Seanad Éireann debate -
Wednesday, 26 Sep 1984

Vol. 105 No. 7

Criminal Justice Bill, 1983: Committee Stage (Resumed).

Debate resumed on amendment No. 3:

In page 3, before section 2 to insert a new section as follows:

"2.—(1) Each of the following sections, namely, sections 4 to 6, 8 to 10, 15, 16, 18 and 19 shall remain in force only until the expiry of the period of twelve months beginning with the commencement of that section, unless it is continued in force by an order under this section.

(2) Subject to subsection (3) of this section the Minister may by order provide at any time when any of the sections referred to in subsection (1) is in force that that section shall continue in force for a period not exceeding twelve months from the commencement of the order.

(3) Every order proposed to be made by the Minister under this section shall be laid in draft before each House of the Oireachtas and shall not come into effect unless a resolution has been passed by each House of the Oireachtas resolving that that section should continue in operation for a further period not exceeding twelve months."

—(Senator Robinson.)

Mr. M. Higgins

Yesterday we had a discussion on this amendment and both of its elements but I am not so sure that these two elements have been replied to explicitly. The first is the principle of there being a continuous review rather than a review of the operation of the sections of the Bill referred to within the amendment at the end of four years. I would like to add a word about that which I think is important. I see the principle of the review as being very important and it is simply repetitive to welcome it at this stage. It has been generally welcomed by every Senator who has spoken on this amendment. However, given the nature of the review at the end of four years we must realise the importance of there being a principle of continuous review. One Senator spoke yesterday, for example, of the value of statistical material being provided at the end of this period and I agree with that point, but I want to re-emphasise the point made by my colleague, Senator Robinson. Suggesting that statistical information would be provided is but one element of the overall monitoring and review of the Bill and its implementation. Put another way, the quantitative side of the impact of the Bill is but one aspect but the qualitative interpretation of the Bill in terms of the interpretations of the section, the behaviour to which it gives rise, the relationships that are changing and so on, are equally important.

The general historical review of the operation of current statistics will make a valuable contribution when the National Economic and Social Council document is published and the work of Dr. David Rothman in this regard will be a very valuable critique, because as those who have so far published work in this area have pointed out, we lose thousands of crimes every year. In other words, if one looks at the report of the Commissioner to the Minister for Justice in any year one will find that buried within that report are crimes that were in process from the previous year and it is impossible to know which crimes were in procedure from the previous year to that again. When one reads that report one cannot say that these are the crimes of that year. It is impossible to say that — I emphasise this because it is a very great detraction from the value of the statistics that might be called the crime rate — and neither are crimes balanced one year from another. This is not simply an academic point. I am not suggesting that anyone would do this, but I am suggesting that it is possible, taking one year with another, to have a particular kind of presentation of the third kind. This would be possible especially given the way the statistics are presented at present.

With every Senator I welcome the importance of this review concept and recognise that it is a real hurdle. Replying initially to this amendment the Minister's argument was that any Minister who might succeed him, or any administration that might succeed the present one, could make up their own minds but, given the nature of the legislative process and the experience we have had in bringing legislation before the Houses, it is not very realistic to assume other than that at the end of that four year period people could draw a sigh of relief and say that now that the Bill is with us we will have a long period without review. I acknowledge the fact that the concept of there being a review is an innovation and a welcome one.

Another point in the amendment which specified the reduction of the period from four years to 12 months was justified from day one. It is being made perfectly clear that these new powers, about which so many reservations were expressed and about which it was felt necessary, for example, that there must be a demonstrable presence of balance between the giving of new powers and the establishment of bringing regulations into existence, are being taken seriously. The shorter period emphasises the fact that this subject was being taken seriously from the introduction of the Bill. I am not entering into the spirit of there being an auction between a period of 12 months and four years, but I was impressed by the arguments made by Senator Eoin Ryan and by other Senators that if you wanted to incorporate the procedures of a whole year's working you need a period between 12 months and four years. If it is impossible with there being an outer limit to accomplish so much, and mention was made of certain difficulties that arise in the first 12 months, it would be useful in replying to the amendment if the Minister specified what he feels might be a more appropriate time. The short answer is that he has already done this in agreeing to the period of four years, but it seems to me that there is quite a distance between the arguments used to address the suggested period of 12 months and the arguments that are necessary to explain why you need a full four years.

Mr. B. Ryan

I want to make a few points and I will try to be brief. I, like Senator Higgins, have been impressed with some of the arguments presented by the Minister and by Senators about the problems of a one year review. I am not convinced yet — I would not hold too heavily to it — but what I have not got yet is any insight into the Minister's mind about the idea of a continuous and regular review, which, having listened to the discussion on this section, is probably more important than whether we have one year or four years. It would be easy to amend section 2, to put a few words at the end to the effect that it would continue in operation for such period as the Houses of the Oireachtas may then decide, so as to ensure that the question of a regular review would actually be implemented in principle, but we would not tie people's hands to one year or four years. There would then be at least the principle of a regular review by the Houses of the Oireachtas of these powers. It would be helpful for me, and perhaps some other people, if we had some idea of the Minister's thinking on the principle of a regular review of the operation of those powers.

Minister for Justice (Mr. Noonan,

Limerick East): Two concepts are being debated here. The idea of a review is accepted by everybody, and the two issues that arise are whether reviews should be continuous and, secondly, after what period should the first review take place. This Bill has been going on for a long time and it evolved that we all had different views as the debate continued. Deputy John Kelly advocated the idea of a review on Second Stage in the Dáil. I took that idea on board and said on Committee Stage that we would have a review after five years. I was incorporating there the principle that there would be a review. I did not examine very closely the length of time. I examined it but I said five years initially. Once the idea of a review came in on Committee Stage people began to examine what the appropriate length of time would be and I outlined yesterday the kind of thought process in the various parties which eventually arrived at a consensus between the three main parties that we would have a review after four years. It is very important that adequate time be given for those sections which deal with court procedures for the various appeal processes to be gone through and gone through in more than one case. That means that it is in the area of three or four years. It is not possibly to evaluate adequately those sections of the Bill without that length of time.

On the detention side, depending on the time of year on which the Bill becomes law, 12 months could easily become seven months on account of recesses of the Dáil and various other activities in which we get involved. By any test 12 months is much too short. The first 12 months of the Bill is not necessarily going to be the typical operation of the Bill. I would see the Garda as being very cautious initially and treading very carefully, and I hope they will continue cautiously subsequently. The first 12 months of the operation of the Bill would not necessarily be typical. If the review was to take place then and the Dáil said that this is part of our law from now on, I do not think that would necessarily be helpful.

Another consideration weighed with me but not very heavily and I do not want to make too much of it, but I think it is worth mentioning. This administration has approximately three years to run. Anybody reviewing this legislation certainly would have to start 12 months prior to the date of review. If we came back to three years we would be talking of a review commencing in two years time. I would be doubtful whether the present Minister or present administration who would commence the review would be the administration who would bring the results of that review into Dáil Éireann, and you could have the review split between two administrations. I do not want to make too much of it, but it is a point worth making. The four-year period is the length of time I would prefer after careful consideration, and that is the length of time in the Bill.

Regarding the idea of a continuous review, the whole idea of the review was that in certain sections of the Bill we are going into an area that has not been dealt with previously in our courts and it is prudent to be cautious and to evaluate how effective the new provisions of the Bill are. We have a great deal of experience of detention on account of the Offences Against the State Act and a review of that provision would be desirable as well. On the detention side, it is not fair to the Garda Síochána to operate on the basis that we must review and continue to review section 4. If section 4 over a four-year period is seen to operate fairly, if it is seen to operate effectively and if it is generally accepted that it is a help to the Garda Síochána and that it is not cutting across the rights of citizens, then we will be in a position to decide whether it could become part of our permanent law. Consequently, I am not in favour of the idea of a continuous review.

Neither here nor in the other House have people cast aspersions on the Garda Síochána but a criticism of the powers conferred on the Garda can be interpreted by them as very strong criticism of the way all gardaí behave. We have only one Garda force, and it is essential to the Garda that their morale be reasonably high. It is the only force we have and since 1970, 11 of them have died for us in the course of duty, and we should remember that. I am aware that Deputies, Senators and members of the public can point to individual examples of gardaí misbehaving. I can also. Over the last 12 months or so the activities of the Garda Commissioner in ensuring that anybody who is guilty of any offence was brought very quickly to justice brought about a situation for months on end of cases in the evening papers of a garda being before the courts for this, that or the other, which caused a certain amount of concern. If people had looked at the dates of the offences they would have seen that matters were being processed which occurred in 1979, 1980, 1981, 1982 and 1983. People who are worried about individual members of the force should advert to the fact that there was no attempt not to bring people before the courts, that these people were brought before the courts and the Book of Evidence arose from the investigations by their colleagues in the Garda Síochána on the directions of the Commissioner.

In the circumstances I have outlined the situation is always difficult, but the Garda need our support now more than ever before, not only on the criminal side but when dealing with subversives as well. I am not suggesting in any way that if a garda misbehaves he should not be subject to the full rigours of the law and to his own disciplinary process, and he is, but we should not always go from the particular to the general; because we can name A, B and C we should not decide that we do not trust the Garda or that they are a force in which we cannot place our trust.

That is not just a purple patch introduced into the debate by the Minister. If I were to say now that an initial review after four years and an evaluation of the new powers being given to the Garda Síochána have to be followed by evaluation again after every 12 months or every two years after that, it certainly could be misinterpreted by the Garda Síochána. When this comes before the Houses of the Oireachtas in four years time I would have no objection if, instead of a positive resolution saying that these powers will now become a permanent part of our criminal law, a subsequent Minister for Justice says he thinks it would be a good idea for such-and-such a reason that there would be a further period of evaluation. If a Minister and the Oireachtas decide that, then there is a very easy mechanism for doing it. It would be a very minor amendment.

I think the four-year period is the right period. If a subsequent Minister or a subsequent administration decides that a continuous review is necessary, I would have no objection to that, but I am not going to tie the hands of a future administration, for the reasons which I have outlined.

Mrs. Robinson

A number of different issues arise from the discussion on this amendment. As the Minister stated, the idea or the principle of review is accepted by everyone. There is a form of that in the amendment which he introduced in the Dáil, that is a once-off review after four years.

The second and separate issue is whether it is appropriate to consider in the same way the powers to arrest and detain in section 4 and the other sections which relate to what can be done with the person when detained, and the sections which refer to the inferences which can be drawn in the course of court proceedings. Having listened carefully to the contributions from Members of the House and, indeed, to the Minister's point on this, distinctions can and should be made between the kind of review for the sections which relate to inferences being drawn and referred to during court proceedings and the necessary time that would pass for that procedure to come into effect, be operated and be capable of being reviewed and the situation in relation to section 4, and the sections which refer to the powers of detention, and the steps which may be taken by the Garda Síochána when a person is arrested and detained under section 4. I accept that distinction and that it would be premature to have a review of the sections where inferences are drawn during court proceedings within the first 12 months and, possibly, one could say that 12 months was too close a period for a continuous review.

Let me come now to the principle of reviewing. If the Minister accepts, as he does, and the House accepts, that there should be review, then it seems to me to be illogical not to carry that through to there being a periodical review. If there is a need to review the particular sections of the Bill then there is by the very nature of it a concern about what would happen in the future. If the position were, as the Minister now has provided for in the existing section 2, that there was a once-off review which would take place four years after the sections were implemented — probably somewhere around five years from now; certainly four and a half years from now if the sections are not going to be brought into force until there is legislation establishing a complaints commission and the Minister has provided for regulations under section 7 of the Bill — what about the concern for any practices, abuses, of cutting corners or patterns of behaviour which may emerge after those four years? Surely if the principle of review is conceded then the logical follow-up of that is that we must have periodic review of that kind because, human nature being what it is, if there is not that scrutiny and review then the very concerns that led to an agreement across the board of the need for review would be there for the need for a further review. If that is the case we may be talking about two different periods of review. That may well be and I certainly would be prepared to consider that and, perhaps, table an amendment or, indeed invite the Minister to table an amendment on Report Stage for a review which could well be within that period of the sections where inferences are drawn during court procedures. In other words, the later sections, sections 15 to 19. However, very different considerations I would submit apply to the powers to arrest and detain for questioning and the various physical and other things which can be done to somebody who is detained, and the various safeguards which are built into the Bill and how they would operate. I am as much concerned about how the safeguards would operate, whether a person would have in practice the access to a solicitor which is provided for, the access to a parent or guardian, the right to the various safeguards which are already written in and which, I hope, we will continue to write in during Committee Stage debate here.

I mentioned already that the power to detain will be well in operation within that 12 months. We will know how it is operating in the first 12 months and it can be reviewed at that stage. It may be the actual period which is effectively reviewed is some seven or eight months and I do not think that is very important. It is more important that there should be the first review. I maintain that there should from then on be an annual review. Section 4 is not a section of the criminal code which is totally akin to other sections. It is a section which has evoked an extraordinarily widespread debate and a great deal of fear and apprehension, based on the knowledge that we have, that powers are abused. This is in no way to make a general attack on the Garda Síochána. Far from it.

A review of this kind could be a great protection and safeguard to the Garda Síochána. I do not accept the Minister's assertion that it would not be fair on the Garda Síochána. Why should it not be fair that where powers are being exercised they would be reviewed? Surely anybody who is exercising statutory powers should be accountable for those powers? We are going to establish a complaints commission where individuals may pursue complaints. The review in question would be a review in relation to the general patterns of how the powers to arrest and detain under section 4 and the safeguards which are built into the Bill were operating. The business of the Oireachtas is to monitor and review powers about which we are deeply concerned and when we come to a full debate on section 4 some of these concerns will be thrashed out. There is very good reason why we would be concerned based on existing experience and past history and also on the scope of the powers and the extent to which they involve a departure from the existing balance in relation to the rights of the individual and the powers of the Garda.

I would welcome some further explanation by the Minister as to what he meant when saying that the first 12 months would not necessarily be typical of the operation of the powers. I accept that when a new power is being exercised there may be the need to establish general practical procedures and guidelines on the ground, but I would have thought that that is a very strong argument for a review at the end of the first year. If we are concerned that the first year may not be typical there is an opportunity to ensure that whatever is happening in the first 12 months will be reviewed from the point of view of whether this is what should be happening under the statutory powers that are being conferred by the Bill. The Minister's reference to the fact that the first year may not be typical is a further argument for the need for a review after that 12 months. Similarly, I believe that the time for reviewing the detention powers every 12 months is appropriate for the reason I emphasised yesterday, that it is part of the exercise of particular powers which are very far-reaching powers and very private powers. What we are talking about is what goes on inside a Garda station, the relationship between the gardaí in that station and the individual who is arrested and detained. If it is known that there is to be a review within 12 months and a debate in both Houses in order to see whether that power will be continued, then I believe that will have to say the least, a proper kind of conditioning effect. It will prevent the possibility of abuses arising. It will be the check on the exercise of those powers which I believe is necessary given the broad scope of those powers.

I submit that it is again the minimum safeguard which we should require in being prepared to take the step of authorising this detention for questioning. It is a very far-reaching and very worrying power and it must be very closely monitored. Therefore, I invite the Minister to consider and reflect on the discussion on this amendment which he has heard and to consider the possibility of a different review for the detention sections which would be a review along the lines of this amendment every 12 months and then a continuous review perhaps over a longer period with gaps of perhaps four years of the appropriate period for the other sections. This would make a lot of sense because the type of review of the power to arrest and detain is different from the rather more technical review of the way in which the sections which allow inferences to be drawn and referred to in court proceedings would operate. There is a distinction which can and should be drawn, apart from the practical issue of what is the appropriate time scale to have that review.

To summarise the points I have been making, if the principle of review is accepted by the Minister and both sides of the House as it clearly is, then a logical consequence of that is that review should allow for continuous review; otherwise you have simply put a certain check on the exercise of powers and after that there is no further possibility of the kind of scrutiny we have been talking about. There are dangers in that. There are dangers that things that happened in the first three years would not be happening in the fourth year and people would say there were some initial difficulties in the powers, that the Garda did not understand exactly what should have been done but now in the last nine or ten months we have had no problems in that regard and the problem has gone away. It might just have gone away pending the four-year review by both Houses and it could come back the day after that review with no further possibility of review.

Mr. Noonan

(Limerick East): That is the kind of suggestion that upsets the Garda. That is what I was getting at.

Mrs. Robinson

I should like to respond to that——

Mr. Noonan

(Limerick East): The suggestion is that the thing will run for three years and there will be a period of collusion when the gardaí will go quiet just before the review. While I accept that individual gardaí may step out of line, I always argue that the Garda force as a whole do their job very well indeed and very fairly. I know the Senator did not intend it that way but everything we say here is going to be read by the Garda representative bodies and they will take that out of it.

Mr. B. Ryan

I cannot hear the Minister.

Mr. Noonan

(Limerick East): I am sorry. I should not have interrupted.

Mrs. Robinson

I welcome the Minister's interruption if it enables me in responding to him to say there is no implication in what I was saying of a kind of general criticism or general allegation of some kind of conspiracy. What I am saying is that we are talking about extending powers. As legislators we must realise that where there are extensive powers there can be, and in practice has been, abuse of powers. It is always by a small minority and it brings the Garda into disrepute. I am sure they are more concerned about it than anyone else when powers are abused. Our concern as legislators is to review the exercise of powers and if we are reviewing the exercise of the powers conferred in these sections — and we admit and acknowledge that these sections are giving very extensive powers — then the same argument has to follow through to there being continuous review. What I was saying about the four years is that it lends itself either to apprehension or allegation that there would be some whitewashing or a difference in practice leading up to the once-off review. It is human nature to present a case. If there is only a once-off review it is a danger which I think we are entitled to take into account without it being an allegation in the sense of something which is inevitable. There is danger with a once-off review that prior to that review those who were abusing the powers would not do so coming up to the review. I know the Minister is going to say we are assuming people would abuse the powers. I have to assume that there is a danger of powers being abused and that those who were abusing them could, knowing that there was going to be a once-off review, so contrive that they were not detected in the way that they should be in the course of that kind of review. That is only one reason and it is only one part of the argument why there should be a continuous review.

The principle of having a continuous review is the same principle as having a review. It is somehow inevitably part of the Minister's argument, though he has not stated it and I do not think it can be borne out logically, that once there has been a review, if the Oireachtas at that time, four years from when the sections have been brought into operation, is satisfied, then the Oireachtas can say, ‘That is working grand, we can now go away and have no more reviews. I do not accept that that is the position. Four years after that at least there should be a similar review. If there is not, then the whole principle of reviewing has only worked once for a very limited time and then has ceased to be effective. If the Minister accepts, as he does, the need for a review of these sections, precisely the same logic applies to the requirement that that review be continuous. What I am saying is that in relation to the sections which allow inferences to be drawn during court proceedings and, therefore, necessarily involve a certain time for that to happen, the period for that review should be longer.

I single out the power to detain under section 4 and the allied sections. What is needed there is a closer review in particular because the most important value in continuous review of the detention powers would be the deterrent value. It would have an important deterrent value to deter the small minority of gardaí who might have been prepared to abuse the powers. They would be deterred by the prospect of an annual review.

The nature of that review would not be to examine in very close detail every individual arrest and detention. Individual cases would properly be the subject of complaints lodged with the complaints commission. What would be reviewed would be the way in which in a general sense the powers under section 4 and the related sections were being operated in practice, the extent to which this had given rise to complaints, the volume of complaints that might have been filed with them and which were being processed by the complaints commission, the general statistical data that have been referred to as being of considerable importance by a number of Senators and the way in which the safeguards which are both written into legislation itself and which the Minister will be incorporating in the regulations under section 7. This concerns the liberty of the individual, the way in which powers may be operated in certain communities; in other words, if after 12 months that review identified either with certain parts of the city of Dublin or other cities or certain areas where there appears to be a problem, then this would be an important monitoring by the Oireachtas. The deterrent aspect of this annual review would go a long way to allay some of the fears and apprehensions which we will be teasing out in more detail when we come to section 4.

I am not trying to foreclose the debate on the amendment. I would be prepared to consider the possibility of having two amendments, one to do with the sections which relate to inferences that can be drawn during court proceedings where there would be a continuous review but over a longer period, and the other relating to a review of the powers under section 4 and the allied sections which would be a continuous review but over a shorter period. I would say over every 12 months because the powers are such important powers in relation to the individual and potentially in relation to certain sectors of our society. I would have thought that it would be a proper responsibility and role for the Oireachtas to monitor and review closely powers about which we are all expressing very deep and understandable concern.

Mr. Noonan

(Limerick East): I want to come back to the comments made about the Garda Síochána in the debate and, indeed, outside the House. Take a phrase such as the one Senator Robinson has used a number of times. She talks about the deterrent aspects of this annual review. If Senators talk about the deterrent aspects of the annual review, one wonders whether the Senators are talking about individual members of the Garda force, that people would be worried that they might step out of line, or whether Senators are talking about the Garda force as a whole requiring a deterrent, or that the Garda as a force would abuse the powers conferred on them by the Oireachtas. That is what causes such upset and such concern. I am sure that phrase was used quite unintentionally but that kind of interpretation gives rise to difficulties and the difficulties are real. We have only one Garda force. Their morale needs to be kept high. They are doing a very dangerous job. Senators should not move from the particular to the general. Absolutely everybody has the right to say exactly what he thinks. If individual members of the Garda force are out of line, or if Senators know of an individual case, I would welcome the fact that they would deplore that individual case and comment on it. I can assure the House it would be dealt with by the Commissioner.

The second thing I should like to say is that when we are talking about a review, we are not just talking about reviewing the progress of the section. We are talking about a review with the intention of Dáil Éireann either rejecting these provisions and saying they will not be part of our permanent law, or alternatively saying that they have worked effectively and fairly over the past four years; they are good provisions and now they are worthy of becoming part of our permanent law. But this is not to proceed on the basis that there is no other review. Of course there are reviews all the time. Every time a case goes to court it is reviewed. Every time somebody goes into court and an inference is drawn, that is a review. When somebody complains to the complaints procedure the progress of these sections will be reviewed in that individual case.

There is also the process of the parliamentary question. If a Deputy finds that the Garda are abusing the power conferred on them under section 4 in an individual case, he has the power to raise it. There are also the annual debates on the Justice Vote and on the Vote for the Garda Síochána. The statistics will be made available in answers to parliamentary questions and in the Dáil Deputies can review the progress of what is happening.

All these kinds of reviews are available. It is not a question of the Seanad passing the law and then, having become law, nobody ever refers to it again for four years and we come back in four years time and we see how it is working out. There is a constant process of review. We should not proceed in the Dáil and in the Seanad as if the courts did not exist. I have conceded the principle of the review. It is a very good idea that there should be a review, but the intention of the review is not to be a deterrent to the Garda Síochána. Its purpose is to compile statistics of what is happening in detention, how the safeguards are working, how the complaints procedure is working, how effective the detention powers are and, in effect, to establish whether we have got the balance right. Then let the Oireachtas decide, in the light of the experience over four years, whether these provisions should become part of our law permanently.

Take any law that these Houses pass, a planning law or anything like that. It is not normal to have a review, and yet the case could be made that, because we are going into uncharted waters with any new piece of legislation, it would be appropriate to have a review. When the concept of a review is conceded for very valid reasons, to go on to say we should continue reviewing and reviewing is unrealistic. After a period of four years these provisions will either be working or they will not. If you have a review after 12 months people will say it is impossible to evaluate in such a short period.

I cannot see people coming in after 12 months and saying "Stop the lights. We cannot go on with these provisions". The argument would be made by any Minister that the evaluation period was too short.

Senator Robinson referred in particular to a phrase I used that the first year was not typical. I will try to explain what I meant by that. The Garda Síochána at the moment are in such a state of nervousness about complaints being made against them, and about public comment being made about them that they are ultra cautious. When they get these new powers, they will be absolutely cautious. I do not think that during the initial period of the first 12 months the incidence of the use of section 4 will be typical of how a pattern is established, of how things have settled down and the safeguards are seen to be working.

We are coming near to a situation when some gardaí are afraid to act because of the level of general criticism. I am not trying to dissuade anybody from criticising. I am just saying there is a problem in society with subversives and with criminals. We have a Garda force and, by and large, it is a very effective and good Garda force. There are exceptions to that. We should not treat the exception as the rule in any circumstances.

Mr. E. Ryan

I have already expressed my view on whether it should be one year or four years. One year is too short, and while four years are perhaps a little bit long, that proposal is not unreasonable. In regard to the general power of review given in this section, we should be very satisfied with it because it says quite simply that the sections we are worried about go out of operation unless they are renewed by the Oireachtas. In four years time we cannot merely review how these sections have worked, but we can also decide what kind of review there should be in the future.

I do not agree with the Minister that what may happen or what is likely to happen is that at the end of four years we would say, "These powers seemed to have worked all right, so we can now make them permanent." That is unlikely and I doubt very much that that will happen. The virtue of the section as it stands is that we have full power to say: "They worked reasonably well but we are still worried about them". We might at that stage be so worried about them that we might say they should operate only from year to year, or that they should be operated for another four years, or that they should only operate if there are certain amendments to the sections that are mentioned in this section. The virtue of the section as it stands, is that it gives both Houses full power at the end of four years to say what they think of these sections and on what conditions they will allow them to continue. I do not think we can ask for more than that.

Leaving aside the question as to whether it should be one year or four years, the basic power of review given in the section is entirely satisfactory. It would be wrong to suggest at this stage that we should try to anticipate the kind of reviews that should be operable at the end of four years. We will be looking at the whole situation at the end of four years and the way it has worked. At that stage we should decide not only how the sections have worked but consider what kind of review, if any, we should have or in what circumstances we would allow the sections to continue.

Mrs. Robinson

Perhaps the Minister might clarify the scope of the section because I place a different construction on the wording of it. This is an important point. As I understand section 2, the only power that the Oireachtas will have four years after the relevant sections have been brought into operation is the power to resolve either positively or negatively that the sections continue in operation. It will not have the power to say that they can continue in operation for one or two years or subject to certain conditions.

Mr. E. Ryan

You cannot bind the Oireachtas.

Mrs. Robinson

The section binds it. I would welcome the Minister's clarification on that. The only power the Oireachtas would have would be to approve the resolution that they continue in operation or not so approve.

Mr. Noonan

(Limerick East): That is the position. If you think about it, that is a very strong power. What I would envisage is that after three years the Minister would commence an evaluation in his Department. Obviously, like any legislation, the Minister would have to be the initiator. If it is not working, the Minister will bring in a short Bill to amend the section. This is the way I would see it working. Regardless of what the section says, the actual operation of it would be an evaluation.

A Minister for Justice would come into Dáil Éireann and say that it is not working or that it is working fine or that there are difficulties. If the Dáil decides that it does not want it to become part of the criminal law, then it can refuse that. This is a very strong power to have over a Minister, especially if the evaluation shows that there are valid reasons for change. That is the way I would see it operating.

Those of you who have more experience than I have of the workings of this House know it would be for the executive to initiate and for the Minister to bring in proposals and for the House to evaluate rather than for the House to initiate.

Mr. M. Higgins

There is a point I want to correct which is of great importance. I share the Minister's concern that, in dealing with this legislation as it goes through both Houses, the integrity of the Garda, as a general body, be completely protected. It was very responsible of the Minister to invite Deputies and Senators to send details of abuses in individual cases to him.

I emphasise that this is a two-way responsibility. It must be shared by all members of the community including senior spokespersons on behalf of the Garda themselves, who on occasion with lack of discrimination, have attacked legislators and members of the Church. Only very recently we had the example of a global general inference that those of us who are interested, for example, in the balance of civil liberty or the impact of legislation on socio-economic groups, are somehow or other responsible for tying the hands of the Garda in relation to crime. That irresponsible suggestion has been made time and time again. The strictures that are being addressed to these Houses—perhaps even the most indirect reference of a Senator or a Deputy might be construed as a general suggestion—are welcomed to an extent but there is an urgency for some kind of temperance in the remarks being made by people who hold responsibility. To take the Minister's phrase, for example, that we should not proceed in the Seanad as if the courts did not exist, it was the Minister's speech on 11 July to this House that showed that gardaí had been bringing people to Garda stations and detaining them, even though the power did not exist, as the courts later showed.

It is my view, most emphatically, that it is not in the Seanad or in the Dáil as we have seen, that the divisions are being sown between the courts and the Garda, the Legislature and the people who are responsible in any way for reducing the level of crime. Since becoming a Member of the Seanad, I have never heard a Senator or, indeed when I was in the other House, a Dáil representative, stand up and generally denounce the courts and say that the operation of the procedure of the courts was trammeling people in dealing with crime. I must with regret, say that I have often read this comment made by people from whom I would have expected greater responsibility. It is from one end of the management of the crime problem that the attack on the courts system has come. This is relevant to the Bill in the sense that any section of this Bill must have within it some character of integration in which the courts, the criminal vigilance system, procedures in stations and the attitude to the crime rate are used in a cohesive way so that one part of the system is not operating divisively against another part.

Over the years, from dealing with different movements and expressions, for example of dissension at the activities of the State, I have been worried about the easy usage — it was used only a few minutes ago — of the word "subversive". There is a world of distinction between those who are operating critical vigilance and those who operate in a subversive fashion. It is beyond time that some warning was issued as to what is happening the people who want to prosecute politically their work of critical vigilance.

An Leas-Chathaoirleach

I ask the Senator to come back to the amendment.

Mr. M. Higgins

It would be improper to suggest a review in the short term or the long term, either in a once-off or in a continuous way, with anything other than the most responsible exercise of critical vigilance in relation to the legislation. It would be appropriate and proper that we would divide on its utility, its length, frequency and so forth.

I have every sympathy for people who suffer from excessive nervousness or, for example, as the Minister suggested for people who are not able to act. I emphasise that it was not our acts here when monitoring this Bill that are responsible for that. It is wrong to shift our concern from what it is — a scrutiny of the letter of the law that we will have the responsibility for either passing or rejecting. This point is very important.

Mr. O'Leary

As I stated yesterday in my contribution on these amendments, I am unable to accept the amendments as they are drafted. That does not mean that I am out of sympathy with what is behind the amendments. There has been a very useful discussion as to what function this House has in connection with the continuing review of this legislation.

My position with regard to this Bill is that I totally disagree with the powers mentioned in section 4. I will be making my position clear on that later in the debate. The powers of section 4 are subject to review. I am not attracted to the Minister's introduction of the concept of attack on the Garda Síochána. Those of us who criticised the powers contained in the Bill, including those contained in section 2, are not attacking the Garda Síochána. My position is that the powers contained in section 4 are not appropriate powers to be given to anybody, including the Garda Síochána. If the Minister were to come in here and give those powers to somebody else, I still would not agree with it. If I were a member of the Garda Síochána, I would not consider them appropriate powers. So it is not an attack on the good name of the individual members of the Garda Síochána, nor, indeed, is it in any way related to the fact that there might, or might not, be abuses in individual cases. It is an attack on the powers. To suggest that those of us who are against the extension of the criminal law in this way are in some way attacking the Garda Síochána is to misunderstand the thrust of our argument. It is very important that that be got right. It is the powers themselves that are in question, not whether the Garda will operate them in a good or bad way, the fact that they are powers which are inappropriate in a democracy like ours.

The second point which arises here is that some very careful and sensible distinctions have been made. The argument about the length of the review in so far as it relates to criminal procedures, or to the withholding of information and to sections 15, 16, 18 and 19 is almost over. Most of us agree that four years is an appropriate time for that.

Senator Robinson has drawn a valuable distinction between the length of time that might be appropriate for the detention powers under section 4. A period of review different from that appropriate to the other sections might be appropriate in this regard.

Even allowing that I consider it possible that another length might be appropriate, I still do not consider that a review after one year is going to be effective. I base that on the fact that I have only limited faith in the way in which the Oireachtas will do this job. Members will be under tremendous pressure from their own parties to vote in a particular way. The Minister will initiate the review and will bring it to Cabinet, as the Minister has said, irrespective of whoever is in power. Those who support that Government, whether it be in the Dáil or the Seanad, will be expected to conform to the view taken by the Minister, as confirmed or amended by the Cabinet. That is the way the system works. Therefore, it would require almost an earthquake, a very serious series of events, for the Oireachtas to adopt an attitude different from that of the Minister or for the Minister to adopt an attitude different from that of the civil servants in the Department of Justice. In the circumstances, what we are really talking about is the mere possibility of some independent action by the Members of the Houses of the Oireachtas.

The more frequently we give a job to the Houses of the Oireachtas, the less efficiently they are going to do it. That has been my experience. I do not know if it has been the experience of other people. Things tend to get through on the nod if they come up very frequently. For that reason, I am not in favour of too frequent reviews. There should be a sense of occasion about it. We all should think about the appropriate number of years in respect of section 4. I would like a further opportunity to think about the appropriate number of years in that regard. I am quite certain that 12 months is not right. It may well be that I will go along with the Minister and agree that four years is right in that case also, but I have an open mind on it.

That is one area of partial agreement and partial uncertainty on the part of the Members of the House as to what is the appropriate time for the review. Because it is unlikely that the House will take an independent attitude, the process of continual review is important. What is important is that if a Minister says, as he will undoubtedly have to say at the end of the first four-year period, it has worked fairly well, although there have been some problems, the overwhelming feeling will be to give it another try. But if there is a series of continual reviews, then each time markers can be laid down by the Members of the Oireachtas and judgments can be made the next time as to whether these markers have been satisfactorily adhered to. In those circumstances, the process of a continual review is very important. But I would not be in favour of an annual review, even after a period of four years, because that would reduce it to a matter of routine.

The Minister said that we do not review with regard to other changes in the law and he is correct in saying that. But this is the most fundamental change in the criminal law since the foundation of the State. We are introducing a period of detention and appear to be — although the power to do it does not seem to be contained in the legislation — suggesting that the Garda be given the power to question people. There does not seem to be any power, as far as I can see, to question people. We will discuss that when we come to section 4. We are changing the whole, if not common law, certainly constitutional law rights of the individual, as understood up to now. We are departing from the American system of jurisprudence and going towards the continental system of jurisprudence. Indeed, we are following the British system of jurisprudence. I am sure people can make very fine arguments in favour of doing that, but it will be a very big change in our society and will be a very big change for our forces of law and order. It is important that the process, if it is to happen, be closely monitored. It may well be that we will eventually develop into the kind of society that can accept and operate these powers properly, but I do not see why we should tie ourselves to a once only review. For that reason, the argument is being made asking for a sensible period of time.

There is a lot of force in the Minister's opinion that it would be good that the review be actually carried out by the successive Minister and the successive Government, whether of the same or different parties. It is a good thing that the same Minister should not carry out the review. That is another thing which encourages me towards the four-year period. Even if the same parties were in Government, you would like be likely to have changes of Ministers in that period of time.

Therefore a resolution along the following lines might meet the problem which has been identified in the exchanges which took place between Senator Eoin Ryan, Senator Mary Robinson and the Minister — something along the lines that the resolution referred to in subsection (1) in other words to put in a new subsection in section 2, to qualify the continued operation of any or all of the sections mentioned in subsection (1), by making their continued operation dependent on a further resolution of both Houses of the Oireachtas at the end of the period referred to in the resolution. Such further resolutions may be similarly worded. In other words, you are not saying when the review should take place, or even that the review should take place at all, but you are saying that at the time it will be open to the Oireachtas to say that they are going to have a review of all the sections or of one of the sections, and that it is going to take place in 12 months or two years as appropriate. It will leave the possibility open and I think that is very important. I would like the Minister to consider on Report Stage whether he could introduce and/or support an amendment of this type which, I may hasten to add, in no way will change the powers contained in the Bill, or affect their operation during the next four years period.

Mr. B. Ryan

I will try to be very brief because I think we are going around in circles. I do not altogether agree with Senator O'Leary. I know too much about Irish society — and anybody who reads Micheál Mac Gréil's book on prejudice in Irish society will agree — not to believe that there is a large element of preconception of ideas and prejudice in Irish people. I do not have any reason to believe that the training the Garda receive at present is anywhere like adequate to educate them out of the prejudices that Irish society as a whole has. There is a natural tendency in a force like a police force to accept the majority viewpoint, the established viewpoint, on a whole range of issues and dissenting views.

Inevitably, when you get involved in talking about the powers to be conferred on the Garda, or the extra powers to be given to them, or as is sometimes suggested, regularising the powers that they have exercised in the past, you get involved in this area of looking at how they operate, why they do it, and what they do. I have to say, first of all, that what Senator Higgins said earlier is my experience too. I think there are far too many important problems of crimes of a security nature in this country for the resources of the Garda to be devoted to following the anti-Reagan campaign and various other campaigns because somebody, somewhere, has attached the label "subversive" to those campaigns. I wish somebody, preferably the Minister, would define "subversive" once and for all. What must one do if one comes into contact with a subversive? I have a distinct impression that if one is involved with an organisation wherein one or two people are identified by this label "subversive", then one is immediately tainted by the tag "subversive", in which case virtually every dissenting movement in this country would have the label "subversive" attached to it.

The Minister may say that we have only one Garda force, and I have often said in the past that in a couple of areas in which I have a special concern, the Garda by and large have shown themselves to be more compassionate and caring than many people who are actually employed as caring agents of the State. That is a fact. Nevertheless there are the incidents I listed in my Second Stage speech. It is unsatisfactory for me to have the Minister say he will investigate them because the reason I felt obliged to raise them here was because of the utter inadequacy of the responses I got to these complaints. It is easy for us to say that the Garda are sensitive and so on, but the realities have been, in the absence of a continuing review, manifest in the Offences Against the State Act over the last 12 years.

The number of people detained for questioning under the Offences Against the State Act last year exceeds almost by a factor of seven or eight the numbers who were detained in the first four years when those sections were reintroduced in 1972. We had about 400 or 500 people detained in the first four years; we had 3,000 people detained last year. I do not believe there is any evidence that subversive crime, however you define it, has escalated in line with the way those powers have been increasingly used. I know there has been an escalation of certain forms of crime but I do not believe that the scale of escalation is proportionately represented by the scale of use of those powers. I have too many examples of what seem to be entirely arbitrary use of those powers without any scrap of sustainable evidence, to be able to stand up here and repeat what I am supposed to say, which is that the Garda are doing a fine job. I think sections of the Garda use the Offences Against the State Act quite freely to simplify their investigative processes, and also to make life a little more difficult for people who are causing them trouble. They also have a definition of who comes under the general heading of being ‘suspect', which is far beyond what the authors of the Offences Against the State Act intended. I know of no better way of ensuring that what is intended to be done with these powers will continue to be done than the principle of a continuous regular review and whether it be every 12 months or every four or five years is not the central issue any longer.

I know about my own humanity, my own limitations and my own capacity to cut corners on issues. I am not prepared to believe that the general body of the Garda are superior beings without any tendencies to cut corners and to take short cuts like the rest of us, and in an area so central to the relationship between the Garda and the society it is imperative that there be a balance to ensure that at least there is a pause for thought every time a garda chooses to exercise these powers. I can think of no better way to do that than by having a parliamentary review. We come to this under section 4. Unfortunately, experience has shown that people either do not or cannot use the courts to deal with any of the abuses in this case, except where there are criminal actions. I am not talking about assaults; I am talking about abuse of existing powers. President Reagan's visit gave Senator Higgins and myself a jolt about Garda attitudes when they are under pressure in a difficult situation.

An Leas-Chathaoirleach

I allowed you a lot of latitude. I would ask that we do not have long Second Stage speeches on amendments. I do not in any way, as Leas-Chathaoirleach, want to curtail the debate on this important legislation, but I would ask my colleagues to remember the length of time they are speaking.

Mr. B. Ryan

I am trying with as much balance as I can, a Leas-Chathaoirligh, to indicate why I have reservations about extra powers and why I think there should be a continuous review. I think I have made my point adequately. I have had too many experiences to be able to say, sweepingly say, that the Garda are a fine force, which is true, but they are like the rest of us when the pressure is on and difficult circumstances arise. What is available may be used without all the niceties that I, in the detachment of the Oireachtas, would talk about. Therefore there is a great need to preserve a balance. A continuous review within the Oireachtas is the appropriate form of that balance.

Mr. Howard

I will confine my remarks to the central argument as to the need or the desirability of having either a four year review, or an annual review or a continuous review. I was taken by a remark of Senator Brendan Ryan a few moments ago. He made the point that the things he fears may happen would happen, irrespective of whether the review was going to have a span of four years, or even if it were a continuous review——

Mr. B. Ryan

I did not intend to say that, although perhaps I said it. That is not my intention. My intention was to say the exact opposite.

Mr. Howard

I understood Senator Ryan to say that and I wanted to take it as my line of argument. I could approach it from another angle. Over many months people have been saying that this legislation was necessary. There is general acceptance of it but I do not believe we should start extracting what teeth there are in section 2.

The Minister explained that there are procedures and methods by which we can have a continuous review of any difficulties that would be likely to arise there. If the Garda, having detained people, were to be involved in any wide ranging scale of abuses of people during the period of detention we would be immediately confronted with a public outcry. The Minister outlined that there is the method of the parliamentary question. A motion can come before this House. There is the opportunity of the annual review of the Department of Justice and the Vote for the Garda Síochána. Through these channels there is the opportunity of continuous review.

I do not share the belief that if you do not have annual review or a continuous review of what is happening in relation to section 2, this gives an open door for all sorts of abuses. As I have listened to the argument, that is the implication I have got. I may not be right in that, nonetheless it has come across to me that unless we put in this protection of a continuous and annual review all sorts of desperate things are going to happen to people who are being detained. I do not accept that, but neither do I totally discount the possibility of the occasional instance in which the powers would be abused, and I suppose we can expect occasions where this abuse of powers will take place, but that cannot be prevented by the length of time in which the review would take place. That is the point I understood Senator Ryan to make, and obviously I misunderstood him. Nonetheless, there is certain merit in that point. Rare though these occasions may be, I do not think the people who may engage in abusing power would be deterred whether the review we are discussing here would take place at four-yearly intervals or be a continuous review. I suspect these occasions would be very rare. If they occur there are ample methods available by which these abuses can be highlighted and dealt with. The Minister outlined these and I have repeated some of them. I have added the opportunity that exists in this House of dealing with it.

Senator Higgins said here recently that he rejected that we had a crisis of crime in the country; it was more or less a crisis of detection. I would not disagree with him on that. I know there is a crisis of detection. One purpose of the Bill is to assist in this area of detection. If we start as early as section 2 putting in impediments in dealing with that sort of a situation, then we are not responding to the general acceptance there has been for this Bill.

Mr. Browne

I want to put a completely non-legal view. My worry on this discussion is that all the emphasis seems to be that we must have a review to keep tabs on the Garda when we should be setting out to keep tabs on criminals. We can over-emphasise completely that there may be some abuses of powers. Everybody nowadays is pretty alert as to what to do about it.

How does discussion such as this seem to the normal person who is not involved in law but who wants to see a proper society where the genuine person can go about his or her business safely? We can finish up here tying ourselves down to watching every move of the Garda, to a non-stop review, and every case that is brought up will highlight that. Maybe we should review the Criminal Justice Bill to make sure that it is effective in catching criminals and bringing back a civilised society.

Mr. Durcan

Section 2 is a new section and an unusual section, new in that it was not in the original Bill. It was introduced in the Dáil. It was introduced because the Minister listened to the points of view of Deputies on Second Stage when they expressed concern about the introduction of these powers which are unusual powers in our criminal code. The Minister rightly decided at that time that this section should be introduced to allow the Oireachtas to review those powers at the end of a reasonable period of time. That review is a good idea, unusual in the sense that it is unusual for the Oireachtas to put a time limit on the operation of any legislation. However, it is unreasonable to suggest that at the end of the four-year period or one-year period or whatever period we provide for in section 2, we should thereafter have annual or periodic parliamentary reviews of the operation of the relevant sections of this Bill.

If we were to have such reviews the Oireachtas would be spending all its time debating the criminal law.

However, I differ from Senator O'Leary and other Senators in that I have no real inhibition about the powers of detention conferred by section 4. It does not worry me. It is unrealistic to suggest that we should not have that power to help to investigate crime, Accepting that, I would still suggest that there is a need at all times to monitor the operation of section 4 and also sections 5, 6, 7 and 8. The operation of these sections and the exercise of these additional powers by the Garda should be monitored on an ongoing basis.

I come back to the point I made yesterday to the effect that statistical data should be available annually indicating how these powers operate, the number of people who have been detained under section 4, the number of people in respect of whom a superintendent has decided to extend the period for a further six hours, and the number of people who have been photographed, finger-printed or tested under section 6. Also indicated should be the records that other sections specify should be kept. That kind of monitoring — and I use the word "monitoring" as distinct from "review"—is important to protect the garda. It is extremely important that the garda be protected, and monitoring and the availability of information of that kind would in great measure protect them.

The additional powers which the Bill confers must be seen as public powers, not private powers. They should be seen as powers which are exercised in such a way that the public can see what is happening. That is why I suggest that the statistical data be made available on an annual basis. It is quite fascinating to examine the Garda Commissioner's report on crime to see the kind of precise statistical data that can be made available in relation to the smallest of crimes.

An Leas-Chathaoirleach

Senator Durcan, I am going to make an appeal again. Senators must realise that we are on Committee Stage and the Members should try to confine themselves and address themselves to the amendment.

Mr. Durcan

I am doing that. It is very relevant——

An Leas-Chathaoirleach

When I see a Senator with sheaves of books, I am just throwing out a warning again.

Mr. Durcan

With respect, without referring specifically to the Commissioner's report I am just indicating in a general way——

An Leas-Chathaoirleach

You win.

Mr. Durcan

——that there is very precise information available there in relation to the most petty of crimes. I am suggesting that the same kind of statistical data be provided in relation to the exercise of powers under the relevant sections of this Bill. I do not think that is an unreasonable request.

Mr. Noonan

(Limerick East): Senator O'Leary said that what we are examining here are the powers themselves. He said the powers themselves were in question, not whether the Garda will operate them in a good or bad way. I accept that and I welcome that kind of debate. He said it is the most fundamental change since the foundation of the State. I wonder. The Offences Against the State Act is probably a more fundamental change in this area.

Mr. O'Leary

I will wear that.

Mr. Noonan

(Limerick East): Even though there are cases going back as far as 1930, the Garda Síochána, right up to the early seventies, did detain and question people. A series of court cases found out that what they were doing was not legal and that was dropped. If you look at the case law you will find that the initial case was in 1930, but that case seems never to have been adverted to right through the forties, fifties and sixties. A new look at that and subsequent rulings in case law in the seventies brought about the situation that the Garda do not have these powers of detention. In that respect they are different from any other police force in Western Europe, regardless of whether one is talking about the kind of common law system here or in Britain or about the inquisitorial system in continental Europe.

Mr. O'Leary

Not in the United States.

Mr. Noonan

(Limerick East): That is an open question as well. During the week I was talking to a judge from a court in Chicago and he told me that he was amazed people could not be detained in custody and questioned before charging because the practice in their administration was that a 12-hour period would be rather short. I am not familiar with the law in the United States and I have read comments in the newspapers saying that this kind of provision would not be allowed in the United States but yet this was a judge practising in the court and he expressed great surprise.

Mr. O'Leary

He was a realist of the school of jurisprudence.

Mr. Noonan

(Limerick East): Probably. He was explaining to me that whatever the theory, the practice is different.

Mr. O'Leary

That is correct, that is what I mean.

Mr. Noonan

(Limerick East): They may be operating a system like we had here during the forties, the fifties and the sixties. Senator Brendan Ryan asked what was a subversive. If one looks at the Long Title of the Offences Against the State Act one will see that it states that it is an Act to make provision in relation to actions and conduct calculated to undermine public order and the authority of the State. People engaged in those activities are subversives and organisations which are dedicated to those objectives are subversive organisations. When I use the word “subversive” what I am referring to is somebody who has been convicted first of all for an offence under the Offences Against the State Act, and who is a member of an unlawful organisation. When I am talking conversationally about subversives I try to confine the term to members of the two proscribed organisations which we have in this part of the country.

I was glad of Senator Howard's and Senator Brown's interventions and for their support. Senator Durcan talked about statistics. I mentioned it yesterday again in reply to what the Senator said but he may not have been present when I replied. In the draft of the regulations which we have at the moment the kind of information which the Senator is looking for will be required to be recorded. There will be an obligation on the Garda to keep this kind of information. Certainly, the statistics will improve when that kind of information will be made available.

Mr. Durcan

Will that be made available annually?

Mr. Noonan

(Limerick East): I am not sure whether it would form part of the Garda report or not. I have not thought that one out. The information will be available and it will be made public.

Mr. Durcan

When making that point I wondered if it would be monitored on a continuing basis.

Mr. Noonan

(Limerick East): It would be available by way of Parliamentary Question and if a Member puts down a written question he or she will get whatever information I have.

Mr. Durcan

We cannot do that here.

Mr. O'Leary

We will be able to do that shortly.

Mr. Noonan

(Limerick East): The Senator will be able to do that shortly and he has friends elsewhere. On the question of the review, I think the four year period is the correct period. On the question of whether it should be reviewed subsequently or not I should like to say that we are looking at the section again. A very simple Bill would meet the needs of the situation.

Mrs. Robinson

A very simple amendment would, too, Minister.

Mr. Noonan

(Limerick East): If Senators look at section 2 they will see that the following sections, namely sections 4, 6, 8, 10, 15, 16, 18 and 19 shall cease to be in operation when four years have expired. If, when the resolution is being discussed in four years time and the Oireachtas obliged, urged or persuaded a Minister into agreeing to another review all the Minister will have to do to amend section 2 of the Bill is to change four to five, or six or seven or eight. All the Minister will have to do is change four to another number and then, automatically, if it is eight there is a review after four years and if it is six there is a review after two years. It is not something that will require great research or imagination; it is simply a question of changing the number. In the light of that, if in four years' time Dáil Éireann and Seanad Éireann decide that there should be a further period when these powers would be examined and there should be a review after a certain interval that is all the Minister will have to do. I will examine Senator O'Leary's suggestion which is another way of doing it. I am advised that that particular approach might not be possible but I will examine it.

There is no major difficulty for a Minister if the Oireachtas urges him to have another review and if the urging is received in any sort of receptive way at all. When one talks about new Bills to amend Acts I know people feel it is a long-fingering exercise, a kind of administrative or parliamentary inertia which we experience and brings about a situation where new Bills are infrequently introduced to amend old Bills. All we are talking about here is literally a oneliner, changes in a number from four to six or four to eight. I do not think it is a major problem but I will look at it again between now and Report Stage.

Mrs. McGuinness

I am glad the Minister is saying he will have a look at it again. Although I accept in logic that what he has said about the ease of amending at a later stage is true, in parliamentary experience anything that requires amending legislation is much harder to achieve than something which includes in the first Bill provision for some kind of periodic review. I am open to persuasion that one year, particularly at the beginning, is too short of time, but I think that the principle of periodic review is one that is important. It should be put into the Bill now. I welcome the Minister saying he will have a look at that again.

Senator Howard said that if there is to be some kind of abuse of any of these powers, of if the powers are wrong, there will be a public outcry. I do not know that there will be necessarily because this kind of public outcry can be very easily damped down by saying, "We are trying to deal with subversives". While I accept that the Minister may be very careful about how he uses the word "subversives" not everybody is and very often "subversives" can turn out to be just a person somebody does not like or somebody whose ideas one disagrees with. To rely on a public outcry is not necessarily the best way to do things. Very often the public perception of criminals, crime and of the proper ways of dealing with crime, and of effective ways of reducing crime can be very much at fault. We get a wide public outcry saying, "Let us deal with these fellows severely, shove them into jail and leave them there for years". There is, undoubtedly, a group in the public who would say that that is the way to deal with crime but the history of criminology, and so on, shows that that is not the way to reduce crime. In particular it ignores the fact that in order to do that we would have to provide more prisons and so on. I would not rely on a public outcry; I would rather rely on the fact that the Oireachtas, which has already had certain information about this Bill and which will, as Senator Durcan has pointed out, have more information as time goes on as to how any powers would operate, should have a periodic review built into it.

Mrs. Robinson

This has been a very useful discussion on the whole question of review. I am pleased that there has been broad support for the importance of some periodic or continuous review in the sense of a review that will occur from time to time and not just a once-off examination of whether the section should become a permanent part of the criminal code with no further opportunity by the Houses of the Oireachtas to examine and report on them. I would like to reflect on what would be the proper and appropriate period for that review. I certainly take on board the comments made by Senator O'Leary on that I was particularly impressed by the Minister's own description of how he envisages the four year review provided for in section 2 will operate. The Minister referred to the fact that as he envisages it whoever is the Minister for Justice in about three years after the sections have been brought into effect will commence a fairly widespread review of the section or sections that are being subject at that time to the review. In the light of that that examination may itself trigger off the need for amendment. That, I believe, is further support for the idea of having periodic reviews of that kind.

This would be an extremely valuable, important and responsible monitoring of the legislation. I also think that it leads to a conclusion that 12 months is too short a period because this would mean that there would never be a time when there would not be almost a constant review and that might indeed be a problem. At this stage I ask the leave of the House to withdraw the amendment as drafted and either to put forward other amendments or perhaps the Minister would introduce amendments on Report Stage to deal with this. The principle of periodic review is an important one and we should seek to have an amendment along those lines. I would like to examine whether there should be a different period for the powers of detention and for the powers which relate to the alterations in criminal procedure during trials which would need some time before they could be effectively reviewed. I ask for leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment No. 4 not moved.

SECTION 2.

Question proposed: "That section 2 stand part of the Bill".

Mr. O'Leary

To develop the point that was commenced by Senator Durcan regarding adequate statistics, in discussing this question in the other House the Minister made the following very reasonable statement. He was referring to the statistics that would be necessary in order to conduct the review. He said that it would not be possible for the House, upon the information presented by a Minister for Justice in five years time, to adequately make up its mind if it did not have adequate statistics on which to base its opinion. That is a very true statement and I endorse it. Would the Minister care to comment on how we can make up our minds on any new powers if we do not have adequate statistics on which to base the decision to introduce those new powers? The Minister might decide to answer that question on the section and I would be glad if he did. We have powers of detention at the moment but we do not know how they are being used. The Minister said that in order to repeat the process we should have this information. Surely, therefore, there is a responsibility on the Minister to have that information before us prior to the operation of section 4?

Mr. Noonan

(Limerick East): I do not agree with that line of argument. Any Minister who comes into the House with legislation has researched that particular area and he advocates a particular line of legislative remedy for a particular problem. Here we are talking about section 4 which allows detention with a whole variety of safeguards and procedures, for six hours in the first instance and subsequently for another six hours if a superintendent authorises it. You cannot have statistics showing how that power will operate until that power is in operation.

Mr. O'Leary

One like it is in operation.

Mr. Noonan

(Limerick East): No. One like it is not in operation. The period is much longer; it is specifically under a different Act and it is directed at a schedule of offences generally in the subversive area. It is not like it. Certainly the information available from that particular procedure, was of course, evaluated by me. Senator Higgins read out a whole list yesterday which indicated that any statistic I had available about anything was freely made available to the other House and it would be available to this House also when they are discussing it.

We are talking here about sections 4, 6, 8, 10, 15, 16, 18 and 19. The section was brought in by amendment saying that we would review the operation of these sections in four years time and we would review them in the light of experience. Several Deputies — and Senator Durcan echoed it here today — said it will be very difficult to review in the light of experience if the experience is not statistically recorded and if the stastistics are not available to Deputies and Senators who will be monitoring it. I have said that under the regulations we will be in a position to require detailed statistics and that these statistics will be available to both Houses of the Oireachtas when they are monitoring the operation of the sections. I think that is a reasonable position.

Question put and agreed to.

SECTION 3.

Question proposed: "That section 3 stand part of the Bill."

Mr. O'Leary

Would the Minister care to explain to me the question of imprisonment including penal servitude? He can do it here or he can do it under section 4. Would the Minister care to indicate what the position will be under the Act when the maximum sentence is given as the alternative to penal servitude of more than five years or imprisonment of less than five years? Will provisions in section 4 in particular come into operation under that definition of imprisonment?

Mr. Noonan

(Limerick East): I would like to go through the various definitions for the benefit of the House.

Mr. O'Leary

I am most concerned about imprisonment.

Mr. Noonan

(Limerick East): This is a little like studying for an examination. The examination was in the Dáil but particular sections were not absolutely highlighted and precisely questioned and so I will have to go back and check the notes on them. Imprisonment is defined as including penal servitude and detention in Saint Patrick's Institution. Historically, penal servitude was introduced as a substitute for transportation and was, generally speaking, a more exacting form of imprisonment. Persons sentenced to penal servitude were termed convicts. Like ordinary prisoners convicts are subject to certain civil disabilities such as loss of right to administer property and disqualification from holding certain offices, for example, membership of the Dáil. Penal servitude is being abolished under the Criminal Law Bill which we are drafting at present. There is now no difference in practice between the conditions applicable to penal servitude and those applicable to imprisonment. The minimum period of penal servitude is three years but under section 1 of the Penal Servitude Act, 1891, a court may substitute imprisonment for a maximum of two years.

Before the enactment of the Criminal Justice Act, 1960, persons could not be sent directly by the courts to Saint Patrick's Institution unless they were being sent for borstal training — that was detention for two years with the possibility of earlier release for good behaviour, employment and so on. Since 1960, persons between 16 and 21 years of age may be sentenced to detention in Saint Patrick's Institution for any offence for which they could have been imprisoned. The question Senator O'Leary was asking was, if there was an alternative open to the court of one penalty greater than five years and one less than five years, would section 4 apply? I think it would once the more serious maximum sentence applied, but I will get a more substantial answer for him on section 4.

Mr. O'Leary

It was to give the Minister some warning. I am a little confused with regard to this. I understood that penal servitude either is not or cannot now be booked. I understand that to be the position but I am not sure. In section 9 of the Official Secrets Act the maximum sentence is seven years penal servitude or two years imprisonment. If I am right in saying that the seven years penal servitude cannot be applied by the court, will the section 4 provisions apply by reason of the fact that it is still there in theory or will the fact that two years is now the only practical sanction take it outside the scope of section 4? I am asking the Minister am I right in saying that penal servitude cannot be imposed at present? If I am right will the fact that there is a notional term of imprisonment for at least five years in penal servitude bring it within the ambit of section 4.

Mr. Noonan

(Limerick East): I will give the Senator an initial response and I will give him a more detailed response on section 4 if he is not satisfied. There are certain offences for which a period of penal servitude is the maximum sentence, and the appropriate sentence, but there is no distinction now made in the prisons between prisoners. People are treated equally. You do not have a certain group of prisoners undergoing sentences of penal servitude, or anything like that. That distinction does not remain any longer.

We are aware of the general problem of penal servitude and in the Criminal Law Bill, which is being drafted at present, we will be removing penal servitude as a sanction. Consequently in a short period of time and, indeed, probably as soon as this Bill becomes law, that change will be made anyhow. At the moment I would take it that, because the more serious notional sanction in the law is in excess of five years, offences of that nature would come within the ambit of section 4. I will give the Senator a more detailed reply if necessary on section 4.

Mr. O'Leary

I am a little confused and the Minister might help me in that regard on section 4.

Question put and agreed to.

SECTION 4.

An Cathaoirleach

Amendment No. 5 is in the name of Senator O'Leary. Amendment No. 27 is consequential on amendment No. 5 and they may be discussed together.

Mr. O'Leary

I move amendment No. 5.

In page 4, line 7, after "offence" to insert—

"and which is declared by regulation to be an offence to which this section applies.

Amendment No. 5 to section 4 and the consequential amendment No. 27 to section 30 go together. This consequential amendment has no substance unless the first amendment is inserted. Consequently, I propose for the purposes of discussion to ignore it. The purpose of putting down these amendments was to seek to help the implementation of section 4 should be it passed. I am not in favour of passing section 4 but, if it is passed, it is important that it should be implemented in the best possible fashion. I put forward these amendments in that constructive way. The problem that arises is that an examination of section 4 shows that it is by no means clear to the ordinary person reading it what particular offences are covered by section 4. Subsection 4(1) declares that the section "applies to any offence for which a person of full age and capacity and not previously convicted ..." We can ignore that from a practical point of view. It just applies to any offence which is punishable by a term of imprisonment of at least five years. "Not previously convicted" just means where a five-year term of imprisonment applies to a first offence. Therefore, it would appear that all the offences, whether created by statute or common law, which are punishable by a term of imprisonment of more than five years, fall within the ambit of section 4. That is the only logical conclusion from subsection (1).

Where you have a term of imprisonment of more than five years they are automatically covered. It seems to be restricted further by subsection (2) even though it does not state that it is restricting it further. It seems to restrict it to offences where the Garda Síochána have authority to arrest without warrant. That is not clear. Anybody reading that section would not understand that that is the case. The people in the other House did not understand it was the case and the Minister had to emphasise successively to them that it was the case and had to say this applies only where the Garda can arrest without warrant.

I am not very happy that section 2 achieves the object which the Minister has in mind. I put down amendment No. 6 to make it more understandable and more definite. It is strange that the definition section is qualified because it does not apply to all offences with a five-year term of imprisonment. It applies only to those offences where the Garda Síochána can arrest without warrant. By and large, they are civil commotion type offences and offences of that nature. People do not appear to have identified that this is a further restriction. I am sure there are many Members of this House who are not aware of this restriction. Indeed, when I made my Second Stage speech myself I was not aware of the restriction and I said that it could possibly apply to section 94 of the Finance Act, 1983.

If section 2 does satisfactorily what the Minister suggests he wants to do, to confine it to cases where the Garda can under the present law arrest without warrant, an enactment like that would be outside the scope of the legislation. I do not think the Minister achieves that satisfactorily, and that will be the subject of a further amendment. I introduce these points to emphasise that it is a very technical area. It will be a very complicated list of offences for which this power will be exercisable.

All I want to do is to make it an obligation on the Minister to publish such a list. I have gone a bit further and I have asked that the lists should be the subject of a resolution by each House of the Oireachtas approving them. That is really a second point. The first point is that there should be a list. I am aware that this question of a list was discussed in the other House and I am aware that it did not find favour with the Minister.

The purpose of my amendment is to define what offences section 4 applies to and to make clear to everybody, to the members of the Garda Síochána and to the citizens, the list of offences under which they may be arrested, detained and questioned under the provisions of section 4. The Minister basically has countered that argument in the other House if I could paraphrase him. If I am wrong I am sure he will correct me. The Minister said that no Minister would take a chance of leaving out any offence and would produce the most complete list he could and present that to the Houses of the Oireachtas, and basically the Houses of the Oireachtas would only be confirming what is already in the Bill. The mere extraction of the list would have a benefit in itself. The members of the Garda Síochána and the members of the public would then know the list of offences to which it applies.

The Minister might say he has no intention if this amendment is not passed of producing a list. Imagine the operational problems of the Garda Síochána faced with this new power. It is not a simple matter of whether an offence carries a five year term of imprisonment. There are two conditions: it must carry a five year term of imprisonment imposed by statute and it must be an offence for which a person can be arrested without a warrant. The Minister will have to draw up a list for the Garda Síochána. Somebody will have to say to the Garda Síochána that with regard to an offence under section 7 of the Larceny Act they can arrest, detain and question and in respect of an offence under section 27 of the Larceny Act they cannot do that. This is precisely why the Minister was making the point that the first year of the operation of this power would not be typical because everybody will be learning. Everybody will be learning to understand what is covered and what is not covered.

Mistakes might be made but leaving aside the question of mistakes which the courts are well able to handle, it is possible that the Garda Síochána will under use the power the Minister has suggested. Somebody will have to educate the members of the force and the members of the public as to what offences are covered. All I am asking is that the list should be shared with the general public. That is my request. I am also saying that is should be the subject of an affirmative resolution by the Houses of the Oireachtas but that is not really the essential kernel of what I am saying. What I am saying is that we should know what offences are relevant to this power. I cannot see why it is not possible to draw up such a list.

I pointed out to the House on Second Stage that in the Irish Criminal Process, a relatively new book on Irish criminal law by Edward Ryan and Philip Magee, there was in the appendices of that book a series of lists. One was a list which indicated the offences created by statute and the maximum sentences. I found it very helpful in indicating the areas of activity to which section 4 might possibly apply. There were over 200 offences which I identified. A further complication is that you must superimpose on top of that a further list as to which of these offences can be the subject of arrest without warrant. We owe it to the Garda Síochána and to the general public to make that list available. That is why I put down this amendment.

It is right and proper that such a list should be made available. I know it is a complicated and difficult job and I know that even the most careful listing may contain errors. My argument is that the job will have to be done anyway because every Garda station will have to be informed with regard to the powers under this legislation. Therefore somebody will have to draw up the list and inform the Garda otherwise there will be a dreadful situation where gardaí will act on instinct. I do not think that will happen. It should not happen. The garda will know what powers it contains and act accordingly. In order to know what powers he has he must be told. There is no point in showing the average garda, who has a leaving certificate, sections 4 (1) and (2) and saying; "Carry on, define that yourself. If it is late at night and you think it is appropriate to arrest somebody and question him if you think the person falls within the ambit of subsections (1) and (2) carry on". No garda would be able to understand what it means. It would have to be explained to him. He would have to know, if he is arresting a person for stealing that it is an arrestable offence and one that the detention provisions provide for. No doubt the common areas will become known in a very short time. The garda is entitled to know the full list because he may be called upon to use those powers at some time.

The purpose of my amendment is to extract from the Minister's Department the kind of list I am speaking about. The method I would use to do it is as follows. I propose adding to subsection (1) a further qualification. Section 4 (1) states that the section applies to any offence for which a person may be sentenced to five years imprisonment or an attempt to commit such an offence. I seek to add to that: "and which is declared by regulation to be an offence to which this section applies". It is my intention that every offence which falls within the definition should be included in the regulation and, having been included in the regulation, should then be a qualified offence. The people who are operating this will be able to look at a list and say, ""This is what I can do". That is very important. I then propose that the Minister may by regulation declare any qualified offence to be an offence to which this section applies. I then say that drafts of regulations proposed to be made under this section shall be laid before each House of the Oireachtas and the regulation shall not be made until a resolution approving the draft has been passed by each House. I do not consider subsection (3) to be vital to the amendment. The first one, the Minister being able to make regulations, is absolutely essential because thereby we will know what is covered and the members of the general public will know. The Garda Síochána, who will have the misfortune to try to implement section 4 — when we go on to consider it in detail we will be able to explain why it will be a misfortune for them — will at least know the parameters of their power. It is for that reason I move this amendment.

Mr. Durcan

The point made by Senator O'Leary is not unreasonable. An arrestable offence under the Bill is reasonably clear. It must be one of a statutory nature to which the minimum sentence of five years can apply and where the power to arrest without warrant exists. It is reasonable that the public should know the areas of criminal activity to which these provisions apply. If one bears in mind the provisions of sections 15 and 16 of the Bill which create new statutory offences and which place an obligation on the Garda to advise a suspected person in ordinary language that he may be committing a crime, without a yea or nay the person in question will be under no misapprehension that he is involved in criminal activity. Bearing in mind that this Bill puts that onus on the Garda then it is not unreasonable that Senator O'Leary's suggestion should be followed and the public should be aware of the specific crimes to which section 4 would apply.

Mr. Noonan

(Limerick East): I shall deal with some initial points made by Senator O'Leary and that is the actual definition of to whom section 4 applies. It applies to any person of full age and capacity who was not previously convicted. The idea of full age and capacity refers to the offence and not to the person. There is a frequent misunderstanding about this. That is an age qualification on the person. You look at the offence and if this is an offence for which the court would sentence an adult who was mentally sound to a period of five years or more then it would apply. The second point is that by virtue of any enactment, there are common law offences which are not covered by an enactment to which a sentence of more than five years would apply. Consequently that has been taken out.

One of the main points he makes deals with the question of what is a felony. Before, say, 1914 — I am coming around to the idea of arrest without warrant — any serious offences would have a summary power of arrest attaching to them. They would have been termed as felonies and declared to be such, either by common law or by statute. There is a power of arrest without warrant for felonies. Subsequent to 1914 and more recently the fashion with regard to statutes has been when creating new serious offences not to call them felonies, but simply offences, so that the statute would have to provide power of arrest without warrant for them.

Generally speaking to those offences that were felonies in law before 1914, the common law power of arrest applied. I must say that when I read Senator O'Leary's amendment initially I thought that what he was advocating was that we would move away from the five-year formula to a restricted schedule of offences and that this particular schedule of offences would be more restrictive than the five-year formula. The Garda, by and large, certainly know what a felony is and, by and large, they would know the general classifications of offences to which the five-year formula would apply. If we were to accept Senator O'Leary's suggestion, on his own advice, it runs to, is it 200 offences?

Mr. O'Leary

They would be the ones that would have to be considered.

Mr. Noonan

(Limerick East): I can see great reasons for not using a list, but certainly the Garda will have to be fully informed about the necessity to be absolutely sure about which offences it applies to. They are at the moment; they know in general terms what kinds of offence carry the five-year sentence. It is not necessary for the Garda to have a long check list of offences to which they would refer.

I would like to make one or two points in anticipation because I am sure that they will be made by Deputies as well. The idea of having a schedule attached to this Bill in the same way as a schedule of offences is attached to the Offences Against the State Act was considered. It was decided not to proceed in that way because the Garda have quite a number of lists to deal with at the moment. They have the initial list separating felonies from misdemeanours. They have the Offences Against the State Act and the Criminal Law (Jurisdiction) Act of 1976. A number of specific sections here distinguish between types of crime. In practice, it is very difficult for the Garda to operate different lists in connection with different legislation. The idea that there would be a five-year formula and that there would be a particular arrestable offence which would carry the sentence of five years and that section 4 would apply to that is operationally sensible and is simple to operate from the Garda point of view. I do not take the point that the Garda have to have a list of all the specific offences to do this.

For example, a particular offence which has been questioned is simple larceny. People are asking why all larceny is included under the provisions of this Bill. People stealing quite small amounts of money could be arrested without warrant and could be detained. The difficulty was in separating larceny and sub-dividing it into serious or trivial crime on the basis of amount stolen. It is larceny if you steal a 10p piece. It is also larceny if you steal £10,000. There is certainly a difficulty there. Then again, if you steal a small amount from somebody who cannot afford it, is it a more serious or less serious offence than stealing a large amount from the person who can afford it? If a small amount is being taken out of a supermarket is it a once-off operation or is it part of a pattern where the shop or pub or whatever is being systematically robbed and a series of offences committed. Even the young garda knows what larceny is. There will be many offences under the Larceny Acts which will carry the five-year sentence but he will know that general body of law. That general crime has this five-year sanction and he can deal with that. It would be frightfully complicated for the Garda Síochána if a kind of check list was supplied.

On the other hand, I would say to Senator O'Leary that I will certainly examine what he has said. I will check it with the Garda authorities. If it is brought to me in a convincing way that it would be necessary for the Garda to have a particular check list, I will certainly provide the check list for the Garda but that is an operational matter. My advice at the moment is that they will not have difficulty in operating this because the idea of the felony and the idea of the five-year formula is one which the Garda have taken on board. They would know the particular types of offences which would fall within the formula. To go on and give them a specified list of each and every crime which falls within the formula would be of no additional help to them.

I must say that in responding to this point I misinterpreted Senator O'Leary's intent because I thought what he was about to advocate was a more restricted list and that only a selection of offences which would be covered by the five-year formula would be the ones to which section 4 would apply and this would be attached to the Bill as a schedule. My initial response is as I have given it, but I will consider what the Senator has said. It is not necessary to have it in the Bill because if it is necessary it must be operated by the Garda. I understand that they do not need this specific information to operate section 4. I will inquire and, if they do, certainly every help will be given so as to ensure that this provision and this Bill will operate as the Oireachtas intends it to operate.

Mr. O'Leary

I would like to thank the Minister for his positive response. I am glad that I got over the difficulty of explaining what I actually meant. It is not my intention, nor was it ever my intention, to use this device to restrict the definition of the series of offences to which this applies. I must say that I found fairly unconvincing the idea that the Garda Síochána do not need a list. They certainly need a list. Of course, any garda will find out eventually, or almost immediately, whether simple larceny is covered or is not covered by this. The range of offences which the Garda come across during the course of their ordinary activities is very wide indeed. For instance, under the Road Traffic Acts the Garda would probably know from practical experience which of the offences are arrestable offences, but would not necessarily know, because it has not been relevant to them up to this, which of these offences are punishable by five years imprisonment.

Mr. Noonan

(Limerick East): He does not have to know.

Mr. O'Leary

He does not have to know?

Mr. Noonan

(Limerick East): If he knows what he can do, he can arrest without warrant, and the member in charge of the station is in a position to know whether that person can be detained or not. Each and every garda, as long as he knows that somebody can be arrested without warrant, is not in breach of the law. He is exercising his powers.

Mr. O'Leary

What you are suggesting, then, which is very serious, is that the safeguard lies in the determination by the member in charge of the Garda station as to whether the offence for which the fellow already at that stage has been arrested falls within the detention capacity.

Mr. Noonan

(Limerick East): I did not say that.

Mr. O'Leary

Is the Minister now saying that if a garda stops somebody on the side of the road, he has to make up his mind whether to arrest that person.

Mr. Noonan

(Limerick East): Under the present legislation.

Mr. O'Leary

But, at the moment, if he arrests the person it is merely for the purpose of charging him. The Minister is now saying that at the time of making the arrest, he does not have to determine whether he is arresting for the purpose of charging, detention and questioning. That is a development which I certainly did not read into this section, although it may well be there. It seems to be an extension which was not understood by Members of the Houses of the Oireachtas. I am not saying that the Minister is wrong, but I am saying it is a development which was not understood by the Houses of the Oireachtas so far as I read the debates, and that is probably our fault.

Am I correct in saying the Minister's interpretation is that when a garda stops somebody in respect of, say, a traffic offence, and knows it is an arrestable offence, even though he may have no intention of charging that person, he can bring the person back to the Garda station and only at that stage decide whether to charge him or detain and question him? If that is the situation, there will be an enormous increase in the number of people who will be arrested.

Mr. Noonan

(Limerick East): No. The Senator is misinterpreting what I said.

Mr. O'Leary

There is no point in continuing if I am misinterpreting the Minister. He might straighten me out and then I can come back because I do not want to put on the record something that is wrong.

Mr. Noonan

(Limerick East): Part of the garda's training is to know when he can arrest without warrant. The Garda Síochána Guide is a compilation of various penal statutes setting out which provisions are felonies and misdemeanours. It is a standard manual which they must have regard to. They must be familiar with the main and most used provisions. Naturally, the Garda, in practice, have a number of provisions which they use quite regularly and there are esoteric provisions which they scarcely ever come across in the normal course of duty.

The Guide also sets out the later offences, not described as either felonies or misdemeanours, to which a power of arrest without warrant attaches. Sometimes these offences can be quite minor, for example, failure to give a name and address under the Litter Act. The arresting garda will know from his training — he has a manual — what a felony or misdemeanour is. He knows when he can arrest without warrant. We are not making any change in that whatsoever. There is no change in the present Bill on the powers of arrest. The powers of arrest are the ones that exist now. A garda at the moment can arrest on reasonable suspicion. He must have reasonable cause for suspecting and there is always the intent of charging when the garda arrests, otherwise, there is no point in it.

The point I have been making is that if the garda on the beat makes a mistake — even if we take the Senator's line that he does not know each and every offence — provided he does not make a mistake in the arresting procedures, he is arresting without warrant and has the powers to do so. He is arresting because he has reasonable cause to suspect that the person arrested has been involved in an offence. Once he does that, he is arresting with the intention of charging and that particular person is taken to the Garda station. If, for example, the garda thought that as well as arresting him under his powers of arrest, he could also arrest him under the provision in section 4, the person would be questioned subsequent to the arrest.

What I am saying is that because we have introduced the idea of the custodial guard there is a second check on it. The argument saying that the rookie recruit out of Templemore, who would not be very experienced, in his first three months out on the beat could make a whole lot of mistakes on the five year formula, but this does not stand up. His training would make it absolutely certain that he knows what are his powers of arrest. He has a manual, which I doubt he carries around in his pocket at night, where he can actually check offences.

But suppose he legitimately arrested somebody under his powers of arrest, and if at the time of arresting he thought that person could be detained, there is a further safeguard because the person in charge of the station would have to authorise it. That garda would have the manual which outlines the offences to hand. If there was any doubt whatsoever it could be checked. The doubt would arise only on the margins. The Garda are familiar with the offences they normally deal with and all of us are familiar with the ones they normally deal with. Certainly you could make out a list of 235 offences and if you brought gardaí in and gave them an examination they might make mistakes on the offences on the margins, that is, the last 15 which they rarely meet.

I am saying that the safeguard is there for dealing with this and I do not envisage any difficulty arising. I do not think the formula Senator O'Leary is advocating — and I accept he is advocating it in ease of the garda on the beat — will help them any more than the manual they have at the moment.

To give an example of what I am talking about, the Larceny Act covers simple larceny and other larceny offences which carry a sentence of between five years and life, depending on the offence. Damaging fixtures, trees or intent to steal, fraudulent abstraction of electricity, larceny of a mailbag or a postal packet, stopping a mail van with intent to rob, and all the subdivisions of it, embezzlement by a clerk or servant, all these crimes are felonies. What I am saying is that the garda would know the general area of felonies under the Larceny Act but when you subdivide it and call out the specific offences the situation might be different. The list would be available in the Garda manual. For example, under the Offences Against the Persons Act, 1861 — there are a lot of eminent legal people present — would attempting to render a person unconscious by choking, suffocating, etc., with intent to commit an indictable offence be above or below five years?

Mr. O'Leary

I have no idea. That only convinces me that what I am saying is right.

Mr. Noonan

(Limerick East): What I am saying is that the garda knows the general areas of law. He has a manual——

Mr. O'Leary

The more I hear the Minister explain the move it strengthens my argument.

Mr. Noonan

(Limerick East): I thought when I introduced the idea of choking somebody Senators would immediately jump and say that that would be above the five year formula.

I will examine this matter, not on the basis of amending the Bill, but on the basis of whether the Senator's suggestion would be of benefit to the garda on the ground in the practical situation. Initially, I thought the Senator was trying to restrict the powers of section 4 to a schedule of offences. I did not realise he was being as helpful as he obviously intended to be. Sitting suspended at 1 p.m. and resumed at 2 p.m.

Mr. O'Leary

The Minister has indicated his attitude to the amendment, which was constructive. Another point has arisen with regard to the question of the use of the power of arrest, but that would be more properly discussed under the section, rather than arising out of the amendment. In the circumstances, because of the undertaking by the Minister to examine the situation, I am quite happy to seek the permission of the House to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. O'Leary

I move amendment No. 6:

In page 4, subsection (2), line 8, after "Garda Síochána" to insert "is empowered under law to arrest without warrant and".

This amendment seeks to deal with the question of arresting without warrant. The Minister has stated on a number of occasions in this House, and in the other House, that there is not a new or an additional power of arrest and what we are dealing with is merely using the existing powers for the purpose of bringing these sections of the Bill into operation. I will quote what the Minister said in the other House as reported at column 1843 of the Dáil Official Report on the discussion on the Criminal Justice Bill on Committee Stage, on 23 May 1984:

As I have said on a number of occasions, there are no new powers of arrest under this Bill. The criteria upon which people would be arrested under the powers of this Bill are exactly the same as existing law, that is, on the grounds of reasonable suspicion. Somebody who is detained without reasonable suspicion — and I mentioned it earlier here — has the redress of a civil action for damages.

The Minister there placed the power in its context and I do not disagree with anything he said. However, it appears to me that the intention of the Minister not to create a new power of arrest is not adequately conveyed by the section. The fact that it is not adequately conveyed is borne out by the fact that the Minister has repeatedly to reiterate that there was no new power of arrest when he was discussing the matter in the other House.

The section deals with the matter as follows. First of all, it indicates the offences which form the basis on which section 4 may operate. That is the one we have discussed already about an offence punishable by a term of imprisonment for a term of five years or more. It then limits its operation to those offences for which there can be arrest without warrant and does so in the following peculiar fashion. It says:

Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies,

It could be read into that there is an additional power to arrest without warrant where a garda with reasonable cause suspects a person of committing any offence which falls within subsection (1). The offences which fall within subsection (1) are of two types, offences for which there are powers to arrest without warrant and then there are other offences. Subsection (2) seeks to take out the second category, the ones for which the power to arrest without warrant does not exist and remove them from the operation of section 4. That seems to be a very peculiar situation. Included in section 4 is every offence for which there is under any enactment a penalty of five years or more. They are all in there, including section 94 of the Finance Act. They are all the subject of that section.

The section says:

Where a member of the Garda Síochána arrests without warrant ...

The Minister is saying that that section limits the operation of section 4 to those offences for which a garda can arrest without a warrant. It may well be that that is the correct interpretation of what the Minister has said but I do not think it adequately conveys it. I am a little concerned about it. The purpose of my amendment is explanatory. It does not seek to change the section from what the Minister says the section is. We can discuss afterwards whether that is a good or bad idea. I am not saying whether I am in favour of or against section 4, but the Minister said he is not changing the powers of arrest. My amendment is seeking to make that plain. The way I am seeking to make it plain is to put in under subsection (2) the following:

Where a member of the Garda Síochána is empowered under law to arrest without warrant and arrests without warrant ...

Then section 4 would come into operation. By doing that we would be making it perfectly clear that we are limiting the operation of section 4 to those offences which have a five year, or longer, penalty and which, in addition, fall within the category of offences which are capable of giving rise to an arrest without warrant. My amendment seeks to make that position clear. If my amendment is not acceptable, the position as outlined here is a little vague. It merely says:

Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies,

It could be taken to suggest that an offence for which the power to arrest without warrant does not exist, for instance, a revenue offence, and which falls within the definition of subsection (1), is now further recategorised by reason of the fact that it definitely falls within subsection (1), and has now become an offence for which the Garda Síochána can arrest without warrant. What I am seeking to do is limit it quite clearly to precisely the category of offences to which the Minister says it applies. That is the purpose of my amendment. It is of an explanatory nature. It is not to change what the Minister has in mind at this stage.

Mr. E. Ryan

As I understand it the Minister's view is that a person can be arrested without warrant only in cases to which section 4 applies and in such cases where under the existing law a person can be arrested without warrant. That is the position. I certainly agree with Senator O'Leary that there is a possible ambiguity here because subsection (1) says quite clearly what this section applies to. Subsection (2) states that "where a member of the Garda Síochána arrests without warrant..." and that can be read in two ways. Any subsection which can be read in two ways is a dangerous one. The fact that it is the Minister's intention that it should be read in the way which I have said is not quite good enough. We have been over that ground before, that an Act should stand on its own and the intention of the Minister and the Oireachtas really should not have to be relied upon to interpret it. There should be no ambiguity, if possible.

I agree with Senator O'Leary that there is a possibility of this being read in a second way. It depends on how one reads it and if one reads it as saying, "where a Garda Síochána arrests without warrant then the following applies" and necessarily reading back into the question of whether or not he has that power, I think this subsection would be tightened up. Any possibility of ambiguity would be eliminated if the words which are proposed in this amendment were included in the subsection.

Mrs. Robinson

It seems to me that this is a section where the question that has been raised is a technical one and where there is a doubt as to whether an unintended risk is being run. There is no issue of policy here. I do not think any of us disagree. We want to avoid the problem and so I rise to say that I hope the Minister will look at it in this light. It is certainly a real problem. It could lead to difficulties. It is even possible that the courts would interpret it in a way that was not intended. That has happened before. It is unlikely in this instance but we have the possibility of just dotting the Is and crossing the Ts and ensuring that it represents what the Minister intended it to represent. I would hope that we would be able to do that.

Mrs. McGuinness

I should like to support what the Senators have said. I would be in agreement with Senator Eoin Ryan that it is open to different interpretations. It is quite clear what the Minister intends and this would help to make the Minister's mind come across more clearly in the Bill. As Senator Robinson has said, there is no issue of policy involved but it is important to get all new legislation stated as clearly as possible. It would be worth the Minister's while to take a look at the amendment and see if it could be accepted.

Mr. Noonan

(Limerick East): I appreciate the points which the Senators are making. There is no issue of policy here and it is a question of whether the form of words I use succeeds in bringing my intent into law. If a better form of words can do that more effectively then I would have no problem in accepting it.

The point I would like to make is that the subsection cannot operate unless there has been an arrest without warrant. People arrested under a warrant must be brought before a district justice, and if he is not immediately available, before a peace commissioner as soon as practicable. That is under section 26. It cannot operate unless a person is arrested without warrant. It can only mean lawful arrest without warrant. I cannot see how it can be interpreted as unlawful arrest without warrant because if there is no authority to arrest then the arrest, and any subsequent detention, would also be unlawful. I do not think it is a correct interpretation to say that the phrase "where a person is arrested without warrant" could extend to what in effect would be unlawful arrest without warrant. I do not see how Senator O'Leary's fear would be realised unless it extended to that.

If Senator O'Leary's interpretation is correct the same kind of formula is used extensively in the Bill. Sections 18 and 19 open by saying, "(a) where a person is arrested without warrant by a member of the Garda Síochána ...". Section 26 (2) states that a person arrested without warrant shall be brought before a justice and so on. That runs through the Bill in a number of specific areas. When Senator O'Leary put down this amendment I took further advice on it and my advice is that the form of words used is adequate. There is no issue of policy in it and I will have it checked and I will take the advice of the draftsman again. In something like this the advice of the draftsman is probably a weightier advice than the advice of my advisers here or, indeed, my own opinion. I will ask the draftsman about that again.

Mr. E. Ryan

The point in relation to the other sections the Minister referred to is that they are not specifically preceded by the kind of provision like that in subsection (1) of section 4 which seems to start by being all embracing: "This section applies to any offence for which a person of full age..." and so on and then it follows with the Garda Síochána arresting. Being read immediately after subsection (1) there is a possibility of ambiguity.

Mr. Noonan

(Limerick East): If sub-section (1) was transferred to the end of the section would that get away from the problem?

Mr. O'Leary

That might be a possibility. The Minister seems to be nearly understanding what I mean but not quite. Of course I accept that if there is an illegal arrest, an unlawful arrest, any subsequent detention will be unlawful. That is, obviously, quite true. If there is not a power to arrest without warrant and an arrest without warrant takes place then, obviously, the subsequent detention arising out of that will be tainted with the same illegality. The Minister, and myself, are ad idem on that. The problem that arises is that because of the generality of subsection (1) it is possible to read subsection (2) as creating for the Garda Síochána the legal power to arrest without warrant in respect of any offence which falls within subsection (1). That is the problem. One is capable of reading subsection (2) in such a way that what is, in fact, being said — I am expanding it a little bit — is a member of the Garda Síochána is empowered to arrest without warrant any person. He is empowered to arrest without warrant and that is creating a new power of arrest without warrant in respect of any offence which falls within subsection (1) which would not then be unlawful because it would have been done pursuant to subsection (2).

Mr. Noonan

(Limerick East): If that is the case the Senator's amendment does not solve the problem because the addition of words, “is empowered under law to arrest without warrant” to subsection (1) may equally empower under law to arrest without warrant.

Mr. O'Leary

It does not. I am by no means hung-up on my words and I want to make that quite clear. I put my amendment down just to explain my point rather than in any inflated expectations that the words would find their way into the Bill. I feel that it is possible to interpret subsection (2) in the following way, that the power to arrest without warrant is hereby extended to include all the offences covered by subsection (1) and any offence which falls within these categories can be the subject of a detention. I am afraid that subsection (2) is capable of being so interpreted and I know the Minister does not intend that.

I am afraid that a new power of arrest without warrant is being created by the very form of the words being used. It does not say anything about arrest without warrant under other enactments or arrest without warrant under a previous enactment. It just says "Where a member of the Garda Síochána arrests without warrant". Let us take an example: suppose a garda quite innocently arrests somebody in respect of an offence which has a five-year penalty but is not an arrestable offence, he is detained and subsequently he comes to court or whatever is the occasion on which the issue is being tested. It is put to the garda that he has done something which is wrong and the prosecutor says on behalf of the State that this section applies to any case where the garda arrests without warrant. This garda did arrest without warrant. Furthermore, this section empowers the garda to arrest without warrant in any case where subsection (1) applies. They would have a fair argument that that could be read into subsection (2).

It seems that subsection (1) is framed in such a way as to include every offence for which there is a penalty greater than five years and, therefore, if that falls within section 4 the subsequent section will be read with that section in mind. Somebody will say that all offences for which there is a five-year penalty or more are covered by section 4 and, therefore, the effect of subsection (2) is to give the garda the power to arrest without warrant even in those cases where he does not otherwise have it. That is the problem that I see. He will go into court and say, "I did arrest without warrant, but my interpretation of subsection (2) is that I was entitled to arrest without warrant because it was an offence to which section 4 applied and I arrested without warrant. Subsection (2) allowed me to arrest without warrant and I did have reasonable cause". However, reasonable cause in itself does not give rise to an arrestable offence. It might be a reasonable cause in respect of a category to which an arrestable offence applied. Reasonable cause or a reasonable suspicion does not give rise to arrest per se because a reasonable suspicion that you parked your car illegally does not give rise to an arrestable offence. That is the problem that I see and I would like the Minister to have a look at it. It is a technical point but I think it is a very important point.

Mr. E. Ryan

There is another possibility which could add to the ambiguity and that is that the significance of without warrant may be read as distinguishing the case from a case where a person is arrested with a warrant. If he is arrested with a warrant then he must be brought before a district justice or a peace commissioner immediately. It could be argued that that is the significance of without warrant and that is the only significance and that apart from that the garda is entitled to arrest under the apparent blanket terms of subsection (1).

Mrs. Robinson

I was going to make another suggestion of how this problem might be coped with which would be to have a subsection making it clear that no new power to arrest without warrant was being conferred by this section, that, in other words, the section referred to the existing power to arrest without warrant. That might be a way of clarifying it.

Mr. Durcan

Surely we are speaking about this matter as though subsection (1) is a limiting subsection. On re-reading that subsection it would appear to me to be merely a statement of fact. It would only be a limiting subsection if the word "only" was included, that this section only applies to any offence.

Mrs. Robinson

I take it it does.

Mr. Durcan

We have been discussing it on that basis. When one reads the sub-section that limitation does not appear to be there. We have been assuming it is there.

Mr. E. Ryan

I do not think that will help.

Mr. Noonan

(Limerick East): If it applies it “only” applies. I think that is a reasonable interpretation. I take the point that Senators have made and I will have it examined again. I will take the draftsman's advice on it. In the final analysis it is a matter of drafting. I would like Senators to have a look at the suggestion that subsection (1) might be taken down to the end of the section. Would they have the same doubts about it? If we saw subsections (1) and (2) in isolation from each other, would it clarify it more clearly?

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendment No. 7 is related to amendment No. 8 and they may be discussed together.

Mr. O'Leary

I move amendment No. 7:

In page 4, subsection (2), line 10, to delete "may" and substitute "shall".

Certainly Nos. 7 and 8 are related. It is an attempt to draw out of the Minister explanations for the way in which this section has been drafted. The subsection says:

Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which the section applies, that person may be taken to and detained in a Garda Síochána station for such period as is authorised...

What else may be done? The use of the word "may" upsets me. What else may be done with the suspected person? There is no obligation to take a person to the Garda station having arrested him. Having arrested him does not mean he may be taken to a Garda station. My amendment seeks to put "shall" in there: in other words, to put an obligation on the garda having arrested somebody under this section to bring the person to the Garda station and start the process of detention — or else release that person as the case may be — on arrival at the Garda station with the safeguards which the Minister has built in about the member in charge of the station. The trouble is that as it is at the moment it appears that there is no obligation on the Garda Síochána to take a person forthwith to the Garda station or, indeed, at all to the Garda station. The purpose of changing "may" to "shall" is to put an obligation on the garda once having arrested a person to bring that person to the Garda sation. The section would then read:

Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies, that person shall be taken to and may be detained in a Garda station for such period.

Obviously we must put in "may be" there because it is possible that they will be released or they need not necessarily be detained. I would like to hear the Minister's views as to why an obligation is not on the garda to bring forthwith to a Garda station a person who is detained under this section.

The Minister referred to something this morning which upset me. He indicated that where a person is being arrested the decision as to whether he is being arrested and detained under section 4 or arrested for the purpose of bringing him before a court did not have to be taken immediately. That was the answer the Minister gave this morning to an earlier amendment of mine. I have always believed the situation to be in this Bill that where a member of the Garda Síochána arrests without warrant he arrests for the purpose of detaining in a Garda station and if necessary for questioning, not so that they could make up their minds as to whether they are going to to question or whether they are going to charge and for that reason it is important believing as I do that this power is a power which must be exercised from the very start by the Garda. In other words, the garda when arresting must say "I am arresting you and I am going to detain you under section 4 of the Criminal Justice Act, 1984, and I am going to bring you to the Garda station". If that is the case, the garda should be under an obligation to bring that person forthwith to a Garda station so that the other procedures could be brought into account. I do not think that the section, as drafted, achieves that purpose. That is the purpose of my amendment.

Mr. Noonan

(Limerick East): I should like to clear up the problem mentioned by Senator O'Leary. This morning when commenting on a previous amendment by Senator O'Leary, I was trying to evaluate what the actual situation would be on the ground, with a young recruit garda and the possibility of his making a mistake under section 4 and arresting without warrant somebody about whom he had reasonable suspicion but thinking that it was an offence which was within the five-year formula, and in effect was not. What I was trying to get across was that the rights of the particular citizen arrested did not hinge on that particular point at that moment in the process. The person would be taken to a Garda station and under the custodial guardian system if the person in charge of the station did not know right away, he could check immediately from his manual. I was trying to explain that there was a fail-safe device on it.

At present when somebody is arrested without warrant, obviously the intention is to charge, but he is not taken from the place of arrest to the court or before a peace commissioner. The normal practice is that persons are taken to the Garda station and they are detained there for some time while charge sheets are being made out and the court allows that. So there is a period of time anyway. I was trying to point out the de facto operational situation, that a garda would arrest without warrant, that the person would be taken to the Garda station, that if the garda said “I have reasonable suspicion about this particular gentleman being involved in an offence. I brought him in and I want to use the questioning process allowed under section 4 of the Criminal Justice Bill, 1984” that there is a fail-safe device there where the person charged at the station can say “I am sorry, you made a mistake”. Either you charge this person and bring him before a district justice or peace commissioner immediately after making out the charge sheet or alternatively you have to let him go. That is the point I was making; I was trying to evaluate it on the ground.

This is something which caused a certain amount of concern when the Bill was being drafted and it was evaluated whether "may" or "shall" should be used. The point got a lot of consideration. The decision that "may" should be used rather than "shall" was taken on practical grounds. There are going to be cases where an arrested person will not be taken immediately to a Garda station. The person may need immediate medical attention, for example, and the Garda are obliged to bring him to the nearest doctor. We can envisage a situation where somebody is involved in a crime and is injured, where somebody is involved in a crime and is wounded — I make that distinction. The doctor may decide that the sick or injured suspect should go to hospital. The garda will bring him to the doctor because he is obliged to do so if the person is injured and the doctor may decide that the person who has been arrested should go to hospital. That is the sort of situation that comes to mind. There may be other situations that would be equally legitimate. The person might not be able to be brought to the station directly. If we use an expression such as "shall be brought forthwith", what would be the situation if the car broke down? What would be the situation if there were severe weather conditions? What would be the situation if there was a traffic accident? I am suggesting the type of difficulties we saw when it was examined on drafting. For example, there might be a breakdown and shelter might be taken in somebody's house. The word "may" authorises the Garda to bring the subject to the station but the word "may" does not authorise the Garda to bring the person anywhere else.

Mr. O'Leary

That is the point.

Mr. Noonan

(Limerick East): It does not authorise the Garda to bring the person anywhere else. Subsection (8) of the section authorises them by implication to bring him to a hospital or other suitable place if he is in need of medical attention, but there is no authority in the section to bring him anywhere other than to the station or a hospital. Whether the Garda will be found in default because it was a particularly snowy night and they could not get through and they ended up sitting in a farmhouse kitchen for an hour. I do not know how the courts would treat that. Certainly there is nothing in the section which gives the Garda power to bring somebody anywhere other than to a Garda station or to a hospital.

Mr. O'Leary

Is there anything which forbids them doing so?

Mr. Noonan

(Limerick East): If I use the words “shall bring to a Garda station” it creates a situation where if anything else happens the person is not in lawful detention and the whole area of medical attention becomes questionable. That is the difficulty.

Mr. O'Leary

Suppose a person is arrested and told that he is going to be detained under section 4 and he is brought somewhere else first, what is the Minister's advice with regard to the legality of that? Suppose he is brought somewhere else for two hours, questioned or ignored in the two hours and then brought to the Garda station, what is the Minister's advice as to whether he was lawfully detained during that period?

Mr. B. Ryan

I am a little impatient with the Minister's explanation. Exceptional circumstances which might arise in some cases are being used to leave what the Minister acknowledges is a certain ambiguity here. I do not think that the arguments that are advanced for leaving "may" rather than "shall" are consistent with the Minister's general attempts to be very reasonable about people's concerns about this Bill. He produced a number of exceptional circumstances which, on the basis of the descriptions he has given will be extremely unusual, as a justification for leaving ambiguity there which could allow a garda to keep somebody in the back of a garda car for a long time en route to a Garda station. That could be a very oppressive situation for somebody to be in, but "shall" would make it quite clear what the first obligation of the garda was when somebody was arrested. The odd occasional circumstances which the Minister has outlined hardly justify leaving that ambiguity there.

Mr. Durcan

As I understand it, the detention operates retrospectively from the moment of arrest but does not take effect until the member in charge makes his decision. What puzzles me somewhat is how a member in charge can operate the double safeguard mechanism? The wording is:

...the member of the Garda Síochána in charge of the station to which he is taken on arrest has at the time of that person's arrival at the station...

How can the member in charge at the time of the arrested person's arrival at the station have the opportunity at that moment to form the necessary opinion which would allow the double safeguard to operate when there is no moment even to allow him to form an opinion?

Mr. Noonan

(Limerick East): It is not a question of ambiguity, it is a question of a different form of words which mean different things. It is a question of “shall” or “may”. If I were to accept the amendment and change it to “shall” I would have to write in exceptions to “shall”. One of them would be the question of medical attention which would have to go in immediately. Others of them might be severe weather conditions. I am sure that the Senators with their ingenuity could come up with a whole lot of way-out, unlikely-to-happen occurrences which could prevent the person from being brought immediately to the Garda station. This was evaluated and what I am saying is that we decided on the word “may” rather than “shall” because “may” allows for the possibility of medical attention being necessary. The court will be able to evaluate an extreme case, but it does not authorise the Garda Síochána to bring a person anywhere other than to a Garda station or, by implication, under subsection (8) to a doctor and to a hospital. I am giving openly our evaluation of it.

On the question of a person being kept in a squad car, the courts in their analysis would have to evaluate this. As I have said on a number of occasions in the debate elsewhere, we should not proceed on the basis that this Bill will operate independently of the courts. I do not think it is possible to write into any legislation what would constitute oppressive behaviour and what would not. What is oppressive for one person is not at all oppressive for another. What would be oppressive for a 17-year-old in first contact with the law would not necessarily be oppressive for a hardened criminal with a long record. What is oppressive for a woman in a particular state of health might not be oppressive for a young active vigorous person.

I do not think we can get into the area of trying to define the level of what oppressive behaviour is. This is a function of the courts. There is nothing under this subsection to authorise the Garda to keep people for two hours in a squad car when the journey should take only half an hour. If they did so, it is very clear that the court would regard that as oppressive. We can provide the framework but we cannot operate as if the courts did not exist. If a power is abused there are safeguards in the Bill. There are safeguards outside of the Bill, but the courts will play a very important part in this. There has been a great deal of experience of this previously. The whole question of what is oppressive and what is not oppressive is a matter for the courts to decide on. On the question of how the member in charge would evaluate the situation when someone is brought to a Garda station, he will talk to the arresting garda and make his evaluation on that particular basis. He can talk to the person arrested as well.

Mr. Durcan

The section says "At the time of that person's arrival..."

Mr. Noonan

(Limerick East): He would evaluate at the time of the person's arrival but it does not mean an instantaneous evaluation. Already under the powers of arrest somebody can be brought to the Garda station and kept for some time while the particular documentation involving the charge is being drawn up before a person is taken to a peace commissioner or before a judge.

Mr. O'Leary

I understand the Minister's problem, and the Minister has a problem. If we put in "shall" it becomes very strait-laced. I accept that. But the problem we are facing is if we do not put in "shall" and we put in "may", if there was a delay between the arrest of a person and his arrival at the Garda station, there is nothing in this section that makes that unlawful. I appreciate what the Minister has said. It is very important to have it on the record that the Minister said it. I do not think there is anything in the section which makes it unlawful for the gardái to delay for an hour in bringing a person to the station. The detention, as Senator Durcan correctly points out, retrospectively refers back to the time of the original arrest. So if a person was delayed for an hour in being brought to the Garda station, subsequently the matter is examined by the garda in charge of the station. He says that person should be detained under section 4 and in those circumstances the previous hour was ratified. This is the problem.

Mr. Noonan

(Limerick East): The time runs from the time of arrest.

Mr. O'Leary

It does. I am not talking about oppressive behaviour by the Garda Síochána. Having arrested a person under section 4, the gardaí should be under an obligation to bring him to a station. Of course that obligation can be expressed as being a reasonable obligation, or in normal circumstances, and the interpretation of that can be left open to the court. That can always be done. There is nothing in this section which forbids the garda from taking a diversion for an hour. In my opinion the arrest would still remain lawful.

As the Minister rightly says, there remains with the Judiciary a discretion to include or exclude any of it almost. There is that safeguard. That does not get over the problem. We have to try to make sure that the language we use in the Bill conveys the meaning of the House. I would say the meaning of the House is that leaving aside the question of medical or weather or exceptional problems, normally a person when arrested for the purpose of detention under section 4, should be brought forthwith to a Garda station so that other safeguards can apply. I think that is our intention. If the Minister can help us to put that interpretation into words, there is no problem with regard to individual words I have proposed in my amendments.

Mr. Noonan

(Limerick East): There is an overriding need to inform persons of their constitutional right of access to a solicitor and to be informed that they have this right when they are being detained. If the Garda arrest people and bring them to a place other than a Garda station or a hospital, they are depriving them immediately of their constitutional right in this respect. Consequently the detention is unlawful and I am sure that any evidence would not stand up in court.

Mr. O'Leary

A constitutional right to what?

Mr. Noonan

(Limerick East): To access to a solicitor or to be informed of the right of access to a solicitor. There is another problem. Somebody might be brought to where the victim of a murder was buried because he said he could identify where it was. There is that kind of situation. There are extreme examples that could be thought up if “shall” were used to put a mandatory obligation to bring a person to the Garda station.

Many of the arguments about wordings like this and sections like this proceed as if the Garda would not only abuse the power in a section like this, but that if the section did not exist they could not abuse any power whatsoever. Let us take an example of what might be in the back of some people's minds and what was mentioned in the other House. The gardaí arrest somebody and drive him around the country for half the night and question him in a squad car. That kind of situation may have been envisaged by some people. They do not need section 4 of the Criminal Justice Bill to perpetrate that kind of an abuse, and it would be an abuse.

There are powers to arrest already and, if people are arrested without warrant and are not brought to a Garda station, but taken on a jaunt all around the country, they do not need a Criminal Justice Bill. If a police force want to abuse the constitutional rights of citizens they do not need a Criminal Justice Bill to enable them to do it. If abuse occurs, the people who perpetrate the abuse are in breach of the law. They have unlawfully detained people. They would be guilty of that offence. Can you not see the real difficulty if we put in the word "shall"? In all honesty I would have to come here with a list of exceptions, all of which I probably have not even thought of at the moment.

On the question of the word "may", it does not authorise the Garda Síochána to take an arrested person anywhere other than to a Garda station or, by implication in paragraph (a), to a hospital. There is no authorisation to do anything else. Suppose somebody is kidnapped and is locked up somewhere and a person is arrested and on the way to the Garda station he says that the missing person is locked up in such-and-such a shed. The Garda car turns around and goes to the shed and they release the missing person. An hour elapses in what should have been a quarter of an hour's journey. This situation is explained in court. It would be up to the court to evaluate whether the arrest was lawful in the first instance. What would be more important would be whether the evidence acquired was admissible in court — the evidence in the squad car, and so on. In that circumstance the court would decide that it was admissible because the constitutional right of the third party who was locked up overrides the lack of authorisation in this subsection to take a person to a place other than a Garda station or a hospital. If we try in this section to tie it down absolutely, we can be sure that a case will arise where the Garda's hands are tied to the extent that it impedes the course of justice and difficulties are put in their way in dealing with serious crime.

Mr. O'Leary

I appreciate the Minister's difficulty. A simple "shall" will not solve the problem. I am grateful to Senator Durcan who reminded me of a form of words which is sometimes used, "shall as soon as practicable" be brought to a Garda station and may be detained. That leaves it open to the court to interpret that in a logical and caring way, which the court normally does, on the one hand catering for the rights of the individual and, on the other hand, catering for the rights of the community.

I will think about this between now and Report Stage. I will discuss with the Minister again whether "shall as soon as practicable" would get over the problem. It may not. I hope the Minister appreciates the difficulty I am trying to point out. In those circumstances I am willing to withdraw my amendment if the House agrees.

Mr. Noonan

(Limerick East): I would like to thank Senator O'Leary for that and certainly I will discuss it with him. This decision was not arrived at lightly by any means. Even if we take that formula “shall as soon as practicable”, my fear is that when you make it mandatory by inserting the word “shall” and then add the words “as soon as practicable”, the phrase “as soon as practicable” becomes the very avenue for a whole series of exceptions which I do not want. Instead of tightening it, we might loosen it. Practicability in that case might be interpreted differently. It might be a better form of words but I do not think anybody could guarantee that it is. My approach is that you say they may take them to the Garda station or to the hospital. You do not authorise them to take a person anywhere else. Then you let the court decide if the unusual, exceptional circumstances occur. That is the difference in approach in it.

I appreciate why Senator O'Leary is withdrawing his amendment. I am prepared to discuss it with him again on Report Stage.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

We discussed amendment No. 8 with amendment No. 7.

Amendment No. 8 not moved.

Mr. E. Ryan

I move amendment No. 9:

In page 4, subsection (3), lines 20 to 28, to delete paragraphs (b) and (c).

This deals with the second period of six hours. On reading the Minister's speech and arguments, both in this House and the other House, it seemed to me that no convincing case was made for having this second period of six hours. In the course of the debate reference was made to section 27 which provides for taping or electronic recording, as the Bill describes it. "Electronic recording" is a much more dignified way of describing taping. The whole President Nixon episode would have been on a much more dignified level if it had always been referred to as electronic recording. That is beside the point.

On the question of taping, it was said that when this was introduced the business of questioning a detainee would be done much more quickly. At present questions have to be asked and answers taken down in longhand usually, and then read back, and so on, which obviously takes a long time. With the introduction of electronic recording there seems to be no reason why questioning should take more than an hour or two. It is difficult to visualise a situation where the Garda could not ask all the questions they want to ask and hear the answers within a matter of a couple of hours. That being the case, and it being the case as I understand it that this will be in universal use within a relatively short time, then the case for more than six hours seems to be a very weak one indeed.

What will happen is that the Garda will be inclined to put things on the long finger. All of us know that if we have three weeks to do something we probably wait until the last day to do it, whereas if we have to do it tomorrow, we will do it tomorrow. In the same way if the Garda have six hours and that is the end of it, they will get down to business immediately. They will ask their questions and do whatever they want to do, and do it quickly and well within the six hours. Under the present proposal they will automatically be thinking in terms of: "I have 12 hours to do this. If I do not get around to it in the first six hours I have another six hours to do it". Their whole approach to this will be that they have a second six hours in reserve and that, in fact, they have 12 hours to do whatever they want to do. That is the way they will approach it.

Of course they have to get the permission of a superintendent to extend to a second six hours. How many superintendents will refuse that direction? They get a phone call from some Garda station. They are told a man is being questioned and that the questioning is beginning to show fruit, that what is going on is very useful and they ask: "May we have another six hours to go ahead with this?" Nine superintendents out of ten will accept the bona-fides of the gardaí and give the direction. This aspect of it is much too casual. As I see it, very few superintendents will refuse to give the direction which they are asked to give.

That being so, there will be the attitude: "We have 12 hours. There is no need to rush." In many cases they will take far longer to do this than is necessary. There is no sense of urgency, no reason why they should hurry it up. They probably will not start the questioning for three, four or five hours, which means they will have in a sense an excuse for saying that they need another six hours. If we are talking of 12 hours we are probably talking in terms of 20 hours because, if the time is extended to a second six hours, it is more than likely to reach a stage when it is midnight and the extra eight-hour provision will come into operation.

All of this may be very convenient for the Garda and possibly, in some cases, it may be necessary. In most cases it probably will not be necessary. It will be convenient for the Garda. It will be very traumatic and unfortunate for the person who is being detained. We must bear in mind the statistic that was given in relation to people detained under the Offences Against the State Act where only approximately 10 per cent of those detained were charged. When we think of these people who will be kept for over six hours, for a second six hours and maybe eight hours as well, we are thinking of people who in the end will not even be charged and nevertheless may be kept for 12 or 20 hours. Looking at the position realistically, no real case has been made by the Minister as to why a second six hours should be necessary at all. In most cases it will be abused. If the Garda were told that they had only six hours and should get on with the job, in 99 cases out of 100 they would do the job within six hours and the second six hours would not be necessary.

Mr. Noonan

(Limerick East): A restriction on the maximum period of detention to six hours would seriously affect the capacity of the Garda to investigate certain crimes. I cannot give a forecast on the length of time it would take to complete investigations where persons are detained under section 4. When we come to review the working of it in four years time we will have a more accurate idea. I expect that in most cases the Garda would have completed their inquiries and a decision would be taken on whether to charge a suspect before the six-hour period had expired. Statistics compiled in the UK suggest that that would be the pattern in the vast majority of cases. Even though they have strong powers of detention a very high percentage of cases were dealt with in two to three hours.

A number of factors will influence the time a person may be kept in Garda custody and it is not just a question of the seriousness of the offence. In very serious offences it may be quite obvious that little or no further investigation is required before a suspect is charged. That can happen very often in relation to a serious offence. There is a tendency to think that for a serious offence a longer period of detention is required. That is not necessarily so in practice. Less serious offences may take more time. There may be delays in checking a suspect's story. It may be necessary to get a search warrant to look for stolen property.

Senators should not think of a situation where somebody is brought to a Garda station and continually questioned for 12 hours. Since the Ó Briain Report and as a result of the courts in a series of cases being very interested in the whole idea of what oppressive behaviour is, it is mandatory on the Garda to allow rest periods, refreshment periods and so on. These are laid down in internal Garda regulations. I intend incorporating what is necessary in the statutory regulations I am talking about. We should also envisage a situation where the Garda would question a person for an hour and that could very well be the end of the questioning, but they might have to hold a person in detention while they were checking out a story or while they got a search warrant to search for stolen property and so on.

The picture in European countries is of a period of detention much greater than the 12 hours we are proposing. Just for the information of the Senators, I would like to indicate the thought process by which we arrived at this figure. Initially when I came to examine this matter the position was that we had a detention period which was 48 hours — 24 hours plus 24 hours — under the Offences Against the State Act. I tried to look at the experience in other countries. In England and Wales a suspect may be detained in police custody for up to 48 hours at present in serious cases. Under the Police and Criminal Evidence Bill the period will be 36 hours with a provision for an extension of up to 96 hours, if approved by a magistrates' court. In France, Belgium, Luxembourg and Germany the detention period is 24 hours and also in Denmark where it can be extended on the authority of a judge to a maximum of 96 hours. Senators will probably point out that there is a different system in continental Europe. There is a different inquisitorial system and accusatorial system of justice whereby people can be questioned before magistrates. They say it might be more appropriate to have people questioned before magistrates than by policemen. The point I am making is that in the European countries I have named and indeed in other European countries such as France, Belgium, Luxembourg and Germany, there is an initial period of up to 24 hours where the police can question without reference to the magistrates at all. As Senators know from their experience, people can be detained for long periods when it comes into the magisterial process. A case was brought to my notice at one time when I was on holiday in Italy of a person who was three and a half years in detention. He was still appearing before magistrates and he had not been charged. I am not advocating that type of system.

People have said in the Dáil and outside it that the argument that detention powers were given to police in western Europe was not valid because they had a different system of law. The point I am making is that there is an initial period where somebody can be detained by the police and questioned for 24 hours. Scotland has a period of six hours but it can be extended for a further period. We looked at the Scottish system very carefully. We had a precedent here of 24 hours plus 24 hours which I considered was too long. Two questions arose: what was the proper length of detention and should that be divided into a dual system where you went for a basic module and you provided for an extension in serious cases. A period of 12 hours is relatively short compared to other countries in western Europe. The reason why it is subdivided into six plus six is to meet a lot of the points that Senator Ryan has made. I envisage that in the vast majority of cases six hours will be sufficient but there will be exceptional cases. Perhaps "exceptional" is too confining a word. There will be a percentage of cases where six hours will not be sufficient. As a matter of fact, I am quite sure there will be a percentage of cases where 12 hours will not be sufficient. But I would prefer to see a few people evading the rigours of the law rather than going for a longer period of detention because I do not believe a longer period is necessary at this stage.

We could have introduced a Bill with a detention period of 12 hours. Rather than do that I worked on the basis that I thought six hours would be enough in many cases, with the device of going to a superintendent to get his authorisation for a second period of six hours if he considered it necessary. We had a long debate in the Dáil about this because the Bill as originally drafted and on Second Stage stated that it would be a chief superintendent who would exercise this discretion if in his opinion it was necessary. The question was asked, why were we moving away from the need for "reasonable grounds" when that is the obligation on the arresting garda and the obligation on the custodial garda in charge of the station, to "a matter of opinion" when it came to the chief superintendent? My advice on that matter was that there is a chief superintendent in a division, for example, a place like County Wexford is a division and there is one chief superintendent. In Limerick city and county there is one chief superent and in Clare there is one chief superintendent. There are two divisions in Cork but you can visualise that one chief superintendent could be on leave or away and it would be difficult for a chief superintendent, at the end of a telephone 50 or 60 miles away in another station, to establish that there were reasonable grounds, so the phrase "in the opinion of" was inserted.

On the advice of the Opposition spokesman on Justice, Deputy Michael Woods, I brought in an amendment, which in effect was his amendment. We agreed that we would change the phrase to "reasonable grounds for believing" and provide that we would change from a chief superintendent to a superintendent, because if the superintendent was the officer who had the discretion, he would be in a position to state whether he had reasonable grounds or not. As in the case of a member in charge of a station, the phrase "reasonable grounds" is not merely a form of words. This is an objective test and the superintendent, if challenged in court as to why he authorised the detention of a person for a further six hours, would have to satisfy the court on the reasonableness of the grounds on which he did so. It would not simply be a case of the chief superintendent either walking into the station and saying, "That is all right lads, hold on to him for another six hours", or being on the end of the phone in some other town and saying, "That is alright, no problem. You could not get around to it, so question him away for another six hours".

It is not as simple as that. That would be open to challenge. The challenge would be whether the grounds on which the superintendent granted the extension were reasonable. It is an objective test which will be effective. I do not think superintendents will take that responsibility lightly. Again, once you narrow the obligation to named and known people of a particular rank, in a country of this size we are talking about a small identifiable group of people. That gives a further check and will have monitoring effect on the workings of the Bill.

I envisage that very many of the people who are detained will be dealt with in an hour, two hours or three hours. But there will be circumstances in which it will be necessary to hold the person for longer than six hours. Rather than going for a provision in the Bill which says people could be detained for up to 12 hours, we went for the dual system by analogy with what is already in the Offences Against the State Act and the phrase "reasonable grounds" and the mechanism of a superintendent authorising the additional six hour period.

Senator Eoin Ryan said that six hours would become 12 hours and 12 hours would automatically become 20 hours. First of all, six hours would not become 12 hours because there is a real check there with the superintendent. There is an obligation imposed on him by the phrase "reasonable grounds". Twelve does not become 20 hours either, because even though there is the provision for suspension of questioning at night——

Mr. E. Ryan

Very often, I said.

Mr. Noonan

(Limerick East): A point which the Senator did not advert to was that this has been amended in the Dáil. Questioning can only be suspended now with the consent of the person who is being questioned. So if somebody has been detained for 12 hours and it runs up to midnight and he has been 11 hours in detention, there is no obligation on him to be put in a cell until 8 a.m. in the morning. He can say he wants it to continue, that there is an hour left and he wants to be finished with it and go home. There is not an automatic run from six hours to 12 hours to 20 hours.

Six hours in all circumstances is reasonable. I have made comparisons with different legal systems. They can be misleading of course. Different countries have different ways of operating. I am not hanging my whole case on that. I am giving examples of other legal systems by way of illustration. Our proposal of six hours plus six hours is reasonable in our particular situation. I know that there was a delegation of parliamentarians from another European country recently and they were amazed at the shortness of the period in our proposal.

It would be nice to have a situation where detention was not necessary at all but when we move to give the power of detention to the Garda Síochána, there is no point in giving them something which would mean they would have a power in name only which would be absolutely no use to them in practice. After a lot of consideration by the Government and by myself, we considered the six hours plus six hours is the minimum which would be of use to the Garda Síochána. If it was cut down to six hours, there would be cases where the extra time would be necessary. It would inhibit the Garda and make them far less effective than they might be if they had the possibility of an extension of six hours on the authorisation of a superintendent.

Mr. M. Higgins

I do not want to anticipate the debate on amendment No. 10. As I listened to the debate on Senator Eoin Ryan's amendment and the reply of the Minister, the question occurred to me about the use to which the six hours will be put. It is not clear at this stage of the debate if we are talking about somebody being arrested on reasonable suspicion of having committed a particular crime and using all of the time available on that particular offence or whether the suspicion may, in fact, shift from that offence to other notional offences. This leads me to my question whether the six hours cannot be tacked on for a purpose other than that for which the original detention was directed.

Mr. B. Ryan

I do not want to anticipate what may be a rather long and possibly intense discussion when we debate the section. The Minister raised the question of the reasonable grounds on which a superintendent could sign an extension order. He went on to emphasise that the superintendent would have to satisfy the courts.

Many of us are concerned for the people who will be detained and not charged. This is one of the major areas where there will be serious problems with this legislation, as I have tried to indicate on many occasions in the light of the Offences Against the State Act and the way it is used. The vast majority of people are not charged and, therefore, any recourse to the courts has to be by way of a civil action on their part which is extremely expensive and deters most people.

This is a layman's view but, to my recollection whenever gardaí are asked for their reasons for arresting somebody or raiding somebody it is usually on the basis of information received. If they are asked for the source of the information they claim privilege. That seems to satisfy the courts. It does not satisfy me. When people are charged with a serious offence and when evidence is found as a result of some of these activities presumably one can believe then that the gardaí in those cases had information. The standard answer is, to my knowledge, that it was on the basis of information received. I know a relatively prominent citizen of a town who was raided at 2 o'clock in the morning because the Garda said they had information that Bernard McGlinchey was staying in his house. They arrived at 2 o'clock in the morning and nobody could find out what the information was. My understanding is that, in cases like that where it is on the basis of information received, the Garda would traditionally claim privilege. That is what the courts accept. That does not mean that there is any objective test of reasonable grounds. It means that the opinion of a garda is regarded of itself as being reasonable grounds. That is at the root of many of my fears about this Bill. We can come back to it again, but since the Minister raised the question of it being objectively tested, as he saw it, in the courts, I felt I should raise that point.

Mr. Magner

Precedent through the years would suggest that when a garda officer is asked why he took a particular line in an investigation he would say that it was on the basis of information received. He would then go on to claim privilege. As regards the extension of the detention period, if the superintendent is put into that as a brake, practicising precedent would seem to suggest that it is a brake that does not work, simply because the attitude is, as Senator Ryan said, that there is absolute acceptance of that by the court. They do not proceed any further in questioning a Garda officer when he says it was on the basis of information received which inevitably is confidential information anyway. Where is the brake there?

Mr. E. Ryan

The two points I am making are that I do not think that 12 hours is necessary in the vast majority of cases. More particularly, I am concerned about the case with which the second six hours can be brought into operation. It seems to me that asking a superintendent and more or less automatically getting the extension makes it much too easy and will be a temptation to the Garda always to have in the back of their minds, to say the least of it, that they have 12 hours if they really need them.

The Minister said that a superintendent might be asked to justify his reasonable grounds if the case goes to court. That is a fair point if the case goes to court. However, as I pointed out when speaking on this amendment originally, possibly only about 10 per cent will go to court. This way of checking on the grounds and circumstances in which the superintendent gave his direction just would not apply in the vast majority of cases.

I am willing to accept that in some cases 12 hours might be necessary. I do not accept that the procedure for allowing the extra six hours is sufficiently tight and I think, at the moment, it is going to be abused — not in a positive way but abused in the sense that the second six hours is going to be asked for in many cases where it would not be really necessary if the gardaí immediately got down to questioning or whatever they wanted to do.

In view of what the Minister has said I am not going to press this amendment but I am going to see if I can put down an amendment on Report Stage which would tighten up the situation, the circumstances and so on in which the superintendent could give this direction. This arises in a sense from what the Minister has said, that the superintendent not only should have to give the direction in writing but should have to send a copy of that direction to some superior, indicating the fact that he has given it and his reasons for giving it. That, in itself, would make him think twice before automatically giving every direction he is asked for. If there were some kind of discouragement on superintendents automatically giving this direction it might be some help in avoiding the 12 hours being availed of in many cases where it was not really necessary.

Mr. Noonan

(Limerick East): I would like to thank Senator Ryan very much for his approach to this amendment. He said that the gardaí would proceed as if they would have 12 hours. In fairness that is exactly the intention, that they would have 12 hours if they really needed them. Senator Brendan Ryan's fear is that there may be a certain casual attitude to the first couple of hours in detention and the gardaí might not proceed with all due haste because as they were operating in a longer time module they would simply wait until the end of the detention period. That was why it was divided into six plus six. I take the point he is making and I will examine any amendment he puts down on Report Stage.

The point has been made on a number of occasions that it would depend on whether the case goes to court. People are drawing heavily on the statistics which I provided in the other House on the number of people who have been arrested under the Offences Against the State Act, in relation to the numbers brought before the courts and the numbers released. There certainly is going to be a percentage who will be released and probably more people released without charge than people who will be charged. This should be stated, too. It does not mean that all those released are innocent. I know a person is presumed innocent. until proved guilty. Taking the Offences Against the State Act in a practical situation, people are arrested, suspected of very serious crimes. I do not want to dramatise it, but the most recent example was where quite a number of people were arrested after Detective Garda Hand was shot in Drumree. It is common practice for people, arrested under the Offences Against the State Act on reasonable suspicion of being involved in something, to come in and refuse to say anything. They look at the proverbial spot on the wall and no matter what question they are asked they just refuse to say anything. Many members of subversive organisations are trained on how to deal with the Garda when they are arrested. I do not think that we should say that there would be an absolute transfer of experience from what is happening under arrests under the Offences Against the State Act to what would happen on arrest and detention under the Bill.

A final point I would like to make is on the question of the chief superintendent. It is something which I touched on this morning. I am not being critical of Senators but I am trying to give an insight into the way that members of the Garda Síochána are thinking at present. It is a difficult job. If a man is a superintendent in the Garda Síochána, normally the teenagers in his family are in different secondary schools in the town. That is a typical age group where there are teenage children. Gardaí see themselves as professional policemen, they want to be respected in their communities and they want the respect of all of us, too. I do not want to give the impression that Senators do not agree with what I am saying but I am trying to illustrate a particular problem. The more hassle there is about the behaviour of the gardaí, the greater the brake it is putting on the good policeman who wants to be a professional policeman. We should be careful not to bring about a situation where in our very reasonable desire to have every safeguard possible to protect the rights of the citizen, we would put a very good policeman in a situation of saying, "If that is the way they want it, that is okay." We must treat the professional policeman as a professional policeman.

In a Bill like this, if a certain authorisation is given to somebody like a superintendent we must proceed on the basis that the superintendent at present in the Garda Síochána will operate it as intended. Why should he not? He wants to do his job. He wants to live in a particular community. He wants to see his family growing up around him. There can be no motivation for his stepping outside of the law. There is a great consciousness of this in the ranks of the Garda at present. I do not think I am communicating this very effectively, but I think people can see the point that I am trying to get across to give an insight into the thinking of the Garda Síochána. By stressing our fears too much, even though it is legitimate to express them, we can demoralise the best people in the Garda Síochána by over-doing it.

Mrs. Honan

Perhaps on Second Stage I was not careful enough not to be seen as criticising the Garda Síochána. I am now sorry that I did not make a longer contribution then, having just listened to the remarks of the Minister.

The other morning I tried once again, with my colleagues from all sides of this House who did not come in here to criticise the Garda Síochána, to say at length how concerned we are as responsible legislators. That was what I intended to do. I am breaking the rules of the House now by saying what I feel I must say, but I am deeply concerned. I am not back tracking on one word I said but I had not the floor that the Minister has to say what he has just said.

Mr. Durcan

I would just like to comment on the Minister's closing remarks. I agree with what he says, that one should not abuse one's position when speaking about members of the Garda Síochána. I also take up this point that the exercise of the powers by the superintendent to extend the six hour period is not unreasonable. But in making his remarks the Minister seemed to give the impression that the superintendent would be somebody who would be known and be living in the locality and by virtue of these facts he would not exercise that power unrealistically. I would like to believe that such would be the case. But the appalling situation exists in most districts that the superintendents do not reside there. In County Mayo, where there are one chief superintendent and six superintendents, until recently five of them did not reside in their districts. The chief superintendent lived in Cork, two of the superintendents in Dublin, one in Galway and one 35 miles from his district. That is a very unsatisfactory situation, if these people are to exercise that power in the manner that the Minister has specified.

Mr. Noonan

(Limerick East): I fully agree with the Senator.

Mr. Durcan

I would be very happy if there was a regulation providing that Garda officers should live in the districts to which they are assigned. It seems that the most important equipment that any garda has are his eyes, ears and the general feeling he gets by living within his area. That applies to a chief superintendent, a superintendent or a recruit just out of Templemore. I would like to see the Minister ensuring that regulations are brought in to provide that all members live in the area in which they are meant to serve. If that applies to superintendents, then this power can be operated with confidence.

Mr. B. Ryan

I take the Minister's point about the Garda. However, I cannot go through this debate without making one very specific and blunt point. The Minister has told us that the Garda are very worried about exercising their powers in various areas because of the level of public criticism. Senator Higgins and I found no such worry on the weekend when President Reagan was here, when 33 women were detained in the Bridewell Garda station for 36 hours. Nobody gave a tuppeny damn about us, as public representatives, about the alleged constitutional rights that the Minister has spoken about, or about anything else. Those women were placed under lock and key, firmly out of the way for 36 hours. Nobody whom I met in the Garda station that night cared twopence about the fact that they might have been getting a bad press. I do not blame the Garda sergeant who was responsible for that. He was under pressure from higher up. That is why I worry about abuses, not because I think that there are a whole lot of corrupt gardaí running around wanting to abuse the public, but there can be responses to situations which are entirely inconsistent with what the Minister intends. Nevertheless, the fact remains that these things happen.

I visited Cabra Garda station where somebody was detained. That person was not a subversive; she was frightened out of her wits. She was detained for 48 hours, which happened to coincide with the period when she should be kept out of the way. I do not like going on and on about this matter, but the realities of life are different from what the Minister keeps portraying. The realities, of course, are the exceptions. Please God, they will always be the exceptions. I do not want to get to the stage when we would have a police force whom we would permanently suspect, but these things do happen. Circling around and not addressing the problem will not solve it. On that night in the Bridewell Garda station, far from being inhibited about using their powers, it seemed they were quite happy to exceed them. They probably were under pressure from further up the force.

What Senator Durcan has just said absolutely shocked me. We have been talking at length about community policing, then we discover that senior Garda officers do not even live within the communities they are policing, not to mention creating a sense of community. I take it, from what the Minister said, that something like what VECs have for school principals, where they must live within a reasonable distance of the school, will be introduced. It might well be worth experimenting with similar regulation for at least part of the members of a Garda station, that they should live in the area, even on a temporary basis. There is a major problem in large urban areas that most gardaí, based in working-class corporation estates, live miles away from the areas in which they are working.

Mr. Noonan

(Limerick East): Again, I am not criticising any Senator whatsoever. I do not want any Senator to take that particular interpretation out of what I have said. I am just trying to provide an insight into the way certain members of the force feel. I am just putting that in as a contribution to the discussion. What Senator Durcan said about senior members of the Garda Síochána not living in their divisions is deplorable. My views on that are well known.

The situation in County Mayo was worse than in other parts of the country, but it has been reviewed. A lot of progress has been made to ensure that senior gardaí live in or near their divisions. To make it mandatory is difficult because what does living in your division mean? If you are living in the hotel while on duty, does that fulfil the obligation? If it does not, can a Commissioner or a Minister decide that the family home should be somewhere in the country? In addition to dictating a lifestyle to the members of the Garda Síochána, can we also dictate a lifestyle to their wives and families? There is a problem there, but we are very much aware of it. The situation has improved from what it was 12 months ago. I hope that in 12 months time it will have further improved. It was a particular problem in County Mayo. Senator Durcan is probably aware of some movement towards the solution of that problem.

An Cathaoirleach

Is the amendment withdrawn?

Amendment, by leave, withdrawn.

Mr. M. Higgins

I move amendment No. 10:

In page 4, between lines 28 and 29, to insert a new subsection as follows:

"(4) A person arrested pursuant to this section shall be informed at the time of his arrest of the offence or offences in respect of which he is being arrested and upon being brought to a Garda station such person shall be handed without delay a statement in writing of the offence or offences in respect of which he has been arrested."

The background to an amendment like this, is the certainties within the criminal legal system which have grown up, indeed not without a great deal of harsh experience of their absence and the evolution of criminal legal systems. The establishment of certain certainties was, in itself, a guarantee that you would know what you were being accused of. Later on, it goes into the whole theory of being certain of the procedures by which you would be dealt with for the particular offence and then, in turn, on to the operation of sanctions. But beyond that rather general background point, it has been the interpretation of the courts in a number of key decisions that a person should be informed at the time of arrest why he is being arrested. In other cases it is no argument to hold, as for example in the operation of the Offences Against the State Act, that it would suffice simply to say that the person was being arrested under section 30.

The general principle of the person being informed of the offence is important. It leans on the discussion we have heard. Most of the worries about the interpretation of the permission to extend the period of detention and to gain additional increments of time, are, to my mind, less loose if this amendment is accepted. Might I just say at this stage that this amendment is simply putting into the Bill in writing what has been the decision of the courts in this regard in a number of important cases, such as that of Ó Laighléis, 1960. I would equally argue that if the Bill has to satisfy Article 44 (1) of the Constitution which basically asserts the principle that no citizen shall be deprived of his liberties save in accordance with law, if the Bill derives from a context like that, it is eminently reasonable that the courts' interpretations of their decisions in the matter of the right of the person to be informed at the time of his arrest of the offence or offences should be upheld. The decisions already delivered by courts in this regard are clear indications of what the courts' views are in this matter. At this stage I do not want to go on much longer because, as I said, this amendment simply puts in writing in the Bill some assurances which can be derived from previous decisions. If the cases are there, and if this is the reasonable interpretation, why include this in the Bill? If I might be of practical assistance to the Minister, and reflecting on his reply to another point on the previous amendment, I think it is far more satisfactory for the Bill to be explict than for the Bill to be vague, to set up an infinite set of possibilities for trials within trials. For example, on the last amendment in regard to whether the superintendent reasonably exercised the authority given to him, that could be a matter for a trial within a trial, and if this is not put in, the very vagueness that will ensue will simply create that unsatisfactory situation.

Mrs. Robinson

In supporting this amendment it may be said that it is not necessary to state expressly that a person who is arrested pursuant to section 4 should be informed at the time of his arrest of the offence or offences in respect of which he is being arrested and, secondly, that on being brought to the Garda station the person should he handed without delay a statement in writing of the offence or offences in respect of which he has been arrested. It might well be said, and it certainly would be inferred from the cases there have been in relation to the powers of arrest and the exercise of those powers, that a person is already so entitled and that if the matter is to be carried out lawfully a person is entitled to be told — perhaps not given a written statement, that would not necessarily be afforded to the person in the present situation — the offence or offences for which he is being arrested. The practice as I understand it, and I have had a number of instances where this has been the situation, in relation to arrests under section 30, which is the closest parallel to this new power of arrest and detention under section 4 that we are introducing, has been that a person is informed that he is being arrested under section 30, not what the offence is for which he is being arrested. The person would not know that he would be entitled to ask what the offence or the offences were that he was being suspected of committing. The approach and the practice has been simply to inform the person that he or she is being arrested under section 30.

That is bad enough within the rather narrower context of section 30, and it is subject to individual cases being brought under scrutiny of the courts and the courts laying down the guidelines as they have done in this area, but knowing that there is prior experience in relation to an analagous section, section 30, I think we have a very grave responsibility to write in expressly that a person who is to be arrested and detained under section 4 is entitled to be told at the time of arrest the offence or offences that the member of the Garda Síochána reasonably suspects the person has committed. To avoid any confusion and to enable a person to avail fully of his or her rights, that should be produced in writing at the first available opportunity, without any delay. I hate this phrase "as soon as is practicable" because that can be an expandable concept. As soon as the person comes in, the first document, the first piece of paper produced, the written statement of the offence or offences of which the person is suspected should be handed to the person at that time. I am not going to dwell on this at any great length but it is a very important issue. The reasons for it are self-evident and it is not an answer to say these rights exist under the law because the experience of criminal lawyers, and the practice as it has obtained, is that in many cases persons have not been told the precise offence for which they are arrested and detained under section 30. For example, one of the best known cases of an arrest under section 30 was the arrest of Nicky Kelly. He was only told he was being arrested under section 30 and there are many many other examples. It is most important that we write into the section this guarantee which would be covered already by the principles enunciated by the courts.

Mr. Noonan

(Limerick East): As I understand it, the law at present is clear. An arrested person must be told at the time of arrest what he is being arrested for, unless the circumstances are such that he knows quite well why he is being arrested. I would like to refer to what Senator Higgins said in relation to the Ó Laighléis case. I am referring to page 5 of Judge Brian Walsh's decision in the Shaw case, paragraph (3). He said:

To effect a lawful arrest the person arrested must be told by the person effecting the arrest the charge upon which he is being arrested, unless he otherwise knows the reason for the arrest.

The reference in Ó Laighléis 1960 IR and the People v. Walsh in the Supreme Court I do not think there is a problem there. Restating the law in this Bill will not change the legal position.

The second leg of the amendment, if I may refer to it in such unparliamentary language, is that it provides for an arrested person being handed a statement in writing of the offence in respect of which he is being arrested as soon as he is brought to the Garda station. Whatever about the merits of that particular proposal — and I have an open mind on that at present — it seems that it would be more appropriate to incorporate that in the statutory regulations rather than in the Bill. There is provision in the Bill to make regulations under subsection (7). These regulations will deal with the documentation an arrested person must be handed when he arrives at the station.

At present, for example, he is handed a form which sets out his entitlement to bail, refreshments and various facilities, such as contacting a solicitor and a member of the family, or a friend and receiving a visit from them. Obviously, when the regulations are being drawn up they will be revised and expanded and I will take that into account. As I said, I have a very open mind on this but it seems like a good idea if there is no practical reason for not doing it in a Garda station. As I said, I will bear in mind the desirability of handing a person a statement in writing of the offence in respect of which he has been arrested, bearing in mind that he will already have been given this information by the arresting garda, because the arresting garda is obliged to do so under the present law. The offence in question is at present recorded as a matter of course in the station record kept about the arrested person. I do not want to express a firmer view about this point at present. In connection with the draft regulations I was surprised to find how much detailed recording was carried out at present in Garda stations in relation to people in custody there.

Inevitably, arising from the detention provisions under section 4, additional records will have to be kept. That is fair enough. I have no objection, in principle, to the most adequate records possible being kept. The only reservation I would have is that I do not want to impose additional clerical work on the Garda unless it is necessary. I do not want give them clerical administrative tasks which are no safeguard to a detained person but which simply get the gardaí involved in a series of form-filling operations which are no good to the public, to the Garda Síochána or to the detained person. That is the way in which I would evaluate it. The person in the case being urged here in the amendment has already been arrested and he has been told by the arresting garda why he has been arrested. If he has not, the lawfulness of his arrest is in question and it is recorded in the station records which can be produced if there is a conflict about it. At present the reason why a person is arrested is recorded in the records of the station. Maybe it would be enough to provide that the member in charge of a Garda station who is acting as custodial guardian for the detained person would be obliged also to tell the detained person the charge on which he is being detained. Maybe that would meet it, rather than simply handing a sheet of paper with the thing written on it.

I am trying to establish, first of all, the nature of the problem. It is to provide the detained person with precise information on why he has been arrested and why he is being detained, and that it can be proved subsequently that this is done. That seems to be the reason for the written formula. But there are situations where that would not necessarily be of benefit to the detained person. If something is given in writing to a detained person, in the case of some detained persons the written formula would not help them very much in the situation. Their level of literacy might be so low that they might not be able to grasp it from a written statement. However, I will examine it in connection with the regulations and I suggest that the better way of doing it may be to oblige the member in charge of the station to inform the detained person as to exactly why he was arrested in the first instance. Again, this would operate as the second line of defence to safeguard the fail-safe mechanism in case the arresting garda had omitted to do what he is obliged to do under existing law.

Mrs. Robinson

I thank the Minister for the careful consideration he has given to the two aspects of this amendment. As to the first, there is a difficulty in referring to what happens in practice in a number of cases in relation, for example, to section 30 of the Offences Against the State Act. It is the section that gives us some prior experience of what the powers under section 4 may give rise to, some of the difficulties that may be caused. Senator Higgins and Senator Ryan have referred in detail to the concern about the overreach in relation to section 30. I notice that the Minister has not come back on that. Perhaps he feels that it is going a little wider than Committee Stage, but at no stage on either Second Stage or Committee Stage, although this matter has been touched on a number of times, has the Minister responded to the criticism that has been voiced and the apprehension that has been expressed that there appears to be a lack of proportion between the numbers being arrested under section 30 and subsequent charges laid against those persons. It seems that only about 10 per cent or slightly more of those arrested under section 30 are subsequently charged. That has a direct bearing on the powers of arrest under section 4 and on what appears to be a relatively common occurrence where people are not subsequently charged. They have been arrested under section 30. It is a way of taking people who are regarded as difficult or troublemakers or likely suspects in for a period. What they were told, what they recollect of what they were told, what they say they were told is that they were being arrested under section 30. We have no empirical studies. We have not the research to know how often this has happened or how serious it is. I am not a criminal lawyer and I have not direct first-hand experience of it, but I know from colleagues and from persons who have been arrested that what is said in a number of cases is that the person has been arrested under section 30. It would be very serious indeed if a practice arose of persons being told they were arrested under section 4.

Mr. O'Leary

They cannot be, because you cannot be arrested under section 4.

Mrs. Robinson

I do not know.

Mr. O'Leary

I would like the Minister to confirm that, so that it is on the record.

Mr. Noonan

(Limerick East): That is right. You cannot be arrested under section 4. There are no new powers of arrest in the Bill.

Mrs. Robinson

That is right. It is a technical point we want to make extremely clear.

Mr. Noonan

(Limerick East): It is not a technical point.

Mrs. Robinson

It is a technical point which is also a very important point. I am not diminishing it. It is a clear point. It is also a technical point. If a garda says "I am arresting you under section 4 of the Criminal Justice Act——"

Mr. Noonan

(Limerick East): He would be talking rubbish because there are no new powers of arrest under the Criminal Justice Bill.

Mrs. Robinson

He would be talking rubbish but it is also talking rubbish to say, "I am arresting you under section 30" without telling him what the offence is, yet it appears that it has happened time after time.

Mr. Noonan

(Limerick East): If that is so, it can be tested.

Mrs. Robinson

It can be tested, and if a person is charged and brought before a court it can be tested, but there are a number of cases — anything up to 90 per cent of the cases — where charges are not preferred and do not come before the courts. The Minister acknowledges, and I am glad that he takes it in the spirit in which it is offered, that the amendment tries to ensure that the person knows by being informed, as the law requires he be informed at the time of arrest, what the offences are. It is not enough to say that we hope that that will happen or that certain people can challenge when they have their lawyers at their side when it comes into court ultimately. We are talking about people being arrested and detained of whom some percentage may subsequently be charged. We want to be sure, without it necessarily ever coming before a court or being the subject of court procedure, that that is the case. That is the first leg of it.

The second leg is this further step of giving the person in writing the statement of the offence or offences that it is alleged the person has committed and that there is reasonable cause to believe he has committed. This is tied in to some of the other safeguards in the legislation. The Bill provides that a person will be entitled to be informed that he or she can consult a solicitor. It is important for the individual in so doing to be very clear and to be able to say, "Here is the piece of paper I was handed when I was brought in and these are the offences that I am suspected of having committed". There may be no charges at this stage. The point the Minister made — this would be a reality in a number of instances — is that it may well be that the individual is not literate, cannot read. That would be the case with a certain proportion; indeed, it might be a higher percentage than we would like to think would be the case. It is at least as important, perhaps even more important, in the case of such a person that he has it in writing so that when and if he sought advice of a solicitor, it would ensure that the person could say, "Yes, I was told the charges and I was given this". Obviously, the solicitor coming in can see in the Garda station what are recorded as being the offences of which the person is suspected and for which he was brought into the Garda station. It is very important, when somebody is extremely vulnerable and has less possibility of asserting his right, that we be all the more careful to ensure that there is this protection. I am not entirely satisfied with the Minister's affirmation that the law is that a person on arrest is entitled to know the offence or offences for which he is being arrested. I have learned of too many instances where a person is not told the offence, where he is told that he is being arrested under section 30. I accept many instance, where he is told that he is being arrested under section 30. I accept that it is not technicaly correct, it is not legally correct to say that you can arrest under section 4, but I fear for the way in which this might be implemented unless we write in what is already there in the necessary surround of a lawful arrest and require that a statement in writing be handed to the person.

I am pleased that the Minister is going to consider the second part of this amendment and whether it might be appropriate to include that requirement in the statutory regulations under section 7. Perhaps we will come back to this on Report Stage. It is a very important part of the section for the individual and it is necessary that there not only be a verbal communication but also a written one to the accused, apart altogether from what is recorded in the Garda station. The accused is entitled to know, and should know, and must be in a position of knowing, both orally and in writing, at the first possible opportunity what the offences are of which he is suspected.

Mr. Noonan

(Limerick East): There is little between us at this stage on what is being said here. The question of section 30 and my reluctance to comment on it is for two reasons. First of all, the Offences Against the State Act is not before the House for discussion, amendment or anything else and, while certain Members of both Houses drew parallels between the detention periods under section 30 and section 4 of this Bill, I do not agree that they are necessarily valid. The second reason that I do not want to talk about the Offences Against the State Act and section 30 arrests in the debate is that I would be immediately accused of over-dramatising the situation and that I would be drawing on the experiences of an Act which is intended to deal with the activities of subversive individuals and subversive groups. I would be accused immediately of trying to import panic into the debate on the Criminal Justice Bill. Whatever the Criminal Justice Bill intends to do, it certainly does not intend to deal with subversives because we have the Offences Against the State Act to deal with those already. I want to keep the debate separate to that extent and I think it appropriate for me to do so. Senators made various points about the statistics I provided and there may be an opportunity to discuss them at a future date.

I have a number of objections to the amendment here other than what I have already mentioned. The principal one is that it would set up a separate regime for people who are arrested and detained under section 4. Nobody can be arrested under section 4. There are no new powers of arrest granted. A person can be arrested under the existing powers which the Garda have to arrest without warrant, but if we tie it into section 4 people who are arrested without warrant and detained under the powers of section 4 will be treated differently from those who are arrested under section 30 or people who are arrested without warrant for offences that do not come within the five year formula, or persons who are arrested for offences which come within the five year formula but which are not in any enactment, which are common law offences for which the court has the discretion of imposing a sentence greater than five years. So there are other categories of people who would be arrested, and are being arrested, to which this amendment would not apply.

The regulations under subsection (7) will apply and govern the treatment of people in custody regardless of which provision they have been arrested under. It is much better to approach it through the regulations because that will regulate the treatment of all people arrested and detained in Garda custody and not just people who are arrested under this section. It is in that context that I intend to examine the situation. I do not think the first part of the amendment is necessary for the reasons I have stated. I will look at the second part of the amendment actually handing somebody something in writing to say why they had been arrested. There may be other ways of achieving the same end and there is no conflict between us on the end which is desired here.

Mr. O'Leary

I heard the discussion between Senator Higgins, Senator Robinson and the Minister, and I understand the relative consensus that is emerging. However, the Minister might inform me with regard to something which arises on this amendment, as it does in the section which deals with what is to happen at the time of arrest. Would the Minister tell the House the nature of the information which must be given at the time of arrest? If a garda comes upon somebody who is committing an act which is a possible offence, or comes upon somebody he reasonably suspects has committed an offence which gives rise to the possibility of detention under section 4, the garda can do three things. The garda can say, "I am arresting you on reasonable suspicion of having committed an offence under the Larceny Act". The other statement the garda could make is, "I am arresting you on suspicion of having committed a particular offence under the Larceny Act, and I am arresting you for the purpose of detaining you and questioning you under section 4". He could say, "I am arresting you for the purpose of charging you". Assuming the garda is arresting for the purpose of detaining, what formula of words approximately will he use to inform the person? If a person is being arrested in Patrick Street, Cork, or O'Connell Street, Dublin, and is to be brought to the Bridewell Garda station but before he is brought to the station the garda says, "I am arresting you because I think you committed an offence under section 7 of the Larceny Act, 1916", is that all he would have to say, or would he have to say, "And I propose to have you detained for the purpose of questioning"? What formula will be used? The Minister might help us in that regard because it is important to know at what stage the distinction is going to be made between an arrest for the purpose of charge and an arrest for the purpose of detention.

Mrs. Robinson

I should like to support Senator O'Leary in this matter. It leads me to think that perhaps it might be appropriate to amend this amendment on Report Stage and state in it that the person should be informed at the time of his arrest of the offence or offences in respect of which he is being arrested and that he is being detained under section 4. It is extremely important that a person would know that he is being detained under that section with the consequence that instead of being five minutes in the Garda station he may be potentially there for up to 20 hours. That could make a great difference to the attitude of the person in relation to the other protection, such as whether he would wish immediately to inform his solicitor or, in the case of a young person, wish to get in touch with his parent or guardian. There is an important issue there as to the way in which the person will be alerted to the fact that he has been arrested and is now being detained under section 4. That should be done at the time as well as informing the person of the offence or offences.

Mr. Noonan

(Limerick East): With regard to the position when a person is being arrested, Judge Walsh says that to effect a lawful arrest the person arrested must be told by the person effecting the arrest the charge upon which he is being arrested unless he otherwise knows the reason for the arrest. It is a common-sense thing and a formula would obstruct rather than help the course of justice. If somebody is arrested and the garda says to him, “I am arresting you because I think you stole that bicycle”, that is fine and I think the courts would uphold it. On the other hand, if the garda says, “I am arresting you under such-and-such a section of the Larceny Act” that might be a little vague.

Mr. O'Leary

Let us take the bicycle incident.

Mr. Noonan

(Limerick East): The chap might say, “What do you mean by larceny”? He might say, “We are talking about the bike”. The test is that he communicates sufficiently to the arrested person so that the arrested person knows why he is being brought in.

Mr. O'Leary

I might help the Minister in this regard. I take the Minister's point that the garda actually says, "I am arresting you because I think you stole a bike". That is fine. There is nothing wrong with that and nobody can reasonably object to that, but the question is, does he at that stage say, "I am arresting you because you stole a bike and I am going to detain you for questioning", or does he say, "I am arresting you because you stole a bike" or does he say, "I am arresting you because I think you stole a bike and I am going to charge you in due course"? What does he actually say and when does he say it? Can he play it both ways? Can the garda say, "I am arresting you because I think you stole a bike" and leave it uncertain as to whether the person is going to be detained or not? For how long can he leave it uncertain as to whether he is going to be detained or not or charged? That is the information I want to get, not the formula by which he gets across the particular offence but the formula by which he transmits the purpose of the arrest. Before, there was no problem. If a Garda arrested a person — leaving aside the Offences Against the State Act — he was arresting him for the purpose of charging him. There was no necessity for telling a person anything else, but now there are two possibilities. The garda can say, "I am arresting you because I think you stole a bike and I am going to charge you," or, "I am arresting you because I think you stole a bike and I want to question you further about it". At what stage will this information be communicated to the individual? At the moment I am not saying when it should be done. All I am asking is, when will it be done?

Mr. Noonan

(Limerick East): Section 4 (2) states it fairly clearly. It states:

Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies, that person may be taken to and detained in a Garda Síochána station for such a period as is authorised by this section if the member of the Garda Síochána in charge of the station to which he is taken on arrest has at the time of that person's arrival at the station reasonable grounds for believing that his detention is necessary...

The arresting garda fulfils his obligation. He has been given no new powers of arrest. He is exercising the powers of arrest which he has already and he fulfils his legal obligation if he communicates to the person arrested that he thinks he stole the bicycle. The detention decision is reached in the Garda station and is evaluated by the member in charge. It is at that stage that a person would be told whether he was being detained or not. It would not be a matter for the arresting garda.

Mr. E. Ryan

There is a distinction between the case where he is arrested and charged. If he is charged he will be charged under some section of some Act and presumably he will subsequently get legal advice and whoever is his adviser will explain to him exactly what is entailed in that section. In this case he may be detained for some time with no legal advice and I think it would be almost certainly unfair merely to quote a section of an Act at him. It is imperative that the regulations should provide that he be told in simple language the offence of which he is suspected, so that he will know exactly what he is up against and how he should defend himself.

Mr. Noonan

(Limerick East): That is the existing law. It is not just a question of being quoted a section of an Act or subsection of an Act. That does not fulfil the obligations of the law.

Mrs. Robinson

The particular problem that has been raised by Senator O'Leary has not been dealt with by the Minister in his response on this point. The person is arrested and told in clear terms what the offence is for which he is being arrested but we now have a whole new situation which did not obtain before except in relation to the powers being exercised under section 30 and I have already referred to the particular problem that has arisen there. Therefore, we would have an apprehension in relation to this section, which is analogous but it is still necessary for us to clarify, when and in what language and in what terms persons who are brought to the Garda station and are to be detained under section 4 will be informed that they are going to be detained under section 4. This is very important because it may make a great difference as to how persons will then react.

If a person felt they were going down for a few minutes to the Garda station then they might go down with that in mind but if they felt they were going to be detained for anything up to 12 hours or possibly 20 hours overnight then the person might be inclined at an earlier stage to say that they wished to consult their solicitor or in the case of a young person that they wished to consult their parent or guardian. It is not simply a question that would be a reasonable way of informing the person. What we must be concerned about here is ensuring that the person's rights are fully protected and vindicated and, therefore, it should be perfectly clear that the person would be entitled to know what exactly the situation was from the very beginning and the terms in which they would do that. At the moment the section does not provide for the person being told anything in relation to the detention.

The amendment proposes that the person be informed of the reasons for their arrest but the law is that their arrest would be unlawful unless they were told. I sometimes feel that it is better, notwithstanding that it is already the pre-existing law, to have it included expressly in the legislation because people do not know the rights on arrest in this country. They would have a better opportunity of knowing their rights on arrest if it was clearly and expressly written into the section. There is an important point on which I would welcome a further explanation from the Minister as to the manner in which and the moment at which a person will be informed that they are being detained under section 4 and what would be said to them at that time in order to ensure that they could avail fully of the protections under the section.

Mr. Noonan

(Limerick East): The legal obligation on the arresting garda is to inform the arrested person of the reasons why he is being arrested. The arresting garda cannot decide at that time even if his intention is that a person would subsequently be detained because that is not a matter for his decision. That is a decision for the member in charge of the station, though the arresting garda would have an input. The answer to the Senator's question is that the person would be informed on arrival at the station by the member in charge through a mechanism which I will provide for by regulations. The regulations will be there for the treatment of people in custody and will have to provide for that area as well. I suggest it is not a matter for primary legislation. Senators should see the length of the regulations already and we are revising and extending them. The regulations will be quite a copious piece of work. The obligation is on the arresting garda to inform the person why he is being arrested.

The arresting garda takes the person to the Garda station. It might be his intention that he is taking him in to detain him under the provisions of this Act and he might even say that, and I suppose normally he would say so to the person he had arrested. There is no legal obligation on him to do so because it is not his decision. The decision to detain is in the hands of the member in charge of the station and then, of course, the person would have to be informed that he was being detained. That will be provided for under the regulations to which I have referred. That is the way to proceed. I do not think we can get everything into the primary legislation, and statutory regulations are as much law as a Bill passed by both Houses.

Mr. O'Leary

I should like to come back to this again on the section because I do not think we have teased out the position properly. I would like the Minister to go away in the meantime and think about it himself. Obviously it is not reasonable for us to get up here and make relatively obscure, though important, points and expect the Minister immediately to be able to give us an answer on them.

Mr. Noonan

(Limerick East): I am giving the Senator an answer on that point.

Mr. O'Leary

No. The Minister has given us an answer but it is not a satisfactory answer. I am sure the Minister, being the reasonable person he is and having given the matter further thought, will come to the same conclusion that it is not a reasonable answer. I was looking there at the Judges' Rules. There are going to be serious difficulties on such points as saying to somebody "I am going to arrest you because you stole a bicycle". If he really intends that the fellow is going to be subject to further questioning, there might be one caution that he would have to give him before questioning and if he had already decided to charge him he might have to give him an entirely different kind of caution. I would like an opportunity of thinking about it myself. You do not necessarily give the same caution to a person before you decide to charge him as you do after you decide to charge and question him. There is a slight difference in the caution. That is a problem which I would like the Minister to consider. I am anxious that any evidence gathered between times would be capable of being used. The status of any evidence between the time of the person being arrested and arrival at the Garda station is a matter to which the Minister should give particular attention. We can come back to it on consideration of section 4.

An Leas-Chathaoirleach

Is the amendment withdrawn?

Mrs. Robinson

Yes. It may be that we will formulate a different amendment for Report Stage.

Amendment, by leave, withdrawn.

An Leas-Chathaoirleach

Amendment No. 11 is related to amendment No. 13. Amendments Nos. 12 and 14 are alternatives to these. Amendment No. 15 is also related to this grouping. Therefore, amendments Nos. 11, 12, 13, 14 and 15 may be discussed together.

Mrs. Robinson

I move amendment No. 11:

In page 5, subsection (7) (a), line 31, to delete "twelve" and substitute "fifteen".

This amendment seeks to raise the age which was introduced by way of an amendment by the Minister from the present age of a person below the age of 12 years to what is still a very conservative ceiling of a person below the age of 15 years in relation to detention under section 4 following arrest.

Senator Ryan in his amendment seeks to raise the age to 17 years. When I first became aware of the implications of this section with regard to young people I was extremely concerned about it. I know this concern is very widely shared by "Care" and a number of other organisations, "Hope" and various other bodies that deal with young children who rightly feared the impact on them of the possibility that these powers could be used. Therefore, I welcomed the Minister's acknowledgment of this and the fact that an amendment was introduced to ensure that children under a certain age would not be detained under subsection (2) of this section. Therefore, all the other consequential sections would not apply to them.

I am not happy that the cut-off age of children up to the age of 12 years is a satisfactory one. I find it unacceptable that children of very tender years, whatever their disposition and their abilities, would be detained for questioning and would have applied to them all the other powers under this section and of fingerprinting and so on, under the next section. When this matter was discussed at some length in the other House the Minister referred to the problems in relation to the young age of persons involved in criminal activities.

Nonetheless, we are dealing with two things. We are dealing with a particular incidence of crime. We are also dealing with the impact of a system on young people at an impressionable age, and at an age when they are more vulnerable, and when there could be very real psychological and other effects on them. This could result in a person either suffering great trauma as a result or, indeed, being hardened by the experience of being so treated by a system as to turn from somebody who had perhaps once transgressed into becoming somebody who was hardened into a particular way of life, almost forced into that way of life by the heavy-handed treatment that that young individual had received in the hands of the system.

Therefore, the amendments to subsection (7) which Senator Michael Higgins and I are proposing are very modest ones to raise that age so that the section would not apply to children under the age of 14 years. This really should not require any very detailed explanation. It causes great disquiet to us to think of young children being detained apparently for questioning.

I want to come back to this because, like Senator O'Leary, I want to make sure that we fully understand what people will be detained for when they are being detained under section 4. If they can be detained and are entitled to be questioned, apart from the other things under section 6 which can be done to a person who is detained pursuant to section 4, their name and address can be demanded, they can be searched including the possibility of strip searching under subsection (3), and they can be photographed. Fingerprints and palm-prints can be taken and other tests can be taken and anything they have may be seized and retained in possession.

That can be a very frightening combination of steps taken in relation to a 12 or 13 year old, but it is authorised as the Bill stands at present. Even if we have to come down to a balancing as between the kind of evidence which the Minister has referred to of the young age of persons who are apprehended, I would still say that, notwithstanding that evidence of young age of apprehension for certain offences, we should simply not be prepared to extend these powers, this capacity to detain in this manner, to 12 and 13 years olds. In many ways I would be happier to see a higher age limit if the House so accepts. We are trying to get the age which we hope the Minister will accept. The age should not be below the age of 14 years.

Members of the House have had circulated to them a recent memorandum prepared by "Care" on the Criminal Justice Bill under the name of the present Chairman of "Care", Andreas O'Keeffe, which refers to a case which came before the President of the High Court since this Bill was published concerning Detective Garda Michael Travers and Michael Ryan. There was an express reference by the President of the High Court to the fact that it is, in general, most desirable in the interests of justice that, unless there are practical impossibilities arising, if a person about the age of 14 is suspected of the commission of an offence, he should not be questioned or interrogated except in the presence of a parent or parents, or some person of an adult kind who is looking after him as an effective guardian. That is something we can look at in itself: the right to the presence of a parent or guardian and how that will operate.

The whole heavy paraphernalia we are providing to the Garda and authorising under section 4 should not, I submit, be brought to bear on 12 or 13 year olds. Therefore, I hope that the Minister, having carefully borne in mind some of the concerns of Members of the other House when this matter was discussed, and also of organisations who deal with young people, particularly in deprived areas where you have the catchment area we are speaking of, and who have been so united on this point. There is a very strong view on the damaging effect of extending these powers to allow the detention and other steps to be taken against 12 and 13 year olds, the effect on them, and the social consequences which far outweigh any possible detection advantages which might be argued for having this power.

Mr. M. Higgins

I should like to support my colleague, Senator Robinson in proposing these amendments to delete "twelve" and substitute "fifteen". The only point I want to make in support of this amendment which is additional to the points she had made is to suggest that there has been extraordinary unanimity among the different organisations who made submissions to Members of the Oireachtas in relation to the operation of section 4 as it might affect young people. Organisations such as the Irish Commission for Justice and Peace, Pax Christi, the Conference of Major Religious Superiors, the Dublin Mercy Sisters, the Irish Mennonite Movement, the Jesuit Centre for Peace and Justice, The Medical Missionaries of Mary, The Church Justice Group, Dublin, Dublin Simon Community, Trust, Hope, Care, the Irish Law Society, lawyers and trades councils all have a common interest in relation to their concern that the sections of the Bill, to which Senator Robinson has referred, particularly the extensive provisions that are contained in section 6, should not fall on younger people. This principle has been accepted to some degree by the Minister's own amendment. We are talking about the appropriateness of age 12 and 15 and on that I want to offer an opinion, based to some extent, on research in that age category. Why are all these organisations of common mind? It is because bringing people into a station and detaining them while elaborate procedures and safeguards are implemented, is a certain kind of experience for a young person.

When replying to a previous amendment the Minister said honestly, that all the people who are detained will not be charged. In support of an amendment yesterday, I said that of 2,300 people detained under section 30 of the Offences Against the State Act charges were pressed against something like 250 people. The Minister's reply today was that not all of those released were innocent. I accept that. But there is another implication which is important if you are seeking to build a community relationship to reduce the crime rate. In the case of the many innocent people who were brought in under the widespread use of section 30 of the Offences Against the State Act, not only are we alienating them but their families and perhaps entire districts and neighbourhoods. The evidence from one criminology survey after another is that the history of alienation of areas from co-operation with police has been in circumstances such as this. I want to locate specifically that in the thrust of this amendment the age be raised to 15 years.

I agree with Senator Robinson that if the Minister felt like accepting the amendment and raising the age we would accept that. If we take young people between the ages of 13 and 15, what will happen is that there will be a great number of them who will set up a very specific sub-culture of being in trouble with the law, of being in interaction with the police, of being in a police station and will create a new sub-culture of a crime related kind. This is most dangerous. The years are crucial. If you change areas of high, perhaps multi-generational unemployment, where there is little participation in schools, little social provision and set up a whole new possibility for interacting into far from satisfactory circumstances with enforcement authorities and police stations with the possibility of detention and very considerable powers, you are accepting a recipe for the alienation of a crucial group of people. I am not being academic about it but all the literature on the structure of gangs, for example, would suggest that we would be contributing to a dynamic that will alienate all kinds of people. The fact that this has not been taken on board is reflected in other sections of the Bill to which we can come in good time when we are disposing of those sections: for example, the lack of distinction between the driver of a stolen vehicle and perhaps a relative who might recently have been induced into a gang and so on. We can look at all that when we come to it.

I strongly urge the Minister, in the interests of retaining the option of building new mechanisms of co-operation with the community in reducing the crime rate, not to alienate the people in the years affected who would be protected if our amendment was accepted. The most hopeless response would be to suggest that youngsters of 12 now are not the same as youngsters of 12 used to be or youngsters of 12 in an area where there is a high crime rate are not the same as youngsters of 12 in a rural area. The literature is clear on this. If you create an impression of what the enemy is, the person who is participating in the crime, it becomes a self-fulfilling prophecy, it becomes a signification for the individuals and groups involved in the absence of other ways of achieving esteem and acquiring status. This will be a new mechanism for acquiring status among their peers. It is to avoid all these dangers and for the other reasons given by Senator Robinson that this amendment has been put forward.

Mr. B. Ryan

Following on Senator Higgins, having anything to do with criminology is probably superfluous. The age of 12 as the age limit contained in the Bill as it stands is unacceptable. I have had considerable experience over the years of dealing with the adult products of various forms of juvenile justice. My experience is that all of them seem to do the precise opposite of what is intended. Instead of preventing or deterring or persuading young people from being involved in crime it confirmed them by and large on that path because they are separated from their families, they are alienated from society and are alienated from the Garda. That is the base line position.

People like myself and Senator Higgins come in for a lot of stick from certain sources. I do not care what a 12 year old does. I do not care what a 13 year old does. Our first duty is to recognise that a 13 year old is a child irrespective of the crime he is suspected of having committed. They are children. They are not adults who happen to be 13. They are not children with all that that implies. Any attempt to approach the question of how you deal with juveniles and juvenile justice which does not put that statement firmly at the top and at the core of the philosophy betrays our children. They are children. They are not adults and should not be treated as adults. Irrespective of the crimes they commit, what this Bill is actually proposing to permit is that 13 year olds can be brought to and detained in Garda stations. As far as I am concerned, a city centre Garda station, or any Garda station, is no place for a child. It is a place you will meet all sorts of people in and there is no way a busy Garda station will be able to make major distinctions between children and adults. It is unworkable.

This amendment is only a small part of it and we hope at some stage, presumably during the period of office of this Government, that we will have major legislation — the Minister referred to this in the other House — on the whole area of children including juvenile justice. Until such time as we get that legislation, we have an obligation to prevent the increasing alienation of a section of our society.

I do not want to get involved in the dispute about the relationship between unemployment and crime. What is undeniable is that those who end up in detention, whether they are children or adults, have all the characteristics of a deprived socio-economic group in terms of their previous earnings, in terms of their employment patterns, in terms of literacy and in terms of numeracy. We can argue cause and effect, but there is no disputing the fact that the vast majority of those who would end up in prison are poor. Therefore, it is reasonable to assume that the vast majority of those who will be detained under the processes developed in this Bill will be poor as well, because they are the people who end up being charged and being convicted, by and large.

When we talk about 12 to 17 year olds we are talking not just about my children or the Minister's children or anybody else's. We are talking of a group who will be predominantly poor, therefore predominantly inarticulate, therefore predominantly poorly literate, poorly numerate and so on. That is fact on the basis of the evidence of people who end up in detention. Irrespective of whether we argue cause and effect, the facts are that they will be, by and large, poor. That is undeniable. Whether the poverty causes the problem or not seems to be a matter of some dispute.

I think a 17 year old is still in most areas of legislation regarded as a child. Therefore it is perfectly legitimate to talk about children between 12 and 17 years who can be and will be capable of being treated, effectively, the same as adults under the powers contained in this Bill. I pick 17 because 17 is the age that the Bill as it stands defines as the age below which a parent must be notified. Therefore, it seems to be the Minister's view that the borderline between childhood and adulthood is 17.

It is not nearly enough to say that the regulations provide that for children a parent or somebody else must be present when they are questioned. That is not really the core of the issue. The core of the issue is bringing them into contact with the Garda, bringing them into Garda stations and, as Senator Higgins explained it so eloquently, the whole chain reaction of events that will follow from that initial negative encounter with the Garda. I do not know if anybody has an effective solution for juvenile crime. What I know is that there is an enormous amount of evidence that most of the repressive methods that have been tried to deal with juvenile crime produce the exact opposite of what it is intended and create a sub-culture of dissension and alienation.

I think — and I have said this over the whole period since this Bill was published — that the most threatening aspect of this Bill is not necessarily even if it were to be consciously abused but the way it will be quite legitimately used, within the provisions as they stand — and I do not approve of them — against large sections of inarticulate and underprivileged and I would prefer to call oppressed young people in our society. They are the groups, among young people, from whom most of those who end up in prison come. I assume it is going to be on those groups that the attention will be concentrated.

I am absolutely convinced that, far from doing anything positive about juvenile crime, to retain the provision where 12 to 17 year olds are affected by the powers contained in this Bill would do the precise opposite of what the Minister wants. It would create a certain status for juvenile crime. It would create a culture and it would do irreparable damage to our children, because apart from the concerns about a culture of crime and all those things, what all those words really add up to is enormous damage to children and that is what they are.

It will be very healthy for us to keep on reminding ourselves of what I said at the beginning. These are not adults who happen to be 13. These are children with all that that implies. Therefore, there is to my mind only one way to deal with the problem of children as covered by this Bill and that is to exclude them entirely. That is why I have a subsequent amendment to cover a number of other sections. Children should not come into contact with the law, irrespective of what they are suspected of having committed, in the conditions that prevail in Garda stations, under the terms contained in this Bill. That is why I will move my amendment.

Mr. E. Ryan

In discussing this amendment, we must throw our minds back to the fact that, even at the beginning of this debate and certainly when this Bill was published, detention even for adults was something of which most people disapproved and which was regarded as a very serious step. Bearing that in mind, it seems to be even far more distressing when we realise that these powers apply to children, originally down to the age of 7. The Minister brought it up to 12 years which was some improvement but, even so, we now find ourselves in the position where these powers of detention, where children are going to be arrested, brought into police stations and questioned, apply down to the age of 12. The more one thinks of this the more distressing and the more unhappy one must feel about it. I think 12 years is still much too young.

The Minister has given statistics which show that many children of 12 years of age, in fact have been found guilty of very large numbers of crimes of various kinds. We have to accept that as a fact of life. But to accept that is not necessarily to accept that the powers of detention should apply to them. In so far as children of these ages are committing offences, the law as it stood before this Bill was introduced can still take its course. It does not necessarily follow because of that that the powers of detention should apply to them. Consequently, I certainly feel that the raising of the age to 15 years is not an unreasonable amendment, not an unreasonable proposal to make in regard to this Bill. As I said, it is not a question of saying that no children under 15 years can be accused of a crime but merely opposing these very special and unusual powers of detention in this Bill.

My own amendment is a variation of the other amendment. It merely deals with the situation of how statements, answers and so on can be used. The Bill provides that, that where there is a very young child, the Garda can give the benefit of the doubt. In the absence of knowing what the child's age is, if they have any reasonable grounds for believing that the child is over 12 years, they can go ahead and detain him and question him as if, in fact, he were over 12 years. In many cases, it will turn out afterwards that the child was not, in fact, over 12 years. My amendment suggests that if and when the time comes to charge the child, if it turns out that, in fact, he or she was under 14 years at the time of the detention, any statements made by him or her will not be admissible in court. I certainly think that is not an unreasonable variation. It is certainly not unreasonable that an admission or statement made by a child under 14 years should not be allowed to be used in evidence against him. Although I would much prefer the amendments bringing the age to 15 years, if the Minister is not prepared to agree to this, I suggest that the very minimum concession that should be made in this regard is that any statements or admissions made by a child under 14 years of age should not be admissible in court.

Mr. Noonan

(Limerick East): First, I would like to say that I appreciate the concern Senators are expressing about this aspect of the Bill. It was also the concern of Deputies and the organisations listed by Senator M. Higgins. This was the aspect of the Bill which annoyed me in debate more than any other because while people were very concerned and upset about this provision there were other people who shamelessly used this provision to present the Bill as an attack on small children and consequently “hype” up the opposition to the Bill as a whole.

I thought initially, that any change in the criminal law would be acceptable and would automatically apply to anyone who had reached the age of criminal responsibility. There are several precedents for this. If there is a particular age of criminal responsibility and one changes the criminal law, then the new law applies to all categories of people to whom the old law applied. That was the position from which I started. It is worth looking at the question of the age of criminal responsibility in that context. In this country the age of criminal responsibility is seven years, but in law there is a presumption of innocence right up to 14 years of age. That presumption is very strong the nearer one is to only seven years of age and weakens progressively as one approaches 14 years. Obviously the presumption that a 13 year old is innocent and incapable of being criminally responsible is a much weaker presumption than the presumption that an eight year old is incapable of being criminally responsible.

Consequently, I felt I had difficulties from the outset. I did not want to attempt to change the age of criminal responsibility in this Bill because it is not appropriate that it should be done in this Bill and with the particular division of responsibility in Government, it is not appropriate that I as a Minister should do it. The age of criminal responsibility and the whole area of the Children Bill is a matter for the Minister for Health. I presume that very shortly he will come in with recommendations in regard to the age of criminal responsibility. My experience is that the Garda Síochána have been very careful of the rights of young people and the idea which was propagated that as soon as this Bill was passed, a series of seven, eight and nine year olds will be drummed into every Garda station in the country certainly annoyed me. It was not suggested by anybody here.

Mr. B. Ryan

It is equally annoying that the Minister misrepresents what people said. That is not what people said. The campaign against the Criminal Justice Bill never suggested that.

Mr. Noonan

(Limerick East): I am not suggesting anybody did it here but I am stating categorically that people who were opposed to the Bill, chapter and verse, line by line, quite consciously mounted a campaign on the supposed dangers to small children which the Bill presented in an attempt to defeat the Bill as a whole. I am not saying that was not a legitimate approach. I am trying to explain why I was annoyed at the time. When I was convinced by more reasonable argument that it was appropriate that an age other than the age of criminal responsibility should be written into the Bill so that it would not apply below a certain age, I considered it for a long time. The particular amendment, which initially brought about the debate in the other House, was put down by Deputy Michael Woods. He put down an amendment that it would not apply to children who had completed their twelfth year. We debated and talked about it and other suggestions were made. After consideration on Report Stage I came back with an amendment in agreement with Deputy Woods that 12 years was an appropriate age. I did this for two reasons. I considered other ages and I looked at the situation on the ground. A lot of crime is committed by children under 14 years of age. In the five year period from 1979 to 1983, the figure was 3,371 indictable offences, an average of 670 every year. Some of that can be very serious and much of it is of a kind that causes concern, especially to elderly people. The Garda must be in a position to deal with this kind of problem.

I pose another question. I am sure all Senators watch television and read newspapers. What age do they think the people were who were terrorising Cabra in stolen cars? What age do they think the people were who were terrorising Finglas recently? We Senators may not like it, but it is a fact of life and to be talking in terms of the provisions in this Bill creating a criminal class which was not involved in crime before and which has not already been alienated from the police but which will be alienated from the police in the future, does not, I think, stand up to practicable experience.

I will deal now with the question of the detention of children. There is a provision in the Garda regulations that parents or guardians must be present if children are questioned in Garda stations. There is particular case law on this, although the Garda regulation pre-dates the case law in the case in December 1983 referred to by Senator Robinson. It was the case of Travers, a garda, versus a minor. In that case the High Court decided that a parent or guardian should be present if a young person was in Garda custody. The Garda regulations provide for that. In the new statutory regulations we will probably have to go beyond the particular case law because the case law is vague. It deals with a particular case. When you try to go from the particular to the general it may need to be fleshed out more in the form of regulations. The situation as it has been, as it is now, reinforced by that case, and as it will be when the new regulations are in force, is that no person under 17 years of age can be detained in custody and questioned without a parent or guardian being present. The presence of parent or guardian is the safeguard under which this section will operate best.

Senator Brendan Ryan is rightly concerned about young people at risk. Other Senators are very concerned that young people from the age of 12 years upwards might be brought into Garda stations as a result of this Bill. But the reality of the situation is that this is happening every day and every night at present. There are no new powers of arrest in this Bill. Young people are being arrested at the moment for driving stolen cars and being involved in accidents in those cars. They are being arrested for burglary, larceny, stabbing, mugging old people and handbag snatching and brought into Garda stations. Quite a number of them spend a long time in Garda stations because of the requirement that a parent or guardian must be present before the Garda can deal with the young person. There is more of a delay in dealing with the young person than in the case of an adult because an interval of time has to pass until the parent is notified and brought to the Garda station if a young person is being charged.

There is a real problem here and I do not think we should evade it. I think that 12 years of age is about right. The experience of the Garda Síochána is that there are many young people — it is sad to say, and we do not like admitting it — especially in particular urban areas, who get into trouble with the law. We all know the type of activity they are involved in. What are we to do? Are we to provide an indemnity for people who race stolen cars through the streets, terrorise the neighbourhood and put life and limb at risk?

Mr. B. Ryan

That is not worthy of the Minister. He has been very fair up to now but he is descending from the usual level at this stage——

Mr. Noonan

(Limerick East): I am posing a serious question because the existing law is that somebody will be arrested and brought to a Garda station. If the experience of being arrested and brought to a Garda station is the initiator of an alienation process which will cause a whole section of the community to be alienated from the Garda Síochána, then we are well beyond that point. It has happened already. Young people are being arrested, brought to Garda stations and charged.

Mr. M. Higgins

It will be necessary for me to comment extensively on this amendment, and I will do so, so far as it is being challenged.

Mr. Noonan

(Limerick East): The night is long. We are not pushed for time. Another reason why I am opposed to raising the age is that I believe that if I raise the age now it will be used as a skyhook to raise the age of criminal responsibility when the Minister for Health brings in his measure. I do not want to pre-empt a decision by the Minister for Health. If the Minister for Health goes to the Government and decides the age of criminal responsibility is going to be 12, he is absolutely in line with what I am saying. If, on the other hand, he decides the age is to be 14 or 15, that is no problem with me. The 12-year provision in this Bill will be null and void because if the age of criminal responsibility is 14 years or 15 years, then any provision in this Bill cannot apply below that age. That is a debate for some other time. The debate here cannot be separated from the debate which will take place, and which is already taking place, on what is the appropriate age on which to settle the age of criminal responsibility. Young criminals do not always act on their own. They can frequently be organised by adults. That is particularly true in burglary and larceny cases. It is also true, sad to say, in the drugs area. I do not think it is true in the stolen car area, because that is joy-riding by the young people themselves. Certainly they are organised by adults in many cities where shop-lifting is the form of crime we are talking about. I would ask Senators to think about the age of criminal responsibility. Are we going to provide an immunity for a whole category of young people who are oppressed, who are at risk, who can be manipulated and used by older criminals in effect to do the work for them and to do it with immunity from the law? There are young criminals in society and they must be dealt with. The Garda have dealt with them in a very fair way. The Garda are very aware at present of the presumption of innocence up to 14 years of age. Even in the case of a 13 year old, or somebody just about 14 years of age, that presumption, no matter how weak, of innocence is still a strong inhibition on the Garda. There is also the provision that parents or guardians must be present. When the parents or guardians are present that is the necessary safeguard, and an insistence on the operation of that safeguard is the strongest safeguard possible for the reasons I have outlined. I am not in favour of moving from the age of 12 years. They are valid reasons. When the Minister for Health comes to both Houses and to Government on the age of criminal responsibility, if he follows the British experience and sets the age of criminal responsibility at ten years of age, then there will be two cohorts above that to which this Bill will not apply. If, on the other hand, he decides that he is going to go for 14 years of age, then the provisions of this Bill will not apply because the age of criminal responsibility will be 14 and it will not apply until people have reached that age or in excess of it. We should not move from the age of 12 until we see that the age of criminal responsibility will be in the Children Bill which we are awaiting.

Mr. M. Higgins

I want to make one or two points. First of all, in supporting the amendment originally, I expressed the wish that the retention of the age of 12 would not be justified by pointing simply to the people who are involved in offences today who are roughly around the age of 12 years. The figure offered was an average of 670 offences. It behoves me in so far as a number of questions have been put as to my being aware of the facts of juvenile crime to say a little more at this stage.

It is not my fault or that of any Senator in this House that we have such bad statistics on youth offences. It would take me several days to comment on the paucity of information in relation to juvenile crime. For example when we are talking about how many young people are involved and the total number of offences related to the age category, that cannot be answered from the statistics and the Minister should note that. You cannot say how many people are involved in crime. You can say how many people have been charged, but how many charges are attached to each individual juvenile? I am not interested in small points in relation to offences, but I am worried that you can move dangerously from the particular to the general in this regard.

Let me take a more general point. Youngsters are involved in crime; many other youngsters at home very often are not. I was in the Seanad between 1973 and 1977 and I recall Senator Robinson trying to introduce family planning legislation and people all around this Chamber standing up suggesting that people should bring an indefinite number of children into the world, into housing circumstances that were appallingly poor. I regard it as socially criminal, in a broad sense, to suggest that, for example, people should not have access on the one hand to the right to limit their families and at the same time they are being deprived of opportunities and provision. On this whole question of the lack of opportunities for children, I was depressed originally by it and am now almost in despair. The idea that you can take these young people who are involved in offences and make a statement on the basis of that observation and put it into a statute is extraordinary.

The importance of this question is that the choice facing us is to give these people an opportunity of experiencing the law or of experiencing justice. What experience have they of justice? What about accepting bad housing, over-crowded housing? I am not inventing this. Unlike the people who might be advising the Minister, I have been associated with surveys of the conditions on the ground in Dublin city and elsewhere in relation to youth crime. It comes out again and again that you must try to understand the offender and the offence in a wider context of the family and the whole question of depressed environment and so on. Let us be practical, as I am invited to be practical, about the parent or guardian who hears that the child is down in the Garda station and she — it will usually be she — will make arrangements to get the other children looked after so that she can head off to the station to talk to her child about why he or she is in the station. That is being very practical. I am shocked that we have had put on record the phrase "criminal class". In my life dealing with criminology I have never used the phrase "criminal class". There are no criminal classes. I did not say when I was speaking about alienation that it would lead to alienation of a class from the police. This is not the way it goes. There are some very well-heeled people in society who are alienated from the police. You cannot speak of class in that way. Neither did I say that I was speaking about a situation in which people were starting from the beginning. What I said, and it bears repeating, unfortunately, now, was that if these people are brought to the station and the detention and other powers that arise during detention are applied to people that experience — the interpretation of it — will be far more likely to alienate them from the enforcement of the law process than anything else. I did not say that we are dealing with a totally new situation. Of course there is a great deal of alienation already. We could spend hours here going back as to what the causes of that are.

Mr. Noonan

(Limerick East): I was not referring to the Senator's statement. I was referring to Senator Ryan.

Mr. M. Higgins

It is important because as individuals we are unimportant. What is more important is that we must not have a misconception about the nature and setting of crime among young people. The point I am trying to make is that it is divorced from its setting and from what we know. Usually, we have a great deal of information and research on young people and crime carried out by magnificent individuals, very particularly, for example, the research and information gathered together under the editorship of Dr. Helen Burke of UCD. Those reviews, something of the order of nearly 100 studies, were on different aspects of the law as it affects juveniles and young people. Coming out of all that research is the clear indication that when the age of criminal responsibility is changed it should be raised. If it is to be raised it is an appropriate development for the Children Bill. What I have to say to myself is that I have the choice of unleashing these sections in the interim between the passage of this Bill and the passage of the Children Bill. I must say in all seriousness to the Minister that in view of all the representations that have been made to us from those who work with children, in the children's organisations, in view of the extensive body of research on the nature of crime, it would be entirely wrong to accept the figure of 12. I want, as constructively as I can, to say that the work that is there suggests that the age be at least the age of 15. It is entirely based on facts gathered in many settings, such as the urban one the Minister mentioned. There are some particulars in it in relation to the Irish situation because of the high family size and the combination of that in diminished environments, bad housing and low provisions. Equally, low participation in school attendance.

Mr. Noonan

(Limerick East): What age is the Senator advocating for the age of criminal responsibility?

Mr. M. Higgins

I would accept the age of 17. In the meantime, and so as to be constructive on this Bill, we settled on the age of 15. There are ways of dramatically reducing the youth crime rate. It is something the Minister can explore although is not strictly within his ambit. Some studies I have seen suggested that most of the people involved in juvenile crimes are in trouble in relation to school attendance. A better co-operation between the people who are administering school attendance difficulties and those in charge of juvenile justice — there are some excellent people involved in both sections — would be of a very positive intervention in this area. The children in difficulty are known and the family in difficulty is known quite early on. There is a considerable body of evidence to suggest that the importance of peer groups as a source of influence on the young people involved is greater very often than parental or familial influence. This is not an abstract sociological point. It has been proved in studies.

I have become weary of mentioning these because the fact that we have not a White Paper on the causes on crime to which I would have submitted all this evidence is not my decision. My criticism of this precedes the present Minister and the present administration. They go on for nearly 20 years. The research was coming up, it could have been submitted, we could have chosen to know and be informed in our attitudes and on legislation but we decided we were going to set our faces against research. There are things we know about juvenile crime following research bravely carried out in the universities by individuals. There have been good developments within the aegis of the Department of Justice, some co-operation with good research schemes and I welcome those but I must express as my most serious concern that if the experience of people between the ages of 12 and 15 is going to be that of encountering the provisions of this Bill — and it is to that that my suggestion about alienation is addressed — we are creating the basis and potential for alienation which will be transmitted beyond the person into their family, their homes and neighbourhood. We will have people exchanging information as to how they got on in the station and what the proceedings are. It is, in fact, setting up the basis for a powerful sub-culture of interaction with law enforcement that did not exist before. If anyone has any doubt about what I am saying he or she should reflect on the histories that are being written of the experience of places like Letterfrack, for example.

While people now are appalled when they see very young people throwing stones, stealing cars, killing each other and killing other young people in those stolen cars, I have equally been appalled when I see children who should be at school, the children who have had no adolescence and a shorter childhood, who have been condemned into reproducing the horrific experience of their parents and grandparents in different parts of this city. I am referring to the children on O'Connell Bridge and so on.

My conclusion is that these are people with no opportunity of experiencing justice in our society. Obviously, a minority of these will be in trouble with the law and are committing offences but, as Senator Eoin Ryan pointed out, there are existing legal provisions for dealing with people who are committing very serious offences. Why should we want to take the powers of this Bill, as expressed in section 6, and direct them to these cohorts, as the Minister correctly puts it? It is a grave mistake and a great error. I repeat my point that it will contribute to the alienation of young people from the legal process. If a person who has not been convicted is brought, for the wrong reasons, to a station and detained the mother I have been describing will not have had the experience of going through this process. There are many cases where such a person might have not have a husband to talk to about this or, maybe they do not talk. They may be a typical Irish family with very little conversation. The fact is that that family will be alienated from the law.

If the children who go around in gangs are exchanging the experiences of being detained and so on under the different provisions of this Bill we could have a whole neighbourhood alienated. There is no point in telling me that neighbourhoods are already alienated because I have not said that. I believe it is possible, getting beyond this Bill in an adequate approach to crime, to build up a community relationship with law enforcers and with the whole process of justice that will reduce the crime rate. I welcome the Minister's acknowledgment of the principle by the age of 12. To hold fast and not extend that to 15 is to take enormous risks. It would be extremely unwise. I most seriously urge the Minister to consider accepting particularly what is not an excessive age, the age of 15 as suggested in the amendment in the name of Senator Robinson and myself.

Mr. E. Ryan

I am rather surprised at the persistence of the Minister in refusing to accept the distinction between applying section 4 of this Bill to young people and applying the criminal law generally to them. His argument seems to be that there can be no distinction between the two. If younger people commit crimes then all aspects of the criminal law, including this new, very unusual and onerous section, should automatically apply to young people. Even the Bill itself in relation to adults makes distinctions. The Bill recognises that the powers of detention are onerous and unusual, that they should be treated very carefully and applied with great care. Subsection (1) of section 4 states that the section will only apply to crimes where the penalty is five years or more. Even in regard to adults the provisions of section 4 were regarded as so onerous that they should only be applied to adults who were suspected of very serious crimes. That being so, it is very difficult to understand why there should be the attitude that all the powers of this section should automatically apply to children down to 12 years of age.

There should be some modification of the way in which this section applies when we are talking about young people. The age at the moment is 12 years; there have been two amendments put down here, one for 15 years and the other for 17 years and the amendment which I put down is a variation to ensure that if young persons of 12 years of age are detained and questioned, the answers they might give, at that very young age, should not automatically be used against them in court.

The Minister has mentioned various ages and he has made arguments about 12 years and 14 years. The age should be something around 14 to 15 years. The very minimum concession that should be made to children of this age is that if they are under 14 years their statements should not be used against them. That is the very minimum that should be permitted and I will be pressing my amendment on these lines.

Mrs. Robinson

Like Senator Eoin Ryan, I did not find the Minister's response to these amendments regarding the issue of age a very convincing one. He was referring to a problem that is not strictly relevant, which is the question of the age of criminal responsibility. It has been accepted for a very long time that the present age of criminal responsibility — the age of seven years — is totally unacceptable and it is a fair criticism of successive Governments that there has not been a broad-ranging Children Bill to deal with this.

We are not now dealing with this issue under the Bill nor are we prejudicing any decisions which the Government are about to take on it. I am very glad to see that the Government are prepared to consider this matter actively in that we are going to have a Children Bill. As Senator Eoin Ryan has emphasised, and I agree with him on this, what we are dealing with here is a particular and unusual power to detain. Notwithstanding what the age of criminal responsibility is, we can decide that certain categories of persons under a certain age will be excluded from the exercise of that power for valid reasons which have been brought out in this debate. I take the Minister's point that, if, for example, the House so votes or that he accepts the amendment raising the age to children under 15 years, they would be excluded and if ultimately there were to be legislation raising the age of criminal responsibility above that age there would have to be a consequential amendment. That should be no problem.

Mr. Noonan

(Limerick East): There would not have to be any amendment.

Mrs. Robinson

I accept that but that is not a matter which should or would concern the Minister. Notwithstanding the age of criminal responsibility to be fixed in the legislation to be brought forward by the Minister for Health, we are here deciding a different issue entirely and it is not a related issue. We are deciding whether these powers will be extended to children, and if so, to children above what age? The Minister has introduced an amendment that it will not extend to children below the age of 12 years. That does not mean children of 12 years, it means children under 12 years — 11 years and younger is the present cut-off age. That is what I understand the position to be — under 12 years.

Mr. Noonan

(Limerick East): That is up to the day before the 12th birthday.

Mrs. Robinson

Yes; in other words, 11 years.

Mr. Noonan

(Limerick East): Eleven years and 364 days.

Mrs. Robinson

Still, under 12 years is not 12 years. I have a daughter going on 12 years but she is not 12 yet and perhaps I should be declaring that interest. It brings home the idea of a child of 12, 13, 14 years being brought into the Garda station under these new powers which have not existed up to now in relation to adults and which will be applied in relation to those children. That is a separate issue. I do not accept the arguments that the Minister made in relation to a decision which may be on the age of criminal responsibility. It has no bearing on the area which is under discussion.

The Minister referred to the presumption of innocence which benefits a child of 14 years of age and younger. It is difficult to reconcile that presumption of innocence with the power of a garda who has reasonable cause to suspect to bring the person to the Garda station and the member in charge who then decides that that person should be detained under section 4, and this is in relation to 12, 13 and 14 year olds. They are not given the benefit of the practical consequences of a presumption of innocence. If they are going to be taken in for extended detention periods, if they are going to be finger-printed, searched, perhaps strip-searched — although I do not want to get into the area of drug offences — and have the other powers under section 6 of the Act applied to them that does not fit easily with a presumption of innocence.

These are strong legal arguments but the strongest arguments are the ones that have been pressed by us, that we are talking about children, that we have very important values to uphold, notwithstanding evidence of anti-social acts and crimes being committed by children of young ages. That is not a convincing case for extending these powers to children of that age.

Professor Dooge

I mentioned this morning on the Order of Business that later in the day the question of how long the House should sit could be considered. There is a feeling on both sides of the House that it would be desirable to sit late tonight beyond the normal time of adjournment at 8.30 p.m. We are now on amendment No. 11 of 27 amendments. I suggest that the House agrees to sit late. It is best to leave it flexible and it may well be that as we go on we will find some convenient point at which to adjourn. As far as I am concerned, the most convenient point would be the completion of the Bill, by agreement on the Title of the Bill but that may be too much to hope for.

Sitting suspended at 5.30 p.m. and resumed at 6.30 p.m.

An Leas-Chathaoirleach

We resume on amendment No. 11 to section 4. Amendments Nos. 12 to 15 are being discussed. Is the amendment withdrawn?

Mrs. McGuinness

I am anxious to speak on amendment No. 11. I am sorry I am a minute or two late. I must apologise to the House for having missed quite a bit of the debate on this amendment on account of having to attend the Marriage Law Committee. I wish to support amendment No. 11. Personally I would support amendment No. 11 rather than amendment No. 12. I think 15 years would probably be a sufficiently high age level. You can get people of 16 or 17 years who possibly should come under the Bill. At the risk of repeating what other people have said, I definitely feel there is a distinction between accepting that people of 14 years or so may commit criminal offences and the extension to them of the special provisions of this Bill and, in particular, sections 4 and 6. The procedures envisaged in section 6 seem to be ones that really should not be extended to children of 12 years.

In view of the fact that it has been stated by the President of the High Court that it would be desirable for a child of 14 years always to be accompanied by parents when being questioned, it seems strange that we should now set up a system where parents and guardians where possible are to be contacted, but there is no provision that it should only be in the presence of their parents that children should be questioned. The present age of criminal responsibility, the age of seven years, is totally unacceptable. I am very glad to hear that there is to be a comprehensive Children Bill which will deal with this question. On the other hand, I have lived a considerable length of time and I have heard promises about comprehensive Children Bills over and over again. Throughout the entire period that I was working with the National Social Service Council and Board we were told by successive Governments — I am not blaming this Government particularly — that any day now we would have the new Children Bill before us and it has never appeared. When I see it I will believe in it.

In the meantime it is extremely important that we should not extend these kind of draconian measures to people who, basically, are still children. If we say replace "twelve" by "fifteen" that means the Bill would apply to 15 year olds. That is the point Senator Robinson was making about 12 year olds. It means that it lets out people up to 14 years and up to when they actually become 15 years of age. I do not feel that the measures included in section 6, the searching and the photographing, the taking of fingerprints, and so on, are the kind of things that should be applicable to children of this age.

I am not saying that children of this age may not commit offences. I am aware that they do from time to time commit offences. There are plenty of ways of dealing with this within the ordinary law, without bringing in the measures included in this Bill. It does not go very well with the presumption of innocence up to age of 14 years to bring in these measures and they seem to contrast very strongly with the idea that one should presume that a child of that age is innocent.

The main problem is that which was referred to by Senator Higgins. It will be counter-productive in that it will break any possibility of a good relationship between young grown-up people and the Garda. In my Second Stage speech I referred to the fact that even the most uninvolved children in that age group were being stopped and questioned on quite a regular basis by gardaí because they are part of the age group who dress in denims. This is a sort of universal uniform. Some of them may dress even more strangely, but even ordinary dressing in demins seems to be a sufficient recipe for being stopped and questioned.

It was interesting that when I came out of the House at lunch break I received a phone message to ring a lady whose name I did not know. When I range her she said, that as we were discussing the Criminal Justice Bill, she just wanted to put it to me that her sons were constantly being stopped because they wore punk gear. They were not involved in any form of offence or anything else, but they were constantly being stopped sometimes searched, sometimes treated quite severely by gardaí, and it had reached the stage where her older son has said that he wants to go away and live on an island somewhere. He could not stick living in this country any longer. No matter how law-abiding he was he always seemed to be under suspicion.

The enactment of these sections of the Bill is likely to worsen this kind of situation. I do not think it is likely to add to the detection of the kind of serious offences we are talking about, the serious criminality we are talking about. I urge the Minister to accept amendment No. 11 and take these provisions out of the way in which children are dealt with under the law.

Mr. B. Ryan

Now that the Minister has had his tea I am sure he is in a better humour than he was beforehand. He was getting distinctly tetchy with some of us. Before tea some of us would have been distinctly tetchy with him. The Minister has departed from the impeccable use of logic that has characterised his whole approach to this Bill all through the Dáil and Seanad and some of his excellent television performances. I regretted that I was not there to give him a little bit more opposition than he got on a few occasions.

He started throwing around terms like an indemnity against prosecution to young people. First of all, we do not dispute that there is a problem of juvenile crime. Secondly, we are concerned about that problem. We are concerned to the same degree that the Minister is about particular manifestations of juvenile crime and particularly in the way it affects old people. Thirdly, we want to do something about it. What we disagree with the Minister on is whether this provision applied as he hopes it will be applied to the category of young people between 12 and 17 years will do any good.

Not only will it not do any good, but it contains within itself the potential to do enormous harm. The fact that there are problems already with young people being alienated is absolutely no argument against us endeavouring to prevent further alienation taking place. It is simply a much stronger argument for the fact that the whole area of the relationship between marginal law breaking or at risk young people and the Garda is an area to be taken out of a piece of criminal law and to be put into an area of children's legislation to be dealt with separately.

The Children Bill was promised even before the Criminal Justice Bill by about three different Governments. It is a regrettable indication of priority that the Criminal Justice Bill managed to surface but the Children Bill is still, unfortunately, not with us. The best that can be done in this Bill is to take the whole area of juvenile crime out of the ambit of this Bill in so far as the extra and, as Senator Eoin Ryan so properly said, somewhat disturbing powers that are being given.

I wonder has the Minister or his advisers ever been in a large city Garda station late at night? If they were they would immediately conclude that whatever the seriousness of the crime that young people get involved in, detaining them there would do nothing to deter them from further crime, or rehabilitate them or deal with the fundamental problem of juvenile crime. It is regrettable that the Minister resorted to the emotionalism that does not characterise his normal standard of debate when replying to us. These provisions will not do anything about juvenile crime. There is ample evidence that these powers, exercised in the way that a normal Garda force would, not exceeding or abusing them but using them as they are entitled to use them, will not only do no good but will do severe damage.

The Minister has conceded that the majority of those detained will not be charged. Young people will be detained and not charged and their first real experience of a close encounter with the Garda will be of a most negative and quite oppressive kind. One should not pretend that being detained in a Garda station is a pleasant experience irrespective of one's guilt or one's innocence. It is a quite frightening experience. I saw a number of mature, articulate and quite self-confident women coming out from a period of Garda detention quite shattered by their experience. A climate of conflict will be created, intended or not. What we need from the Minister is some tangible, objective evidence that these powers are needed not just because people think they want them but because they could be useful. We need some evidence of a justifiable argument for retaining them other than the fact that some people feel they want to have them. There is ample objective evidence to suggest that these powers and that approach to juvenile crime does the direct opposite to what is intended. It will magnify the problem.

Mr. Browne

I would be very sorry if what Senator McGuinness said is widespread, that is, that young people are being harassed simply because they wear different clothes from what might be regarded as the norm. I have no experience of that but I am quite sure that her case is true. I hope it is not widespread.

I have the utmost sympathy for anybody of 12 years of age who is arrested and taken to court. I would also have sympathy for a 15 year old or up to an 18 year old. I would be sorry to see anybody of that age arrested and taken into a Garda station. We always seem to be shifting the blame on to people preserving law and order. I do not know at what stage one can decide that it is all right to arrest a 15 year old but not a 12 year old. An intelligent 12 year old could be just as guilty as a 15 year old who has a low IQ, as anyone dealing with young people will know. I have no wish whatever to see young people in a barracks or anywhere else, but the limit is quite difficult to assess.

One of the problems is that many parents are not setting standards for their children. If they are getting into difficulty many of the parents are to blame. Some of them probably will not care if they are with them in the Garda station or not, which adds to the problem.

The word "alienation" has been used. I do not know where the alienation is coming from. Are we building up alienation ourselves in the way we talk about the ill-treatment and the way in which they are dragged into the station? I do not think they are being dragged in on the basis that somebody is out for amusement. I give an example of persons who came to me because they wanted to build an eight-foot wall around their house because a 12 year old insisted on breaking their windows and the parents would do nothing about it. I said to them that building an eight-foot wall would not stop stones coming in over it. There is a certain stage when something has to be done about the carry-on of people who may be too young to be in trouble but, at the same time, the buck has to stop somewhere. They must be made aware they cannot interfere with people's property and so on.

Mr. M. Higgins

I listened to the last contributions with great care and they deserve some consideration. For example, we need a great deal more research on the victims of crime, their fears and their experience. The phrase "the buck must stop somewhere" was used. In relation to the provision of detailed figures and statistics I wish the buck would stop somewhere and I wish the research that is necessary would begin and would be assisted, completed and published.

I want to be as practical as I can and stick precisely to the amendment. What is happening at present in relation to offenders between the ages of 12 and 15 years? In this regard in support of our amendment and in amplification of some of the remarks that I made earlier, it is imcumbent upon me to give some sources. In her book published by the Turoe Press 1980, Helen Burke, Claire Carney and Geoffrey Cook, joint editors of the book Youth and Justice, Young Offenders in Ireland to which I have made reference already, is the latest available compilation of studies and figures as they affect young offenders and their treatment in Ireland. It is, therefore, the best guide we have on this subject. Commenting on page 13 of that book the authors said:

Earlier in this chapter it was noted that there has been a huge growth in the total number of indictable crimes recorded since 1961, from 14,818, in 1961 to 62,000 in 1978. However, it cannot be shown to what extent young offenders participated in the total number of indictable crimes. Although the official statistics can be broken down into the types of crime, they cannot be examined in terms of who committed each crime as not all the crimes recorded will be "solved" by the police. How then may the extent to which young offenders have shared in the growth of crime be measured? The most useful table for this purpose in the Garda Commissioners' Annual Reports on Crime is that which gives figures referring to the proven charges, whether or not they were followed by a conviction. Table 1.10 reveals some very interesting facts. Firstly, where young offenders are concerned (i.e. offenders under the age of 17), the number of charges proven against them have dropped substantially.

I am quoting from page 13 of the text so that we can reply to this. If there are available figures published since 1980 that contradict these, I would like to have them offered so that we can make a decision.

Secondly, while the figures for persons under 17 years old have dropped, those for older offenders have risen substantially.

Now we are at the nub of the argument. It would appear that among people in the age category to which this amendment directs itself, the number of crimes have been dropping even though at the other end, that is the older group, the numbers have been going up. A more realistic appraisal of the share of young offenders in the crime statistics is then given in a number of tables. I quote from page 14 of the book:

Again it can be seen that young offenders have had a significantly decreasing share in crime statistics — 47.0 per cent in 1961 and 21 per cent in 1978. Thus, the statistical evidence is that juvenile crime has not, in fact, increased.

Perhaps the situation has changed since the authors of this study in 1980 analysed the figures. I think we should hear if it has. In the meantime, what is apparently happening is that there is a decline in the age groups under 14 years of age. I will give an example under the heading of "Age group of Persons Convicted as a percentage of Total Convictions 1961-1978." In 1961, the people under 14 years of age were 18.6 per cent. In 1978 it was 5.1 per cent. Nobody is trying to mislead the House, but why have we come to have this argument adduced? I think I know some of the answer, or at least can speculate on it, that is, that some of the activities in which potential young prisoners are involved have a very high visibility. It is also perhaps treated by the media as being located in the particular area that gets a particular kind of coverage. Certainly the interesting one is the survey on all crime to which reference is made on page 17 of the same text, mentioning surveys carried out in the greater Dublin area with results published in a work by R. N. Vaughan and D.J. Whelan, Field of Crime, published by the Economic and Social Research Institute. This showed that while the juvenile crime rate was dropping the fear of crime and the fear of the participation of juveniles in crime was, in fact, rising. This brings me to the point I made again and again on Second Stage in regard to relationships between the true crime rate and the perceived crime rate, of what is a dimension of moral panic. Surveys in Britain have shown that among the elderly there is a far greater perceived fear of crime than there are crimes being committed among the elderly.

I just wanted to take up another point because it is terribly important. It is the suggestion that you can handle the case for this amendment by simply saying that the parent or guardian can come to the station or be present. Again in relation to the only surveys and comments that we have in relation to the quality of relationships that exist between, for example, parents and such children, is that they have very damaged relationships.

One study which is very important is one which is quoted in Dr. Burke's very well known and respected study, "The Young Lawbreaker" published in Social Studies in October 1971. It suggested that over half of the boys whom he had interviewed with and separate from their parents “had a bad or completely negative relationship with parents or guardians. About one third had a bad or negative relationship with one parent only, invariably with the father,” and so on.

To believe that it is on that relationship that you can build the protection necessary, for somebody coming down to the station and intervening in the process which will be made possible by the passing of this Bill in its unamended form is highly unrealistic and it is not taking account of the facts as we know them.

I would also quote from page 49 of Youth and Justice, the conclusions of the authors in a review of child care study and of young offenders from the foundation of this State until 1978:

Before ending this chapter a warning note must be sounded. We need to know more about young offenders if policies based on their needs are to be provided, yet we must if possible avoid labelling them as "delinquent" or as "young offenders", thereby stigmatising and setting them apart from society. Sociologists have identified the dangers associated with the very act of labelling a person as a "delinquent". Theorists suggest that labelling a person can actually lead to further delinquency. Labelling may set a process of alienation in motion. Those labelled find themselves cut off from the values of society and as a group develop their own values. This then leads to an "amplification of deviance" as the new values and subsequent behaviour of the deviant group are in conflict with those of the rest of society.

That remark was made by those authors on the basis of a review of the literature on delinquency in print from 1978 up to 1980. It was that kind of evidence that I had in my mind when I mentioned in my earlier intervention the experience of the operation, for example, of the Offences Against the State Act, section 30 and others where maybe nine out of ten of the people are released and not proceeded against under a specific charge. This is what is going to happen. It is those young people who will return to these damaged family relationships, to their neighbourhoods and so forth.

The suggestion has been made that many of us who want to put in these protections are living in an abstract version of the world, that we are not dealing with facts. My point is that the facts as published and as known on the basis of those who have gone into districts where there were high rates of juvenile crime, are there for us to take note of.

I want to emphasise in relation to Senator Browne's valuable contribution that the effects that our amendment seeks to achieve is not simply for the children involved. I would emphasise that it is for the Garda. It is not in the interests of the Garda, or of their relationships with juveniles, with adults, or with the community to be involved in administering an Act with these parts as listed to the type of people who are involved.

Equally I see, and it is something that worries me, it is always a problem for the Legislature that they must be careful when passing legislation of this kind that it will not selectively fall in its impact either on vulnerable groups or the geographical location of those groups. It is true, for example, in relation to the disposal of juvenile crime across particular districts and regions that you can find concentrations of juvenile crime. This, in itself, is the least justification for changing the position of young people before the law. It is not a justification for doing such. It is rather an argument for intervention on precise identifiable areas where you can bring community intervention to work and where it would reduce the juvenile crime rate.

I will go back to the point on which I began, which is terribly important. The evidence, such as it is, is that perhaps there is a greater but understandable fear of the involvement of juveniles in crime. I present it as a very high visibility. May I end this intervention by saying here that there is a great responsibility on the media in this regard? I am aware, from talking to social workers and I talk to them frequently, who specialise in work among young people in difficulties that young people can say to the media "come out tomorrow evening at 7 o'clock and we will guarantee you something" and people come.

In relation to this totally unreal debate we have had on this Bill and the unreal debate we had on the important occasion of the founding of the Whitaker Commission, we were dealing with a set of apprehensions that had been often fanned by very irresponsible media coverage of particular crimes and concentration on crime in particular districts, speeding in and amplifying the alienation of people from the law enforcement process. I could not repeat with sufficiently strong emphasis my belief on the basis of everything that I have quoted here that the application of this Bill to people under the age of 15, will, in itself, could be a powerful force and I would like it not to be, in alienating these people in difficult circumstances. The analysis clearly shows it, we have it all there in print. We know the social background of everyone who is ever sent to a reformatory. We know, for example, that in the ten year study that was carried out there was no son of a farmer in one of the reformatories, that 27 per cent of the people were from semi-skilled occupations, and so it goes on.

The point is that we know the areas, the vulnerable categories that this Bill will impact on if it is not amended and I would appeal to the Minister at this stage to consider acknowledging the cases that can be made for the people, particularly in these areas. I think a case could be made up as far as the age of 17 years but what we are asking for is extremely reasonable, which is for the age to be 15.

The figures on juvenile crime as analysed and published show a decline in participation in the crime rate and no contradictory evidence has been offered, but I would be willing to listen to it if it is available.

Mrs. Robinson

I do not want to go over ground that has already been covered in this discussion but at the same time I await the Minister's response to points I made earlier and that have been made by other Senators on this amendment. I want to refer to another problem I envisage which has not so far been discussed and which stems from the powers under subsection (6) of section 4. Subsection (6) (a) provides:

If a person is being detained pursuant to this section in a Garda Síochána station between midnight and 8 a.m. and the member in charge of the station is of opinion that any questioning of that person for the purpose of the investigation should be suspended in order to afford him reasonable time to rest, and that person consents in writing to suspension, the member may give him a notice in writing (which shall specify the time at which it is given) that the investigation (so far as it involves questioning of him) is suspended until such time as is specified in the notice and shall, ask him to sign the notice as an acknowledgement that he has received it; and, if the notice is given, the period between the giving thereof and the time specified therein (not being a time later than 8 a.m.) should be excluded in reckoning a period of detention permitted by this section and the powers conferred by section 6 shall not be exercised during the period so excluded:

It is not difficult to envisage situations in which 12 year olds could be detained under section 4 and questioned and then it comes up to midnight. At midnight the persons are asked whether they consent to a rest period. The mind boggles. If a person is a 12 year old, there would be notification of the parent or guardian of that person. But it could happen that the parent or guardian either did not or was not in a position to come to the Garda station. There is also the position in the Travers case that a young person should not be questioned other than in the presence of the parent or guardian. Who is to consent to the rest period? Is it the parent or guardian? Is it the young person? How is this going to operate for a 12, 13 or 14 year old? Who is going to consent to this rest period?

The full horror of this procedure when it applies to such a young child can only be viewed in the reality of the situation. If this young person, or the parent or guardian of this young person, consents to the suspension of the questioning, is that young person going to be put in a cell in the Garda station with adult prisoners? It has been a very important concern and consideration of our whole code that young people when remanded are not remanded to adult remand centres. Are we now going to have a young child or young children held overnight in Garda stations? This is what the section at present authorises.

We are not talking about the age of criminal responsibility. That is a completely different issue. We are not turning our backs on or blinding ourselves to the figures of the crimes which can be attributed to young children and to the sort of statistics that the Minister put forward, but what we are saying is that this is a very unusual power as it is couched in all this language of "There may not be a suspension of the questioning unless the person consents in writing to such suspension and is given a notice", and all the rest of it. That presumes that the person is if not an adult in the full sense at least capable of taking part in this whole procedure.

I just raise this point because the more one reflects on the possibility of the powers of detention in section 4 being applied to children under the age of 15, that is, of 12, 13 or 14, the more it appears to be something that could not be tolerated.

This move has not been justified by the Minister. He has not responded to the very strong views expressed on both sides of the House. He has not provided the cogent arguments of the absolute necessity for this measure. I hope he will deal with the other points I raised, the question of the presumption of innocence, how that is to be reconciled with being able to detain in this manner, and all the other steps that can be taken in relation to a child so detained, and the distinction to be drawn between this and the age of criminal responsibility. There are such strong legal objections as well as the social objections which go to basic values in our community, that I do not think the Minister has gone any way to justify applying these sections to children of 12, 13 and 14 years.

Mr. O'Leary

We owe a debt of gratitude to Senator M. Higgins for drawing our attention to the statistics on juvenile crime as contained in the Report of Crime from year to year. For the information of Senator M. Higgins, the trend which he identified from the textbook from which he quoted seems to have continued. If one looks at the Report of Crime, 1983, from the Garda Commissioner at page 8 — I said earlier that we are greatly in the Garda Commissioner's debt for the production of this document — it lists from 1979 to 1983, a period of five years, the total number of persons of all ages convicted of crimes.

During that period, even though the total number of crimes increased and the detection rate dropped, there was a general increase in the number of people convicted. It went from 13,700 to 18,100. Side by side with that, there is a total number of juveniles, under 17 years of age, who were convicted in the same years. These are the same figures Senator Higgins was using earlier. The percentage was 25.2 in 1979; in 1980, it went to 22.7; in 1981, 22.9; in 1982, 16.5; and in 1983, 14.4. In absolute terms the total number of people convicted also dropped. Even though the crime rate was going up and the number of people detected was also increasing, in absolute terms the number of people under 17 years convicted also dropped. It went up and down from 3,473 in 1979 by fairly regular reductions, with the exception of one year, to a 1983 figure of 2,614. In absolute terms the number of people under 17 years of age being convicted, both on indictment, where appropriate, or in the District Court or anywhere else, are included in these statistics, as far as I am aware.

Unfortunately, we are not given separately the figures for those under 15 years anywhere, but we are given the figures for those under 14 years, but only in respect of the last year and only in respect of the court cases completed during that year in respect of crimes committed during that year. This is coming back to the problem identified by Senator M. Higgins earlier that there is not a roll forward. We are never given a complete picture because there is so much outstanding at the end of the year, but the sample is very big. The Minister should note these two figures. A total of 11,766 crimes were dealt with by an order, a conviction, marked proved or an order made without conviction. In 11,766 cases 204 cases were in respect of people under 14 years of age. That is staggering. That is amazing. It does not surprise me because much of the "crime" which young people get involved in is still of the stealing of apples from an orchard variety or stealing apples from the local shop. Many people are involved in what you could not even call crime. There is an argument which indicates that the level of crime of those under 14 years of age is very low. The Minister has responded by pointing out that people under this age commit crime. They do, and nobody here is suggesting that they should not be held accountable for it in whatever way the law should decide from time to time. They must take their share of responsibility in so far as it is within their capacity to do so.

However, the justification for the introduction of section 4 surely is that a problem exists which is not capable of being tackled under the present powers. It is not just that crime is high but that the Garda Síochána and the Minister have come to the conclusion that this will aid and assist in the detection of more offences. You cannot seriously suggest on the basis of information available that, in respect of those under 14 years of age at any rate and, indeed, in respect of those under 17 years of age if you want to take the earlier figures I quoted, there has been any dramatic change in their pattern of behaviour. I feel instinctively that the detection rate in respect of crimes in that area is very high. Very often with the exception of some children in Finglas, they are immobile and if they commit crime it is in their own area, and that makes them immediately detectable. The person who is most detectable is the person who does something to his next-door neighbour because the chances of his identification and of detection are correspondingly greater. Bearing that in mind, I feel that the Minister has responded by introducing the notion of 12 where there was nothing previously.

The amendment in the names of Senator Robinson and Senator Higgins is the very minimum which the Minister should consider. I appeal to the Minister not to tell us that he will think about it on Report Stage, but just to say that he accepts Senator Robinson's and Senator Higgins' amendment. It is quite painless, there will be no massive headlines and nobody will suffer as a result of it. It will only mean better legislation. I appeal to the Minister to the extent that it is by far the most important point to come out in the course of our discussions today. I am not concerned about the emotional aspects. I am not concerned about people being able to use children to discredit the Bill as a whole. That is not the attitude I am adopting.

If our determination to review this legislation in five years time or four years time on the basis of available statistics means anything, surely on the basis of the existing information we should not include sections of the population under the present proposed legislation where it is obvious that it is not required. The problem does not exist in that area, or if it exists it is capable of being handled by existing investigative processes. That, together with the emotional arguments which also count for something, and the practical legal arguments advanced by Senator Robinson, should combine to convince the Minister that a concession in respect of Senator Robinson's and Senator Higgins's motion would meet the case and would immeasurably improve the atmosphere in which this Bill is being considered.

Mr. Noonan

(Limerick East): First of all, I thank the various Senators for their contributions. Much of what has been said confirms my initial position in this before I put down the amendment in the Dáil. I maintained that many of the arguments that the provisions of this Bill would have the gardaí going around hauling children into Garda stations were cod arguments. I maintained that just because the age of criminal responsibility was seven years there was no implication whatsoever that it was going to be used for children down to the age of seven. There was general consensus in the House on the age of 12 but it was more in terms of response to concern we have for people inside and outside the House than, for my part, any response to the arguments they put forward.

It is worth looking at the present situation. The Garda have power to arrest without warrant anybody down to seven years of age because that is the age of criminal responsibility. There is a presumption that they are innocent, an increasingly weakening presumption, up to 14 years of age. There is experience already of people of 12, 13 and 14 being arrested, brought into Garda stations and kept there for quite considerable lengths of time, and sometimes that time is longer for the young person than for the person over 17 years of age by virtue of the obligation on the Garda under their regulations and, as re-stated in the High Court, to have the parent or the guardian present and they must be notified.

The activity in a centre city Garda station late at night can be a very sad experience. It is sad also to visit a prison. Anybody who goes in at 12.30 p.m. or 1 p.m. to one of our main casualty hospitals and sees the accident cases going through and being admitted to the out-patients department can find that a very disturbing experience also, but it is part of the side of life which is tragic. Young people, children, involved with the law and crime, and children at risk, represent tragedy. The small minority of children under 14 who are convicted in our courts, as illustrated by the statistics which I have here which bear out the statistics which Senator Higgins has outlined, makes the point that I have been making from the start of this debate, that the Garda do not come the heavy on young people. The Garda do not arrest large numbers of young children and drag them into Garda stations and process them through the courts.

Mr. O'Leary

We do not know that. We only know that they were not convicted.

Mr. Noonan

(Limerick East): I will continue to explain what happens. Many of the young children, the people under 14 especially and quite a significant number over 14, who get into trouble with the law are dealt with informally by individual gardaí. The individual garda has a good talk with them, very often at the request of the parent or guardian. A large number of children, especially under 14 where there is this presumption of innocence but also over 14, are dealt with either formally or informally through the Garda juvenile liaison scheme. Those who are dealt with by the Garda juvenile liaison scheme do not appear in any statistics, because one of the major purposes of the scheme is that a juvenile at risk would have a relationship with an individual Garda officer so that he will not go through life with a record either that he was convicted or that a case was proved against him under the Probation Act.

The statistics relating to children under 14 do not tell the full picture by any means. They do not indicate that this is a replica of the number of people who are at the wrong side of the law at a particular time. I would like to say also that many of the gardaí are family men who have children of their own around that age. They are quite well aware of the problems of rearing families in particular circumstances. There is another thing I should like to say, something nobody has averted to. Section 30 of the Offences Against the State Act has been quoted liberally since the start of the debate. Under section 30 of the Offences Against the State Act the Garda have power at the moment to arrest anybody down to seven years of age, which is the age of criminal responsibility.

Mr. B. Ryan

For membership of the IRA?

Mr. Noonan

(Limerick East): They can arrest anybody for one of the scheduled offences. One of the offences in the schedule is malicious damage to property and that offence is the one which we find very frequently being indulged in by young people, whether it is malicious damage to cars, the broken windows Senator Browne was talking about or malicious damage to public property in parks, to seats, flowers and trees. Malicous damage to property is a particular offence to which young people have a certain propensity. The power is there under the Offences Against the State Act but how many examples have we of people under 14, of seven year-olds, eight year-olds, nine year-olds or 14 year-olds being arrested and brought in by the Garda under the Offences Against the State Act?

Mrs. Robinson

So why does the Minister need this under section 4?

Mr. Noonan

(Limerick East): What I am saying is that many of the arguments being made are cod arguments. There is a lot of “hit me now with the child in my arms” about many of the arguments that are being made.

Mr. M. Higgins

I think this is very unfair. I am sorry the Minister is descending to this level.

Mrs. Robinson

The Minister is arguing against himself.

Mr. Noonan

(Limerick East): What I am saying is that I conceded the amendment in Dáil Éireann where there was general consensus among the parties that 12 was an appropriate age. To raise it beyond 12 would, first of all, establish a precedent for the debate on the Children Bill for the age of criminal responsibility and would take away in a small minority of circumstances a power which might be desirable for the Garda to exercise. For example, it might be desirable to fingerprint a 14 year old, especially with the number of cars that are stolen. That might be a desirable power that might help in detection. It can be justified in a very small number of cases and statistics show it involves a small number of cases. I have agreed to move away from the seven. I did it for the reasons I have outlined, and 12 was the amendment put down by the spokesman for the Opposition. It had the general consensus of the other parties in the Dáil and I am sticking with the age of 12.

Question put: "That the words proposed to be deleted stand".

The Committee divided: Tá, 26: Níl, 7.

Tá

• Belton, Luke.
• Browne, John.
• Bulbulia, Katharine.
• Connor, John.
• Cregan, Denis (Dino).
• Daly, Jack.
• Deenihan, Jimmy.
• Dooge, James C.I.
• Durcan, Patrick.
• FitzGerald, Alexis J. G.
• Fleming, Brian.
• Harte, John.
• Higgins, Jim.
• Hourigan, Richard V.
• Howard, Michael.
• Kelleher, Peter.
• Kennedy, Patrick.
• Lennon, Joseph.
• Loughrey, Joachim.
• McAuliffe-Ennis,
• Helena.
• McDonald, Charlie.
• McGonagle, Stephen.
• McMahon, Larry.
• Magner, Pat.
• O'Brien, Andy.
• Quealy, Michael A.

Níl

• Higgins, Michael D.
• Howlin, Brendan.
• McGuinness,
• Catherine I.B.
• O'Leary, Seán.
• O'Mahony, Flor.
• Robinson, Mary T.W.
• Ryan, Brendan.

Tellers: Tá, Senators Belton and Harte; Níl, Senators Robinson and B. Ryan.

Question declared carried.

Amendment declared lost.

Amendments Nos. 12, 13 and 14 not moved.

An Cathaoirleach

Is amendment No. 15 withdrawn?

Mr. E. Ryan

No. I move amendment No. 15:

In page 5, subsection (7), between lines 39 and 40, to insert a new paragraph as follows:

"(c) Nothing in this section shall render admissable at the trial of an accused person any statement made by him when arrested or detained pursuant to this section if at the time of his said arrest he was below the age of fourteen years.".

Amendment put.

The Committee divided: Tá, 15; Níl, 27.

Tá

• Cassidy, Donie.
• de Brún, Séamus.
• Fallon, Seán.
• Fitzsimons, Jack.
• Hillery, Brian.
• Honan, Tras.
• Kiely, Rory.
• Lanigan, Mick.
• Lynch, Michael.
• McGuinness,
• Catherine I.B.
• Mullooly, Brian.
• O'Toole, Martin J.
• Ryan, Brendan.
• Ryan, Eoin.
• Ryan, William.

Níl

• Belton, Luke.
• Browne, John.
• Bulbulia, Katharine.
• Connor, John.
• Cregan, Denis (Dino).
• Daly, Jack.
• Deenihan, Jimmy.
• Dooge, James C.I.
• Durcan, Patrick.
• FitzGerald, Alexis J.G.
• Fleming, Brian.
• Harte, John.
• Higgins, Jim.
• Hourigan, Richard V.
• Howard, Michael.
• Kelleher, Peter.
• Kennedy, Patrick.
• Lennon, Joseph.
• Loughrey, Joachim.
• McAuliffe-Ennis,
• Helena.
• McDonald, Charlie.
• McGonagle, Stephen.
• McMahon, Larry.
• Magner, Pat.
• O'Brien, Andy.
• O'Leary, Seán.
• Quealy, Michael A.

Tellers: Tá, Senators W. Ryan and de Brún; Níl, Senators Belton and Harte.

Amendment declared lost.

Mr. B. Ryan

I move amendment No. 16:

In page 6, between lines 7 and 8, to insert a new subsection as follows:

"(12) A person detained under this section shall be questioned only about matters connected with the offence being investigated.".

The reason I move this amendment brings us into this delicate area where we are asked to be careful not to say things that reflect unfairly on the Garda collectively. On the other hand, I have on a few occasions during this debate expressed a profound distaste at the fact that at least one or two cases of Gards questioning of people under the Offences Against the State Act, have reflected very badly on myself and on their particular interest in my political views on a number of issues. In one case people were detained because they were suspected of being involved in some of Dominic McGlinchey's escapades in Cork. That was dealt with summarily and most of the time was devoted to discussing Senator Ryan and his political views.

There is a temptation, when somebody is in custody, to ask questions about people's places of employment, people's views on a number of issues, people's relationships with their families and all sorts of interesting background information which helps to make a good file on somebody who is suspected of having committed a particular offence, or may well have been suspected of having committed a number of offences, but not the one for which he or she is detained. The amendment does not in any way inhibit the normal questioning and investigation the Garda would go through. It simply spells out what, I am sure, is the Minister's intention, which is that people should be interrogated, if they are to be, about the offence which they are suspected of having committed and about no other extraneous matter, however interesting it might be, or however useful it might be in dealing with some other offence. It is quite simple and straightforward.

We need to ensure that powers as sweeping as these are used precisely and clearly for the intention which we are assured they are for. To do this, therefore, every attempt must be made to make sure that what can and cannot be done is written clearly into the legislation. Therefore, any inclination to begin preliminary investigations about another offence when somebody is in custody, any inclination to check out other areas of concern, or perhaps stories that other people gave about other offences, which might or might not be corroborated by somebody who is in custody on suspicion of one particular offence, and above all, the understandable inclination to fill in gaps in records about people's background, employment, and so on, needs to be guarded against if these powers are to be exercised only to achieve convictions for specific offences for which people have been arrested and detained.

Mrs. Robinson

The amendment proposed by Senator Ryan raises the question of the scope of the power to question when a person is detained under section 4. This is a new concept apart from persons being detained under section 30 of the Offences Against the State Act as has been mentioned. As a general power, detention for the purposes of questioning or interrogation is a new departure. The section does not make it clear what the parameters of that power are. It is something we will come back to when we are looking at the section. There is another amendment we will be dealing with shortly on that question.

It is necessary, in looking at this amendment, to ask ourselves just what the power is to question under the section as it stands. I do not understand what the scope of the power is. I hope the Minister, when responding to this amendment will help to clarify it. The power to detain in subsection (2) does not refer to questioning at all. Under section 6, which we will come to later, there is power to demand of a person his name and address.

Mr. O'Leary

But no power to question.

Mrs. Robinson

The only reference to questioning is in subsection (6) and I have already quoted this in relation to the horrible possibilities in relation to 12, 13 and 14 year olds. That amendment has been defeated. Where a person is being detained pursuant to this section in a Garda station between midnight and 8 a.m. and the member in charge of the station is of the opinion that any questioning of that person for the purpose of the investigation should be suspended, that presumes there is questioning of the person for the purpose of the investigation, is that necessarily for the purposes of the investigation and only the purposes of the investigation? Is it the situation, which is obviously what Senator Ryan was addressing himself to in this amendment, that the questioning, although it is for the purposes of the investigation, could range over a whole broad area and include questions relating to jobs, marital situation and all kinds of things—school conduct if the young person is still attending school and so on?

If there was any apprehension that the person detained under this section could be questioned in that broad sense, then I would be very much in sympathy with the amendment proposed by Senator Ryan. Before I can come to a view on it, I would welcome clarification by the Minister of the powers he sees conferred by the section in relation to questioning and how they would operate.

Mr. Noonan

(Limerick East): The power is being conferred so that a person can be detained if his detention is necessary for the proper investigation of the offence. That is what the last sentence of section 4 (2) states. Investigation obviously would involve questioning, the powers of forensic testing which are given in subsequent sections, the power of the Garda to detain while they are checking out a story, the power of the Garda to go out and get a search warrant or check out where stolen goods were if that was a particular admission and so on.

The investigation is wide and involves questioning but not exclusively questioning. As I said earlier in the debate, it would be wrong to imagine or picture a situation where somebody goes into a Garda station and is questioned continuously for 12 hours. That would be oppressive. The statements acquired would not hold up in court. It does not occur under the Offences Against the State Act or anything else. The courts are very diligent about oppressive behaviour. I have made the remark already that what is oppressive in one case might not be oppressive in another. There is no case where continuous questioning over 12 hours without break, rest or refreshment, would not amount to oppressive behaviour.

As to the nature of the questioning, it would involve the proper investigation of the crime. If that involved questions along the lines which Senator Robinson suggested, if they related to the proper investigation of the crime, those questions would be relevant. On the amendment put down by Senator Brendan Ryan, the difficulty I have in that is that the amendment is too restrictive and not for the reasons outlined by Senator Robinson. For example, supposing a garda sees a man coming out of a drive-way late at night in suspicious circumstances. He chases him and finds property on him which looks as if it has been stolen. He arrests him and brings him to the station. When the arrested person is being questioned word comes in that there is somebody lying dead or injured in the house from which he has emerged. Surely he will have to be questioned about that offence too. That is the way it operates in practice. I cannot see how an amendment could be accepted where the Garda could question him about the stolen property but not, when information comes in about somebody injured in the house or stabbed to death in the house, about that. There is no cat and mouse arrangement whereby a person could be questioned about stolen property for 12 hours and then let out and be rearrested and questioned about the attempted murder, malicious wounding or whatever for another 12 hours. That kind of provision is not in the Bill. The Garda are obliged to deal, within the 12-hour period, with any offence on which they have information at the time. If information comes up in the questioning they have to deal with it.

Another example might sound outlandish but it illustrates the point I am making. A suspect is being questioned about a drugs offence. In the course of the questioning he says that he was a witness to a hold-up, for example, where a chemist shop was broken into for drugs and he has information about this hold-up even though the primary offence on which he is questioned is the drugs offence. That kind of admission would make him a very valuable witness for the prosecution in another case. I do not think the Garda should be inhibited from questioning a person about that.

Take a more usual example. A person is being questioned about his suspected involvement in a housebreaking. In the course of the questioning, it emerges that he may have been involved in a number of housebreakings in the district. Again I do not think the Garda should be inhibited from following that line of inquiry when they are questioning him. I am not accepting the amendment for that reason. It is not because there may be inquiries into the family history of a personal nature of anything like that which would be ad rem to the investigation of the offence. That is not the point. It is because when a person is being questioned, evidence of another offence may emerge. Suppose, for example, the people are held and not questioned at all They are forensically tested and detained on a stolen goods offence, a drug offence or whatever. In the course of a palm print, finger print or a swab on the palm of the hand, it emerges that this forensic evidence ties them up directly with another offence. It would be unreasonable to expect the Garda not to ask about that offence then once information would come to hand. That is the kind of situation that has been envisaged.

The difficulty which was seen by many critics of the Bill was that the Garda would not, at the time, question people about the offence when the information emerged and that they would take a full 12-hour detention period to hold a person in connection with the first offence and then let him out the door and re-arrest him to investigate the second offence. That is what is ruled out in the Bill. It is not ruled out that somebody could be questioned about a number of offences during the sequence of one period of detention under the provisions of this Bill.

Mr. B. Ryan

What the Minister is effectively saying is that, notwithstanding everything we heard to the contrary, the real function of section 4 is to get people into custody to find out what they know about any number of offences that they may be inclined, for one reason or other, to talk about. It is not really to investigate a specific offence for which somebody has been arrested on grounds of reasonable suspicion. It would be hoped or it might happen, to put it at its mildest, that they might talk about a lot of other offences while they are there. I would be prepared to accept "with the offence" or "the related offences" as an adjustment to the amendment on Report Stage. There is no problem about related offences—the extreme case of a person who is arrested on suspicion of burglary and turns out to have been involved in violent crimes. It is obviously directly related. There is no problem there. I have profound reservations about the fact that apparently if somebody is arrested without a warrant, under the present position, is then detained because the member in charge has reasonable suspicion on that particular case, he can then be questioned about anything which might emerge either in passing reference or specifically by way of confession. This completely widens what I understood to be the objective of the powers of detention given under section 4 into a new area which I was not aware was intended. I assumed that the investigation and questioning would be related to one particular offence or to offences related to it. The amendment which Senators Robinson and Higgins produced earlier which proposed that people be given written listing of the offences for which they were being detained would be of no great significance if after people were detained a whole host of other offences could surface about which they could be questioned.

It is not difficult to find a reason to move from one offence to another. For instance, if a person is arrested on suspicion of burglary, is it then possible to question that person about every burglary that had happened in the locality for the last three or four months because that person confesses to one and admits to knowing about another? If the investigation and the questioning are not to be specifically confined to the offence for which people are arrested and related offences as mentioned in the Bill, then the scope for questioning is limitless. The scope for persuading inarticulate people and those not particularly able to defend themselves to make fairly sweeping confessions is quite substantial. The evidence I quoted on Second Stage of a person in a provincial town who confessed to a burglary which took place when he was in Mountjoy Jail is the extreme example of this.

I cannot say that I am any more disturbed about section 4 than I already was. I was never too happy with this section, as the Minister is aware. I have discovered yet another reason to be even more disturbed about this section now. What would happen during the period of detention is far more extensive than what I had imagined to be the case.

Mr. Magner

It has often been said that the law is "a ass". Senator Brendan Ryan, by his amendment, wants to demonstrate that it can be a total ass. The idea that a person who is arrested and interrogated for a particular burglary in a neighbourhood, whose modus operandi would suggest that he has burgled perhaps the whole estate over a number of months could only be questioned about one specific burglary—the one which he has been arrested for — is so ludicrous as to defy common-sense.

Mr. B. Ryan

We all have our own ideas of common-sense.

Cathaoirleach

Is amendment No. 16 withdrawn?

Mr. B. Ryan

No.

Amendment put and declared lost.

Mr. O'Leary

I move amendment No. 17:

In page 6, between lines 7 and 8, to insert a new subsection as follows:

"(12) All questioning carried out during a period of detention authorised by this section shall be carried out in the presence of a District Justice or a Peace Commissioner".

As I have already stated, and the Minister knows from his diligent reading of my Second Stage speech, I am against the concept of detention as it is applied in this Bill. Before going on to say why I think we should restrict the concept of detention in the way I suggest, let me say that I would not necessarily be against the whole prospect of detention in all circumstances. For example, if the Minister were to say to the House that he needed the power of detention to allow the Garda Síochána some time to investigate a crime and that that detention was not associated with the questioning of the suspect in a Garda station in an unsupervised fashion, I could find myself quite in sympathy with that. There you are balancing the loss of liberty of the subject for a relatively short period against the potential advantages. This is one of the reasons, as the Minister has stated, that we require detention.

In so far as detention will enable the gardaí, during that short period when the person is detained, to investigate by interviewing other people concerning crime and taking him out of circulation, if you like, for a short period of time, this kind of arrangement would be satisfactory if it were demonstrated that it was necessary. It may not be necessary of itself, but if it were necessary, I would not be terribly worried about it. My objection to the prospect of detention arises not from the prospect of detention itself, or the effect which that would have on the liberty of the individual who is detained. My objection to it is the effect that it is going to have on the Garda Síochána and on the community. This is why I am against detention. I think that it is going to be a wholly corrupting influence. In making this statement, I must explain exactly what I mean by it. The Minister will recall that on the Second Stage I indicated that it is going to have the effect of turning the Garda force in on itself — a Garda force which at present is centred far too much in the Garda station and in the squad car. It is going to be turned in on itself even more. It will spend an even greater percentage of its time in the Garda station questioning suspects, instead of being out in the community preventing crime from happening. This is what the people need — the prevention of crime, in the first instance, rather than its detection once it has happened. That is almost irrelevent as far as people are concerned. The presence of more gardaí on the beat and in the communities is what will achieve this.

My main objection to detention is that it is going to make a force whose ethos in recent years has been to separate themselves from the community even more separate from the community. This is where the problem will arise. It is going to develop a "them" and "us" situation. It will foster this problem and it will create this problem where it does not already exist. It is the effect that detention is going to have on the members of the Garda Síochána rather than the effect on the individuals concerned which is my main concern.

I should like to repeat what I said on Second Stage relevant to this. The Fine Gael Party have no mandate to introduce this legislation; the Minister has no mandate to introduce this legislation and the Labour Party and the Fianna Fáil Party have no mandate to introduce it. No party in this House have a mandate to do so. As I also said on the Second Stage that does not end the matter. We all have to do things from time to time for which we do not have a mandate. Things happen which are exceptional, which are an emergency and we must respond. I well remember the occasion of the 1973 oil crisis during the course of which certain powers had to be taken which did not fall within the mandate of the then Minister or the then Government, but they had to respond to the situation.

However, when you are proposing something which is a major departure from the existing pattern of society, it can only be done if an emergency situation has arisen since a mandate that was sought from the people, or, alternatively, that it was included in the mandate that was put before the people. The Fianna Fáil Party never indicated to the people that they wanted to introduce a period of detention and questioning by the Garda Síochána. Neither did Fine Gael or the Labour Party.

The Minister well knows that the process of consultation within the Fine Gael Party on this has been wholly inadequate. It is for that reason that I consider, but only in regard to section 4, that I have no obligation whatsoever to support the Fine Gael Party in this regard. If I had been offered my seat in the House on the basis of the Fine Gael Party having this as part of their policy, I might not have accepted that seat, if I felt strongly enough about it.

What kind of a mandate do this Government have with regard to the question of detention? At column 181, volume 105, No. 2, of the Official Report I indicated in my Second Stage speech what I consider to be the situation. The Fine Gael and Labour Parties in their programme for Government between 1981 and 1986 included a commitment to include the implementation of the Ó Briain Report. There was no question of the addendum to the Ó Briain Report or the chairman's additional comments on the Ó Briain Report, just the Ó Briain Report. I stand over that. If the Minister introduces legislation, or legislation plus regulations which implement the Ó Briain Report, he has my full support. The chairman's addendum is not part of the Ó Briain Report. If we wanted to introduce part of the Ó Briain Report, including the chairman's addendum, we should have clearly stated it. We did not do so. In my opinion, we do not have a mandate to introduce this kind of legislation unless we can show that there has been a change in the climate of such an overwhelming nature that this kind of legislation is seen to be necessary.

It does not rest there, because this matter was considered by the Fine Gael Party and by the present Taoiseach prior to the last election. In a wide-ranging address which the Taoiseach gave to the Fine Gael Ard Fheis in October, 1982, he dealt with the question of amending the criminal law. The Taoiseach, Deputy FitzGerald said that on being elected — because at that stage an election was looking inevitable — the Fine Gael Party would reform the criminal law, that they would introduce a provision whereby people detained would have questions put to them in the presence of a district justice or a quasi-judicial person, such as a peace commissioner, and that the answers so given would be a subject of record which could be referred to at their subsequent trial. I stand over that.

If the Minister comes in with an amendment like that I will stand over it, and in so far as is possible to do so with the facilities at my disposal, amendment No. 17 seeks to do that. That is the background as far as the Fine Gael Party are concerned. I have been unable to find any reference in Fianna Fáil literature to any period of detention or its introduction, but in respect to the party of which I have the honour of being, at least temporarily, a member, I can find a reference and I find that reference wholly satisfactory and in sympathy with the amendment as put forward by me this evening.

It is necessary that we should examine a number of things with regard to the period of detention and why the question should be before a judicial or quasi-judicial person. The Ó Briain Report was to recommend certain safeguards for persons in custody and for members of the Garda Síochána. That report was drawn up and a series of recommendations made. There were a number of recommendations but they identified the problem identified by the Minister earlier today concerning the lack of powers of the Garda Síochána to detain people that they were not going to immediately charge with an offence. Having established that, they did not make any recommendation because two of the three members felt it was not within their terms of reference. The chairman in an addendum did make certain recommendations, but that is what it was, and addendum. They did not stop there because they recognised that the Offences Against the State Act was in operation and that certain people were being detained, and were being questioned, under section 30 of the Offences Against the State Act and that that was going to continue irrespective of what they recommended. They made a series of recommendations. To put in context the level of the commitment of this Bill to the introduction of the Ó Briain Report, one should examine to what extent that has been implemented by this Bill. From paragraph 46 of the Ó Briain Report, it deals with recommendations. Paragraph 46 says:

The practice of taking people whom it is desired to question into a Garda station "to help the police with their inquiries" should be discontinued. We so recommended.

The only reason they recommended that, I understand, was because of the problems outlined by the Minister earlier. Paragraph 47 says:

Where a person is arrested and brought to a Garda station he should have assigned to him, on arrival in the station, a member of the force who is not connected with the investigation or other police action which led to the arrest. For convenience this Garda is hereinafter referred to as the "Custodial Guardian". It would be the duty of the Custodial Guardian to ensure that the person is treated humanely and in strict accordance with the Garda Regulations while he is in custody.

There is no custodial guardian in this Bill. There is a half-hearted attempt at suggesting that the member in charge of the Garda station is in some way a custodial guardian, but the functions and powers allocated to the member in charge of the Garda station differ fundamentally from what was recommended in the Ó Briain Report. For example, in paragraph 57 of the Ó Briain Report it is recommended that the custodial guardian should be entitled to attend throughout questioning of an arrested person. In this Bill I do not see any provision entitling the member in charge of a station to be present throughout the questioning. I would venture to suggest that because he is the member in charge of a station, he will be far too busy ever to attend questioning, and by allocating as the person with some responsibility in the matter, the person in charge of the station, we are guaranteeing that that person will not be in a position to attend throughout the questioning of the arrested person. But that is not all.

Paragraph 55 of the Ó Briain Report, like the other paragraphs, finishes with "we so recommend", and deals with what the rights of the arrested person should be. It says:

If an arrested person has asked for a named solicitor, a reasonable time should elapse to allow for the attendance of the solicitor. The duration of a "reasonable time" must necessarily depend on the circumstances, but we regard a period of not less than one hour and not more than two hours as reasonable in most cases. Questioning in the absence of a solicitor should not commence until that "reasonable time" has elapsed.

That is not included in the Bill. It is not included that any questioning of the person arrested should be delayed pending the arrival of the solicitor. That is not all. Paragraph 55 goes on further and says:

The solicitor should be granted access to his client immediately on arrival at the station, the consultation to be out of hearing of the gardaí but subject to such requirements as to safe custody as may be necessary. The solicitor should be entitled, as of right, to attend any subsequent interrogation as an observer.

That is what is in the Ó Briain Report. That is what I am committed to as a member of Fine Gael and that is what I will support. That is not in the Bill. There is a wishy-washy bit about the attendance of a solicitor, but what rights the solicitor has when he arrives is left totally up in the air. He is entitled to access to a solicitor, but how long is the solicitor entitled to speak to him? Whether the solicitor is entitled to be there for the subsequent questioning is not put into the legislation. I would suggest that in the absence of a specific recommendation that a solicitor should be present during the interrogation, questioning or whatever you want to call it. The solicitor will not be permitted to be there, and another very important element of the Ó Briain Report will have been set aside.

If the Minister came in here with the Ó Briain Report I would not have this amendment down. I am quite happy to have the solicitor there, subject to certain safeguards with regard to the question of getting solicitors. What I have down in the amendment is an alternative to that. What I have down is that questioning should be carried out before a district justice or a peace commissioner because that is what we said before the last general election.

In addition to that there is paragraph 60, and I am omitting a great deal because the Minister will be able to do much in his regulations. The Minister will be able to conform to a number of the recommendations of the Ó Briain Report with the regulations which he will be introducing. I am talking about the things the regulations will not cover adequately. Paragraph 60 states:

On the first occasion an accused appears in the District Court, the Prosecution should be required by the District Justice to say whether any statement or confession made by the accused will be relied upon.

That is not in the Bill.

If the answer is in the affirmative the Justice should enquire of the accused whether or not such confession or statement was made freely.

That is not in the Bill.

If the answer is that the confession or statement was not made freely, the accused should be permitted, but not compelled, to elaborate, particularly with regard to any alledged ill-treatment. The proceedings in the District Court should be duly recorded, and the record (including the original of any statement) should later be available to the trial Court.

That is not in the Bill. Surely it is reasonable and proper, a good safeguard and in accordance with the Ó Briain Report — to which I am committed as a result of membership of my party — that in going before the District Court these sensible precautions should be taken. Let nobody consider that I am against people being found guilty. I want to see anybody who is guilty of a crime convicted, but I do not want to see him convicted at the expense of corrupting the due process of law. If the choice is between somebody not being punished at all and the corruption of the process of law, then I am in favour of that person not being convicted. The Minister cannot say that the has introduced the Ó Briain Report. He has not introduced that report. Because he has not introduced the Ó Briain Report it is necessary for me to move this amendment.

During my Second Stage speech I went in great detail into the problems that arose with regard to the accusations made against members of the Garda Síochána around 1977. I do not intend to repeat them and it is not necessary to do so, but I will repeat the conclustion. The conclusion was that if the allegations were correct we, as politicians, had failed miserably in our duty. If the allegations were incorrect, we had failed even more miserably in our duty because we had not vindicated the good name of the Garda Síochána. Most educated people believe that abuse of power took place during that period. I am not saying whether it did or not, but most educated people believe that it happened and we did not vindicate the good name of the Garda Síochána, the Ó Briain Report did not vindicate the good name of the Garda Síochána even though he said he was going to do so, and no Minister has done so. I must excuse the last two holders of the office because the length of time that has elapsed since the allegations were made is so long that there is no point in resurrecting them at this stage. However, they show what level of objectivity and of discipline there is in the political process, that allegations could be believed on such a widescale basis and should never be the subject of a proper investigation in public. I am not saying they were not subject to a proper investigation in private, but I know nothing about that and the people out there who believe that the Garda abused those powers know nothing about it either. That is why I am in favour of the most rigorous scrutiny of the Garda Síochána in any questioning which they might carry out. It is for my protection, for the protection of the people out there and for the protection of the Garda Síochána.

I must be the only politician in the Oireachtas who never asked a Minister to appoint a peace commissioner, and the Minister can judge whether that is a true statement. I never asked a Minister of any administration to appoint a peace commissioner. I never considered it to be a badge of sufficient honour.

Mr. Noonan

(Limerick East): The Senator might not be suggesting his amendment if he had the experience of recommending a number of——

Mr. O'Leary

I am coming to that point. I am aware that the honour of peace commissioner is conferred on worthy citizens who, however, are not by their training the kind of judicial referees that one would pick to supervise this. Very often they are a joke, and we are talking about peace commissioners. You may consider it harsh but at least do me the honour of allowing me to make by own mistakes. The point is that there is a statutory basis for their appointment. I do not suggest that it should necessarily be any peace commissioner. It may be necessary that peace commissioners would be specially trained for this job, but even if they were never trained, the fact that peace commissioners would be there, they would be outside the Garda Síochána and they would know that they may be subject to cross-examination in court and that would of itself be a safeguard even if there was no improvement in the quality of peace commissioners.

I could say, on a lighter note, that one of my colleagues suggested when discussing this amendment earlier with me today that the request for appointment of peace commissioners would drop dramatically in the event of my amendment being carried. That is probably true and that might not be a bad thing. It might save the Minister a lot of embarrassment.

An Leas-Chathaoirleach

But the party might lose support.

Mr. O'Leary

Most of them have been appointed anyway.

Mr. Noonan

(Limerick East): The voice of experience from the Chair.

Mr. O'Leary

It is a facetious argument to say that because peace commissioners are so plentiful and because they are appointed on such an ad hoc basis that they are not suitable for the job. We can, if necessary, create a special group of people who will do this job. They can be commissioners of oaths. They can be anything. We can create a special corps of peace commissioners. That is not a major problem. What is important is not whether they are peace commissioners but that the questioning should be before a person who is independent of the Garda Síochána because that is the greatest safeguard that the suspect can give and that the Garda Síochána can have.

When one marries that safeguard with the additional safeguard suggested in section 16, that before a district justice he should say, "Did you make a statement, or was a statement made?" is another very good safeguard. Instinct tells me that many of the allegations of ill-treatment are manufactured very long after the event. This would enable the situation to be nailed at an early date. If the man says he was not ill-treated he could not come along six months later and say he was ill-treated. It is to the benefit of the Garda Síochána and of the community that that should happen. For all those reasons I believe that section 4 is not to my liking at all. But, it is to my liking — and I am quite willing to wear it — if the questioning is carried out in a supervised fashion.

I do not like the climate here or the tradition, or think our people are sufficiently disciplined to permit the unsupervised questioning of suspects for a period of six hours to be extended by another period of six hours. For that reason if we need a period of detention for the purpose of questioning then that questioning should be carried out in a supervised fashion. That is what the party which I have the honour to be a member indicated through its Leader would be its policy before the last election. Before the previous election the joint parties which formed the Government did not indicate the question of detention. I do not think any other political party had gone to the people at any election indicating that they were in favour of detention. For that reason we must move very slowly in this area if we are to retain credibility with the public. That is not to suggest that if it was put to a referendum or the people were asked that they would not be in favour of the Minister's Bill. They might be in favour of the Minister's Bill but the people out there are not in here. We are here and we are supposed to legislate in the interests of the people. Laws are not just on the basis of majority rule. That is not the way laws work. Laws are based on the combined judgment of the Houses of the Oireachtas. I earnestly request Senators in all three political parties to support my amendment. A cross-party determination in this matter will not be a victory or defeat for the Government. I do not want to bring a defeat on the Government. It would be a victory for the legislative process and this House against the automatic processing of legislation to which we are too often subjected.

Mr. E. Ryan

Before commenting on this amendment, we agreed earlier that the question of when the House would adjourn would be considered in the light of the progress we were making. It is now just past the normal time for adjourning and it seems to me that there is no possibility of finishing this Stage tonight, unless we sit very late. I wonder what the House feels we should do in the circumstances.

An Leas-Chathaoirleach

Would the Acting Leader of the House care to comment?

Mr. O'Leary

I can only express a personal viewpoint. My viewpoint is that we should continue for some time. We certainly should be able to deal with amendments Nos. 17 and 18 tonight without any difficulty. Whether we will have time to deal with the substantive section itself is another question, but we should be able to deal with amendments No. 17 and 18.

Mr. E. Ryan

That would be in order.

Mrs. Robinson

It would be desirable, if possible, to complete the amendments to section 4. I would be more reluctant to embark on a debate on section 4 because I doubt if we would conclude on that this evening unless we sat very late. It might be better to leave it and take the debate on that in the morning. I agree with Senator O'Leary that it would be desirable to conclude on the amendments to section 4.

Mrs. McGuinness

I agree with Senators Robinson and O'Leary on this. We should try to complete these amendments but the debate on section 4 is bound to be a fairly substantial debate and it might well be better to start on that in the morning.

An Leas-Chathaoirleach

The House is agreeing to finish amendments Nos. 17 and 18 and to adjourn until tomorrow morning.

Mr. O'Leary

Yes.

Mr. M. Higgins

And the substantive debate on the section tomorrow morning.

Mr. E. Ryan

I cannot take any responsibility, or comment on, what decisions were made within the Fine Gael Party, but I have to look at the Bill as it stands. Having agreed, however reluctantly, that this section should come into operation I have to look at it on the basis of allowing it to come into operation in a way which will be workable. The amendment Senator O'Leary has proposed would be an ideal situation if it was workable. Two people were suggested to be present for questioning, one a district justice. I am sure opinions vary as to whether district justices are overworked or underworked. No matter what way one looks at that question it would be unrealistic to expect that the Garda would be able to get a district justice virtually at a moment's notice or even at a few hours notice to spend six hours, or longer in the circumstances envisaged by this amendment. It would be an ideal situation. It would be moving in the direction of the method of procedure in France and some continental countries but I cannot see that it would be possible to get a district justice in these circumstances. Even assuming that the amendment was passed and that the position then was that a district justice would have to be present, certainly if he could be procured at all it would be after a long delay.

The situation which we deplored earlier of having the detainee detained for long periods would almost certainly arise in all cases, and it almost certainly would be for a longer period than without this amendment. By having an advantage in one respect it would be a very considerable disadvantage from another point of view. In any event, I do not think it would be a practical proposition to get a district justice every time the Garda want to detain somebody for questioning.

The second person mentioned is a peace commissioner and, as Senator O'Leary has admitted, having a peace commissioner present would not really be a very useful precaution because although some peace commissioners might have considerable knowledge of the law and be conscientous people, I think many of them would not fall into that category and having them there would be merely a formality which would be of no advantage whatever to the person detained.

I am not sure that I am clear about the idea behind the amendment. If it is merely to have precautions for the protection of the detainee I agree with the intention but if it is merely to make the section unworkable then in all the circumstances I cannot agree with it if that is the real intention. It would be unworkable and, consequently, I cannot support it. It might have been possible to approach this in a different way which would give some protection to the detainee but that has not been done up to now and I think the way which is proposed under this amendment just would not work.

Mrs. Robinson

I find myself in sympathy with the reasons why Senator O'Leary tabled this amendment and the arguments he has advanced in support of the need for it, the principle of having some way of externalising the process of questioning, some way of ensuring that there is a person present during that questioning who is not part of the direct investigating team or an individual investigator and who can be in a position of being an objective observer and safeguard.

This amendment, just as the previous amendment did, highlights some of the difficulties we are in in examining this whole process of questioning and I will come back to that because I am still not entirely clear about the scope of the power to question. The person can be detained on the ground that the Garda Síochána have reasonable cause to suspect he has committed an offence and the person at the Garda station has reasonable grounds for believing that detention is necessary for the proper investigation of the offence. Under section 6 the person can have demanded from him his name and address. He is obliged to answer that and he is obliged to give his true name and address. If he either refuses to give his name and address or if he gives a false name and address, then under section 6 he would be guilty of an offence for which the penalty could be a year's imprisonment or a £1,000 fine or both — that is the maximum. There is clearly an obligation to answer that question.

Under sections 18 and 19 inferences can be drawn from an accused's failure to account for certain matters. The accused may not necessarily be detained under section 4 but where the accused is arrested without warrant, which would be the case of a person detained under section 4, inferences could be drawn from a refusal to account for objects, marks and so on or a refusal to account for the presence of the accused at a particular place. Although there is not a direct obligation to respond to the questioning in relation to a mark under section 18 or presence in a place under section 19, the accused runs the risk of the consequences in the way that the inferences can be drawn. There is an obligation to give the name and address and there is a risk of inferences being drawn in relation to marks or presence in a place. Apart from that, I would like the Minister to clarify that the golden principle of the right to silence obtains, that there is——

Mr. Noonan

(Limerick East): That is right. There is no obligation.

Mrs. Robinson

There is no obligation otherwise to respond at all to the questions. We are clear on that. The person does not have in any way to answer, respond or say anything in relation to any of the other questions. Then we get to a situation where this obtains in practice on the ground, where you have for example——

Mr. Noonan

(Limerick East): Is the Senator referring to sections 15 and 16?

Mrs. Robinson

Yes. It could possibly arise.

Mr. Noonan

(Limerick East): Apart from what is in the Bill there is no interference with the right to silence.

Mr. Robinson

The difficulty is that that is the strict legal position, that the person has a right to silence, but we have also come to the situation where this section certainly authorises questions. You do not have to answer the questions but it authorises these questions. It allows for the suspension of the questioning at midnight if the person consents in writing to the period of suspension, otherwise the questioning continues. The Minister says there would not be long periods of questioning and I assume that this would be governed in the draft regulations which he is providing. Nonetheless, there would be the possibility of sustained questioning over the periods with break periods and other provisions. I think this brings a whole lot of issues into question. In the case of a 12, 13 or 14 year old, if he does not answer the question, what kind of pressure can be brought be bear in the privacy of the Garda station? I am not alleging widespread abuse, I am not undermining the Garda. I preface what I am saying by saying that my concern would be not to allow false allegations or rumours to emerge, or a whole sub-culture of alienation from the Garda, but undoubtedly if there is this power to keep putting the questions, even when the detainee remains silent and particularly if the detainee is very young or is somebody who is vulnerable in various ways and is not sure of his rights, it seems to me that we are building up the structures of a situation which is open to all kinds, not so much of direct abuse as of inevitable borderline cases that could arise because there would be frustrations for the investigator. Apart from giving his name and address, if the circumstances of a mark or other substance or of being present at a place do not arise then——

An Leas-Chathaoirleach

I wonder if much of what the Senator is saying would be more appropriate when we take the section in the morning? Can we stay with the amendment?

Mr. Robinson

With respect, I can only respond to this amendment by trying to tease out why Senator O'Leary feels it necessary to have an objective presence there for this questioning. The more I seek to flesh out exactly what it means in practice, the more concerned I am about this private capacity to question, even though there is the legal right not to say anything, or not to reply to the questions except in the narrow circumstances I have mentioned. In the privacy and the confines of the Garda station that might not be the safeguard we would like it to be.

I agree with Senator O'Leary that it was a concern of the Ó Briain committee, and a proper concern, that if there is questioning there should be a third party present. I would like to reflect on the question of the workability of this amendment. I would prefer that we conclude the principle of it if there is to be questioning of this kind, which is a new power, certainly a new power in its legal sense. Whatever the practicals may have been in the past, it is a new authorised power. I am persuaded of the need for an objective witness to the questioning which would take place.

We will be coming back to this in some measure when we talk about the provision for having access to a solicitor and the presence of a solicitor. It is clear that the section does not provide that there can be no questioning except in the presence of a solicitor. That is another alternative, that a person could not be questioned unless a solicitor was present. That is the position in many cases. Young persons cannot be questioned unless their parents or guardians are present. At this stage the more the practical context of this power is teased out the more worrying it is that there should be this power to question in the manner provided without any third party present.

It is even relevant to the agreed need for the establishment of an independent complaints machinery. That complaints machinery is being established because of the recognised need for some method of investigating complaints. Some but not all of these complaints may stem from the powers to detain, and it would appear impliedly to question, conferred in section 4. Yet it would be extremely difficult for the detainee to prove a case where the detainee was alone apart from the investigators during the whole period of questioning where the detainee was seeking to make the case that undue pressure was being used in the process of questioning.

I am not talking about physical abuse. I am talking about the kind of pressure that can be brought to bear on a person who, although knowing theoretically that he has a right to remain silent, is sufficiently pressured and brow-beaten as not to feel that he can in fact remain silent without suffering some kind of consequences. How is that to be established unless there is some objective method? There is the possible provision for electronic surveillance at some stage but, again, that is not on stream and will not be in operation in a comprehensive way when the Act comes into force. There is a real problem here. The way in which we approach it is not the important thing. It is whether we accept the principle of having some objective scrutiny which was part of the Ó Briain recommendations in relation to the custodial guardian.

Mrs. McGuinness

I, too, would like to support the spirit of Senator O'Leary's amendment. There should be some third party present, or some method of ensuring by having an impartial observer that pressure is not being brought to bear in an improper way. While I accept that the right to silence, except in the limited conditions in the Bill, does remain there is no doubt that, particularly in the case of young or vulnerable people a psychological pressure is bound to build up where questions are repeated and repeated even if people say they will answer and do not have to answer and are aware that they do not have to answer. It was a concern which the Ó Briain committee had and a very valid concern.

Various proposals have been made as to how this might be done, possibly by the presence of a solicitor, possibly by the presence in the case of a young person of the parents or guardian. I agree with Senator Robinson that, although section 27 does provide for electronic recordings, there is no indication as to when that kind of section could be brought into operation. It is purely an enabling section. However, I suggest that the fact that section 27 is included in the Bill, and that there is provision there for possible electronic recording recognises that there is the problem and recognises that it is desirable, or it certainly could be desirable, that there should be an impartial recording of what went on in the questioning period.

The fact that this is included in the Bill would back up Senator O'Leary's idea that there should be a third party present during the questioning. There may be difficulties in carrying it out through a district justice or a peace commissioner. District justices, generally speaking, are already sitting fairly long hours and I am sure they would be reluctant to be involved in hours of questioning of this sort. With regard to the peace commissioners, even if we had, as Senator O'Leary suggested, a special corps of peace commissioners for this — I cannot help thinking of them as being O'Leary's Harriers — this may not be the best way of doing it. I urge the Minister to accept the spirit of Senator O'Leary's amendment and to provide for a third party being present at least until the provisions of section 27 can be brought properly into operation, and electronic recording of the questioning is a practical possibility.

Mr. Howard

I wish to say a few words on Senator O'Leary's amendment. Senator McGuinness requested the Minister to consider seriously taking on board the points put forward by Senator O'Leary. I want to respond by advising the Minister to proceed with caution. Although I find myself in disagreement to some extent with my colleague, Senator O'Leary, I have to put on record the fact that I admire his courage for taking the line he took. As somebody who took a rather independent line on legislation recently I understand and sympathise with his stand. He feels very deeply about it.

I am speaking here as a layman who has listened all day practically to the debate. It is only fair for somebody in my position to make the comment that it has been dominated largely by people with legal training, a legal background and legal experience. When I spoke on certain matters and took a relatively independent line on them they were matters with which I was closely associated, and perhaps because of that I was not as objective as I might have been if I was removed from them. Therefore I want to come in on the question of objectivity. There seems to be a preoccupation right through this discussion, particularly on section 4 and the amendments, with the rights of the person being questioned. There is a concentration on these rights. There are other rights which should be taken into account as well. Senator O'Leary in the earlier part of his contribution said that although opposed to detention as such there were circumstances in which he could see detention had merit. I believe that detention and detention for questioning is necessary.

There seems to have been a very strong emphasis in the debate on protecting certain rights. There seemed also to be a presumption that the vast majority, 90 per cent, of the people being questioned were innocent and were being questioned for the purposes of pinning something on them. That is how it came across to me.

Senator O'Leary also said part of his objective in putting forward his amendment was to avoid a situation in which the Garda would close in on themselves. There was consideration there for the welfare of the Garda. There was consideration for the welfare of the person being questioned. Noticeably absent from the debate today has been consideration for those who are the victims of crime.

Mr. M. Higgins

We called for victim studies more than once.

Mr. Howard

I am making the point that in the course of the discussion here today the concentration was on the rights of the person being questioned and on the welfare of the Garda but there was little or nothing about the welfare and rights of the people who are victims of crime.

An Leas-Chathaoirleach

It is not because we are from the one constituency that I say I am not going to allow you to make a Second Stage speech on this amendment. I have so ruled for other Senators and I must do so for you.

Mr. Howard

I beg to remind you that I did not make a Second Stage speech.

An Leas-Chathaoirleach

I know. You were noticeable by your absence.

Mr. Howard

I will come back to the amendment as you wish me to. I do not know how practical the requirement of having a district justice or a peace commissioner present is. Senator Eoin Ryan dealt with that. Does it mean that if a peace commissioner is not immediately available the questioning cannot proceed? I think the implication is that if neither a district justice nor a peace commissioner is available, then the questioning cannot proceed. If, for example, neither was available for the six-hour period, what happens? Do you get another six-hour period? If, for example, they are not available for that, what happens at the end of that? I would like to know the answer.

I accept there is validity in the argument of having a third party present. There are people who will say that having a third party present will frustrate the process of questioning. It is an unpleasant and unpopular thing to say but, nonetheless, it is a feeling that exists and it is well to put it on the record. I admire the courage of my colleague but, for the reasons I have mentioned, I cannot support his amendment.

Mr. B. Ryan

Without being the least bit flippant, we are on the Committee Stage of a Bill. Senator Howard is a good friend of mine and I hope will continue to be so. If I had a Committee Stage of a Bill to do with the victims of crime I would be extremely concerned about it. There are two bodies of people referred to in this legislation, the Garda and people who are detained for questioning. It is, therefore, proper that the entire concern of the Members of this House be directed to those two groups.

Just to put the matter right, I do not have any legal training and neither incidentally does Senator Higgins. Senator Howard is entitled to assess for himself who dominated this debate. I do not know if I did but Senator Higgins definitely contributed substantially. God protect us from the day when the professions tell the laity how to run themselves. There is a saying that I quoted before that all professions are a conspiracy against the laity. It is one to which, to some extent, I subscribe.

Mr. O'Leary

Including the engineering profession.

Mr. B. Ryan

I was just about to say it. I referred to that profession once before in the House and will not go into that again. I, along with a number of my colleagues, fully support the principle of what Senator O'Leary has suggested. I have some doubts as to its practicality and as to whether some of the people who would be covered by the categories listed would really be of much assistance to the person being questioned.

I am deeply disturbed by Senator Howard's implication that the presence of a third party could somehow hinder questioning. It is a pity he did not elaborate further on it because I might be less disturbed if he did, or then I might be more disturbed, I do not know. I have no idea why the presence of a third party who was not participating, could be any less inhibiting than a electronic or video recording of the questioning process.

My view on the section is well known. Every time I support an amendment I am simply trying to redress damage that will inevitably result from this ill-conceived legislation. I support the principle of the amendment. One could look again at who exactly should be there, perhaps the custodial guardian that the Minister referred to could fulfil the function, even though he would be a member of the Garda presumably. The principle is one that ought to be examined. I have said over and over again that if there is a conflict of evidence between a member of the Garda and the sort of person Senator McGuinness was talking about earlier — the punk style dressed young person — it will take a particularly diligent tribunal, whether it be the courts or a complaints tribunal, really to believe that, for instance it was not made clear to persons that they had the right to remain silent or that no attempt was made to get around people's right to remain silent. There are a number of devices and lots of ways of doing this. If a person has a suspicion that he will be in for 12 hours, it may well be attractive, and will be presented attractively, to speak up and be let out. If he insists on remaining silent he will be there for the next 12 hours. That, off the top of my head, sounds very simple and attractive. I am sure the Minister would say that is an abuse. Of course, it is. If no third party is present and somebody suggests this happened and there is a conflict of evidence because these things are done in an off-hand and less than explicit fashion, then there is no way in which a tribunal could do other than assess the credibility of the two points of view. In such a situation the one who looks different in the eyes of respectable middle-class people will be the one who will be less likely to be believed. I support the principle of these amendments.

Mr. Noonan

(Limerick East): I thank Senator O'Leary and other Senators who have contributed. There is a great feeling of déja vu for a Minister when the Bill comes to the Seanad. The debate on how exactly we should monitor the questioning of people in custody has gone on, at different intervals on different occasions, in at least four locations since I commenced the Bill: firstly with my officials in the Department of Justice, secondly at Government, thirdly in the Dáil and now in the Seanad. We have adverted to it and it has been studied very carefully, when I decided to recommend to the Government that a Criminal Justice Bill would be introduced which would have a period of detention for people suspected, as outlined in section 4, the question immediately arose, how would the detention be monitored? A number of options were considered. First of all, the idea of a district justice was looked at. There is one justice in each court district.

The Dublin experience might again, rather like the idea of chief superintendents, give the impression that there are a lot of district justices around. Go outside the greater Dublin area and there is one district justice to a District Court area which is quite large. That district justice obviously sits in the District Court and is involved in the preliminary hearings of anything that goes, say, to the Circuit Court.

I do not think it would be appropriate for the district justice, who was to hear a case in the District Court subsequently and who was involved in the preliminary proceedings of a case which would be dealt in a higher court, to be a custodian while the Garda were questioning. For that reason alone, if one went for the option of a district justice, enormous difficulties on availability would be raised immediately because you would have to go outside the District Court area in which the district justice was resident before you could get an independent district justice who would subsequently remain independent.

District justices are reasonably busy people. They have to sit in their courts. People go before them for search warrants and they have special courts from time to time. There is an enormous practical difficulty in the idea of a district justice being available outside his own district to be a custodian in the sense recommended in this amendment.

Detention can take place at unsocial hours. There can be a number of barracks. For example, my own city of Limerick has one district justice. There could be detention going on simultaneously in two major Garda barracks, as would be the case in Dublin also. I do not think this is a practicable option. The idea of a peace commissioner was also looked at. Peace commissioners are decent people. They are appointed usually by Ministers for Justice through the chairman of the branch or cumann. They are respected and attached to a political party quite frequently. They are usually older members, a kind of Irish answer to the honours system in a very minor way.

Firstly, I do not think that the existing cohort of peace commissioners would necessarily be available for this kind of work. Secondly, I do not think that, if they were available, they would be willing on all occasions to come in at unsocial hours, and, to take Senator Howard's point, if they did not come in, what would happen? Of course, what would happen is that very quickly the Garda would know that certain peace commissioners were available. It might even be necessary to have a particular fee for the attendance of a peace commissioner. The Garda would quickly become aware that certain peace commissioners were not available and others were. How long would their independence remain if they were in a kind of a "cosy" relationship that A, B and C are not available and D is always available to come into the Garda station to have the odd cup of tea and chat? This is no reflection on the particular peace commissioners, but I do not think it would inspire tremendous confidence that this was a real custodial system that was recommended.

I thought then of the idea of solicitors. There is a constitutional right of access to a solicitor. The case law at present support that view and I read it into the record of the other House. What I am putting into the Bill is an obligation to inform detained persons of that right. The suggestion has been made that there will be some lapse before questioning will commence, and then the client's solicitor will come that, rather than having access to the solicitor, the solicitor would be present during questioning. I do not think that is a runner. First of all, I do not think that solicitors would do this voluntarily. I do not think solicitors would be prepared to stay in a Garda station for 12-hour periods, to go away or stay or have their refreshments during the breaks in questioning if it took place at intervals over 12 hours and then go and sit inside. I do not think, either, that they would do it without reward and you are talking about an enormous number of hours being put in by solicitors in police stations.

Mr. O'Leary

How are people going to be detained?

Mr. Noonan

(Limerick East): The stronger argument is that I think we all know what the advice of the solicitor would be on consultation, with access to the client. He would say “Say nothing.” This is what the solicitor says when he comes to the Garda station. It is the practice.

Mr. O'Leary

And he is right.

Mr. Noonan

(Limerick East): We would have the solicitor initially having access giving this advice to the detained person and then sitting in during the questioning period and constantly reinforcing this advice to say nothing, in whatever particular legal formulation to say nothing would be presented. I do not think it will work. It would work in the sense that we might as well have no section 4. There would be enormous cost to the State. There would be a cadre of young solicitors particularly for this purpose if available in an area. Some kind of new arrangement could be invented. There could be some kind of custodians attached to particular Garda stations. There would be a new job, new people other than gardaí, coming in and going out. How long would they be independent? How would that be monitored or arranged?

What I am trying to point out is that we looked at the difficulties and we came down on certain options. The first option we went for was that there would be a shorter period of detention rather than a longer period. It started off on the basis that there was existing law, 24 hours plus 24 hours, a total of 48, but that we would not go for that length of time, certainly without some kind of custodial system. The first decision in the process was to reduce the time.

While I mention the Offences Against the State Act, this was another consideration that weighed with me personally. It would be very difficult to categorise the law in such a way that certain safeguards were provided for people who were arrested and detained under section 4 of this Bill and that the same safeguards were not provided at all for people under section 30 of the Offences Against the State Act. Regardless of what the initial position would be, there would be enormous pressure to extend any provisions to people detained under the Offences Against the State, also.

Where would the peace commissioner be then? Whatever about the statistics of the number of people being detained, a significant number of those detained under the Offences Against the State Act go through the Special Criminal Court and end up in Portlaoise Prison for very serious offences. The particular organisations of which they are members have a record of intimidation. I cannot see our peace commissioners all around the country being involved in and acting as custodians of the rights of people arrested under section 30, when they and their families could be quite openly subject to intimidation. It is quite common now that when somebody is brought before the Special Criminal Court they allege ill-treatment in Garda custody. It is reasonable to assume that pressure would be put on the peace commissioner to support that allegation. These are the kinds of difficulties that came up.

We did three things — first of all, going for the shorter period of detention, secondly, putting in the enabling provision for electronic recording. I would like, if we could, to start electronic recording immediately, but there is no research done in this country. Immediately before the Bill was circulated, I set up a small committee. In England, Scotland and in the United States they have been looking at what is happening. We will move into pilot schemes fairly quickly and then try to extend this to the larger Garda stations where people would be detained in a Garda division. That will help. On Second Stage I moved towards the idea that the member in charge of the station should be made statutorily responsible for the welfare of the person being detained. That brings me to the Ó Briain Report.

Many Senators will be familiar with the Ó Briain Report and others will be familiar with it because of the frequent references made to it throughout the debate in both Houses and outside. Mr. Justice Barra Ó Briain was the chairman. Dr. Ruaidhri Roberts, General Secretary of the Irish Congress of Trade Unions, was a member and Mr. Patrick Malone, former Commissioner of the Garda Síochána, was the third member. In the addendum to the report to which Senator O'Leary referred, the chairman talked about the Ó Briain Report being the Ó Briain Report and the addendum was not included in that. That is a fair debating point but it is not the full story. Mr. Justice Barra Ó Briain said in his addendum:

I am in agreement with my two colleagues save, as mentioned in paragraph 44, in relation to the interpretation of the Committee's Terms of Reference with respect to the matter of detention for the purpose of interrogation in the matter of the right to silence.

The argument that these matters were both outside the Terms of Reference was put forward by only one group of all those who attended before us. The others, for the most part, assumed without question, that these matters might properly be discussed and considered by the Committee. The Law Society, having specifically considered the question at our request, were of opinion that neither was outside the Terms of Reference. This too is my own considered opinion. Accordingly I feel that I should go somewhat further than my colleagues and make recommendations in regard to both of these matters in addition to those recommended by all three members in our joint report.

The point I am making is that it was not the Ó Briain Committee who decided that there should not be periods of detention for people arrested other than under the powers of the Offences Against the State Act, it was that, in the opinion of two of the members, with the chairman dissociating himself or disagreeing, it was outside the scope of their terms of reference to do so. The chairman in his addendum recommended a period of detention of six hours and referred to an extension of that period in certain circumstances. He also made recommendations along the lines I have incorporated in drawing inferences from Marx, but we will come to that at later stages of the Bill.

Paragraph 49 of the Ó Briain Report says:

In the case of a person detained or arrested under the Offences Against the State Act, 1939, or the Emergency Powers Act, 1976, the Custodial Guardian should be a member of the force of a rank not below that of Inspector, to be assigned by the Chief Superintendent of the Division in which the person is detained. We so recommend.

In the case of the Offences Against the State Act and the Emergency Powers Act, they are recommending that the custodial guardian should be an inspector. There is a general section on custodial guardians, where he would be an ordinary member of the Garda. To which people in custody would the ordinary member of the Garda Síochána be a custodian if we exclude the Offences Against the State Act and the Emergency Powers Act, where an inspector would be required to be the custodial guardian? I suggest that in the whole sequence, even though two members of the three-man committee were of the strong opinion that recommendations on detention were outside the terms of reference of their report, there are internal recommendations which suggest that they envisaged a change in the law along the lines we are suggesting now, and along the lines which Mr. Justice Barra Ó Briain recommended.

On the question of custodial guardians, the Ó Briain Report states at paragraph 47:

Where a person is arrested and brought to a Garda Station he should have assigned to him, on arrival in the Station, a member of the force who is not connected with the investigation or other police action which led to the arrest. For the convenience of this Garda is hereinafter referred to as the "Custodial Guardian". It would be the duty of the Custodial Guardian to ensure that the person is treated humanely and in strict accordance with Garda Regulations while he is in custody. Assignment of the Custodial Guardian should be made by the Station Sergeant or senior Garda then present in the Station. Once appointed he should be responsible, until officially relieved, for the well-being of the person in custody and the safe-guarding of his rights. The Custodial Guardian should immediately hand him the official printed form notifying him of his rights (Garda Form C72 (S), a copy of which is set forth in Appendix E). He should satisfy himself as to whether the person requires medical examination, and if of opinion that it is necessary or desirable, he should have authority to prevent any questioning until a medical examination has been completed. In the case of an uninformed or illiterate person he should particularly ensure that he fully understands his rights. We so recommend.

That is spelled out in great detail. I brought in an amendment on Committee Stage in the other House where the member in charge is made responsible for the welfare of the person and on examination of the idea of a custodial guardian I decided that my nearest approach to meet the recommendations of the Ó Briain Report and to meet the criticisms and concerns of people both inside these Houses and outside, was to make the member in charge responsible for the welfare of a person in custody. Section 7 deals with that:

(2) The regulations shall include provision for the assignment to the member of the Garda Síochána in charge of a Garda Síochána station, or some other member, of responsibility for overseeing the application of the regulations at that station, without prejudice to the responsibilities and duties of any other member of the Garda Síochána.

These regulations will be brought in by statute by the Minister. They will govern, control and direct the method in which people detained in custody will be treated and the obligation will be on the member in charge to see that the regulations are carried out. These regulations will be brought to both Houses and Deputies and Senators will have an opportunity to discuss them.

While I agree with Senator O'Leary that I am not incorporating the idea of custodial guardians absolutely as recommended in the Ó Briain Report, I am going a long way down that road. At the end of the day, after the Bill comes out of this House, when the complaints procedure and the statutory regulations come through this House, if anybody wants to go back and have a look at the Ó Briain Report and do a check list of how we have met the obligation on it, I say we will have gone a long way down that road and a lot further than many people expected. This is a situation where there are real problems. It is not easy. Initially, the decision of the Government was to go for a short period of detention and electronic recording. That did not satisfy everybody so the Bill was amended and in effect the member in charge of the station is being made responsible for the welfare of the person in custody. It will be his job to implement the regulations. That is the best approach I can make.

Frankly, I do not think Senator O'Leary's amendment will work. I do not think it can work in respect of district justices or that it will work for the reasons I have stated in respect of peace commissioners, but what I have suggested has a very good chance of working.

If what I am suggesting does not work, we have a review after four years and we might be in a better position to evaluate it then. We have had detention in this country for a long time, and for much more extensive periods than I am suggesting in this Bill. This is the first time there has been an attempt to monitor what happens in Garda stations while people are being detained.

Mr. O'Leary

More is the pity.

Mr. Noonan

(Limerick East): It is the first time a particular garda is going to be bound by statutory regulations for the welfare of people detained and it is the first time any Minister has given a statutory commitment to proceed towards electronic recording. I cannot say whether electronic recording is going to be by sound, vision, or both.

Mrs. Robinson

I like that "to proceed towards".

Mr. Noonan

(East Limerick): Yes, and I chose my words very carefully. I would love to be able to come into the House and say we are going to have electronic recording, but we are not in a position to do that. We do not know how it would work but I know it has proceeded very slowly in other countries. I hope that we can draw on their experience and proceed more quickly to that situation. There is the difficulty that I have pointed out already and it is worth pointing it out again. One reason why I am constantly looking over my shoulder is that what is possible for 12 hours becomes very difficult for 48 hours. I do not think it will be possible to isolate what is happening in this Bill and the safeguards we put into this Bill from what is happening in the Offences Against the State Act. I do not think it will be possible to compartmentalise them, to keep them separate and not extend them.

Mr. O'Leary

Why not do what the Ó Briain Report said and reduce the terms of the Offences Against the State Act?

Mr. Noonan

(Limerick East): I have weighty reasons for not doing that and if we were discussing the Offences Against the State Act I could give a percentage of those reasons. If Deputy O'Leary presses me I can give him a far more clear-cut explanation in another place.

Mr. O'Leary

I appreciate the various contributions which were made arising out of my amendment. I am not suggesting that the amendment is perfect. It would be as ridiculous for me to suggest that this amendment is perfect as it would be for the Minister to suggest that the Bill as introduced to the Seanad is perfect. During the course of the discussion certain things emerged. The insight of Senator McGuinness was very interesting when she said that the Minister recognises the need for surveillance of some kind with his proposals under section 27. It is a point which for some reason or another did not strike me.

Mr. Noonan

(Limerick East): You were too kind to cast that up in my face. You are proceeding towards it.

Mr. O'Leary

That is what Senator McGuinness brought to our attention. It is true. When that section comes into operation I have no objection to the removal or the retirement at that stage of the peace commissioners and of the district justices. I am not seeking to make a job for peace commissioners or district justices. Much of the Minister's rebuttal of my amendment dealt with the personalities and availability of peace commissioners and district justices rather than the necessity for the supervision of questioning, which is a crucial point. Irrespective of how it is done, the Minister has a better idea. If the Minister indicates to me that he will introduce something which will mean the supervision of questioning from day one, any system, then I will withdraw this amendment.

Mr. Noonan

(Limerick East): It is in the Bill.

Mr. O'Leary

It is not in the Bill. The chap in charge has no teeth whatsoever.

Mr. Noonan

(Limerick East): He has a statutory obligation to fulfil the regulations.

Mr. O'Leary

Fulfil the regulations, whatever that means.

Mr. Noonan

(Limerick East): If he does not, he will be in breach of the law.

Mr. O'Leary

But he will not be amenable to the law apparently. Other suggestions have been made that the solicitor could be used, Of course, a solicitor may not always be available. It may be possible even to use the peace commissioner only in the back-up where no solicitor is available. There are all kinds of ways if the will is there. If this Minister determined that there was going to be supervision he could construct a scheme with his officials. From what is there he has decided that the questioning will be without external supervision. That is what the decision is and that is what the argument is about. Whether a peace commissioner is good or bad for the job is not the argument. The argument is not about whether solicitors would be available or good or bad for the job or whether district justices should become involved in cases which they might be trying eventually. Those points are only incidental. The point of principle is that he Minister wants this provision to be introduced without external supervision, and the custodial guardian is not external supervision. The Minister abuses the Ó Briain Report. He is talking about the custodial guardian, but the custodial guardian is only one part of it. The report recommends clearly that the solicitor should be present, so there is not point in saying that the custodial guardian is provided to a greater or lesser extend within the Bill. That is only one of the recommendations. Another recommendation is that the questioning in the absence of the solicitor should not commence until a reasonable time has elapsed. They say that that should not be less than two hours in most cases.

Mr. Noonan

(Limerick East): Does that not mean that he may not be questioned in the absence of a solicitor?

Mr. O'Leary

No. The report says:

The solicitor should be granted access to his client immediately on arrival at the station, the consultation to be out of the hearing of the Garda but subject to such requirements as to safe custody as may be necessary. The solicitor should be entitled, as of right, to attend any subsequent interrogation as an observer. We so recommend.

That is fair enough. I am not saying that according to the recommendation of the Ó Briain Report there must always be a solicitor. I am saying that the recommendation of the Ó Briain Report was that the solicitor should have the right of access and the right to remain from that time on, and he is not getting that right in this Bill. Of course, I am not saying that it is a perfect safeguard, but what is in the Ó Briain Report is not in this Bill.

Senator Howard said that we were speaking as if 90 per cent of the people were innocent. That is the point; 90 per cent of the people are innocent. If we are to take it on the basis of the experience of the Offences Against the State Act, 90 per cent of the people will be innocent. Of the people who will be questioned, up to 90 per cent will never be charged. I presume that Senator Howard meant that to be an exaggeration. That is the reality, that 90 per cent of the people will be innocent. I forecast that if this power is given to the Garda Síochána a similar high percentage, certainly above 75 per cent, of people being questioned will never be charged in respect of the matters on which they are questioned.

The Minister says that my point about the addendum to the Ó Briain Report is a debating point. It is not. There is no recommendation in the Ó Briain Report with regard to the extension of detention. I do not know what was in the minds of ex-Superintendent Patrick Malone or Mr Ruaidhrí Roberts. I am as entitled to assume that they were fundamentally against the principle of detention as anyone else is entitled to presume they were for it.

Mr. Noonan

(Limerick East): What was in their minds is apparent.

Mr. O'Leary

It is not. I suggest that what they were setting up was the safeguards that could apply should any Minister be foolish enough to do what was in the addendum. They were asked to provide safeguards. They were not asked to say what the law should be. They were asked to provide safeguards and they did that and, wisely, they provided recommendations which extended beyond the law as it then stood.

I have little more to say except, with regard to detention, that long after I cease to be a Member of this House and the present Minister for Justice is Taoiseach—as I hope earnestly he will be — this section will come back to haunt us and I will be haunting him about it.

Mrs. Honan

The Senator is going into fairyland now.

Mr. O'Leary

It is going to be one of the great mistakes which a great man will have made. Everyone is entitled to one big mistake and this is this Minister's one big mistake. I ask the House, irrespective of political party, to consider seriously the question of detention. I believe passionately that as a country we are not ready for it. The Garda Síochána are not ready for its introduction and we are not ready to receive it. I passionately ask the Members of the House to pass this amendment.

Mrs. Robinson

I should like, through the Chair, to seek to ascertain from the Minister something that was not clear from his reply. I would accept the case he makes for the fact that, as he put it, he has come a long way down the road in a number of the amendments that he has introduced. In particular I have already in my Second Stage contribution paid tribute to the importance of the regulations under section 7 of the Bill. This power was introduced by way of amendment by the Minister in the other House. It is not clear to me whether the Minister objects to the principle behind this amendment by Senator O'Leary, the principle of having either an electronic surveillance on stream, and not, as the Minister said, that he was proceeding towards it at some future date. It should be on stream. It would be one form of check. The proposal in this amendment, the presence of a peace commissioner or district justice, would be another kind of check. The presence of a solicitor would be another kind of check. A more inhouse check would be the presence of either the member in charge or the garda given special responsibility for the adherence to the regulations, which is a different thing. It does not cover this point. It does not mean that there will be a named additional person not part of the investigation present. That is the important thing at this stage. Does the Minister accept the principle of providing some check on this power to question which the section proposes to confer?

If the Minister says it is not the principle he objects to but the way Senator O'Leary is framing this amendment then perhaps it is something we could come back to on Report Stage and devise a different kind of mechanism. I strongly support the principle that Senator O'Leary is advocating.

Mr. Noonan

(Limerick East): Again I should like to refer to the Ó Briain Report and have a look at the terms of reference of the committee:

To recommend with all convenient speed whether, and if so, what additional safeguards are necessary or desirable for the protection against ill-treatment of persons in Garda custody, having regard to allegations made in relation to persons held in such custody pursuant to section 30 of the Offences Against the State Act, 1939, or section 2 of the Emergency Powers Act, 1976, and for the protection of members of the Garda Síochána against unjustified allegations of such ill-treatment;

It has a two-fold purpose. I would have the same purpose in any of the safeguards I would be implementing. There are two people who could possibly be at risk. There is the detained person who has received an enormous amount of consideration from the public, and both Houses, but also the reputation of the individual garda can be severely damaged as a result of a false allegation. I have gone through the various options and I have pointed out the reasons why I think they will not work. It is not the principle of a custodial system that bothers me at all. It is the fact of whether it will work or it will not work. It has to work in two respects: it has to protect the detained person and it has to protect the garda against false allegation of ill-treatment. The member in charge of the station who has a statutory obligation to look after the interests of the detained person certainly will contribute to the welfare of the detainee but he does very little for the position of the garda who is the subject of false allegations because if people believe that a garda ill-treated somebody in custody they are also likely to believe that the member in charge of the station would or could support the garda's version. There is no great protection there for the garda.

The electronic, even video recording which is probably better than sound recording, would certainly protect the interests of gardaí. It is not any question of principle that is upsetting or concerning me and that is not why I am rejecting Senator O'Leary's motion. I want a system of safeguards that will work and will be seen to work so that both the detained person, and the members of the Garda Síochána who are involved in the questioning of detained persons, will be protected. What I have in the Bill, together with the decision to go for a short period of detention rather than to go for 48 hours is sufficient. The three elements go a long way towards that. I have examined the other possibilities and, in particular, what Senator O'Leary said before he put down the amendment, but the problem with his amendment is that in practice it simply does not work to provide the double safeguard which is necessary.

Mrs. Robinson

The Minister clearly accepts the principle and necessarily has to accept that, until section 27 is made operative and we have electronic surveillance whether by video or audio surveillance. There is a gap. Is he prepared in the regulations under section 7 to make interim provision, however inconvenient? We are only talking about inconvenience here when we talk about the practicality. Is he prepared to accept the principle, and by way of regulation, for a period until there is electronic surveillance of the questioning make a provision? I would leave a certain scope to him to have a third person present during any questioning.

Mr. Noonan

(Limerick East): No, because I cannot construct a particular scheme which will work in the way I want it to work, I can see major difficulties with any scheme I can think up or any scheme that has been suggested here. The position is that under the custodial guardian system, the member in charge of the station being obliged to look after the detained person, looks after the detained person. The majority of the Garda Síochána are anxious to have the extra powers but I realise they will be at some risk, as they are present, of unfounded allegations being made against them until the electronic recording system is brought in.

Mr. B. Ryan

I interject precisely on the query that Senator Robinson put to the Minister. A number of reasons the Minister put forward as to why Senator O'Leary's amendment would not work had to do with precedent being established. The first was that the independence of peace commissioners would be affected by their being continuously involved in this and, secondly, that it would necessarily begin to be demanded that similar provisions be available under the Offences Against the State Act. If these provisions are to be interim provisions until electronic surveillance is introduced the objections the Minister has raised are no longer sustainable. Therefore, presumably, he must have another reason. I do not want to say that I think this but Senator Howard's comment about can one not question people as effectively if there is a third party present, comes to mind. Maybe the Minister will examine even his subconscious to see if that really is the base line of his objections because the arguments he raised which could have some validity in the long term do not have a validity if they are interim arrangements until electronic provision is made.

Mr. Noonan

(Limerick East): I have dealt with all points raised which are relevant to the amendment. Other points have been raised which can be dealt with in subsequent sections. I have notes on them and I did not take up those points. I confined myself to the amendment, this question of safeguards, custodial guardians and what arrangements could be made. I do not think an exposition of my subconscious would help the House at this stage.

Amendment put.

The Committee divided: Tá, 5; Níl, 25.

Tá

• Higgins, Michael D.
• McGuinness, Catherine I.B.
• O'Leary, Seán.
• Robinson, Mary T.W.
• Ryan, Brendan.

Níl

• Belton, Luke.
• Browne, John.
• Bulbulia, Katharine.
• Connor, John.
• Daly, Jack.
• Dooge, James C.I.
• Durcan, Patrick.
• FitzGerald, Alexis J. G.
• Fleming, Brian.
• Harte, John.
• Higgins, Jim.
• Hourigan, Richard V.
• Howard, Michael.
• Howlin, Brendan.
• Kelleher, Peter.
• Kennedy, Patrick.
• Lennon, Joseph.
• Loughrey, Joachim.
• McAuliffe-Ennis, Helena.
• McDonald, Charlie.
• McGonagle, Stephen.
• McMahon, Larry.
• Magner, Pat.
• O'Brien, Andy.
• Quealy, Michael A.

Tellers: Tá, Senators O'Leary and B. Ryan; Níl, Senators Belton and Harte.

Amendment declared lost.

An Cathaoirleach

Amendment No. 18 is in the name of Senator Eoin Ryan.

Mr. E. Ryan

In view of the undertaking given by the Minister to consider before Report Stage the provisions of amendment No. 1 which, broadly speaking, covers the provisions of amendment No. 18, I do not propose to move this amendment on this Stage.

Mr. Noonan

(Limerick East): I give a similar commitment on this particular amendment.

Amendment No. 18 not moved.

Progress reported; Committee to sit again.

Professor Dooge

It is proposed to adjourn until 10.30 a.m. tomorrow morning and then to resume discussion on the Bill.

The Seanad adjourned at 10 p.m. until 10.30 a.m. on Thursday, 27 September 1984.