Criminal Justice Bill 2004: Presentation.

Apologies have been received from Senator Joanna Tuffy. I welcome everyone to the meeting, the purpose of which is to discuss concerns related to the Criminal Justice Bill 2004 and the Garda Síochána Bill 2004. The discussion arises from the Human Rights Commission drawing our attention to the observations it has already lodged with the Department of Justice, Equality and Law Reform which have been circulated to members. I welcome Dr. Maurice Manning, president of the Human Rights Commission, Professor William Binchy, a member of the commission, and Ms Róisín Hennessy, the assistant legislation and policy review officer of the commission.

I remind the witnesses that members have privilege but the same privilege does not apply to them. I invite Dr. Manning to commence.

Dr. Maurice Manning

I hope the Chairman will forgive me indulging in a 30-second commercial. Under the legislation the Department of Justice, Equality and Law Reform is our sponsoring Department. While the Department and the Minister have respected our independence since our foundation, much legislation originates in the Department and there might be a perception that our independence is not as complete as the legislation requires. The commission would like to be accountable to the Houses of the Oireachtas, as the Ombudsman is. We have approached the Government about creating an organic link between the commission and the Oireachtas such that the commission would have a continuing role in scrutinising legislation for the benefit of Oireachtas committees. This is part of our remit.

We have asked the Government whether it would be possible to change legislation to this effect. Neither the Government nor the Department has any objection in principle, but I am not sure whether they mean this. I must take them at their word. The commission is at a loss in this situation. We would like at a later date to discuss with this committee whether steps could be taken to change the legislation, a move that would have to come from the Oireachtas. For the commission to be accountable to the Houses of the Oireachtas would be to our benefit and hopefully to that of the committee too.

Although Dr. Manning is an old friend of mine he did not tell me he would raise this crucial point. Rather than let it pass, I suggest we put it on the agenda for discussion or indicate approval in principle and consider how we might encourage its implementation as soon as possible. Not alone must justice be done but it must be seen to be done.

The commission's problem of perception is understandable. It has spoken out strongly and independently on several Bills but its link with the Department of Justice, Equality and Law Reform may create the wrong impression. The commission's independence is important too in the context of relations with Northern Ireland. The commissions on both sides of the Border are based on the Good Friday Agreement.

Will the Chairman indicate how best we might express our support for Dr. Manning's request and achieve its implementation through an Act of the Oireachtas?

I too support Dr. Manning's view that the Irish Human Rights Commission should be accountable to the Houses of the Oireachtas rather than to any Department. Human rights should not be confined to the overview of one Department but be part of a larger picture. It would be more beneficial to link the commission to the Houses of the Oireachtas. I do not see why the Government would disagree. The Chairman can decide whether a separate discussion on this is necessary. It is an excellent suggestion and we should try to facilitate it in whatever way we can.

I too am open to this sensible idea. Will the necessary changes be simple or long and complex?

I am favourably disposed to the proposal but Dr. Manning described this as a 30-second commercial. He did not have the opportunity to put forward all the reasoning behind the suggestion. The committee could discuss this further and hold a meeting with the Minister for Justice, Equality and Law Reform on the position of the commission and its connection with Government and Parliament. This would enable people to give this more thought and arrive at a considered view on the best way forward.

Dr. Manning

I do not wish to trespass on the committee's time this morning. The commission would very much welcome such a meeting. I now hand over to Professor Binchy to deal with the substance of today's discussion.

Professor William Binchy

I wish to focus on the four most important areas of this legislation, namely, search warrants, detention period, taking swabs from a suspected person and inconsistent statements. The proposal for search warrants is that a superintendent or more senior officer should be able to grant a search warrant to another member of the Garda Síochána in an emergency. The case has not been made out for such a significant crossing of the human rights threshold.

External judicial scrutiny is necessary even if there are few occasions on which a judge refuses to grant a search warrant. Deputy Costello cited a statistic of 99.7% acceptance by the court. Nevertheless, this is an important external scrutiny which should not be downgraded. The danger is not that the power would be abused but that the culture would change at police level and warrants might be granted without the degree of sensitivity applied in the early stages.

There are difficulties in the existing law but they can be addressed easily in legislation by expanding the scope of the judicial entitlement to grant a search warrant in this area by using modern technology such as fax or e-mail, with back-up systems. Technological advances make it implausible for a garda to argue that a district justice might not be available. That is a matter for discussion with the judicial authorities. A cultural translation to give the police this power would not be good.

As regards the detention period, until 1984 there was no such concept in Irish law outside legislation on subversive activity. In that year a provision was introduced to permit detention for up to 12 hours. Subsequently, drugs legislation allowed for a longer period which created anomalies with the Offences Against the State Act which was later trimmed. Legislation was needed to address these issues. The solution adopted here is a broad one, allowing a 24-hour period of detention in respect of all arrestable offences.

There are issues that need to be addressed legislatively. The solution adopted is broad in allowing a 24-hour period of detention for all arrestable offences. Whereas an arrestable offence might look like a serious offence warranting imprisonment of up to five years, it does not mean this particular suspect is likely to receive such a sentence. It is simply the maximum penalty that the offence carries. We all are aware of cases, such as petty theft, where the person will not be put into prison even if convicted. The power exists to detain that person for up to 24 hours.

The concern is that a police station is inherently intimidatory and it has been shown to sap the will of, say, a weak person, the elderly or persons from a foreign country, not the professional criminal. This is a danger and risk to human rights. There is also a danger of a false confession being made simply to get out of such an environment. It raises questions about the freedom of a confession obtained in these circumstances. A confession extracted through duress should not be accepted by the courts. We do not believe the case has been made for the extension to 24-hour detention. Merely pointing to anomalies is an argument to resolving them. However, bringing in a blanket entitlement to detain people for up to 24 hours is not.

There are also concerns about swabs. There are certain changes in the Bill as to what constitutes a non-intimate sample. The process of taking this form of scientific evidence should be controlled by human rights considerations. Again, it may happen to people who are in a situation of inherent intimidation, such as a vulnerable person, a person from a foreign country, an elderly person, the physically or mentally ill and children. Prior to the promulgation of this legislation, the commission set out its protections in this area, such as privacy protections, videotaping the process and ensuring a nurse carries out the intervention.

We want to see the situation humanised and the rights of individuals not being damaged or violated. We also want to see a general restraint in the circumstances in which an intervention can be taken. There are some cases where it would not be appropriate or necessary to engage in the process of taking this type of evidence, especially in circumstances where the person did not wish to provide it. Our understanding is that this has been kicked to touch by the Minister. Our concern is that these matters must be addressed in the Bill. It would be unfortunate if the legislation were to be enacted without the Oireachtas having the opportunity to learn what these protections entail.

Our final concern is in the area of inconsistent statements. This arose from an incident in Limerick where a particular witness did not elect to give evidence, although he was at the crime scene. Concerns were raised that the law was being treated with disrespect and the courts were impotent. Some witnesses in these circumstances may be reluctant out of fear and intimidation that they will suffer some extrajudicial penalty by giving evidence. I do not dispute such cases are difficult for the courts. However, there are other cases where people want to privatise their relationships with the accused. They do not respect law and order and are not willing to give statements. Penalties in the law exist for such cases, for example, the criminal penalty for interfering with the courts of justice. These can be reviewed and strengthened to be used effectively in circumstances where a person does not give evidence through an arrogant disrespect for the law.

The Bill, however, proposes changes to cases where a witness does not give evidence or gives evidence inconsistent with a previous statement. In the former, it is proposed that a statement previously made by a witness to a court or other public authority could be admitted. It will not be admitted to show inconsistency but to show the truth of what was asserted in those statements. We have a significant concern with this type of admissibility of evidence. As the witness would be refusing to give evidence in court and not in the witness stand, it deprives the accused of the opportunity to cross-examine what was actually said on that previous occasion. That is a problem from the standpoint of due process and the protection of the rights of the accused person.

We have a difficulty with the proposal on statements made to a competent person of a public authority. Public authority is broadly defined in the Bill to encompass a whole range of Civil Service Departments and other pubic agencies. A competent person is also defined. However, it means that a statement made to an individual working within a public authority, provided it is backed up by a statutory declaration, could be admitted as proof of the truth of that statement. We can all see the potential for abuse in that situation. A statement made to such an official outside the court environment does not have the same ring of authenticity.

Before a statement of this character will be admitted, the court must be satisfied of its reliability. How can a court be satisfied? A judge is not the determiner of the legal issue of the guilt or innocence of the accused. That is a matter for a jury. To have a judge exercising a threshold function of assessing the reliability of a statement is either prejudging issues of veracity that need to be made in the case or is irrelevant in the sense of trespassing on the jury's function in this area. This proposal arose simply because of the events in Limerick. No significant case has been made for the introduction of evidence in regard to an individual who refuses to give evidence.

Regarding a person giving evidence in court which is inconsistent with what he or she previously said, the law already states the previous statement may be admitted. However, it may not be for the purposes of establishing the truth of the previous statement but merely to challenge the credibility of the person giving evidence. We have no difficulty with this. However, our concerns are about introducing that evidence for the purpose of establishing the truth of that previous statement, particularly when the previous statement may not have been made to a court but to a competent person of public authority. This is a wide extension of the net. A court's threshold function of assessing the reliability of that statement is not an effective safeguard.

Many of the commission's proposals on the Garda Síochána Bill when it was at draft stage were accepted. We are grateful these have been incorporated in the Bill. However, some aspects of the legislation are not satisfactory such as the proposal to give Garda functions to non-members of the force, such as security guards in, say, the National Museum. Giving these people powers of arrest is an unnecessary and unwarranted extension. Police power should be exercised by those who are members of the Garda Síochána.

There is also a provision that certain Garda stations may be designated as particular zones where the Garda ombudsman commission will not have the same powers of entry. The Minister has given a function of delimiting the scope of the powers of entry. An element of delay is involved before entry is permitted. This is not a wise process. The Council of Europe committee for the prevention of torture already has powers of entry to all Garda stations and is not limited by this notion of designated stations. It is inappropriate to have designated stations. It is not that one cannot conceive circumstances of national security. The Official Secrets Act applies and our view is that if there are concerns they can be fine-tuned in terms of those security considerations rather than having a blanket designation process. We think that is probably an overkill way of dealing with the issue of national security.

This discussion is very useful. I thank members of the commission for attending and giving us the benefit of their thoughts.

I will touch on some of the issues raised under the Criminal Justice Bill 2004. The issue of search warrants is crucial and I like the idea of a continuation of external scrutiny as far as they are concerned. I took on board the point raised by my colleague, Deputy Costello, that 97% of warrants are granted.

The figure is 99.7%.

I stand corrected. The question is one of the benefit of external scrutiny on the general culture and the fact that this is a bulwark against any slippage in standards in the future. I am not saying there is currently any slippage.

I raised the point on Second Stage as to whether we can deal with the issue raised legitimately by the Garda Síochána that in the middle of the night, perhaps at one o'clock in the morning, it may urgently need a search warrant. That is currently difficult to do and it is compounded by the problems in the Creaven v. CAB case involving the issue of search warrants. Following the Supreme Court decision it seems that search warrants can now only be issued by the district judge assigned to the particular area where the warrant is to be executed. Can we bridge that gap between the requirements for judicial oversight? On Second Stage I raised the possibility of using modern technology to do so. A request could perhaps be lodged with a duty judge by fax or e-mail which could possibly be retrospectively followed up after the search with information as to what occurred. Something of that kind could be the answer to retaining the cover of judicial oversight for warrants.

Does the Human Rights Commission accept the need for some period of detention? Professor Binchy said it should not be extended. Does that mean that the 12-hour period is accepted, that it fits in with the commission's thinking and is accepted as being in accord with European convention? If so, are we then merely talking of degree? We would then be in a situation involving a number of detention periods. Under the Offences against the State Act detention periods can, I believe, extend to 72 hours. We have other periods relating to drug trafficking and so on. Are we talking not of principle but only of a question of degree, and thinking perhaps of safeguards?

To some degree, similar questions arise regarding bodily samples. Does the commission accept that bodily samples should be available to the courts but that safeguards are the issue? I am inclined to agree with that view. I would like proper safeguards to be in place with regard to the forcible taking of samples, even if one is merely clipping hair off a person's head. I suppose the image in one's mind is of a young thug having some hair clipped off his head. One might think there is nothing wrong with that, but it might be different if it were one's 90-year-old granny. We are making law for everyone.

Witness statements seem to be arising as an issue. I am not clear where the commission stands on that issue. Professor Binchy accepted that witness statements could be admitted from the point of view of challenging someone's credibility, but does he accept that they should be admitted, even simply in terms of establishing the veracity of what is in the statement? How are we to confront the sort of problem which arose in Limerick? That may not be a fair question to pose to the commission but I am not sure that existing legislation is sufficient to cover that scenario.

Regarding the Garda Síochána Bill, I agree with Professor Binchy on matters such as power of arrest. I am all for supporting the Garda Síochána and for a reserve police force, but I do not believe that people who do not have the full training received by gardaí should have the full powers, particularly powers of arrest. Someone might be a very good person, delivering milk in the morning and acting as a volunteer policeman in the evening, possibly arresting someone, but that does not fit in with my thinking.

Regarding the ombudsman commission, Professor Binchy commented on the latest view that appears to be emerging from the Minister's office. At this stage he seemed to be suggesting that a five-minute telephone call would be sufficient to get over the problem regarding giving notice of entry to police stations and that in practical terms it will not be a problem. I do not have time to go into this matter in detail. No doubt Professor Binchy has been following the thoughts of the Minister on this issue and he might let us know his up-to-date thinking on the matter.

I thank the Human Rights Commission again for appearing before us. It is great that members can appear here so often because we have a lot of justice legislation, much of it involving human rights dimensions with which we can have problems. It is excellent to have the members' opinions on these matters.

The legislation as a whole is quite radical in terms of the extra powers being granted to the Garda Síochána regarding search warrants and detention, swabs, inconsistent statements, etc. The witnesses might tell us what they think about the general package of powers as distinct from each individual one. They seem to be quite fundamental and radical.

The figures I provided regarding search warrants came from the Garda Commissioner. Those figures, which indicated that 99.7% of all search warrants sought were granted by the courts, relate only to 2002. I did not trundle out that argument to suggest that we should do away with the courts being used for search warrant approval. I was trying to show that very few checks were applied in regard to what was going on or what the mechanisms were, and that we did not know what the procedures were when a garda went to the courts, how things worked, what sort of arguments were put forward or the extent of the scrutiny.

There should be a third party scrutiny, namely judicial scrutiny. The Constitution puts much emphasis on one's home and property — one's home is one's castle. In this situation it means that gardaí in Store Street or Pearse Street station, for example, only have to go upstairs to the Commissioner to get a search warrant. That can be done with regard to anyone's home or property and anything can be seized in that process. That seems a new and fundamental approach which is the equivalent of what we are trying to abolish with regard to the Garda complaints machinery and the moves towards setting up an ombudsman which would involve an independent process of investigation of Garda complaints. Now, however, we are giving gardaí powers to get search warrants themselves. That is the wrong approach.

Deputy Jim O'Keeffe asked a good question regarding detention. What is the witnesses' view on detention? Detention for the purpose of questioning did not exist up to 1984. It existed in the special legislation under the Offences against the State Act but did not exist in the law of the land. A person had to be arrested before being questioned. Questioning now seems to be a trawling expedition.

A few days ago the Dean Lyons case was in the news. What happened in that situation we have seen in others — Paul Ward, Colm Murphy and so on — where questioning seems to be the mechanism for Garda investigation. Extending the powers by another 12 hours certainly seems to be bringing it into line with the Offences Against the State Act 1939, which is also there. What about the principle itself? Should we have that procedure in our ordinary legislation?

On the swabs, I must agree regarding protections. We should see the conditions if the Minister is to introduce them, and where possible there should be consent. Otherwise there is a danger of abuse. Professor Binchy might also give his view on the period for the retention of DNA samples being extended from six months to 12.

How provisions regarding inconsistent statements might work is a fairly complicated matter. I should have thought that the main problem that we are experiencing is not so much people refusing to make statements or retracting them but their perjuring themselves. Let us consider the current Morris tribunal and the amount of daily contradiction. The same is true of the Annabel's case, in which totally different situations have been presented. Perjury is surely the biggest problem that we are experiencing in the courts. On that issue, Professor Binchy might tell us what the situation is in Canada. My understanding was that in the Canadian experience, that model scarcely operates. While they have it, they hardly use it at all.

We would certainly need to see all the conditions to be attached to a volunteer Garda force. I agree with the professor's remarks that, if we are to give people such powers, they should go to the police.

I will be brief, since in the main I concur with the findings of the Human Rights Commission in both this document and that previously provided on the Garda Bill. The main one being dealt with here is the Criminal Justice Bill, originally known as the Criminal Justice (Garda Powers) Bill. The change in the title is interesting.

Regarding the detention period, in other jurisdictions there is a facility whereby lawyers or police legal representatives may attend someone during questioning, but that is not included here. If that facility were granted, would there be an acceptance of the 12-hour period being extended? Has there been any consideration of that? What is the international norm or the European standard?

My other question is similar. Regarding inconsistent statements, some work was done examining the Canadian model, but it has not proven as effective as first thought. Has the Human Rights Commission examined what has occurred in other jurisdictions regarding inconsistent statements and the way the problem has been addressed?

I welcome the Human Rights Commission, whose views are always interesting and important. I would like to raise the general question of whether it accepts that the law must be administered fairly and that justice must be done and seen to be done. Those who feel very aggrieved at present are the victims. In child pornography cases and where deaths have occurred, technicalities have given rise to people avoiding the full rigours of the law. Does the Human Rights Commission accept that the balance has swung too far? On the one hand, one obviously does not want innocent people going to jail. On the other hand, perpetrators of serious crimes must be brought to justice. I have not heard any signal of that from the witnesses in any of their representations to us, and that is a matter of some public concern.

My second question concerns the Garda functions being given to security officers. My understanding is that every citizen has the power of arrest. I believe Professor Binchy said that security officers should not have that. What would the situation be if someone were seen stealing or damaging valuable artwork in the National Gallery? Is the professor suggesting that they would walk off the premises? That position does not seem credible.

Regarding the Ombudsman and the designated area police stations, can the witnesses outline any other jurisdictions where an ombudsman would have full access to a police station regarding issues under his or her investigation, particularly where those police officers would also have responsibility for security?

I have a quick comment and a question. I welcome the Human Rights Commission to the committee and commend it on its work. Particularly these days in 2005, it is difficult, and not politically correct, to be involved in human rights issues, as people will know from practical experience.

Regarding the search warrants, I strongly believe that judicial scrutiny should be a priority. What does the commission say to the argument about the judge not being available? Is that the reality? Many of us are getting mixed messages about this. Is it as difficult to get a judge in the middle of the night as a GP? Those are the kinds of issues that people raise all the time.

I too welcome the commission. I would like to follow up Deputy Finian McGrath's point regarding the commission's insistence on judicial supervision in the event of gardaí wishing to search a house. Why does it see it as absolutely essential that such supervision be in place? Surely swiftness of movement is essential to examine and go through a house if the gardaí see it as necessary. Is it not too cumbersome to be dealing with faxes and looking for judges to get approval before the search can be carried out? I would welcome the professor's comments on that.

We very much value the advice and information coming from the Human Rights Commission and I compliment it on its submission. We need to give it more time than possible today, but we very much welcome it.

The Competition Authority recently published a report on lawyers in Ireland. Are there any proposals therein that the commission suggests should be included in amendments to this Bill and that might assist in better human rights access, costs and so on for ordinary citizens in their recourse to Irish law?

Professor Binchy

I will respond briefly by confessing to areas in which we cannot assist the members, beginning with the last. We have not yet addressed the matter of the Competition Authority.

Several members mentioned the Canadian experience, wondering whether it had proven to be a damp squib. I am not aware of that having been the case, but equally I am not aware that it has not, so I can provide no enlightenment on it. All we can say is that, once the provision is on the Statute Book, it is there to be used. How it might be used in Ireland would then be a source of concern.

I will address those questions on which I feel we might be able to give substantive answers. Senator Jim Walsh raised the reasonable point that we must be concerned about victims and the role of technicalities in the area. It could be said that it depends on what one means by technicalities. What may look like a technicality to an outsider is in many cases the law working properly. In other words, where one is dealing with the criminal justice system, if it results in a conviction and something horrible happening to someone, the State has exercised its power, and the person is stigmatised as a criminal and can be imprisoned or fined. In the old days, he or she could be hanged. Those are radical implications for the individual.

An integral part of the criminal justice system is self restraint. In other words it does not, or should not, bring about that outcome unless significant protections are in place. What look like technicalities to some people, such as proof beyond reasonable doubt or the non-admission of certain rules of evidence, for example, like previous convictions, are there not just to create trip wires for the prosecution but to afford genuine protection for accused persons on the basis of human experience. There are always dangers of prejudice in society or of thinking that because somebody may have done something five times before, he or she must have done it this time. The rules that look like technicalities are designed to present barriers for the prosecution in order to protect the rights of the accused. That literally could be any of us tomorrow, in the sense that we could all be accused of a criminal offence. That is the basic point.

As regards Senator Walsh's question about non-Garda people exercising Garda functions, he is quite right in saying citizens have substantial powers of arrest. However, they are not as substantial as Garda powers. These individuals parading in front of the museum have citizens' powers of arrest and we are not suggesting these should be taken from them. Our concern is with giving over those extra distinctively Garda powers, which we believe should not be extended.

Deputy Jim O'Keeffe raised the question with regard to detention. Is it a question of degree rather than principle? Is the Human Rights Commission taking the view that no period of detention is right and proper? Just speaking to the brief of the Human Rights Commission's observations and submissions, we did not address the threshold question. In other words, we did not put forward a proposal that there should be no period of detention at all. However, I would not say that once one concedes for the purposes of discussion that some period of detention is permissible, that this means the question of degree does not involve issues of principle. I think it does involve issues of principle. For example, we all can see that a long period of detention will reach the point where compromise of human rights will occur. For example, to take an extreme case, if someone is locked up for three weeks, none of us here would rely on a confession taken in those circumstances. The confession would be unreliable, but also the injustice done to the person would be severe. It is a question of degree and always in such cases a line needs to be drawn and a question of judgment is involved.

It is alleged that a student got first class honours in an exam for saying, "In this case the line cannot be drawn anywhere, so it has to be drawn somewhere". That is what we are involved in here, making a discretionary judgment. Our concern here is with movement within 24 hours for all arrestable offences, bearing in mind that these can involve trivial enough individual instances and that is a case that has not been made on the basis of the anomalies that exist. The anomalies could be dealt with at the higher range of criminal offences, if the committee follows me, rather than this broad concept of arrestable offences.

In the context of the search warrants, the question has been raised by a number of members as to whether there is a problem and if it can be dealt with and whether external scrutiny is required. I will not reiterate the arguments for external scrutiny. They can be troublesome and irritating, but nonetheless necessary to preserve the culture of somebody else looking at the decision that one makes. We know that as a general principle unexamined decision making always suffers the risk that it may be weaker than if there is some external scrutiny.

On the question of whether one can get a District Court judge, at the moment one cannot because the law does not so provide. That again is a Supreme Court issue because that is the state of the law at present. The problems that exist at the moment are based on the legislative framework, which specifies, in effect, that if the crisis occurs in the middle of the night, there will be a problem. There is no dispute, the Garda has a problem in the middle of the night. It is not a question of "Should nothing be done?" but rather "What should be done?". The legislative solution we propose is that some creative thinking should be done to have the type of notion mentioned by a number of committee members, namely, a duty judge in these circumstances, modes of communication that Deputy Jim O'Keeffe advocated, that could be backed up subsequently, for example. There is new technology coming on stream every day and whatever else might have been a problem 20 or 30 years ago, it cannot be argued that communicating with a District Court judge is a problem at this stage.

We feel a modern solution is one that involves the judge being consulted, if necessary by a back-up system, but again with the retention of the external scrutiny.

I thank Professor Binchy. I know this was brief, but we already have the submission in writing from the Human Rights Commission, which is comprehensive. We have also got the feeling from Professor Binchy as to what the most important aspects of that are and the emphasis he puts on the various area of concern. I thank Professor Binchy again for coming in, as he always does. He is most obliging and that is appreciated.

As he is aware we are having an important series of hearings on the issue of community policing, particularly as regards the Garda Síochána Bill and the section where the local authorities and community policing collide. I hope they will not collide in this forum, but will work together peacefully and effectively. I hope Professor Binchy will be able to accept our invitation to attend the hearings on that.

The Joint Committee went into private session at 10.26 a.m. and suspended at 10.30 a.m. until 5.15 p.m.