It is up to those who wish to introduce this change to discharge the responsibility of proving that its introduction will have a beneficial effect on conviction rates. It is not up to me to prove that it will not have either on the conviction rate or on the rate at which crime is committed. When this beneficial effect has been quantified, if there is a beneficial effect, then the resultant loss of liberty can be set in the balance against it and a decision reached wherein lies the national interest. It is not good enough to expect Members of the Oireachtas to suspend their critical faculties mainly because of the high regard in which they hold either the Minister who is introducing the legislation or the Government of which he is a member.
I have read carefully the Minister's Second Stage speech and it does not adequately make the case, or even begin to make the case, for the introduction of many of these revolutionary changes into our criminal law. Why was a White Paper not issued concerning this matter? Why was it that the first time the matter was discussed by the Fine Gael Parliamentary Party, with a knowledge of what was in that rather than a hint, was after publication of the Bill? That is not good enough. That is not the way to change the law which has been built up over the centuries.
I should like to refer to the question of the commitment given by this Government to introduce the Ó Briain report and contrast it with what is actually in this Bill. I have completed a textual analysis of the Ó Briain report. It is true to say that the Bill itself in some sections deals with the same area of activity as the Ó Briain report but that is all it does. We are not getting the Ó Briain report. What we are getting is the hard pieces of the Ó Briain report and the easy pieces, the pieces that are favourable to civil liberty, are omitted. For instance, paragraph 47 recommended the creation of the post of custodial guardians. That is not in the Bill. Paragraph 48 deals with the duties of the custodial guardian which of course are not in the Bill. The recommendation in paragraph 49 that detention under The Offences Against the State Act should, in the circumstances of a new Bill, be under the control of an inspector is not brought in under this Bill. There are other matters which may well be brought in, matters like the station log book can be brought in by regulation, and I earnestly hope that the Minister will do that. In section 55 it is recommended that a reasonable time should be allowed for a solicitor to arrive before any questioning should take place. That is not in the Bill. In paragraph 58 it is recommended that the length of questioning of any detainee should not at a stretch be more than four hours. That is not in the Bill. Paragraph 59 deals with the question of a complaints tribunal which is not in the Bill. The question of certain questioning to establish whether a person has been maltreated, dealt with in paragraph 60, is not in this Bill. The question of compensation, in paragraph 61, is not in this Bill.
There are a number of other things which are not yet in the Bill and which the Minister may introduce by regulation — I would recommend him to do so — but all the items to which I refer now are items that should be in the substantive legislation because the regulations could not be wide enough to do these essential things.
Even the recommendation of the chairman, which is included as an appendix to the report and which does not have the status of being part of the Ó Briain report and is not part of the policy of the party that I represent, and is not a minority report — it includes a recommendation that the Offences Against the State Act should simultaneously be amended to reduce the length of detention — is not in the Bill. So the Ó Briain report is not being implemented. I would not be happy if the whole lot was implemented, chairman's appendix and all, but if it was I would be a lot happier than I am now.
I would like to turn to something to which the Minister referred and which was referred to earlier today, section 30 of the Offences Against the State Act. I must warn the Minister that he is being misled: he is allowing himself to be misled in this regard. Before considering the question of detention as a method of investigating crime I would like to examine the present climate concerning section 30 of the Offences Against the State Act, 1939. This, for the benefit of Members, is the section which permits a member of the Garda Síochána to arrest and detain a person suspected of committing certain categories of offences. It is the only basis for the arrest and detention of suspected persons until this Bill is enacted. The Minister in the course of his Second Stage speech, at column 1163, it was already quoted today by Senator Higgins, said:
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 it is part of the permanent law of the land.
This quotation carries on a theme which the Minister has used over a substantial period and which is very misleading indeed. In terms of the literal truth, what the Minister said is of course correct, but it failed to tell the complete truth, and the literal truth is not always the complete truth. It leaves the undiscriminating and the uninformed listeners with an incorrect impression. The impression surely being created by that statement is that actions of the Garda Síochána under section 30 of the Offences Against the State Act are part of the operation of the normal law of the land, and not emergency legislation. That is what it means to the average person listening.
Now to examine the operation of section 30 of the Offences Against the State Act one must examine the section itself and recognise that there are two categories of offences which are the subject of the powers of arrest and detention. First, there are offences under any section or subsection of the Act. These offences, some of which I have listed, are indeed a permanent feature of our legislation, and breaking the law under any of these headings at any time will give rise to the possibility of arrest and detention. In that limited way the operation of the section is not emergency legislation in respect of these offences.
These offences include: usurping the functions of Government; using arms to obstruct the Government; obstructing the President; interference with the military or other employees of the State; printing of certain incriminating treasonable or seditious documents; distributing foreign newspapers containing seditious or other unlawful material. Sections 12 to 14 are concerned with the printing of unlawful documents. Section 15 deals with unauthorised military activities. Section 16 and sections 18 to 25 deal with unlawful organisations. Section 17 deals with administering unlawful oaths and sections 26 onwards deal with various miscellaneous matters including certain public meetings within the vicinity of the Oireachtas — I think a law honoured more in the breach than the observance.
All these items are part of the permanent law of the land and action taken by the Garda Síochána in arresting and detaining suspects under any of these sections is not utilisation of emergency legislation but utilisation of ordinary legislation. It is interesting to note, however, that under all the headings which I have already listed the total number of people charged in the year 1983 was precisely none, according to the report of crime for that year. I cannot say whether people were arrested and detained, but nobody was charged and presumably nobody was arrested under these headings because they are not sections that are used.
The other category of offences represents the overwhelming bulk of arrests under section 30. Indeed if one is to believe the crime report for 1983 it would appear to be 100 per cent of those charged under this section. They fall within the provisions of section 30 only because of the provisions of Part V of the Offences Against the State Act, 1939. What is Part V? Section 35 (2) of the Act provides:
If and whenever and so often as the Government is satisfied that the ordinary Courts are inadequate to secure the effective administration of justice and the preservation of public peace and order, and that it is necessary that this part of the Act should come into force, the Government may make and publish a Proclamation declaring that the Government be satisfied as aforesaid, and ordering that this part of the Act should come into force.
Further, section 36 provides that on the making of a previous order or determination by the Government they may make an order of the list of scheduled offences if the conditions outlined in section 35 (2) exist — in other words if they are satisfied that the ordinary courts are not sufficient to deal with it. It is under this section that the Government made an order, namely the Offences Against the State (Scheduled Offences) Order, 1972 which lists offences under the following Acts as being scheduled offences: the Malicious Damages Act, 1861, the Explosive Substances Act, 1883, the Firearms Acts, 1925 to 1971, the Offences Against the State Act, 1939 and section 7 of the Protection of Property Act, 1875 — that is not the correct name as I was unable to find the correct name.
You will see therefore that section 30 of the Offences Against the State Act is, of course, a permanent part of the law of the land but its extension to an area in which it is now exclusively used, while based on provisions of an Act which forms part of the permanent law of the land, can only come into operation in an emergency situation. I can only believe with regard to the attitude adopted by the Minister and his portrayal of section 30 of the Offences Against the State Act as not being emergency legislation that he has inadequately understood or been inadequately briefed with regard to the total truth. I am sure any objective outsider, and the Minister himself, will agree that while his statement in the Seanad at column 1163, was literally true it did not convey the whole truth to the lay listener.
Whatever about the rate of success of a police operation using detention, which I will consider elsewhere, it is appropriate and, indeed, necessary to consider what experience we have had here with regard to detention by members of the Garda Síochána and to consider whether lessons can be learned from these experiences.
Before getting involved in this area, which is one of extreme delicacy, I do so with no sense of being vindictive either against present or past members of the Garda force but as a contribution towards the very important decisions which will arise in respect of section 4 of the Bill.
The growth of detention under section 30 of the Offences Against the State Act began with the heightening of tension in Northern Ireland. The following is the number of people arrested under the Offences Against the State Act for each of the years 1972 to 1982 — the source is a ministerial reply to a question — 1972, 229; 1973, 271; 1974, 602; 1975, 607; 1976, 1,115; 1977, 1,144; 1978; 912; 1979, 1,431; 1980 1,840; 1981, 2,303 and 1982, 2,308.
It will be seen that there has been a steady growth from 229 to 2,308 in those arrested under section 30 and held for questioning. Whether this increased number of detentions has resulted in an increased number of convictions is a matter which I will consider elsewhere. With the growth in the number of people arrested from 1974 onwards, the treatment of such people became a matter of public controversy. Frequent allegations were made of ill-treatment of suspects in detention. A number of these allegations were made by Republicans and their sympathisers who formed, at least at that time, a substantial portion of those being arrested under the relevant legislation.
These allegations must be considered against this Republican background. The mere fact the allegations were being made by a group of people who had a vested interest in inventing allegations of this type or of exaggerating the significance of certain actions by members of the Garda Siochána is no guarantee that the actual events described did not occur.
The existence of a "heavy gang" was being alleged in 1976 and into 1977.The Irish Times published a series of articles in February 1977. The Minister for Justice at the time denied both the existence of the “heavy gang” or that detainees were being abused in any way. In order to set the scene for Members of this House with regard to the atmosphere of that time it is necessary and I quote briefly — I am aware of the rules of the House — from a book recently published, which I would recommend to fellow Senators, Round Up The Usual Suspects, and the quotations will be found on pages 100 to 103. In the circumstances, the extract is important. Indeed, it is vital to the argument I am making. The quotation is as follows:
Throughout 1975 and 1976 there began to emerge allegations that suspects were being beaten in garda stations. The beatings allegedly occurred during section 30 detentions and were aimed at producing statements from suspects. The allegations were many and varied but were remarkably consistent. They involved lengthy sessions of interrogation during which suspects were made to stand for long periods, were kept without sleep, were interrogated through the night, were pushed from detective to detective, were punched again and again in the same area of the body, were told that they would be held for 48 hours and then rearrested and held for another 48 and that the treatment would continue. Some times the allegations were of terrorising of suspects by such methods, by the complete physical and psychological domination of the suspect by the detectives. There were a smaller number of cases in which the detectives allegedly behaved with a savagery beyond that detailed in the majority of allegations. These allegations involve abuse of the genitals, physical beatings without care to conceal bruises and in at least one case the use of a gun to threaten a suspect.
The book goes on to deal with an individual allegation to which I will not give credence by putting it on the record of the House, but anyone who chooses to examine the book will see the individual allegation. I do not know anything else about it. The book very fairly goes on to put the thing in context, it is very important that the book does this.
The first thing that must be said is that while Republicans proudly boast of their military activities few are ever guilty of crimes, according to themselves and their organisations. Everyone charged is innocent and everyone convicted was framed.
It does put a certain amount of balance in the situation.
The author went on to say:
A number of gardaí have confirmed that a heavy gang existed within the Force during that period. Conscientious gardaí believe that this element harmed the Force in that the widespread knowledge among republicans of the heavy gang's existence lent credence to later suprious allegations of beatings and increased incidence of such allegations.
It goes on to describe the case of a Garda Ó Fiachain who gave evidence of hearing a scream when he was attending to his duties as a member of the Technical Bureau. The author continued:
According to garda he had spoke to, Ó Fiachain was, in the vernacular, sent to Coventry after testifying. He was regarded as a garda who had let the side down. To be treated in that way by one's peers for merely telling the truth is humiliating and upsetting. In such circumstances a garda thinks twice before admitting even to himself that he has heard a scream. The choice is between following the course of truth and duty — and siding against your colleagues and siding with people who, guilty or not, you may find distasteful — or keeping silent.
We must consider the question of whether the "heavy gang" did operate under this emergency legislation because what happened under these detention provisions of section 30 may well happen again in future under any new legislation we enact. There are two possibilities with regard to the existence of the "heavy gang" and the oppressive forms of interrogation alleged during that period, that is, either the allegations are incorrect or correct, and I am expressing no view.
If the allegations are correct obviously the Minister of the day failed in his responsibility to do justice to those who richly deserved it. As far as I am aware no garda was disciplined concerning these alleged activities and the Minister's public posture seems, in fairness to him, to concur entirely with what he did privately.
The other possibility is that there was no truth whatsoever in the allegations that were being made. However, what is an undeniable fact is that a substantial number of members of the general public believe these abuses took place and a substantial number of Members of this House believe it too. Knowing that to be the case the Minister of the day, and subsequent Ministers, had a responsibility to allay public unease by the holding of some kind of inquiry of a nature which would satisfy the public of the untruth of these allegations. No Minister ordered such an investigation. There was no public vindication of the Garda force and the general belief remains that these illegal activities did occur. To repeat myself, even if these illegal activities did not occur politicians of all parties have failed in their duties to vindicate the members of the Garda and by so doing have allowed a climate of opinion to exist whereby public belief that these events took place. The public further believe that those involved were not brought to justice.
In the event of the enactment of the sections of the Bill dealing with detention, it is obviously certain that sooner or later allegations will be made concerning the mistreatment of people held under the provisions of the Bill which we propose to enact. Somebody is going to allege it. On the basis of our past performance as politicians — that is members of Fianna Fáil, Fine Gael and the Labour Party — we will not pursue these allegations and thereby bring to justice those who are responsible if the allegations are correct, nor will we clear the name of the Garda Síochána if the allegations are not correct. On the basis of past experience, the existence of any power of detention, particularly where these powers of detention involve a large number of people, is a development for which the Garda, Irish politicians and the Irish people are not ready. We do not appear to have the objectivity or the faculty of self-criticism which are necessary prerequisites of the extension of the powers in this area.
I do not think I could conclude this section of my speech without referring to the reported activities of the Garda Síochána in the Phoenix Park on the occasion of the visit of President Reagan. The allegations which have been made are of the most serious kind, that people were effectively interned, that they were on a trivial charge and the power which exists for an entirely different reason under the District Court rules — the power of discretion in granting bail — was not used by the member of the police force whose responsibility it was to consider this matter.
Let nobody suggest that there was no other way of solving the problem. I do not know how important it was to get these people out of the Phoenix Park but let us assume that it was. An injunction could have been got from the High Court at a moment's notice because they were on private property. They were doing something which I am sure was not allowed in the park. If they failed to honour that injunction, then they could have been jailed. That is the proper way to go about these things. You give people the opportunity; you operate the law as it should be operated.
I do not intend to quote a further extract fromRound Up The Usual Suspects, but I think it would be interesting for Members of the Oireachtas to examine the way it was described, that the number of people detained under the Offences Against the State Act in respect of the Sallins mail train robbery grew from a list of three or four names into a list of 17. Ultimately, it grew to considerably more than that; between 34 and 40 people were ultimately detained and questioned for the Sallins mail train robbery. It would appear that section 30 was used for a fishing expedition, that the Garda, presumably with certain knowledge, went on a fishing expedition and pulled in as many as they thought were in any way associated with those they suspected. That is a very bad precedent in a police force which would be expected to operate the powers of detention contained in section 4 of this Bill if it is enacted.
In the event of the enactment of the detention provisions of this legislation we must be realistic. We live in the real world. What will happen if allegations are made concerning a member of the Garda Síochána? What will actually happen on the ground? Leaving aside for the moment the question of who will investigate the complaint, the Minister no doubt will have additional information in that regard for us, whether that person is a member of the Garda Síochána or some outside independent authority, ultimately that investigating authority will confront not only the person against whom the allegation is made but his colleagues who may be able to help with regard to evidence as to what happened on the occasion in question. Whoever is doing the investigation will speak to the person against whom the allegation is made and will speak to other members of the force who might be able to help.
Let us suppose, for example, that a person has been detained under the provisions of section 4 of this Bill in connection with some theft and alleges that one of the investigating gardaí used physical force for the purpose of extracting a confession. The investigating authority would obviously interview the garda against whom the allegation is made and would interview such colleagues as would be helpful in establishing the truth or otherwise of the allegation.
Consider, however, the difficulty of a colleague of the garda against whom the allegation is made. It is likely that this allegation when investigated will refer to an incident which will have occurred some time previously, probably at least 12 months previously, so as to allow the completion of the criminal proceedings if any, in respect of which the person detained was being questioned. Here we will have a garda faced with the following dilemma. If he tells the truth and says his colleague did, in fact, assault the prisoner, then that colleague who in all other respects might be an excellent member of the Garda Síochána and a very fine family man, will be disciplined severely and may lose his position. The employment prospects of a dismissed member of the Garda force are not very bright. Balanced against this will be the allegation made by some young scoundrel who has caused considerable trouble to the members of the force over the years and has, in fact, been convicted of only a fraction of the crimes which he has committed, not a very worthy recipient of somebody's charity. In other words, what in "My Fair Lady” was considered a “member of the undeserving poor” rather than the deserving poor.
In the event of the injuries suffered by the assaulted person being of a serious nature I hope that each member of the Garda Síochána would do his duty. But what about the situation where the injuries involved were minor and consisted mostly of terrifying the criminal with only a modest amount of physical violence? What do you believe that the garda will tell the investigating officer? I have no doubt that a substantial number of ordinary gardaí in that position would not disclose the full truth to an investigating officer without the existence of a fool-proof method of checking exactly what went on in each detention case. The members of the Garda Síochána are being put in a position where allegations can be made against them in respect of abuses which did not occur on the one hand, and in respect of cases where abuses did occur there is no possibility that justice will be done except in the most serious of cases because of the adverse consequences of a successful investigation in any such case. The effect on the career of a member of the Garda Síochána of a finding by an investigating officer that a suspect was ill-treated will be so out of proportion to the harm that will have been done to the suspect in the distant past that there is no possibility of the truth being arrived at except in cases of the most serious abuse.
I am now going to consider Garda opinion on the new Criminal Justice Bill and the changes which we should have in the law. I will be referring to Mr. Jack Marrinan, General Secretary of the Garda Representative Association and Sergeant John O'Brien, a frequent contributor to Garda publications, who is a former member of the Central Executive Committee of the Garda Representative Association. I will be referring to the views of Mr. Patrick McLaughlin, formerly Garda Commissioner, to Mr. Frank Mullen, President of the Garda Representative Association and to Mr. P.J. Rogan, General Secretary of the Association of Garda Sergeants and Inspectors. They will form the raw material from which I hope to give the House an impression of what the Garda believe are the powers they should have and draw certain conclusions from that.
As already mentioned, in 1977 Mr. Jack Marrinan did not appear to mention the question of arrest and detention in his speech the source of which I have already given. A curious silence seemed to exist concerning the necessity for detention and the period of detention until the publication of the Bill. One very interesting recommendation and a very interesting suggestion by a member of the Garda force should be examined by this House as a possible solution to the dilemma in which we find ourselves.The Irish Jurist is a specialist publication and it deals with the state of law as it affects criminal matters and commercial matters and generally it is a respected organ of Irish jurisprudence. It publishes from time to time articles written and sometimes reproduced from lectures elsewhere. Volume XVI new series 1981 of The Irish Jurist gives an article written by Patrick McLaughlin who is described as the Commissioner of the Garda Síochána and was so at that time, and it is headed “Legal Constraints in Criminal Investigation”. Commissioner McLaughlin goes through the arguments which have already been presented by the Minister. He indicates the area of difficulties for the members of the Garda Síochána. It is very difficult to disagree with the factual recitation of events that he puts forward, whatever about his suggested remedies. It is interesting to see what he does about this central need for a period of detention. It shows the way in which we are being panicked in this regard by the vociferous nature of the representations which are being made to us. At page 224 he deals with the question of detention and he says, not unreasonably:
Every criminal lawyer knows that even strenuous and at times severe cross-examination often fails to extract the truth, despite the advantage of having the person being questioned in the witness-box on oath and compelled to answer. Major sworn inquiries, like the Stardust Inquiry and the Bantry Bay Inquiry, where all the witness are compelled to answer on oath and are subjected to intense cross-examination, have great difficulty likewise in establishing the truth. Yet garda investigators dealing with cunning, hardened professional criminals, are somehow expected to establish the truth, by first telling the parties concerned that they are not obliged to answer any questions or say anything, and then asking straight, simple questions and recording the answers, if any, given to them. Is it realistic to expect this of them? Why should a suspect not be subject to the same questioning and cross-examination as any witness is in court, not necessarily by the gardaí — not necessarily at a garda station, if someone can suggest a more feasible way of doing it — perhaps at some special forum, presided over by an independent person, where all questions and answers or lack of answers are recorded and certified as correct by him?
I will wear that. It is a very good suggestion. Interestingly enough, if you go back to what I said earlier it conforms very closely indeed to what the Taoiseach said in October 1982, because he said that we would introduce a provision enabling evidence to be given at trial of questions put to the accused before a district justice or quasi-jucicial person such as a peace commissioner and the answers given or refused by the accused.
The Taoiseach says one thing and the Commissioner of the Garda Síochána agrees with him and says almost identically the same thing. Why then are we being presented with something which is not along those lines but specifically allows the questioning to be done by members of the Garda Síochána?
On the publication of the Bill theGarda Review says in its editorial of November 1983:
The period of detention envisaged in the Bill is not as long as we believe to be necessary.
That was an editorial comment.
Sergeant John O'Brien, whose qualification I have given in the November 1983 edition of theGarda Review states as follows:
From experience a period of forty eight hours will be necessary and in some exceptional cases perhaps longer.
In April 1974 the same Sergeant O'Brien is again reported in theGarda News of that month, which is a different publication, as saying:
The gardaí need the power to detain suspects for a reasonable period.
Secondly he says:
The power to question meaningfully suspects.
He further says:
Two periods of six hours would be completely inadequate to allow proper and diligent investigation of any major crime.
Shades of things to come. We are not finished yet. Six and six will not be enough. We will need 12 and 12, and 24 and 24. It appears that over the last few years there has grown within the Garda Síochána a view that a period of detention and ability to question suspects is an essential part of their investigative purpose. It also appears from the quotations which I have given and also from the general tone of their other public statements that the period of detention proposed in the Bill is inadequate in the view of the members of the Garda Síochána.
This Bill deals with the powers of search. In theGarda Review editorial of November 1983 the following statement is made:
We are very disappointed that the Bill does not propose to provide greater powers to search persons, vehicles, houses, caravans and lands for property which is the subject of a crime.
It is further stated:
We need authority to seize a motor vehicle or implements suspected of having been used in a serious crime so that they can be tested forensically.
It further says:
For a long time the Garda have been faced with the absence of a clear power to search for evidence.
In the same month Sergeant O'Brien says in theGarda Review:
There is no warrant in this Bill which could be used to search for evidence of a criminal offence. That is a serious defect.
In theGarda Review of April 1984 Jack Marrinan said in a report on the discussions on the Criminal Justice Bill which took place at the Garda Representative Association Conference:
One of the defects in the Bill is that there is not enough power to search for evidence.
Also the subject of Garda comment have been the Judges Rules and constitutional safeguards. At page 225 of theIrish Jurist already referred to, Superintendent McLaughlin said:
Excluding statements and admissions for technical reasons, or because it is alleged that the gardaí have omitted something or erred in some procedural way, is an anachronism in this day and age.
Sergeant John O'Brien said in theGarda Review of November 1983:
It has long been represented by Garda spokesman that it is unrealistic to expect a suspected person to respond to questioning if at first it is necessary to inform whether he is not required to say anything unless he wishes to do so. The Bill does not recognise the essential evidence gathering nature of the time which the suspect is being detained. If it did the right of the accused person to silence would have been waived, the legal caution modified, and the judges rule restructed.
There is a wide proposal indeed. The right to silence would have been waived, the legal caution modified and the judges rule restructured. In the 1977 speech already referred to Mr. Marrinan proposed that where an investigating garda did not in a particular case scrupulously observe all the procedural requirements in relation to the rights of the accused, a court should proceed to establish as a matter of fact whether the accused was guilty or innocent of the crime with which he was charged rather than throw out the case. He said the whole object of the trial should be to establish the truth and not merely the establishment of the technical guilt or technical innocence in accordance with a set of rules which are increasingly one sided, as is the case now.
In recent times other changes have been proposed by the Garda Siochána. Sergeant O'Brien in theGarda Review of November 1983 proposed that section 8 of the Criminal Law Act, 1976, should be amended to enable gardaí to use reasonable force to apprehend motor vehicles. The same writer criticised the fact that admissions under sections 15 and 16 of the Bill are not capable of being admitted as evidence against the person or his spouse. Mr. Marrinan said in 1977 that it should not be an offence to refuse to answer questions or to give explanations but that adverse inferences could be drawn from silence on relevant issues.
Sergeant O'Brien writing in theGarda Review said that a person should be required to answer questions under penalty of law. An interesting aside on attitudes to discipline is disclosed in a further quotation from Sergeant O'Brien:
On that score it has been said that the Garda Siochána (Discipline) Regulations 1971 are long overdue for review but there is little in this Bill which could be considered an inducement.
The powerful and influential voice of Jack Marrinan said in the December 1983Garda Review that the proposal that gardaí interviewing of detained people may have to be taped could create endless practical difficulties. That is the thin end of the wedge. They will never agree to it. It is not that they are against it. It is just that it will give rise to practical difficulties. Later he reports that the Garda Representative Association at their conference were of the view that they would be inclined to oppose as impractical the taping of interviews — not that they are against it, but that it is just impractical.
Also reported from the same conference is the view that the Garda Representative Association were against delay in the implementation of certain sections of the Bill, pending the completion and agreement of the complaint procedures. Having set up the situation where they will get the powers, and having met with the resistance from the Minister that he will not allow the powers to come into force until such time as certain procedures are agreed, the clear intention of the Garda Representative Association is that they would be against a delay in the implementation of certain sections of the Bill pending the completion and agreement of the procedure. That is the point of view of a powerful political organisation in this country, which the Garda force are.
The review which I have given there of the attitudes of the Garda Siochána as disclosed in articles which appeared in theGarda Review, the Garda News and the outside lecture given by Commissioner McLaughlin is, in my view, a frightening view of the state of mind of the members of the Garda Siochána in their attitude to the review of the law. It would appear from a review of these publications that the Garda, by and large, want the following: (1) A period of detention far in excess of the six hours plus six hours proposed in the Bill; (2) power to search persons, vehicles, houses, caravans, lands and property which are the subject of a crime; (3) greater authority to search a motor vehicle for implements suspected of being involved in a crime; (4) a general power for the Garda to search for evidence anywhere or anytime, even evidence that a crime has been committed — I am not talking about evidence of a crime which is under investigation, but evidence that a crime has been committed; (5) they want the power to stop, by force if necessary, motor vehicles suspected of being taken without the consent of the owners; (6) the unspecified modification of the Judges Rules certainly to eliminate any need for any caution; (7) the admission of statements made pursuant to sections 15 and 16 of the Bill before us, the admission of these statements as evidence of wrong doing by the person giving the statement or his or her spouse; (8) the amendment of the right to silence, probably to what was originally suggested in the Bill which went to the other House. There would be a section that would want more than that.
In addition to the above eight changes it would appear that the Garda consider that discipline regulations should be changed only in a situation where an inducement had been offered to the force. Further, they believe that all sections of the present Bill should be brought into operation prior to the agreement on complaints procedure for the Garda Siochána. What chance has a complaints procedure because, when the Minister introduces the powers, he has no power to suspend them? They are in or they are out. Once they are in, they remain.
In the consideration of these extracts from the Garda publications which I was very kindly provided with free of charge — at someone's expense, not mine — due regard has been paid to contrary opinions where they were expressed. It is just that I could not find any. I could on the question of the amendment of the right to silence. Jack Marrinan's view on that was considerably less virulent than other views. In the cases quoted contrary opinions were not obvious. The point of view being put forward appeared to have editorial approval because at no stage were these views counterbalanced by views put forward by other members of the force who held a different view to examine the publications over a period of 12 months. I completed my examination today. I got them from the Library. I hope this review of what measures the Garda Síochána wish to see introduced will convince the Members of this House that the members of the force in general and those particularly in a position to have their viewpoint published are not competent to advise the general public and the legislators with regard to reform of the criminal law. As I have stated elsewhere, members of the Garda force are too near the problems, too personally involved on a day to day basis. They must of necessity lack the objectivity with which to tackle these problems. In persuading this House to give additional powers to the members of the Garda Siochána the Minister will clearly have looked beyond members of the force to get advice with regard to the overall effect of any change.
I want to introduce two other brief quotations from members of the Garda Siochána to indicate and illustrate additional points which I wish to make. Mr. Frank Mullen, President of the Garda Representative Association, at the annual conference of his association as reported in theGarda News, May, 1984 said:
It never ceases to amaze me and indeed to amaze many of my colleagues throughout the force how easily politicians can support the introduction of new legislation to deal with road traffic offences, licensing offences and such like and how quickly it can be processed through the various stages but when it comes to the serious business of introducing legislation to deal with the ruthless criminals that I have referred to, they do not have the courage to support such legislation. The result is that we have a watered down version of the original Bill as proposed and this will not enhance our ability to cope with the crime situation in the way we had hoped.
The second quotation is from Mr. P. J. Rogan, General Secretary of the Association of Garda Sergeants and Inspectors, also reported in the May 1984Garda News where he said:
...what started out as a reasonable though imperfect piece of legislation designed to give us a better chance of tackling the crime rate now appears so tied up in red tape as to make it unworkable.
Herein lies the essential position of the members of the Garda Siochána with regard to this or any other legislation which might go through the House. They cannot admit that the legislation will be effective because if they do their performance can be judged.
Any Member of this House who has been a member of a local authority — I and many of my fellow Senators have — will realise that there are certain categories of people whose demands literally can never be satisfied. A fire chief will never admit to being satisfied either with the number of men at his disposal or the range of his equipment because by so admitting he leaves himself open to criticism in the event of any disaster. He never has enough. Medical personnel can never admit to having an adequate supply of manpower and facilities — they are always short of something — as to do so is to remove an essential safety valve from them in the event of a public controversy. In precisely the same way, members of the Garda Siochána have a vested interest in maintaining their continual dissatisfaction with the powers and facilities at their disposal. This gives them a ready explanation in the event of crime continuing to escalate and detection rates continuing to drop. They cannot say they are satisfied. If we passed the Bill as it was introduced they would not be satisfied. The markers were already down before the changes were made. They were not satisfied for a number of reasons: Judges' Rules, because six hours was too short and so on. If we passed the Bill as introduced they would not be satisfied because if they said they were satisfied next year you could ask "Why is the detection rate not down?"
You will notice that people who deal with the emotions, like fire brigade men, medical personnel and so on have great political clout. They can always say that people will burn to death or people will die in hospital and that gives them great political clout and allwos them to expand their facilities in an unstructured way. The Garda also have great political clout.
It is not without significance that in discussing the tone and tenor of my remarks today many of my friends warned me that there would be adverse consequences if I said the things I indicated to them I was going to say and have said about the Garda Síochána. I am not saying it is right but that is what they believed. That is the view of the Garda Síochána in the community — it is dangerous to be against them, you will pay if you are against them. I am not suggesting it is right. I do not believe it, but that is what many of my friends think and they are reasonably average, middle of the road, intelligent people.
I come to the essential core of the problem which is presented to us and that is the need for detention. I should like to consider the justification which has been put forward for detention and presented by the Minister in this House and the arguments used by him and by other supporters of detention both inside and outside the Houses of the Oireachtas. I am doing this against the background of the conclusion which I arrived at, that the responsibility rested with the people who were proposing the change to convince those who like myself are against it that they are correct. The members of the Garda Síochána have over the last few years felt some pressure in respect of the manner in which they were carrying out their duties with an increased crime rate, even though it is low by international standards.
It is natural that politicians, representing members of the community, should articulate at least some of the concern of the public with regard to the outbreak of lawlessness. Before going on, I should say that increasing crime rates should be also put against the context of an increase in population. The members of the Garda Síochána felt that these critical statements were either a direct or implied criticism of the manner in which they were carrying out their duties. In that respect they were correct. There is witin the community a very substantial if not majority viewpoint that the Garda Síochána are failing in their task and are contributing to the escalation of crime. In some respects, I agree with that criticism, and I will indicate later why I agree with it, but we should not underestimate the independent nature of the phenomenon of the growth in crime that is independent of the Garda Síochána or independent of the laws under which they operate. There are a number of special circumstances in Ireland which have given rise to increased lawlessness and it is important that we should give proper recognition to these factors which are external to the Garda Síochána.
First, there is the increasing percentage of the population made up of people under 25. It is an indisputable fact that a substantial majority of the violent crimes in society are committed by people in younger age groups. Therefore, it is to be expected that in the event of the numbers of young people increasing as a percentage of the population then the number of crimes being committed will also increase. We should not underestimate the significance of the population bulge of young people under 25 and particularly people in the 15 to 25 age bracket.
The second point is increased mobility. The most significant factor in the increase of crime as compared with when our grandfathers were alive is the increased mobility of the population, and of young people in particular. Obviously in a society confined to walking or cycling potential troublemakers were confined to their own districts where the chances of detection were considerably greater. As a result of this lack of mobility the incidence of crime undoubtedly would be less if we were a less mobile society. As our society has become increasingly mobile our crime rate has escalated.
The third factor, which is external to the members of the Garda Síochána, is increased materialism. The decline of religious practice and the increase in materialism mean that younger people who are in particular affected by the trend are not subject to the same external restraints as their ancestors were. The decline in the practice of religion in urban society in Ireland is an accelerating trend and will of itself mean a growth in the number of offences being committed.
The fourth external reason is political instability. The spread of the international terrorist movement to Ireland through the revival here of the spurious IRA has introduced a substantial number of young people to the use of weapons. The result of this familiarity has made these political activists and those with whom they come into contact more willing to use weapons for the advancement of their material prosperity as well as the advancement of their political aims.
These four factors — the increased number of young people, increased mobility, increased materialism and political instability — have contributed to the growth of offences committed in Ireland. It is therefore natural that this escalating crime situation has put pressure on the members of the Garda Síochána. To some extent that pressure is not fair. Because of the criticisms made or implied by the members of the general public and to the internal self-criticism and their own self-esteem, the Garda have also felt a need to respond.
There appear to have been two kinds of pressures acting on the members of the Garda Síochána requesting additional powers: first, the criticism by the members of the public of their lack of success and, second, a reduction in their own self-esteem as a result of ever-increasing numbers of crimes and an ever-reducing rate of detection. It is my contention that it is the second reason that is, the reduction of self-esteem, that is the real motivating factor, as there is little or no evidence in my experience that the public is aware or even particularly concerned about the detection of crime. As I have said, there is very severe criticism of members of the Garda by the general public, including politicans, but by and large it is centred on a different area, not on the detection of crime. It is not the rate of the detection of crime which is the source of the criticism but the rate at which crime is committed. Some members of the Garda Síochána might respond that if increased detection rates were brought about the level of crime would be reduced. Obviously, in pure statistical terms this is correct, but the realistic possibility of a rate of increase in detection would have to be so dramatic that it is unlikely to occur no matter what additional powers are given to members of the force.
The attempted solution to satisfying the public by increasing the detection rate would appear to be going about the matter in the least efficient and incorrect way. What the public demand of the Garda Síochána is not that they should detect a greater percentage of criminals who commit crime but that they should prevent the crimes taking place in the first instance. That is what they want.
Herein lies my greatest criticism of the members of the force. As far as most members of the public are concerned the solution to a crime is an interesting foot-note to the fact that the crime took place. Most people are more concerned with the fact that they were hit over the head than whether the perpetrator of the crime is ever caught. Similarly, they are much more interested in the fact that their house was burgled, as mine was, than whether the goods were ever recovered or whether the burglar was caught. Where the Garda Síochána have gone seriously wrong is that they have retreated from being a force which is concerned with the prevention of crime to a force which is concerned almost exclusively with the solving of crimes once they have been committed. We want the guards to stop the crimes being committed. As a result of the alienation of the members of the Garda force from the community the force is succeeding in doing neither job, that of deterring or the job of detection, particularly well.
Senator Durcan referred to the increased mechanisation of the Garda Síochána. This increased mechanisation, though obviously necessary, in certain respects has had unfortunate consequences. It has had the consequence of limiting the experience of substantial members of the force to work within the police stations or within their squad cars, which are nothing but travelling offices. Psychologists in America have concluded that a man's car is like his study: it is an extension of his house. Similarly, the Garda Síochána car is not only a method of transport but an extension of the Garda station. In their squad car gardaí feel at ease with themselves, they feel they are among friends but they are not contacting the members of the public.
I would like to pay tribute to the Minister in this regard. The same cannot be said about the centre of the city but the suburban areas of the city are denuded of a meaningful police presence. The increased mobilisation of the Garda Síochána living in these areas — I do not mean mobilisation as members of the Garda Síochána, I mean mobilisation as human beings, as individuals — means that their knowledge of the area has been reduced. The resultant lack of knowledge is detrimental in the crime prevention portion of their task. All of us are familiar with the fact that with the introduction of motor cars we do not know our neighbours as well as we used to. That is a fact of life. We do not know our neighbours in urban areas as well as we used to and, similarly, the members of the Garda Síochána, because of the mechanisation and mobilisation of them as individuals, lack the knowledge of the area in which they live. The resultant lack of knowledge is detrimental in the crime prevention portion of their task.
I am not suggesting that members of the Garda Síochána in suburban areas are any more isolated from their neighbours than the rest of the members of the community but they, in fact, reflect the growing sense of isolation brought about by the use of motor cars as a transport system and the resultant lack of the sense of community which the motor car has fostered. Difficult as the problem has been in middle class suburban areas of urban Ireland, in local authority areas — in this regard politicians are to be blamed for the construction of large areas of exclusively local authority houses — the position is far worse. No member of the Garda Síochána lives in these big local authority areas. In Cork city, where I live, the largest local authority complex in the north side of the city, not only do they not have resident garda but since the foundation of the State they did not have a resident Garda station and successive Ministers have fought shy of the provision of a force as an integral part of that community.
Even in those communities where Garda stations exist the members of the Garda Síochána allocated to these stations do not live in these areas, do not identify with the area or are considered alien by people who live in the local authority houses in the area. It is not without significance that members of the community worried about the outward manifestation of our drug problem have begun to take refuge in the extremists who, whatever their philosophy, live in and are identified with the problems of the people living in their area. In addition to these problems a further problem exists in that the reduction of the number of hours in which a garda is expected to spend on active duty — an inevitable development which I am not criticising — which has meant that the garda in an area in which he is stationed spends approximately 1,800 hours per year, plus whatever overtime he may be called upon to serve, out of a total waking hours in the year of 5,800. That is not total hours, it is total waking hours. The total waking hours is 5,800 and he spends 1,800 hours plus overtime in his own area. Included in that would be visits to courts and the various other things that would take him away from his own area. This represents only 31 per cent of his waking hours. It is obvious that a person who is spending only 31 per cent of his waking hours in this environment will have greater contact with his own circle of friends, which will tend to be other gardaí or people associated with gardaí than they have with the community in which he theoretically serves. Imagine the importance and significance of that in a local authority area where there is no garda to call it his home. Only 31 per cent of any particular garda's time is spent in the area if he is there for all his working life.
The restricted number of hours, which I emphasise is a trend which I recognise is irreversible, has also meant that in Garda stations, particularly larger ones, individuals on duty are in a constant stage of flux and that the continuity which is a necessary part of the investigation of any crime does not exist. I had a practical example of it myself. My house was burgled and three hours after I had reported it I rang to give an additional piece of information, but nobody had heard of the incident although I rang up the same station. That occurred because the shift had changed, they did not know what I was talking about and I had to start again. The Garda appear to have recognised this and have responded positively with a concept which has other difficulties. It is the concept of the special task force which in the main has dealt with the investigation of individual crimes on a once-off basis by teams of gardaí without the normal time constraints applicable to gardaí, an understandable restriction, with regard to the number of hours overtime they work. These special task forces have, of course, given rise to their own individual difficulties but their emergence appears to have been a response to the disjointed nature of the Garda force which is the result of the greater degree of free time and the lack of structural change which has not taken place to meet that demand. This alienation between the members of the force and the community —"separation" might be a better word than "alienation"— is at the core of the frustration people feel with regard to the lack of preventive work being carried out by the members of the Garda Síochána and it is in this area that the people have given voice to their greatest criticism. If detention is introduced it is going to be an additional factor which will tie the members of the force to the Garda station, because when somebody is detained they have to be in there questioning him. This further concentration of the Garda force is an inward looking direction will further alienate members of the force from the community and reduce further the presence of police in the community in their primary crime preventative role. We should be very careful that the introduction of detention does not give rise to the growth of a siege mentality among the members of the Garda Síochána, and that is a considerable risk.
The use of the new power of detention will tackle the problem as perceived by the Garda Síochána, that is the reduction in their own self esteem, a reduction which has been brought about by low detection rate, but it will not tackle the problem which the community want to be tackled: a reduction in the number of crimes committed. In this case the Minister and the Government are proposing to introduce new power which limits the freedom of the individual and there is an onus on those proposing the power to justify its introduction. That is their job. In this case, where the proposal is to introduce detention for the purpose of assisting the Garda Síochána in the investigation of crime, it is essential that consideration be given to the success rate of the period of detention granted by the Oireachtas to the members of the Garda Síochána under section 30 of the Offences Against the State Act, 1939, and the extension by the Government to the scheduled offences covered by part 5 of that Act. No attempt has been made by the Government or by the Minister to show that the use of detention has a beneficial effect on detection rates and no examples have been given by the Minister of improved detection rates in respect of the categories of crime covered by section 30 of the Offences Against the State Act.
In this regard the absence of statistics — and statistics have been requested in questions in the other House — is indeed surprising, particularly in view of the fact that these powers have been considered since 1967. Why is this information not available to us? All we want to know is how successful section 30 has been. If somebody could say to me that it has been very successful I might have a different view of the whole thing but nobody can say that even one person has been convicted as a result of section 30. I am sure one person has but nobody can identify numbers to show the thing has worked at all.