Limerick East): Since the Bill was published in October last it has been subjected to a long, detailed and, I think, constructively critical examination both in the other House and outside of it, and Senators, I am sure, will be familiar — in general terms at any rate — with its content and perhaps with the main features of the changes that were made to it during its passage through the Dáil. I shall be dealing with the most important of these in my remarks here today.
The Bill has provoked a great deal of discussion on certain issues that are fundamental in a free and democratic society. The ensuing debate I think, has, been useful and important and, certainly for me, instructive. On that account we could perhaps all agree, whether we like the Bill or not, whether we are for or against it, that its advent has served at least one useful purpose — to cause us to reflect on some of the values of our society.
At the core, the very heart, of the matter is the nature of freedom itself and its parameters, the extent to which and the circumstances in which it is permissible for the State to interfere with that freedom and the difficult task that confronts the State of attempting to reconcile sometimes conflicting rights.
The common law has for long recognised and cherished the freedom of the individual, and that tradition and that specific common law right of individual liberty has been incorporated into our Constitution though it is not of course an unqualified right that cannot be abridged, as the Constitution makes clear. The questions we have to ask ourselves are whether the Bill affects those rights for a justifiable reason and whether it does it only to the extent necessitated by the exigencies of the present situation. In considering these questions it is necessary first to consider the immediately relevant question of the problem of crime in our society.
In the period 1973 to 1982, the recorded number of indictable offences rose from 38,022 to 97,626 — a staggering 156 per cent increase. Since then, as the 1983 Report on Crime shows, the figure has risen yet further to 102,387. The problem is at its worst in our cities and large towns. Dublin, with about a third of the total population, accounts for about 60 per cent of crime.
I do not propose to dwell to any extent on the effect this appalling problem has had and is having on our communities. The picture has been very well painted already by others and there can hardly be a single Member of this House who is not intimately aware of it or who has not had direct experience of it himself or herself.
We have become a crime-prone society, perhaps not to the extent of some other jurisdictions yet, thankfully, but the trends are there and we are heading in that direction unless we can succeed in doing something about it.
Now I know that some Members of this House will tell me that this Bill is not the answer to the crime problem. They will say, as others already have, that the Bill does not address itself to the causes of crime. My answer to that is a straightforward one. Yes, I agree that the Bill does not address itself to the cause of crime which, it is acknowledged, are deep-rooted in society. But I have to say — without I hope offending anyone — that it is somewhat simplistic to assert that a Criminal Justice Bill — or indeed any Bill — can by itself solve the social problems that cause crime. Certainly I have never made that assertion. We cannot legislate away poverty and social deprivation which it is generally accepted contribute, perhaps significantly, to crime even though we know that the vast majority of poor people are never in trouble with the law. We cannot legislate away unemployment — if we could it would have been done long ago.
That is not to say that social legislation has no part to play in improving society or that it cannot be used as a mechanism for effecting desirable change or contribute to the creation of a more egalitarian society. Of course it has an important role to play, but in our kind of economic system, and given our present level of resources, we can only hope to improve fundamentally the position of the poorer sections by striving to achieve increased prosperity. The task of the Government is to ensure that, as far as possible, the climate is conducive to achieving this and I believe that we are doing this as effectively as we can in present circumstances and given the difficulties we face.
The Government have the duty to govern and to deal with the problems of the day. Crime is a major social evil and the people expect the Government to tackle it and, if possible, to solve it — certainly to do what is necessary to combat it and reduce it. We would be failing in our duty and in our commitment to the people if we shirked that. This Bill certainly addresses itself to the problem of crime. Admittedly it is thus addressing itself to the manifest consequences of our social ills and not to their root cause, but that is not a reasonable or a fair criticism. Crime is seriously affecting people's rights. Individual liberties are being eroded by it — very seriously in some parts of our cities and towns. Crime is big business — big for the criminals and profitable too, and big for the State. It is costing close on £300 million in directly identifiable expenditure this year and there are huge unquantifiable costs in lost revenue from tourism and lost opportunities in industrial development. It is inhibiting the creation of the kind of climate that I was referring to which is helpful to economic as well as social progress. Moreover the State is specifically obliged by constitutional imperative:
by its laws [to] protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen.
When we took office many people were of the view that the criminals were winning the battle. At times and in some important respects, the Garda and the courts seemed powerless to do anything. The concept of the rule of law appeared threatened. People accused of serious crimes seemed all too often to be getting away on technicalities. The balance seemed to have tipped in favour of the criminals.
It was against this general background that this Bill was conceived and brought forward. It results from a review of our criminal justice system — a review designed to identify means of improving law enforcement, especially criminal investigation and crime detection. The review sought also to identify weaknesses in pre-trial procedures and in the trial procedures themselves — loopholes that were being exploited or that allowed people to get off on technicalities. In short, the task of the review was to establish how best the balance could be restored so that people could again have confidence in the system.
The absence of a power on the part of the Garda to detain suspects for a reasonable period so that they can be questioned and so that forensic and other tests and inquiries can be carried out was identified as perhaps the single most important and most urgent reform that was necessary. I have dealt in some detail previously — though not here — with the background to this and it is perhaps reasonably well known. It was the resurrection in the seventies of a 1930 Supreme Court decision, which seemed for many years to have been forgotten, Dunne v. Clinton, allied to an important decision in 1965 about admissibility of evidence obtained in breach of constitutional rights, The People v. O'Brien that effectively precluded the Garda from detaining suspects for questioning except under section 30 of the Offences Against the State Act. For a very long period previously the Garda had acted as if they had a power to detain people for questioning and I would think that, if the question had arisen, a majority of people would have assumed that they had.
Even after it became clear that there was no legal power to detain suspects, resort was frequently had to the practice of inviting the person to come to the station to "help the police with their inquiries". More often than not, it has to be admitted, this was operated in such a way that the suspect might have thought that he was in fact being detained and, of course, he would have presumed that the Garda had power to do that. It was only when the admissibility in evidence of statements or confessions was subsequently challenged in court that, eventually, in a series of cases, the courts effectively ended the practice of inviting suspects to "help with inquiries". The consequences have been very serious indeed. In some cases accused persons about whom there was little or no doubt that they had committed serious offences — because they had confessed — were acquitted even though there was no question that the confessions had not been made freely and voluntarily. This is an unacceptably high price for the community in general to have to pay for a defect in the law.
It is to that problem that sections 4 to 10 of the Bill are directed. In my view a responsible Legislature must, especially in present circumstances, respond to the problem and give the Garda the power that they need to do their job properly. Some people have criticised the proposed powers of detention on the ground that they are importing into the permanent law a new concept that has no precedent except in so-called emergency legislation. That is not the case. As I have already mentioned, for many years most people here assumed that the Garda had a power to detain suspects for questioning and the Garda acted as if they had. We are, therefore, quite used to the idea of people who are reasonably suspected of an offence being brought in for questioning and, on that account, it cannot be regarded as a new departure. Indeed, let me once again point out in this connection that section 30 of the Offences Against the State Act is not emergency legislation but is part of the permanent law of the land.
Another objection voiced to the power of detention is that it will encourage the Garda to concentrate on interrogations with a view to obtaining confessions instead of seeking to obtain independent evidence as a result of more traditional detective work. I do not accept that this necessarily follows and, in any event, it seems to undervalue the role played by skilled questioning of suspects in modern police methods. Questioning of suspects — and the availability to the police of a power to compel suspects to attend so that they can be questioned — is widely recognised as an essential part of criminal investigation. The Thomson Committee which investigated criminal procedure in Scotland — its report was published in 1975 — recognised this and recommended that the police should be given power to detain suspects. They said:
The policeman's real difficulty arises in investigations where he wants to interview a suspect or prevent him from interfering with evidence such as stolen property. At present the police are powerless to act without the consent of the very person who is likely to have most interest in refusing to give that consent. Clearly the police should not be entitled to arrest anyone they want to interview but it seems plainly wrong, for example, that a suspected violent criminal with significant evidence on his clothing has to be left at large while the police seek other evidence of his guilt sufficient to entitle them to charge.
The Thomson Committee recommended that the power should be exercisable only where the constable had reasonable cause to suspect the detainee of having committed an offence for which there was a power of arrest without warrant. They also said that:
This power of detention should of course not be exercised in every case in which the police have reasonable cause for suspicion but only when the police consider it necessary to detain the suspect for the purpose of their investigations.
The Bill follows this approach by providing in section 4 (2) that a person may only be detained following a lawful arrest on "reasonable cause" where the member in charge of the station to which he is taken has reasonable grounds for believing that the person's detention is necessary for the proper investigation of the offence.
In England the Royal Commission on Criminal Procedure which reported in 1981 also recognised the importance of a period of detention following arrest, as did the Australian Law Reform Commission. In our country, Mr. Justice Barra Ó Briain, in an addendum to his committee's report, recommended that the police should have a power to detain suspects following arrest.
These are all common law jurisdictions to which I have referred. But we know also from our researches that in continental Europe the position is the same. Every police force that we know of has a power to detain suspects for questioning — generally for a duration of 24 hours — and in Europe of course such a period is usually followed by a further period of examination before a magistrate, which could go on for very long indeed.
Before leaving the question of detention I want to mention particularly the safeguards that are in the Bill and others that will be available when the powers of detention begin to operate. I have said already that arrest — and incidentally let me mention in passing that this Bill does not confer any new powers of arrest on the Garda — must be on reasonable suspicion that an offence carrying a penalty of at leave five years imprisonment has been committed. Then there has to be confirmation by the member in charge of the station that detention is necessary for the proper investigation of the offence. Again there must be reasonable grounds for this authorisation. Six hours is the maximum period of detention unless it is extended by at least a superintendent who must also have reasonable grounds for believing that the extension is necessary. These tests of "reasonable cause" and "reasonable grounds" are, as Senators will appreciate, objective tests and are open to review by the courts. Although the Bill authorises detention for up to 12 hours — which incidentally is the maximum period for which a person may be detained unless he consents to a rest period between midnight and 8 a.m. — the person must be released if within the 12-hour period there are no longer reasonable grounds for suspecting him, and of course as soon as there is enough evidence to charge him he must be charged and brought before a court.
One of the issues that arose when the Bill was being discussed in the Dáil was the possible scope for abuse that might have existed under the original draft if the police could detain a person for successive periods of 12 hours at a time for different offences arising out of the same incident. There was also a view that the Bill could be used in combination with the Offences Against the State Act so that a person could be detained for a possible total of 60 hours for the same offence. The Bill was amended to seal off the possibility of any abuse of that sort and I am now satisfied that it does not admit of any such possibilities.
The Bill recognises the existing right of reasonable access to a solicitor and adds to it by requiring the Garda to inform the detained person of that right and to send notification to the solicitor and to one other person named by him. Special arrangements have been made for persons under 17 years old and of course these provisions must be construed in the context of existing law under which, generally speaking, a child or young person must be allowed to have a parent present during any questioning.
Mention of children brings me to another important amendment made on Report Stage in the Dáil. The detention provisions will not now apply to children below the age of 12 years. I did this to allay the genuine concern felt by many sincere people, though I remain of the opinion that their fears would not have been realised in practice and were exploited by those opposed to the Bill.
In the context of safeguards, perhaps the most important amendment made to the Bill was the inclusion of section 7. This provision makes it binding on the Minister to make regulations providing for the treatment of persons in custody. The regulations will amount to a code of practice governing the treatment of detained persons and will have binding legal force. I also agreed, during the passage of the Bill through the Dáil, to bring the regulations before both Houses in draft form before they are made so that they can be discussed. This is reflected in subsection (5) of section 7.
Before moving to other areas of the Bill let me conclude on detention by saying that no Minister would, I think, come before the Oireachtas with provisions such as these if he were not satisfied that they were essential to deal with a serious situation. I believe the case for these measures has been demonstrated to rest on a rational and logical foundation and, on that basis, I commend them to this House.
At least 8,200 indictable offences were committed by persons on bail in 1983 and there is, therefore, an urgent need to do something about this problem. We considered introducing measures which would have made it more difficult for persons charged with offences to get bail — by, for example, allowing the court to refuse to grant it where there was evidence that the person was likely to commit further offences while on bail — but the legal advice available suggested that this would probably require an amendment of the Constitution.
In any event, making it more difficult for people to get bail would probably have proved controversial on the grounds that such a restriction on the availability of bail might be inconsistent with the presumption of innocence. We opted instead for three measures contained in sections 11 to 13. First, consecutive sentences will be mandatory for offences committed on bail. Second, the limit on the aggregate of consecutive sentences in the District Court will be two years instead of 12 months and, third, failure to surrender to bail is being made an offence for the first time. These measures will, I hope, help to deal with what is, I believe, a problem of scandalous proportions at present.
I want to turn now to sections 15 and 16. They deal with two very specific and difficult problems facing us. There has been a noticeable increase in the use of firearms in serious crimes in recent years and there is a thriving business in stolen property. People found in unlawful possession of firearms of course can be charged with an offence but it is very difficult to get at the source of supply of the weapons. It is said that in Dublin there is no difficulty in hiring a gun to do a specific job and there are those who specialise in supplying them.
Likewise, in relation to stolen property, it never ceases to amaze me how stolen property seems to vanish into "thin air"— demonstrating, no doubt, how "professional" the receivers are at disposing of it and perhaps the large number of people who end up buying it at bargain prices. Sometimes it can be very difficult to charge a person found in possession of stolen property with an offence because evidence of theft or receiving is lacking.
We need to strengthen the law to deal with people found in possession of weapons or stolen property so as to get information about sources of supply and this is what sections 15 and 16 are about.
It has been suggested that these sections would oblige a spouse, under penalty of imprisonment, to give information acquired during marriage about the other spouse. What we have done is to provide that any statement made by a person that would incriminate a spouse will not be admissible in evidence but it would not be possible to go much further than that without depriving the provisions of all value. If it were possible to refuse to give information on the grounds that it would necessitate divulging a communication made during marriage, then it would be open to every married person to use that as an excuse. There would be no way of checking the truth of the matter and, consequently, spurious claims could succeed. The sections would be, I think, valueless. Originally provision was made for 5-year sentences on conviction on indictment for failure or refusal to give information about illegally-held firearms or stolen property. I had this penalty deleted to make it clear that there was no intention either now or in the future to make these offences attract the detention provisions. The offence is now a purely summary one, and is in line with provisions already in the law requiring persons to give information, such as section 107 of the Road Traffic Act, 1961.
A great deal of attention has been focused on the provisions which introduce some modifications to the right of silence. These are sections 18 and 19. Originally there was another provision of a more general nature (formerly section 16 of the Bill as published) but, following debate in the Dáil and having listened to representations made to me by interested groups and individuals, I decided to drop it.
Sections 18 and 19 represent the substance of a recommendation made by Judge Barra Ó Briain in his report. I think they are common-sense provisions that need to be in the law to restore a proper balance to our trial procedures. They do not compel a person to give information or answer questions but where somebody is found in particularly suspicious circumstances — for example, with bloodstains on clothing or at the scene of a crime — and fails or refuses to account for that fact when asked, it will be open to the court to draw an adverse inference from that failure or refusal. The critical point is that the court or jury will only be able to draw such inferences as appear proper. Whether it would be proper in a particular case would depend on all the circumstances and it must be borne in mind that in a jury trial this issue will be the subject of directions by the judge. There are various safeguards, including the requirement that the suspect must be warned in ordinary language and that he cannot be convicted on the basis of an inference alone.
Before concluding I want to mention one or two other important matters. Generally we are tightening up on trial procedures and the provisions about giving notice of an alibi — 14 days notice will have to be given to the prosecution — and abolishing the right to make an unsworn statement at trials have been widely welcomed. Majority verdicts are being introduced. Not everybody agrees with majority verdicts but the Government believe they are right in principle and necessary to deal with the growing number of "hung jury" cases in some of which, at least, there was more than a hint of intimidation. Majority verdicts have been working well in England, Scotland and Northern Ireland for many years and there is no evidence that any miscarriage of justice has ever occurred as a result. The provisions allowing evidence to be given in writing instead of orally in certain circumstances — sections 20 and 21 — are designed to speed up trial procedures by allowing purely formal matters which are not in dispute to be proved in this way. There should be a reasonable "spin of" from these provisions in terms of reduced costs at trials.
Provision is made for the introduction of electronic recording of Garda questioning of suspects. It will be introduced in due course by means of regulations made by the Minister under section 27. Some time before the Bill was published I set up a small committee to advise me on how best this should be done. The committee include an expert in electronic engineering. A great deal of work needs to be done before we can have recording of questioning — whether it is audio or video or both — and field trials need to be carried out to evaluate it. The committee have already examined developments in this field in Scotland and England and will be looking at other jurisdictions. Until such time as the Bill is enacted and section 4 is operational, the field trials cannot get under way because, apart from section 30 of the Offences Against the State Act, there is no legal power to detain suspects for questioning. I want to assure the House that this is a key matter in the context of this Bill, that the Government are committed to it and that it is intended to proceed with all possible speed.
It was urged on me that I should put a time limit on certain sections so that they could be reviewed and a decision made about their continuance in the light of experience of their operation. Although I dislike the emergency flavour that this might impart to the provisions in question I agreed to do it because I thought it would be useful to have such a review after a period. The sections in question are those dealing with detention, withholding information and inferences from silence. The operative provision is section 2. It provides that these particular sections will cease after four years unless continued in force by resolution of each House of the Oireachtas. Statistics on the operation of the sections will be kept as a basis for review. The four-year period does not of course exclude amendment of any of the sections in the interim if that should prove necessary.
The Government gave a commitment when the Bill was published that the provisions giving increased powers to the Garda would not be brought into operation until new procedures for the handling of complaints against them, introducing a strong independent element, were in force. I want to reiterate that commitment here today. The Bill to give effect to it is being prepared at present and consultations with Garda representative associations are proceeding. I hope to have it published in the autumn. While I cannot at this stage comment on the substance of the new procedures, I am confident that they will be widely accepted as being independent and fair and that they will help towards improving the image of the force and the confidence of the public in them.
I spoke at the outset of the difficult task the State has in reconciling some times conflicting rights and which is at the heart of the debate over this Bill. There is, on the one hand, the right of the individual, which is paramount in a free society, to freedom from arrest and detention "save in accordance with law"— a right which has for long been embraced in the concept of the rule of law under which we live. It is incumbent on the State always to show great sensitivity in upholding this right and not to allow it to be endangered by the exercise of arbitrary power. There is also the right of the individual charged with an offence to be tried fairly in due course of law.
On the other hand, and on the other side of the equation, there is the right of the community to have those responsible for criminal acts brought to justice and the corresponding right of the citizen to be protected in his life, person and property from unjust attack, a right that in our legal system has, as I have said, been given a specific constitutional basis.
In attempting to reconcile these rights, a balance has to be struck. I believe the Bill has done so, fairly and properly. The fundamental rights of the individual that I have mentioned are not threatened by this Bill which confers no power that can be exercised arbitrarily. There are, as I have shown, important restrictions, qualifications and safeguards and, in the end, there are courts of law which will not be slow to vindicate those rights and deal with any transgressions.
As regards fairness of trial procedures, perhaps we need to be reminded from time to time that it is not all that long since the position of an accused person was far less favourable than it is today. It is not that long since an accused had very little right to legal representation even in serious cases, could not give evidence on his own behalf and enjoyed only a very limited right of appeal. Nowadays legal representation is the rule, even in minor cases. More often than not it is paid for by the State. An accused may of course give evidence like everyone else and there are extensive rights of appeal both on the merits and on points of law. Trials take up a lot of time and judges and juries are scrupulous in giving the benefit of any doubt to accused persons. The risks of miscarriages of justice accordingly have been greatly reduced.
It seems therefore that fairness has a very different meaning today than it did in the not too distant past. But perhaps we need to ask whether, to some extent, fairness has not been carried too far in one direction and whether our trial procedures nowadays are sufficiently fair to ourselves — the law abiding community. In their Eleventh Report, the English Criminal Law Revision Committee, which comprised some of the most eminent lawyers of our time, had this to say about the concept of fairness:
We need hardly say that we have no wish to lessen the fairness of criminal trials. But it must be clear what fairness means in this connection. It means, or ought to mean, that the law should be such as will secure as far as possible that the result of the trial is the right one. That is to say, the accused should be convicted if the evidence proves beyond reasonable doubt that he is guilty, but otherwise not. We stress this, although it may seem obvious, because fairness seems often to be thought of as something which is due to the defence only. At least there seems to be an idea that the defence have a sacred right to the benefit of anything in the law which may given them a chance of acquittal, even on a technicality, however strong the case is against them. We disagree entirely with this idea. It seems to derive from an unwarranted extension of the principle that, in order that the accused should be convicted, the prosecution must prove their case and perhaps also of the convention that those appearing for the prosecution are not concerned to secure a conviction but only to present the case. As a result the habit has grown up of looking at a criminal trial as a kind of game to be played, according to fixed rules, between the prosecution and the defence; and since the defence are naturally likely to be the weaker (and the accused may very likely seem stupid and helpless), it seems to be expected that the prosecution will refrain from using all their strength and that the judge will take any opportunity to make the contest more even.
The spirit of that passage certainly underlines many of the provisions of this Bill especially perhaps those dealing with trial procedures. I very much hope that Senators will see the Bill in this light. One way or the other I am sure that this debate will be a constructive one. I am, of course, here to listen to the views of the House and to take them into account. In my view the Bill is a better one now than it was when first published.
I look forward to the debate.
