a little more than seven minutes. We might come back to him in the second round. To add to his litany of points, I also suggest there is a degree of postcode lottery in terms of special sittings. Some districts can convene a special sitting within hours, while others can take until Monday morning, which backs up the Deputy's real-world examples.

They may get a better sitting, but they may have to travel to the criminal courts of justice for it. They are then outside their own district and a postcode lottery is at play in some of the scenarios the Deputy has described, just to add to his long list.

I welcome the witnesses and thank them for their contributions. I also thank committee members who have made theirs, some of whom have experience in this field. I am trying to come at this from the middle of the road. On one hand, we are conscious of those who are victims of crime and the effect that can have on them. On the other, one would certainly hope that those who are tasked with investigating and preventing crime would do so in a manner that is lawful and above board. That should be beyond question. Ms Daly used the term "safeguards" and it is vitally important there are safeguards in place to protect anyone who is under investigation for alleged criminal offences, or any type of offence for that matter. The discussion we are having about this Bill and the flaws some members have highlighted are useful.

I will start by asking Ms Daly and Mr. Collins about the search warrants. Are there any circumstances that would warrant a Garda superintendent or chief superintendent to issue a search warrant? I am thinking of someone who received information at 3 a.m. that a shipment of drugs was coming into the jurisdiction. Do we have any data on how accessible it is for a judge or district justice to issue a warrant promptly in such a case? I do not know what the turnaround time is for that. It is an important factor.

The circumstances were mentioned when a member of the Garda, whoever he or she might be, of superintendent or chief superintendent rank, would have to account for and be able to stand over what those urgent circumstances would be. I would not like to think that there would be a delay from trying to get a judge to sign a warrant in an investigation of crime to which urgency was attached, such as a drugs shipment.

If there is no delay in getting the necessary search warrant issued and signed by a judge, that is fine. However, I wonder whether we have any data on that. Is there any data to show whether this situation has been abused? That would be important. Mr. Sunderland talked about data protection and the rights of citizens. It goes without saying that those should be protected. Legal assistance was taken as a given and I know Senator Ward was very strong on that and I fully agree with him. There are no circumstances whereby someone should not be given legal assistance where required and that would be unforgivable.

I am conscious of the victims of crime. Investigating crime is not simple. It is a tough job. It needs to be done, but has to be done in a manner that is legal and above board. That is very important. Citizens' rights have to be respected at all times. Does Mr. Collins have any information or is any data available to us where gardaí abuse their powers across any of the issues we have discussed?

It is right and proper to discuss this now. It is right that we review the legislation and highlight shortcomings. Members have highlighted a number of issues, in particular, where shortcomings are present. Where shortcomings have been highlighted and proven to be in existence, we have a duty to the citizens of the State to ensure that every safeguard possible is put in place to protect them, while members of the Garda are investigating crime.

Ms Clare Daly

The Senator's points are very good. The purpose of the Bill is to balance police effectiveness with protection of fundamental rights and getting the balance right is important. Some of the powers we are talking about are new and, obviously, we do not have data on those. The search warrant power being given to gardaí is a fundamental point. This has been considered previously, almost ten years ago, by the Law Reform Commission. At that time, it thought there was no need for this. It asked whether there could be a technological solution. We now know that technological solution is already here. We have judges well-used to working with technology during the pandemic and they have always been open to being woken up in the middle of the night in an urgent situation. No urgent situation could ever happen in which a judge could not be contacted by technology. That can be absolutely provided for.

Mr. Bob Collins

The authority's point on this does not derive from an apprehension that there is widespread abuse by Garda members. That is not the point. Some of the concerns the authority has about aspects of this measure are out of a concern that it puts Garda members in a very difficult position. For example, a custody officer who has not been sufficiently trained and does not have sufficient experience is being put in a difficult position to carry the responsibility that being a custody officer entails. That is as much a concern for the Garda member as it is for the person who is in custody. There is a mutuality in that.

There are many very positive things in this Bill. The concern relates to the extension of certain facilities, such as the issue of arrest without warrant, to a much wider range of cases in circumstances in which it is difficult to see where the evidence is and there is an impossible difficulty in obtaining judicial approval at present. If such a difficulty is convincingly pointed out, the circumstances in which such a decision can be taken by a Garda member should be specifically limited and confined to somebody who is a chief superintendent or higher.

Mr. Collins said a moment ago that there were many good things in this Bill. We have not heard much about them from the submission so far. Will he comment on what they might be?

Mr. Bob Collins

Let me name two that come to me. First, it is the first time a statute will provide the right to legal representation of somebody who is in custody. That is significant. We have raised questions, as other people have, about the particular form that head takes. The second point is there is a very strong presence of the human rights of people who are all individuals in this statute. That is very desirable and a positive development. The very codification of the powers of An Garda Síochána is in itself a significant development. It is a recommendation from the Commission on the Future of Policing in Ireland that was welcomed by the authority.

There are others as well. However, it is important to say there are significant elements in this proposed Bill that are positive and desirable and they should be welcomed. As I said, the very fact a policing powers Bill has been drafted and will in some form be enacted is in itself a good thing. Some of the concerns need not impede the work of the Garda Síochána, the investigation of crime, the apprehension of people who have broken the law or the protection of victims. None of these things will be diminished by some of the amendments that have been suggested, certainly by some of those that have been suggested by the authority.

I appreciate that. I call Deputy Carroll MacNeill.

I agree with my colleagues on head 42. The point was well made, so I do no need to make it again. On a point to Mr. Sunderland, I thought the piece on behalf of the Data Protection Commissioner is an excellent technical piece. It contributes enormously to the proposed Bill. If he does not mind, I will not ask him in great detail about it on this occasion. Nonetheless, I wonder how this is not fed into the Department at an earlier stage, or is it? Mr. Sunderland might answer briefly.

Mr. Dale Sunderland

I thank the Deputy for her comments, which are much appreciated. We are always here to try to help and assist the committee in whatever way we can. There is a statutory obligation under the GDPR and the law enforcement directive to consult the Data Protection Commission on proposed legislation. That process has been under way with the Department so these comments will equally be fed into the Department. It was not at the stage where the heads were being prepared and it usually happens once draft heads are prepared that we would then comment on them.

Mr. Dale Sunderland

Exactly.

I was just wondering about the duplication of work by the Department and the committee, and the timing of when that is fed in. That is fine.

I want to ask Mr. Collins two questions. We have covered head 42 in great detail. On head 43, and subsection (4) in particular, I want to get Mr. Collins's view generally on whether juveniles can be questioned without representation and whether the Policing Authority is happy with the provision overall. What are his views on it overall as it applies to adults, let us say?

Mr. Bob Collins

We are certainly not happy with the provision in regard to people under the age of 18. Even somebody who is close to being 18 may not have a full appreciation of the circumstances in which they find themselves if they opt out of the right to legal representation. There will be times when people will want to get this over with in as short a time as possible within the Garda station or within custody, and they see waiving the right to legal representation as being a way to achieve that without appreciating the extent to which they are setting aside serious and significant protections which are there for their benefit. That is why we think that provision should not be there.

The authority is very reluctant to see any circumstance in which there would be the questioning of somebody without legal advice being available. It is possible to construct a set of circumstances in which it would be appropriate so to do but it should be surrounded with the greatest of caution and apprehension because it sets aside one of the benefits I identified in regard to this measure, given the fact it puts into statute the entitlement to have legal representation while being questioned. To set it aside is something that should be done with very considerable reluctance.

We have the benefit of having very experienced practitioners on this committee. Is there anything Mr. Collins wanted to respond to in regard to some of the points my colleagues have made?

Mr. Bob Collins

The Deputy’s colleagues have the benefit of being experienced legal practitioners, which I do not, so I am conscious of that. I do not think there is anything in particular I would add that we have not included in the original submission or noted already. There is a serious concern about the ability of a Garda member of whatever rank to exclude on the basis that somebody may behave in a way deemed inappropriate. That seems to be a power too far and runs the risk of diminishing the capacity of the person who is in custody to select their own legal representative or to have any effective legal representation. That is probably the key issue on which we would want to make a point.

Did Ms Sheppard want to come in?

Ms Sarah Sheppard

There seems to be a bit of confusion around the point on juveniles and legal advice. I wanted to clarify that, under the scheme, people under 18 cannot waive their right to legal advice.

That was how I had read it. Head 42 has been the subject of some discussion today. Would the Department like to offer a view as to what, from its perspective, this provision brings to the proposed Bill?

Ms Sarah Sheppard

It is probably worth mentioning, as Mr. Collins stated, that it does set out for the first time in legislation that a legal representative can attend that interview, so the actual presence of a lawyer in custody is the main purpose of the head. In terms of head 42(6), which has been the main focus of discussion, this is subject to the drafting process and it might change during drafting. It is intended to reflect current practice within the Garda code of practice. It is basically to deal with situations where, for example, a solicitor is talking over the person so that they cannot be heard and cannot be recorded properly. As I said, it will be developed and that work continues.

Can the Department go into more detail on that? It seems to speak to the point about being unruly or disruptive. Where is this coming from? In fairness, in the context of the discussion we have had, the Department might want to provide more detail on what the thinking has been behind that. Is this a common feature? Where is this coming from?

Ms Rachel Woods

It is coming from the fact that the right of access to a lawyer is not set in statute at the moment, but it has been in practice for a number of years. There is an agreed code of practice that the Garda follows and an agreed code of practice by the Bar Council, and both of them have a piece around the very limited, and it is intended to be very limited, exclusion of a solicitor if they are being deliberately obstructive to a process. The Garda has asked that that be continued and that is what we had tried to reflect here. The Department very much welcomes the discussion around this and, as Ms Sheppard said, we are also in discussion during the drafting with the Office of the Attorney General as to whether this goes too far or whether it fully reflects what we are trying to do. There is not an intention for legal representatives to be excluded. Obviously, prohibiting legal representation would be a breach of the international and domestic jurisprudence. Gardaí will be fully aware that if they try to overstep that, any evidence gathered will not be admissible and the judge at trial will be in a position to oversee that and ensure it is effectively followed. We very much welcome the discussion around this and we are very open to revisiting the provision if that is needed.

I appreciate that. That is the benefit of having Ms Woods at the committee and able to respond to questions like that rather than us talking around in circles in regard to it. Although I am sure it will be doing it anyway, I suggest to the Department to discuss with the criminal committee from the Law Society and the Bar the operation of that. Did Mr Collins want to come in?

I am sorry but I will have to cut off the Deputy because she is over time. In addition, a vote has been called in the Seanad so the Senators may wish to make their way there. They may be excused for a few moments.

I thank Ms Woods for that. By the sound of it, from what I have seen and heard already of the submissions from all around the House, there will need to be significant changes. Deputy Pringle was the next speaker but I understand he is not available at present.

I was going to call Senator Ward next but he may have to go and vote.

I am probably okay for the moment. The matters I wish to raise are short.

The Senator can make his submission.

I appreciate what the Department has said in respect of interviews. There is so little time to go through what is good in this Bill. I recognise its importance and specifically what was said about the codification of this legislation, finally. It is putting in place what the Supreme Court has said in Gormley and other cases, and that is important. It is a difficult area to gauge because we rarely get to see inside Garda interviews, but in my professional experience, I have never seen a situation where a solicitor interferes to any significant extent in the interviewing process. I know that from speaking to my solicitors. It may well be that the solicitors who are interfering do not brief me. That might be the case. However, the solicitors I speak to find they have very little opportunity to intervene during questioning. I do not think it is an issue, though I am absolutely open to correction on that. I heard what Ms Woods said about what the Garda has said about the matter. I acknowledge that, but I think it is problematic in the context of what we are talking about. I endorse what Deputy Daly said, that one can see in the videos of interviews that solicitors are behind the people who are being questioned. There is no opportunity for communication other than for the solicitor to render legal advice in front of the gardaí. That is a difficult situation for a solicitor.

I still have difficulties with this because I do not believe there is a substantial element of talking over witnesses or things like that. I do not think that happens though, as I say, I am open to correction on that point.

I do not have the relevant part of the Bill to hand, but the Bill codifies the right of the person to take legal advice out of earshot of gardaí although it can be within visual range of gardaí. For the most part, that is not an issue but there will be cases of gardaí who are able to lip read although I know that might sound far-fetched. Some people may be using the benefit of a sign language interpreter. There is potential there for the confidentiality of that consultation to be compromised.

I also wanted to speak to the point about recording the ethnicity of people. I absolutely agree with the comments that have been made to the effect that the power of search is executed by the Garda in particular circumstances and very often, for example, the power under section 23 of the Misuse of Drugs Act is used wholesale by the Garda to effect stop and search powers, and not always legitimately. It is not only me saying that because the courts have found that to be true. I am wondering about the point around recording ethnicity and whether, in fact, we should be recording more than ethnicity. Would people acknowledge the difficulties with the subjectivity of that recording exercise by the Garda?

I thank the Senator for those insightful comments, as always. We will now move on to the second round of questioning. Deputy Daly wants to come in again.

I will go back to what Senator Ward said about consultations happening out of earshot of gardaí. I am not sure why that is there. One should be allowed a consultation with a solicitor in a private room if one has been arrested. I would be interested to hear the reasoning for that. Certainly in my time, there were Garda stations, one in particular in Dublin, that routinely would make sure the door of the interview room was open and a Garda member would be sitting down the hall while one was trying to have a conversation in muffled tones with one's client.

The Garda seems to be complaining about the talking-over issue. I am sure that probably relates to a situation in which a solicitor has to remind a client that he or she is not obliged to say anything but anything he or she says will be taken down in writing. That is probably the complaint, unless there is something else. All interviews are video recorded. I would be surprised to see solicitors standing up and doing a song and dance to disrupt the conversation or interview that gardaí are having with the person who has been arrested.

One or two of our guests might already have covered the point about finding a judge late at night, rather than a superintendent. Over the past year, particularly since the beginning of the pandemic, we have moved to a large extent to remote hearings, Zoom meetings and all of that. People are routinely remanded in custody for further periods without attending court and I do not see why that should not be explored before it is brought to a superintendent, or whoever it is, because of the urgency of the situation. Judges are on call, just like superintendents and solicitors, over weekends and during the night. That should be explored before a decision is made to take away the power of the Garda to issue warrants for other gardaí.

If there are difficulties in finding a judge out of hours, it is probably a reflection of the fact there are not enough judges in the State, quite simply. We have 3.3 judges per 100,000 of population compared with a European average of 21. The failure of the State to invest in access to justice and to invest sufficiently in the judicial system should not be an excuse to undermine the due process rights of the accused and the general citizen. I stand by my earlier comments and those of other Deputies.

I have a quick question for Mr. Sunderland about the data we are talking about. The debate about extracting disaggregated data such as a person's ethnicity and other demographic data is being made somewhat complex because of the general data protection regulation, GDPR. A lot of the time, people will quote the GDPR erroneously as a reason not to do things instead of engaging with what the regulation states and does not state. I would love to hear from Mr. Sunderland as to whether that is true and the complexity of the situation around disaggregated data arising from the stop and search situations we are talking about. I am thinking not only of ethnicity but also of geographic and socioeconomic data, which are also very important, particularly in relation to certain offences. On what basis would it be unlawful to collect disaggregated data during a stop, search, arrest and detention? Perhaps Mr. Sunderland would speak to that.

Mr. Dale Sunderland

I will do that, and I thank the Deputy for the question. He is right to point out that the GDPR is often used as a reason something cannot be done or cannot happen. However, that is a false premise and basis from which to look at this matter. This is about how clear the legislation can be and how precise it can be in terms of the purpose for which personal data are being processed. If there is a desire to capture further data under the written record of a stop and search, the Bill needs to be clear as to the reason for the collection of those data and for what purpose they will be used. If the data are collected for the purpose of aggregation and looking at the effectiveness of the use or not of the power, the Bill needs to specify that. The framework should be provided within the Bill and any use of the data outside of that legislative provision would not be lawful.

I will also reference the code of practice in that context. It is also an important part of these considerations that the code of practice needs to set out explicitly all of the requirements and, from a data protection perspective, what data will be collected, how they will be stored and retained, and how a balance is going to be struck between an individual's right for his or her data to be protected and the legitimate uses to which they may be put. That is the answer. It can be done but the question is as to how it is done and how specific and clear the legislation will be. This is not just for the purpose of law enforcement but may also fall under the GDPR in terms of the use of the data. A little bit of thinking needs to be done as to how those two legal frameworks come together in this context. I hope that in some way answers the Deputy's question.

I want to clarify one thing. One of my earlier points was that head 12, which makes reference to the records being in line with the code of practice, should also state "and in line with GDPR and in line with data retention legislation". Is it enough to have the purpose of the gathering and processing in the code of practice? Should that be in the legislation or, more realistically, should it be in both?

I will take the answer and then I am afraid we will have to move on because we are out of time on that point. I call Mr. Sunderland.

Mr. Dale Sunderland

It would be preferable that the purpose is specified clearly in the primary legislation and perhaps the modalities of how it is done could be included in the code of practice, which is a statutory code of practice and has legal effect as well. The two together can provide the overall framework for providing the avenue for the collection of the data but done in a data protection-compliant way.

I thank Mr. Sunderland. As I do not see any other members offering, I will give the last word to Ms Clare Daly. In light of her long service here, she can close out for the witnesses.

Ms Clare Daly

The Chairman is too good. I thank all of the Deputies and Senators for a very informative discussion. In fact, with all of the criticisms, I think we can see the importance of this Bill and its potential problems. Deputy Costello is right in his points about data protection. We only have to look at the Graham Dwyer debacle and where the ignoring of advice around data issues has landed the Irish State, and where it has potentially left victims as well. We need to be very careful on these issues. There is a balance to be struck. If we look at head 12, on the one hand, it allows for the destruction of a record after a search and after a particular time, which could be problematic in the context of transparency and accountability going into the future. At the same time, we have to take into account European and GDPR provisions in terms of people's rights to have data against them not retained. A role for the Data Protection Commission on this is critical.

I agree with all of the Deputies on all of the concerns in regard to legal representation. To have the Garda asking for this clause to be imposed on solicitors because they could be deliberately disruptive is really a stretch. I do not see any merit in it and the point that they are talking over electronic devices does not make sense to me.

A good point was made by Senator Ward on section 8 with regard to the right to meet a solicitor in private. This has been legislated in the European courts and "in private" means out of sight as well, so it is a bit of a stretch to include that.

I thank everybody for their input. We are looking forward to working with them on this in the months ahead.

We are out of time. We have had a good discussion but I need to bring it to a close at this point. There will be further opportunities. This is the start rather than the end of the discussion on this matter. There is a lot of rope left in this yet and we will certainly be revisiting this topic.

On behalf of the committee, I thank all of the witnesses for their participation and thank the members for their engagement on this matter. Many views have been expressed, including some very informed ones. As always, I thank all participants for that very useful discussion.

It is proposed that we publish the opening statements on the committee's website. Is that agreed? Agreed.

I will move on to housekeeping matters so the witnesses can remain or leave as they wish. I remind members that if there are any amendments for the Garda Síochána digital recording report, they should please send them to the secretariat as soon as possible. The deadline for the report on the recent hearing is today so members should make sure to send those as soon as possible, if they have not done so already.

There being no other business, we will adjourn until 5:30 p.m. on Wednesday, 15 December 2021, when we will meet in private session to discuss a number of housekeeping matters.

The joint committee adjourned at 6.54 p.m. sine die.
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