(Limerick East): The procedure I adopted was to bring in a Bill into the Houses of Parliament. I was prepared to change it and did not come in with a Bill and say, “This is it, not a comma can be changed in it”. That was a very good exercise in parliamentary democracy whereby Deputies in a non-political way had a major influence over the type of legislation which was subsequently passed in the Dáil.
Senator Robinson mentioned the proposed regulations for the treatment of persons in custody in Garda stations and welcomed them. She asked me to give a detailed indication of the matters to be covered in them. I am not going to do that. A preliminary draft of the regulations is being prepared. A good deal of consultation will be necessary before the final draft emerges. I do not think Senator Robinson will be disappointed with the scope of the regulations when they are tabled in both Houses. They can be debated before they are made. Again I am changing the procedure. It will not be a negative type of motion whereby the regulations will become law if they are not opposed within the 21 day period. I am going to put down a positive motion asking the House to accept the regulations. Deputies and Senators will get an opportunity to make contributions on the regulations. This is a change from the practice which has been going on in these Houses for a long time.
Senator Robinson also mentioned electronic recording of police questioning. A good deal of study has been done on this aspect by the committee established to advise on how best to implement electronic recording. The committee visited England and Scotland to see the progress that is being made there. They are at present examining the system in operation in selected areas in the United States and Canada. I mentioned, when introducing the Bill, that field trials need to be carried out to evaluate recording of questioning whether it is audio or video or both. Until section 4 comes into force we cannot have field trials because there is no power to detain suspects for questioning apart from section 30 of the Offences Against the State Act. I expect that we will be ready to organise these field pilot schemes as soon as those provisions of the Bill are brought into operation.
Senator Hillery spoke about a legal aid scheme that would be applied to persons while in Garda custody. This was also raised in the other House. In present financial circumstances I do not think there is a prospect of this. I would not see this as a priority. There are other ways of ensuring that we achieve what we all want to achieve. He also asked if a list of suitable and willing solicitors ready to provide advice to such persons would be compiled and if the obligation to provide such a list to detainees would be placed on the Garda. I should like to see a scheme worked out by the legal profession which would take into account the practical difficulties of providing a reliable service outside as well as inside normal office hours which would not involve a financial commitment of any serious nature on the State. If the legal profession can come up with a scheme I would favour it.
I am glad of his support on sections 15 and 16 dealing with the withholding of information about firearms or stolen property. The amount of property that must be available for sale is an absolute scandal. I do not know how it is recycled back into the market. If something like £13 million worth of property is stolen I doubt if it is all sold back into the market by personal contact. I do not believe people steal solely for personal use. Videos are not all taken home for people to watch films. They must be coming back into the market in a manner which looks legitimate. They must be coming over the counter in what appears to be legitimate operations.
These sections will help, not so much in apprehending the individual who has been arrested for theft, burglary or robbery, but for tracing back the source of supply to see how these are coming on the market, in what manner the trade is being organised and who the people are who are organising the trade in stolen goods. These sections will come up for review within four years. As everybody is aware, the most controversial sections of the Bill will cease after four years unless they are reactivated. We will have time to evaluate them over a four year period. It is possible that these sections may not be necessary then but that is more a hope than an expectation. There will be a period in which we can examine how these sections of the Bill are working and they can be evaluated at that stage.
The question of the age of criminal responsibility has been raised. Senator Hillery referred to it. This will be dealt with in a Bill promoted by my colleague, the Minister for Health. It is in an advanced stage of preparation. In an amendment which I proposed in the other House I have accepted that the detention sections of the Bill will not apply to young people up to 12 years of age. Whether that will be the figure for the age of criminal responsibility proposed by the Minister for Health I am not in a position to say. What I have done in that amendment is not to change the age of criminal responsibility, but simply to limit the sections of the Bill to people over that age.
Senator Durcan made a great number of points on various sections of the Bill. Many of them would be appropriate for discussion on Committee Stage. I agree with him fully on the need for improving the training of Garda and developing the relationship between them and the people they serve. I said that in my general introductory remarks. I appreciate the crucial importance of this. I want to stress that because of the method of recruitment I have had no opportunity to introduce a new recruitment scheme and consequently it would be difficult to introduce a new training scheme, because no recruitment scheme for gardaí has been initiated since I became Minister. We have been drawing from the examination results of a scheme that was in operation when this Government came into power.
Senator Michael D. Higgins made a very long and worth while contribution. Naturally I respect his views.
While I do not go along with much of what he says I am prepared to listen to him. I know he has very strong views on this Bill. There may be a tendency, as he says, to publicise particularly bad crimes. There is no getting away from the fact that in large urban areas there is a huge increase in the incidence of house-breaking, car stealing and mugging and so on. Ordinary people have been telling their public representatives and through them successive Governments that something must be done. I am putting the Bill forward as part of an answer but I intend to do many other things as well.
Those of us who meet our constituents on a weekly basis at clinics are very much aware of the concern in relation to the crime situation. Based on my experience I am surprised at some of the contributions. I find that law and order in general is a stronger political issue in corporation housing estates than it is in private housing estates. It is an extremely strong issue because frequently these are the people who consider themselves to be most at risk. I find also that law and order is a very strong issue among young people because they find themselves at risk from the small minority of other young people. I have heard many young people talking about the need for changes in the law, about putting gardaí on the streets so that they can leave a disco at night and walk home with their boy friends or girl friends without fear of being interfered with, without fear of being attacked or mugged. I am talking about my own city and about what Deputies tell me is the case in Dublin as well. Some of the contributions, therefore, indicated a perception of what the situation is like on the ground that is different from the perception I have as a result of talking to people in my constituency.
Senator Higgins spoke also about the importance of community public relations, neighbourhood watch and so on. I fully agree with this. I think the procedure I have adopted and that the Commissioner has adopted is the correct one. There are a number of areas which I think will prove fruitful — either the community watch and the identification of property and marking of property schemes which are being introduced or the individual garda who becomes the community garda in one particular housing estate in one particular community. Any of these approaches is valid. What works in one place might not necessarily work in another. I do not think there is one solution. There are a number of things being tried in different parts of the country now and when these are evaluated we can proceed to extend them. When we talk about community watch we are not talking about groups of concerned citizens patrolling the streets. We are not talking about vigilante committees; I absolutely deplore the work of such committees. Even if we accept that many of these committees were set up by people who were concerned about the level of lawlessness in their communities they are being infiltrated by the Provisional IRA and, whatever the concern of the community group, I warn them that to invite in that particular wolf, no matter what brand of sheep's clothing it happens to be wearing at the time, is to put communities at extreme risk. We must be careful when we move towards community policing and the involvement of communities in a structured way with the work of the police that we do not advocate, favour or support any movement towards vigilante groups and certainly we are not going to provide any soft introduction into decent communities for members of subversive organisations under the guise of helping those communities.
The Senator spoke about the provision in section 7 which, he said, offered the guarantee of immunity to the Garda from criminal and civil proceedings. That is not so. Subsection (3) of section 7 proposes that a failure on the part of a garda to observe any provision of the regulations governing the treatment of persons in custody shall not of itself — and I emphasise, "of itself"— render the garda liable to any criminal or civil proceedings. But that does not give an immunity. If a garda breaks the criminal law he is subject to its sanctions. If a garda does something which puts him at risk of civil proceedings there is nothing in this section which gives him an immunity from civil proceedings. The point being made is that these regulations could be quite detailed. They could involve things which are neither criminal offences — or would give rise to civil proceedings. If somebody is supposed to fill up a form putting in name, address, time of arrest, time in custody, occasions on which the person had meals, and he omits to do one of these things, there is no reason why that should be a criminal offence. It need not be a matter for civil proceedings. We should not invent criminal offences for the Garda Síochána which are not criminal offences for the rest of the community. There is no immunity being given in the section. It shall not, of itself, render him liable, but he could be liable under existing law. As I said previously, any failure of this kind, even though he would not be liable to criminal or civil proceedings, could be matters for disciplinary procedures. Again it is worth remarking that the treatment by the Garda disciplinary authorities could be more severe for something like this than the treatment of an offence in a District Court where a very low level of fine could be applied.
I agree with much of what Senator Lanigan said. Some of the points he made will be coming up on Committee Stage and we can deal with them then. I agree with him that the majority of gardaí want the Bill. He said they want to have a situation in their particular areas where they can control the orderly living of people within the area and that they are not interested in harassing anybody. He said there are many gardaí who take a lot of harassment from people and that they do not over react but that we hear about the small minority of gardaí who over-react at times. The Senator praised the vast majority of the gardaí for the constraint they have shown in dealing with difficult situations. That point needs to be made as well.
Even if we come across situations in which gardaí over-react, we should not move too quickly from the particular to the general because, if we do, we can undermine public confidence in the majority of the force who are doing a very good job indeed. There is a difficult situation for us as public representatives in this matter.
People who have contributed in this House have done so in a very fair way, even when they were advocating what they saw as serious criticism of the Garda Síochána. I would not agree with them in all respects but they certainly have the right to do so and this is the place to do it.
Senator Lanigan mentioned also the new complaints procedures and the regulations. I have already dealt with that and I have indicated what my intentions are.
Much of Senator O'Leary's speech dealt with the broad basis underlying any review of criminal law. He put the present level of crime in the context of the general social and economic policies and the economic situation in the country. I do not share his fears of introducing a power to detain people who have been properly arrested while an offence is being investigated. The Garda effectively had this power over a long period in the past and neither the courts nor the legal profession ever suggested that there was anything extraordinary or draconian about it. A series of court cases in the seventies put them in a situation where what they thought to be proper and legal was found not to be legal or proper, and a power which they had since the foundation of the State up to the middle seventies was taken from them. We can argue that they were acting illegally, but they thought they were acting legally. It is quite common that loopholes in the law are found in court proceedings, and it is then the job of the Oireachtas, if they see fit, to restore the particular power, and that is what I am proposing in this Bill.
We cannot approach the Bill as if there was no law outside it and as if there were no courts and no Constitution or no safeguards at all. There are safeguards in the Bill, but there are other safeguards as well. Gardaí as members of a particular force, a disciplined force, are liable to sanctions for their misbehaviour under civil and criminal law, and they also have a very strong disciplinary code of conduct. Some members of the public have become concerned because they have seen in the papers over the last 15 or 18 months many situations in which gardaí were before the courts. Individual members of the force were brought to court for one thing or another, and the reaction was that the Garda are in a frightful state — a garda is up for one thing one week and the next week another garda is up for something else; how can we carry on like this? There is another interpretation that can be put on it also, and I would advocate it seriously. The fact that the Commissioner of the Garda Síochána and senior gardaí investigate the gardaí concerned and bring them before the courts for quite serious offences is a matter which can inspire the confidence of the public in the people who are running the Garda Síochána.
Senator O'Leary says that I want to — and I am quoting him — remove the inviolability of individuals from arbitrary arrest and to allow police forces to arrest an individual on the merest suspicion of their involvement in some not so serious crime. The Bill does not give new powers of arrest to the Garda Síochána. The present law does not allow arbitrary arrest on the merest suspicion. Merest suspicion is not enough to justify making an arrest, and the Garda are amenable to law and to an action for wrongful imprisonment. Senator O'Leary also mentioned the desirability of having a White Paper. I dealt with that when I was dealing with Senator Robinson's contributions. Senator O'Leary complained that the Bill is not implementing the O Briain report. Of course, it does not implement the Ó Brain report because many of the recommendations in that report are not appropriate for legislation, but they will be included in the regulations. I do not think every part of the Ó Briain report is sacrosanct by any means, but I think those who have read the report and are interested in it might be surprised when we come to the end of the process and see how much of the O'Briain report has been incorporated.
There also seems to be a view abroad that something that is done by statutory regulation is some form of second-class law and that for something to be effective it has to be in the text of the Bill. Of course, it does not. What is done by statutory regulation has the same force of law as what is in the Bill, and if the regulations governing the detention of people in Garda custody which will be debated by both Houses are signed by me they will have the force of law the same as the Bill will have the force of law. There are certain matters which are appropriate for primary legislation and there are other matters which are appropriate for regulation, and the treatment of people in Garda custody is a matter which I maintain is appropriate for regulations, and there is no question of my rejecting the recommendations of the Ó Briain report. I am saying that many of these recommendations will be included in the regulations. Senator O'Leary made many positive suggestions for improving police-community relations, and certainly I will give consideration to them.
Senator Fitzsimons recommended that the question be considered of providing legal aid to persons in custody before they are arrested. Again, I have commented on this and have given an indication of where I stand on it. Senator Fitzsimons also mentioned that tape recording should be introduced as soon as possible with an assurance that the tapes cannot be interfered with. I have said that I will be introducing pilot schemes, but it would be impossible for me to put a section into the Bill which said that the detention sections could not operate until all the interviews had been taped, either on sound or video, because there has been very little research into this matter in this country. I have set up a committee, this matter is being researched at the moment and we will proceed with the pilot schemes as quickly as we can.
Senator Ellis suggested that the tape recording of questioning should be made available to the person concerned and to his solicitor. He also suggested that the person should be enabled to set the timing of the recording. The Bill as initiated included a provision for giving, as of right, a copy of the tape recording to the person or his solicitor, and this was deleted during the Committee Stage in the Dáil in order to protect the rights of third parties who might be endangered as a result of disclosure of the contents of a recording. It is envisaged, however, that the facilities for listening to recordings will be made available to the person or his solicitor for the purpose of his defence. With regard to the timing of the recording, this is one of the technical matters that is being examined by the special committee I have established.
People, quite wrongly, suggested that there was an attempt to water down this section of the Bill by the amendment I moved in the Dáil. There was no such intent whatsoever; but on examination it was found that, if somebody in Garda custody makes a statement about a third party, obviously the third party can be affected and if the tape containing references to this is supplied both to the accused and to the solicitor there is a problem there for third parties. There is a problem also of intimidation if serious criminals are questioned. If somebody involved in criminal activity gives information to the Garda Síochána about other serious criminals and a tape of that information is available, that would put the individual who has given the information at risk. If we transfer that kind of scenario to the activities of subversive organisations, how long would it be before it would be mandatory on members of subversive organisations to hand up every tape of any questioning that was conducted in the Garda station so that it would be monitored by their superiors in whatever kind of command structure they have.
Senator Ellis suggested that fingerprints should not be taken before the person is charged since in his view it removed a basic civil liberty. I do not agree with this. One of the reasons for taking the fingerprints of a suspect is to establish by comparison with prints found at the scene of a crime whether he is connected with the crime. Fingerprints can bring about a situation where suspicion is removed from a person just as easily as suspicion is cast on a person. They can be for the benefit of a person. Fingerprinting is essential to the investigation of crime and it is important that this power be available to the Garda. We have a situation where it is impossible for the Garda to take fingerprints of suspects in ordinary crime situations. We have a rampage of burglary all over this city, and it the Garda find fingerprints they cannot match them up with suspects because they have no power to take the fingerprints of suspects. If they find stolen cars abandoned and find that the cars have fingerprints on them — I understand the surface of a motor car is very effective for the retention of fingerprints — again the Garda do not have power to arrest and fingerprint the people they may suspect of having been involved. That is a serious loophole in the law and it is a power being given to the Garda here which I think it will be very effective in the fight against crime.
Senator Ellis also made the point that the Bill does not provide or guarantee that copies of fingerprints records will not be made by the Garda before the originals are destroyed. That is not correct. Section 8 of the Bill provides that every record of a photograph, fingerprint or palm print must be destroyed as directed by the section. There is a strict statutory obligation on the Garda and any failure to comply with it would leave a garda open to serious disciplinary action.
I am sorry that Senator McGuinness left so quickly this morning before she heard my explanation. She also made a contribution to the Bill. She said rightly that the Bill is a response to the demands of the public and the Garda that something be done about the breakdown of law and order. She has doubts as to whether it is a correct response. She went on to refer to the widespread evidence of crime but said that it is nowhere near the level prevailing in the 19th century. This argument has been put forward before now and, with due respect to the Senator, it is a silly argument.
If the standards of the 19th century in society are to be the standards under which we legislate and rule this country, the Senator might have a look at life expectancy in the 19th century. She might have a look at the treatment of children in the workforce in the factories of England. She might have a look at the number of women who died in childbirth. She might have a look at a whole range of statistics from the 19th century, and I suggest that if she finds the crime levels of the 19th century acceptable she will find it very difficult to accept many of the other statistics. It is a spurious argument which has been repeated in newspaper articles and by opponents of the Bill. It is a silly argument. Senator McGuinness also referred to the provisions of electronic recording of questioning. She expressed doubts that it would ever be introduced. This matter was adverted to by other Members also and I have dealt with it. I have said what is to be done.
Senator Lynch posed a number of questions in relation to the operation of various sections of the Bill. He asked how the member in charge of the Garda station could form reasonable grounds for operating detention under section 4 immediately on an arrested person's arrival at the station. He suggested that the person should be informed orally and in writing of his right to consult a solicitor. He had a number of queries also on sections 11, 15 and 16 and I am sure he will raise them on Committee Stage when we are debating the regulations. I do not want to go into that level of details at this stage of the Bill.
The Senator asked if I would submit a summary of all the representations I have received in relation to the Bill in order to afford Senators an opportunity of making a balanced assessment of the Bill. Many representations came from many organisations and the great bulk of them have been published and circulated to all public representatives as well as to me. Certainly I got recommendations on a confidential basis and I will not do that in regard to them, but I think that the main submissions made on the Bill were circulated to all Deputies and Senators and there is no need for me to re-circulate what was in effect sent to everybody already.
The Senator spoke also about the complaints procedure. He was concerned that under the new procedures the responsibility of the Commissioner for discipline might be affected and that a garda might run the risk of double jeopardy. As I said, the complaints procedure would contain a strong independent element and it must impinge on the Commissioner's role in relation to matters of discipline in so far as they are connected with public complaints. I think we should leave this for the detail of the Bill, but I will take into account the point the Senator has made.
Senator Honan sought a guarantee that the people in detention would be treated properly. She suggested that formal instructions should be given to the Garda on their obligations in this regard. This can be done. The regulations which I will be making under section 7 of the Bill to which I have referred will contain a comprehensive code of statutory instructions which will be binding on the Garda. The emphasis in these regulations will be on the proper treatment of all persons held in Garda stations.
Senator Brendan Ryan is a very strong opponent of the Bill. I understand that his contribution was made yesterday. He also made a submission to me previously and has been involved in the public debate. I am sorry that I was not here to listen to him but I think I know his views in detail because he made a submission to me and has been involved actively in the debate. He opposes the Bill vehemently. I have a list of the many points he made. He talked about a campaign of fear and hysteria about the crime situation. There is a fundamental disagreement in my attitude here. There is real fear about the crime situation. People, especially older people, are in real fear. People in corporation housing estates are in fear. Many young people are afraid to come into town at night. It is not hysteria, it is real and there are good, sound reasons for it and an obligation lies on me as Minister and on the Government to do something about it.
The Senator said that reasonable suspicion as a test of gardaí arresting people would bring about a situation where the Garda would have preconceived notions about certain minority groups in society. I do not accept this. Generally speaking the Garda operate the powers they have very fairly. No new power of arrest is being given the Garda Síochána and I have no evidence that particular minority groups are picked on by the Garda Síochána. The Senator said that the powers of search in the Misuse of Drugs Act are too wide and that they are being abused. I have no evidence that they are being abused, but certainly the powers of search in the Misuse of Drugs Act are wider than any powers of search in any other areas of the criminal law.