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.