Seanad Éireann debate -
Thursday, 27 Sep 1984

Vol. 105 No. 8

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

SECTION 4.

Question proposed: "That section 4 stand part of the Bill."

Mr. B. Ryan

Central to the Minister's very able defence of section 4 from the very beginning has been his assertion that the question of reasonable cause which is to be the basis for arrest and for subsequent detention and, indeed, for the signing of an extension order is a matter capable of objective determination. In his own charming but very firm way, he has done his best to persuade us to avoid suggesting that perhaps members of the Garda are less than entirely familiar with his concept of reasonable cause and suspicion.

Therefore, whatever the unfortunate implications, it is necessary to return, with a little less of the coyness that has been displayed so far, to the operation of sections 29 and 30 of the Offences Against the State Act. In the course of a written answer to a Dáil Question in the last session of the Dáil, the Minister indicated that — I do not have the precise number — about 3,000 search warrants were issued under section 29 of the Offences Against the State Act in the previous 12 months. Only in about 300 or so of those cases did prosecutions follow.

We are not dealing here with hardened subversives who can solidly maintain silence in the face of questioning. Section 29 is a long section. I do not want to trouble the House with the whole lot of it. It says that where a chief superintendent is satisfied that there is reasonable ground for believing that documentary evidence of or relating to the commission or intended commission of an offence is present he can issue a search warrnt. There are two thing I want to emphasise. One is the wording that he is "satisfied that there is reasonable ground for believing". It sounds awafully like where a garda suspects with reasonable cause. Perhaps the Minister can see a distinction between those two wordings. To my layman's mind they have much the same intent. The intent must be that there is reasonable ground for suspecting.

We are not talking about hardened subversives who have been trained in how to deal with Garda questioning. We are talking about raiding premises because the Garda have reasonable suspicion that there is documentary evidence present. Notwithstanding the condition of reasonable cause, 90 per cent of such searches are unsuccessful. What I am leading up to is the suggestion that the Garda definition of reasonable cause is far more flexible than the definition the Minister has suggested he intends.

Furthermore, I suspect that the courts have accepted a definition of reasonable cause which is very close to accepting, "if a garda is of the opinion that, and if a garda feels that". There have been a couple of court cases recently. I only saw them badly reported in brief newspaper articles in which the courts seemed to suggest that for a garda to have reasonable cause meant that he thought that there was something going on there. I do not and cannot get involved because obviously I cannot get a formal transcript of a court case that took place a month ago. Perhaps I can, but I do not know how to get it. The basic question that arises for me here is whether what the Minister explains to us as reasonable cause is nearly as objective as he suggests.

The second subsection of section 29 of the Offences Against the State Act deals with what they can do when they are carrying out a search. It says that if a member of the Garda reasonably believes that any document or thing found in such building is evidence of or relates directly or indirectly to the commission or intended commission of an offence — I am labouring this point because the Minister has put enormous emphasis all through the debate on this Bill in both Houses on what "reasonable suspicion" means and "reasonably believes" means.

The wording as it stands is not objectionable. We are talking in the Offences Against the State Act of extremely serious crimes committed by and large by groups who are fairly well organised. Therefore, it is not unreasonable that the Garda, where they have reason to suspect, should be able to seize documents. What I am saying to the Minister is that the way it operates is a long way from the way it should operate. I have given on Second Stage two examples. I want to give them again now. I do not particularly expect the Minister to comment on them, but I would like him to comment on how reasonable cause can be actually enforced in the light of what seems to be the established precedents.

One was a raid on a place called the Quay Co-op in Cork which is not in any way subversive. As I said in another place recently, I am beginning to believe that challenging the established consensus in this country is now becoming a recognised form of subversion, judging by some activities and some statements in recent times from senior Garda officers among other people. Nevertheless, it is not a subversive organisation. To carry out that search warrant the Garda had to have reasonable cause. I could not find out nor could anybody else find out, what that reasonable cause was. The best I could get was that certain members of one or two political parties associated with illegal organisations where seen entering the premises. Those people have been seen entering every hotel in Cork. They have been seen entering the premises of at least three unions and many other places and they were never searched.

That was the first reasonable cause that was called into question. Even more specific and more tangible were the documents that were seized. I emphasise the wording again — where such member reasonably believes it to be evidence about the commission of a crime. In the case of the Quay Co-op, the membership book was seized. In it is a list of members which is available in the Register of Friendly Societies. The second document that was seized was the membership of the Cork Food Co-op which includes eminent members of academic and literary circles in Cork. Apparently the Garda believed under the section that they had reasonable cause for suspecting that this was documentary evidence connected with the commission of a serious offence.

In the second case, two friends of mine were raided by the Garda who claimed they had reasonable cause. A number of statements were made about that at the time. What was seized in that case was letters that the couple had exchanged at a stage when they were living in two different parts of the country — I suppose you could call them love letters — on the allegation that they had reasonable cause for suspecting that it was documentary evidence connected with the commission of an offence. The second item that was seized was a stamp collection belonging to one of these people. The third item that was seized was a large collection of contraceptives because the girl was involved with the contraception campaign and the Garda apparently had reasonable grounds for suspecting that a large quantity of contraceptives were somehow connected with the commission of an offence or were related to the commission of an offence under the Offences Against the State Act.

The Minister has rightly refused to discuss individual cases. He can quite justifiably refuse to discuss individual cases but he must redress the serious doubts that such activities raise about the Garda interpretation of what constitutes reasonable grounds for suspicion. The only precedent we have on which to judge how they will assess reasonable grounds for suspicion is the operation of the Offences Against the State Act. I emphasise that I am talking here about the power to search. It is separate from the power to question people whom the Minister would describe as hardened subversives and all that that implies. Section 29 gives power to search. My experience, and I suggest the experience of large numbers of people, is that the Garda definition of reasonable suspicion, as required under section 29, is a lot more generous to themselves and a lot more flexible than the the Minister would indicate to us is the case under section 4 of this Bill.

Minister for Justice (Mr. Noonan,

Limerick East): The question of reasonable cause is an objective test and it is not just a particular choice of words by the Minister. The idea of the courts assessing whether an action is reasonable or not has been part of our law for a very long time. The courts will be quite familiar with the phrase and quite familiar in dealing with the reasonableness of an act.

The conditions to be satisfied are that the person must have been arrested without warrant under existing law by a garda who, with reasonable cause, suspects him of having committed an offence referred to in subsection (1). Under existing law, the person must be told the reason for his arrest. We covered all those points yesterday. "Reasonable cause" means that there must be some evidence connecting the person with the offence. It need not necessarily be a prima facie case but there must be some evidence connecting the person with the offence. If there was a prima facie cases, that is, sufficient evidence to warrant a conviction in the absence of any rebutting evidence from the accused. As I said already, reasonable cause is an objectives test. The arresting garda is liable to cross-examination in court on the reasonableness of his action and it is open to the court to decide whether, in all the circumstances, he had reasonable cause to justify his arrest. If the garda makes the arrested without reasonable cause, he leaves himself open to the common law action of false imprisonment. At the time of arrival of the person at the station the person in charge of the station must have reasonable grounds for believing that detention is necessary for the proper investigation of the offence. The grounds for his decision and the reasonableness of those grounds viewed objectively would be open to review by the court.

If the court decided that a member in charge did not have reasonable grounds for his belief the detention would be unlawful and any statements made by the detained person, even if made voluntarily, would not be admitted in evidence. In addition, the detained person would have grounds for action of false imprisonment. Senators might say that it is rather unusual to have grounds for action for false imprisonment. I should like to read, for the benefit of Senators and for the record of the House, something that I read in the Dáil. It is the report of a case from the The Times in London dated 24 March 1984 and it gives food for thought to police officers and the public. The headline reads: “£1,750 damages for wrongful arrest” and the article states:

A man wrongfully arrested by a police officer who did not have reasonable grounds for arrest was entitled to damages of £1,750 to compensate for four-and-a-half hours detention.

Mr. Justice Caulfield so held giving judgment for the plaintiff, David Herbert Hayward, who claimed damages for wrongful imprisonment from the Commissioner of Police of the Metropolis...

He had been an antique dealer but retired from the trade and became a fishmonger. He had packed his suitcase with cups and saucers, silver mustard spoons, a bag with precious stones, glass and other items. The fragile items where wrapped with newspaper four months old.

He met a friend as Paddington, went to Portobello Road and having made some sales to dealers he left Portobello Market and went towards Westbourne Grove to hail a taxi. He intended to catch the 1.30 train at Paddington.

He never caught the train. Just as he was placing his hand on the door of the taxi, he was stopped by Police Constable Walters. The plaintiff was arrested and taken to Notting Hill police station and detained until 5.45 p.m....

The report concludes:

Stolen property did find itself in Portobello Road and Portobello Market could be a haven for thieves and stolen goods. Having considered all the evidence and arguments, his lordship was not satisfied that there was reasonable grounds for the arrest of the plaintiff.

Although that finding might put officers in a more difficult position when arresting persons, that was a small price to pay for preventing the imprisonment of perfectly innocent people. The plaintiff was therefore entitled to damages for false arrest and false imprisonment. When considering the question of damages, his lordship was assisted by a recent decision of Mr. Justice Forbes who awarded £800(Millington V. Commissioner of Police of the Metropolis (The Times May 28, 1983)).

Very recently in a similar jurisdiction, the reasonableness of the grounds for arrest and whether the police officer has reasonable cause for arresting a particular individual who was found with items in a suitcase were tested in the court. What I am trying to illustrate is that this phrase is not just a drafting formula in the Bill. The reasonableness of the cause can be tested objectively in court and in the case I pointed out in London people got damages where the judge decided that the cause was not reasonable.

Senator Brendan Ryan has remarked, quite rightly, that I do not intend to discuss individual cases of complaint which Senators come up with in the course of the debate. I would not be in a position to do that anyway. Lest there be any misunderstanding about what he has said about that situation in Cork, there is no new power of search of any premises given in this Bill.

Mr. B. Ryan

I am not arguing that.

Mr. Noonan

(Limerick East): I know but it is just in case that deduction was drawn by people who are less familiar with the Bill than the Senator. The powers of search here are confined to searching the individual who is detained in Garda custody. There is nothing in the Bill which extends any power of search to premises.

Mr. O'Leary

We have a difficulty with regard to the discussion of section 4 of a Bill of this type. I would like to have your assistance in this regard. There are over two pages of text and 11 subsections in section 4 as presented to the House. If you prefer, I can go through each of the subsections and make my comments on them, or I can go through one or two of them and retain the comments until the others have been dealth with. I do not know what is the proper way to deal with this.

An Cathaoirleach

Whichever way you please. Whatever suits yourself.

Mr. O'Leary

I will give a quick run through section 4 and explain why some of the subsections might give rise to difficulty. I am not going to repeat what I said about the whole concept of detention, even though this is an appropriate place in which to do it. To agree to section 4 we are, in fact, agreeing to the question on the process of detention and when the question is put, anybody against the process of detention will in logic have to vote against section 4. A number of problems have arisen with regard to the section and I would like to confine most of my comments to those. The Minister is aware of my views on detention. I do not think there is anybody in the House who is not aware of them at this stage. There will be absolutely nothing to be gained by repeating them. If only increases my blood pressure and wastes the time of the House.

Subsection (1) has already been considered as consequent to an amendment we discussed earlier on. Subsection (2) gave rise to a problem. I was going to attempt once again to explain to the Minister the problem that I see with the wording of subsection (2) as it now stands, as distinct from the amendment which I proposed at an early stage which the Minister kindly agreed to look at. I was trying for a different way of explaining what I mean. There were Members in the House yesterday who had no idea of what we were talking about. For example, one Member who is quite familiar with the Bill indicated to me that he did not realise that it was only cases where persons can be arrested with out warrant that were involved. He did not, therefore, understand the discussion which took place earlier along those lines.

In regard to subsection (2) — I am trying to be helpful to the Minister — suppose there were no powers to arrest without warrant at all and one had a subsection (2) which read as follows: "Where a members of the Garda Síochána arrests without warrant a person whom he with reasonable cause suspects of having committed an offence...", if there were no power to arrest without warrant known to the law or if it had been abolished — I believe that would be giving power to the Garda to arrest without warrant in respect of an offence falling within subsection (1).

I would like the Minister and his officials to consider the problem in that light. If arrest without warrant does not exist, what then would be the proper meaning where a member of the Garda Síochána arrests without warrant? The only power of arrests at the moment for the purpose of our discussions is arrest with warrant. It would appear that that subsection would be creating a new power. This new power would be the power to arrest without warrant in respect of offences falling within subsection (1).

The Minister can come back and say that there is such a thing as arrest without warrant at present and I accept that. What we are trying to see is whether the superimposition of subsection (2) on the existing powers creates a new power. It is sufficiently uncertain for the Minister to make an amendment at a later stage along the lines I suggest or some other lines. It is very important that this would be made perfectly clear. There is no matter of principle whatsoever. It is merely a question of tidying up the legislation.

One of the reasons that I am against the prospects of detention as outlined in section 4 and to which I have not referred previously — it is appropriate to refer to now is because it will be administratively impossible to operate. Judicially, it will not work. It will give rise to a succession of lengthy trials within trials.

To help the Members who are not familiar with the concept of a trial within a trial, basically what it means is that where a legal submission is being made of which the judge is the sole arbitrator, he would request the jury in such a case to withdraw and would make a submission on the legal point. A very good example of that is the admissibility of a statement taken from the accused. On any statement taken from an accused obviously it is possible to challenge that it was taken voluntarily, to argue that it was taken in breach of constitutional rights, or in some other oppressive manner. This is done by getting the jury to withdraw. The question to be answered in that section of the trial is if the statement was voluntary or subject to the alleged irregularity, or should it be introduced in evidence in the trial. The jury are not present there. In that legal discussion by the defence, normally, with the prosecution helping, witnesses may to called to aid or abet their case. The discussion between them and the judge forms the basis of a trial within a trial. Ultimately, the judge says, "I rule this statement to be admissible." The jury come back and the statement is put into evidence. They do not know what has been going on. They have been kept incommunicado in doing that. This is what a trial within a trial means.

This section as drafted will permit trials within trials of inordinate length and uncertain outcome. That is a major criticism of the legislation. There has already been major criticism of the concept of trial within a trial and of the problems to which it gives rise. One of the offshoots of the trial within trial phenomenon is that there is a movement growing up to do away with the prospect of trial by jury.

An article recommending that course of action was published recently in either the Garda Review or the Garda News which are sent to us free through the post. It was published without comment. I am not saying that it was the view of the gardaí themselves but it was certainly a view which they considered significant enough for double page treatment. The reason that this view is developing is that the important element of a trial is becoming a trial within a trial. A great many contested prosecutions are based on confessions. The Commissioner of the Garda Síochána, as well as people in the other House have suggested it is as high as 80 per cent. I do not know if that is so. This is a very high percentage. The crucial element of a trial is becoming the admissibility or otherwise of the statement made by the accused.

It is interesting to note that the Ó Briain Report had something to say with regard to that point.

Consideration of this Bill will give rise to the following areas which could be proper for examination as to whether the rights of the accused have been violated. I should explain to Members — and this is by no means interesting material — that there are differences between irregularities in statements. Statements taken in violation of what are called the Judges Rules, may or may not be admissible but statements taken in breach of the constitutional rights of the accused are always ruled out. In other words, if some administrative procedure is not followed, the statement may or may not be admitted, but if the statement is taken in breach of the constitutional rights of the accused, except in the most extreme circumstances, that statement will be excluded. There is no power under law to arrest a person and to hold them for questioning, and the Minister has confired that that is the case. The only power that will exist is the power contained in this Bill. To get any statement the accused has made ruled as inadmissible, his counsel will only have to show that that statement was taken in breach of his constitutional rights, in other words, that some procedure laid down in the Act was not followed because when that happened he was no longer in lawful custody.

Approach this from the point of view of a lawyer defending somebody who says he have a statement after 11 hours in Garda custody. The lawyer then says that he must try to get that statement rendered inadmissible. The following will have to be shown by the prosecution in the trial within the trial — first, that the garda who made the original arrest had reasonable cause; because if he does not have reasonable cause, the arrest is unlawful. Second, it will have to be shown, in what the Minister said about the use of "may" and "shall" yesterday, that the person was taken to the Garda station for a good reason. Third, it will have to be shown that at the time of arrival at the Garda station, the member in charge had reasonable grounds for believing that the detention was necessary. The arresting garda will have to be present; the garda in charge of the station will also have to be present and he is going to be subject to cross-examination as to why he arrived at the conclusion that there was reasonable grounds for believing detention was necessary.

Senator Durcan indicated a difficulty that might arise in that regard. He indicated that this could be read to mean that immediately on arrival at the Garda station, the person would have to be of that opinion. I do not know if that is right nor do I know if the courts are going to adopt the attitude that if the Garda who made the arrest tells the member in charge that he has reasonable cause for believing the person has committed a crime, that in itself will be reasonable cause for the member in charge. If that is the case, we could leave out the member in charge altogether. Surely the test must be objective? He must arrive at a separate and distinct conclusion for separate and distinct reasons from the person who made the arrest. That is another ground which will have to be tested.

The next consideration is that the person was not detained for longer than six hours. If the detention lasted longer than six hours, it is going to have to be shown that it was done with the permission of the superintendent. We will have a superintendent present who can give evidence that he approved of the extension. It is possible that some of these people might give evidence by written statements, if there is an agreement between both parties, but if the case is hotly contested, I doubt very much that there will be agreement between both parties, The defence counsel will demand his right to cross-examine the superintendent involved. That is another step that will have to be taken. In addition, the superintendent must have reasonable grounds for believing that further detention is necessary. Not only will the superintendent have to say he gave approval for the extension from six hours to 12 hours, but he will have to say that he had reasonable cause for doing so and give the reasons. That is another point that will be subject to examination by the courts. Some Members might say that that is only lawyers' talk, but the people who will be representing the accused in court are lawyers and that is the way lawyers talk. That is what will happen in the court.

A problem would arise about what stage the garda had enough evidence to prefer a charge in respect of the offence. That is going to give rise to a problem under subsection (5). There is also going to be a problem if the 12-hour period includes anything after 12 midnight. In those circumstances, if questioning continued the written agreement of the defendant is going to have to be produced and presumably that written permission will be subject to challenge as to whether it was voluntarily given or not. That, too, will be subject to examination. They are the kind of items which will be the subject of examination in the trial within the trial.

Anybody who has attended a trial in the Special Criminal Court will realise that it is a tortuous process and that the trial within the trial portion of that is indeed very tortuous. It is only suitable for consideration because of a number of factors. It is normally in respect of the most serious offences that this kind of trial takes place and if they take an inordinate length of time, then the seriousness of the crime and their relative rarity is proportionate to the amount of time taken for the examination for the case. Another thing that makes it particularly suitable is the fact that there is no jury. The judges do not have to dismiss themselves and put on a different hat. They are considered sensible enough to be able to do this without difficulty, but we are proposing to do this at Circuit Court level, which is already overloaded. We are proposing to have trials within trials of inordinate length. The whole system will "gum-up" very shortly. It is just not practical. After the system has "gummed-up" there will be suggestions that the only way to solve the problem is to do away with the right of trial by jury. That will not solve the problem but it would shorten the trial procedures.

Outside the question of whether it is objectively right or not to have detention, the actual length of time that trials will take in the Circuit Court will be colossal. That is also a consideration because justice delayed is justice denied. If a person has committed an offence it is important that he would be punished reasonably soon after the commission of the offence rather than years and years later. In that way the operation of the section is going to be administratively impossible, and that is one reason that I consider the Minister to be, in theory, making the detection of crime more administrative, but he is giving the lawyers a whole new area of investigation, of contention, for the purpose of serving the best interests of their clients. I will not be doing it because I do not represent these people, but lawyers will be doing it. That is their job.

A normal trial in the Circuit Court which is based on a confession — as I am told are 80 per cent of all the crimes which are solved — will strentch out to double or treble the length of time at present involved. They might say that Circuit Court judges will be able to short-circuit that. Of course they will try to short-circuit it but if they try too hard the short-circuiting of the arguments put forward on behalf of the defendant will in itself become the subject of an appeal. That is another reason why section 4 will not work.

Senator Robinson mentioned another important fact. Section 4 is defective because it does not give the power to question at all. It may be that the power to question is automatically there. Really it mentions questioning only in section 4 (6) (a) when it says "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 is the only right to question that is given. It is very foolish to introduce this concept in such an offhand fashion. Consequently the rights of the citizens with regard to questioning are being overlooked by reason of the fact that the questioning is not laid out clearly as to the circumstances in which the questioning can arise.

Another matter which I should bring to the Minister's attention arises from the same subsection. Is the Minister aware that the suspension of the questioning between midnight and 8 a.m. must be the subject of a consent in writing? Will the Minister inform us what administrative procedures he proposes to ensure that that consent is given in a voluntary way? I have already referred to the matter of being capable of being questioned at the trial. Would the Minister inform us what procedures he proposes to adopt to ensure that the consent is given in writing? It is important that the consent would be given. Is the consent to be given to the garda in charge of the station, or to whom is the consent to be given?

Regarding section 4 (10), the Minister has stated on a few occasions that we are not considering the Offences Against the State Act here but he has considered it necessary to include a subsection to the effect that nothing in the section shall affect the operation of section 30 of the Offences Against the State Act, 1939. Therefore, we are considering whether it will affect section 30 of the Offences Against the State Act, 1939. The Minister has not answered at all the criticism that the recommendation of Mr. Justice Barra Ó Briain with regard to the introduction of a period of detention in his chairman's addendum also included the following recommendation:

This power to "detain" in order to question is already provided for in the Offences Against the State Act, 1939, and I would recommend that the six hours mentioned above be adopted as the norm in all cases, with certain powers for a District Justice or a Peace Commissioner

—the much maligned peace commissioners—

to extend the normal period for a strict and limited time in respect of cases covered by that Act and the Emeragency Powers Act, 1976, rather than the lengthy periods now set out in these two Acts.

The standing foundation on which the Minister claims justification for the introduction of detention is the chairman's addendum to the Ó Briain Report which itself includes a recommendation that simultaneously the Offences Against the State Act should be amended, and this subsection specifically rules out the bringing together of the time limit in both Acts. As I said in my Second Stage speech, which no doubt the Minister has read carefully, the Offences Against the State Act should have been considered at the same time as this, and this change should have been brought about, because what we are getting is the hard parts of the Ó Briain Report. We are getting those that appeal to the macho instincts of the law enforcers but we are not getting the controls that balance it. Therein my major criticism of this section lies. We are getting the parts which give the extra power but we are not getting anything like the safeguards which we are entitled to. We are getting the additional powers of detention but we are not getting the reduction of the powers under the Offences Against the State Act.

It is quite clear that the Ó Briain Report and the chairman's addendum to the Ó Briain Report are only valuable hallstands on which the arguments can be hung from time to time as suits the occasion, and from time to time the Ó Briain Report and the chairman's addendum can be completely ignored. For that reason section 4 (10) is objectionable.

They are the five points that I want to make — the question of detention itself which I have already spoken about at length, the inadequate power to question and because of the power to question is only implied no real safeguards with regard to the power of questioning, the fact that an arrest without warrant is not made clear in the section as I proved by the supposition that there is at least a doubt in that regard, the fact that trials within trials are going to be of inordinate length, a question to the of inordinate regard to the procedures for the consent in writing, and a protest that the Offences Against the State Act is not being amended as was recommended by Mr. Justice Barra Ó Briain in his addendum. They are the major points I would like to make at this stage of our discussion on section 4.

Mr. Hourigan

I listended to the debate yesterday and it is clear that the main emphasis and concern of Members is about the suspected criminal and what would or would not happen to that person. That is laudable and has to be considered but I would remind the House that we have an extremely serious crime rate and for that reason I believe the various provisions in section 4 are absolutely essential. I have gone to the trouble of consulting top legal opinion and I am assured that administratively they are quite workable regardless of what might be said to the contrary. Because of our crime rate which is increasing we need the provisions in the Bill. What is in the Bill is possible to operate. Let us not forget the phrase used this morning "reasonable cause." The legal interpretation of that phrase has been established. It is reasonable for Members to make detailed criticism of the Bill but it has to be understood that the provisions in it are no more than what is required at this time. It is essential that we bear in mind that the Minister did not introduce this Bill for the sake of doing it. I should like to compliment the Minister for the provisions of section 4 and the others in the Bill. The Bill deserves our support.

Mr. Lanigan

There has been a very long debate on this section. Yesterday the section was taken apart in the debate on the various amendments. This is the nub of the Bill but when Senator Ryan was speaking this morning I felt that he was speaking about a completely different concept than that in this section. He was speaking about the Offences Against the State Act, hardened criminals and so forth. In fact, section 4 (1), states quite categorically that the section applies to any offence for which a person of full age and capacity not previously convicted may, under or by virtue of any enactment, be punished. The difficulty I have in this subsection is the term, "a person of full age and capacity". A lot of the arguments yesterday were an attempt to define what "full age and capacity" is. Full age and capacity means a lot of things and differing things to many people. If one wants to vote the full age is 18. If one wants to get a mortgage the full age is 21. If one wants to take out an insurance policy the full age is 25 and the age of reason is supposed to be seven. What is full age? With regard to the definition of full age and capacity, do we separate the two or do we state that one has to be of full age and capacity. There is a difficulty in trying to decide what is full capacity.

Mr. Noonan

(Limerick East): The Senator is misunderstanding the position. That refers to the offence, not to the person who can be arrested. That is the definition of the type of offence.

Mr. Lanigan

Is it the capacity to commit the offence?

Mr. Noonan

(Limerick East): It is an offence that if a person before the court who has reached the age of majority, 21, and is of full mental capacity if the courts can sentence that person to at least five years, then that type of offence comes within the ranges of this.

Mr. Lanigan

So the full age we are talking about is 21 years?

Mr. Noonan

(Limerick East): Yes, but the acutal people to whom it would apply to then as a result of yesterday's discussion are people from the age of 12 upwards.

Mr. Lanigan

The first section states, "full age and capacity" and the Minister has now defined "full age and capacity" as 21.

Mr. Noonan

(Limerick East): No, this is the definition of the offence, not the person. That is the point I am making. The Senator is reading it as if it was the person I was referring to.

Mr. Lanigan

The section states "by a person of full age and capacity". The Minister cannot differentiate between the offence and the person if it states that it is a person of full age and capacity. That is a difficulty I can see we have.

Mention was made of arrest without warrants. I am not too sure when the concept of arrest with a warrant came in in the first place or under what circumstances it become necessary for warrants to be issued. As a layman, not knowing when the warrant situation came in, why it was brought in in the first place or what protection it has given, I believe that, possibly, it was necessary. Nevertheless I feel it is necessary for the Garda under certain circumstances to be able to take into custody a person they reasonably believe has committed an offence. There is absolutely no doubt that in a lot of circumstances if the Garda do not have this power many people who should be arrested will not be.

There is a protection in that subsection in that it is the officer in charge of the station at the time of arrival at the station who must have "reasonable grounds". There is the added protection in that the Garda can arrest without warrant but when the person arrives at the station it is up to the member in charge of the station to proceed or let that person go. Even though it may appear that it is arrest without warrant on the part of the Garda at least they have that added protection. One of the problems is that since a lot of crime takes place at night the officer in charge may not be a garda of senior rank and difficulties could arise because of that. There is a difficulty in subsection (4) which states that if at any time during the detention of a person pursuant to this section there are no longer reasonable grounds for suspecting that he has committed an offence to which this section applies, he shall be released from custody forthwith unless his detention is authorised apart from this Act. Does that mean that he has to be rearrested and charged with another crime or is his arrest on the original suspicion to be carried through? That is a question I would like to have answered.

In subsection (5) we have the same thing, "suspected of another offence to which this section applies." Another difficulty that most Senators have is the one about the length of time that people are to be kept in detention. It is stated that it is six hours which can be extended for a further six hours if the member in charge, or a senior Garda officer, decides it is necessary to keep the person in custody for a further six hours.

As most crimes are committed at night we come to the question of the extension of the six hours. It is stated in subsection (6) (a) that the consent of the accused shall be given in writing and that during the night questioning may be broken up and the person may be given a period of rest. The facts in most cases are that if a crime is committed at night there will probably be somebody in an agitated condition. They are in a Garda station and consent has to be given in writing to permit this rest. The person being questioned must consent to such suspension and the arresting officer may give him a notice in writing, which will specify the time at which it is given that the investigation is suspended. The two people would want to write letters to each other in the station, one saying that he gives permission and the other stating that he is satisfied. It is provided that "the period between the giving thereof and the time specified therein... shall be excluded." It is not very practical in a Garda station particularly at night, to have an accused person in an agitated state giving his consent in writing that questioning be suspended so that he can have a rest. I am not sure if that would be practical in a large number of cases or circumstances.

Subsection 6 (e) states: that records kept in pursuance of paragraph (d) shall be preserved for at least 12 months and, if any proceedings are taken against the person in question for the offence in respect of which he was detained, until the conclusion of the proceedings. Section 8 states that unless there is a proceeding the records shall not be kept for more than six months and they should be destroyed after that. When we get to section 8, can we go into this? If proceedings for an offence to which section 4 applies are not instituted against the person within the period of six months various records shall be destroyed. Does this mean that details of the arrest will be destroyed or does it mean that details of the questioning that took place will be destroyed?

On the question of age, the Minister said that in Report Stage he will give us further help. Even though there is an extension of Garda power in this section of the Bill, in many cases it is necessary. Mention has been made of problems in Garda stations late at night where gardaí are supposed to have got out of control. I have no doubt that under the same circumstances there is not one person in this House who would not become aggravated if they were being continually harassed, barracked and physically assaulted. In many cases the gardaí put up with a lot more than they should have to put up with. There are difficulties because of the age factor. There are difficulties because the six hours could be extended because of the fact that at night a rest period can be brought in if both parties consent in writing. None of us is very happy with this section but if it gives people a little more hope that they can depend upon the gardaí to act with reasonable care in the application of this section we may have a better and safer society at the end of the day.

Mr. Noonan

(Limerick East): Senator O'Leary referred back to subsection (2) as to whether a new power of arrest was being given here. The more I look at it the more I think that as it is drafted it is correct. He put forward a hypothesis that if there was no power of arrest without warrant then how would the section read? That is an impossible hypothesis to proceed with or to examine any law. The fact is that there is a power of arrest without warrant which goes back for hundreds of years. I do not think we should examine a Bill on that hypothesis. If there was no power of arrest without warrant, certainly somebody introducing a power of arrest without warrant would not introduce it by casual reference in a section of a Bill. It would be specifically drafted and a specific power would be given. I will have the matter re-examined but the more I look at it the more I think it is all right as it stands.

Senator O'Leary makes great play of the difficulties which would be presented at a trial as a result of the various safeguards that are put into the Bill. Of course, we could remove all these difficulties if we dropped the safeguards. On the one hand I am being criticised for having a section on detention and then I am being criticised for making the section inoperable because I put in safeguards. If the arresting garda did not have to have reasonable suspicion, if the member in charge of the station did not have to have a reasonable belief and if the superintendent did not have to be called in after six hours, obviously it would make trials easier but the internal safeguards in the section would be gone from this Bill. I do not think this House would accept a section 4 which would say the gardaí who arrest people may detain them for 12 hours and question them and that is the end of the story. It is a complicated section because there is a very conscious attempt to build in safeguards.

Many of the safeguards which are there are matters which can be tested. Of course, we have a problem of trial within trials but is that really a problem? If these sections make the gardaí more effective and if it takes a judge in the Circuit Court a couple of hours to sort it out in the morning before the jury are called in, is that a very big problem? It is essential that we get the balance right between the safeguards for the citizen and the powers we are giving to the gardaí.

Senator O'Leary can argue that people will say this is lawyers' talk. I do not think it is lawyers' talk. What he says is realistic. It will be challenged and tested by criminal lawyers representing their clients in court and the best of luck to them. All we can do as a Legislature is put forward the best law we can and it is up to the courts to implement that, and if people in court seek to make an ass of the law there are also judges in court who will not allow this. The thing will find its own level. There may be difficulties in the beginning. I am sure that many lawyers feel they are going to have a kind of legal debating bonanza because of the safeguards in the Bill and I presume that they will bring up all of these items in court, but these safeguards are put in quite consciously. Well and good, we will see what will happen. If the courts decide the sections are inoperable and if the sections are not operated in court, then the work of the Legislature has been frustrated. What we must do is to write the law as well as we can and in giving the powers to the Garda under section 4 ensure as far as possible that the rights of the citizen are safeguarded as well. These things can be tested objectively in court. The idea that this will lead to some movement towards non-jury trials does not stand up. The Senator already said that in the Special Criminal Court there were tortuous proceedings in the trial within the trial.

Mrs. Robinson

You would have to amend the Constitution.

Mr. Noonan

(Limerick East): Yes. Senator O'Leary also said that the jury would not be present while this is going on. I do not see how one can logically blame the jury for the trial within the trial if the jury are not present and it is tried before the judge without the jury, and go on to say that the reason there are delays in the courts is because we have juries, if they are not there while the period of delay is occurring. That is not a logical argument. Senator O'Leary's main point is that it is administratively impossible. I do not think that it is administratively impossible but if it is the Senator should not have the worries about the section which he displayed last night and which he says he is going to continue to display today.

Senator O'Leary says that the power of questioning is not given. The Garda have the power to question people at the moment. What we are talking about here is detention for the proper investigation of an offence. If an offence is investigated, questioning is certainly part of the investigation process.

Senator O'Leary raised the point about suspension between midnight and 8 a.m. In drafting this particular section there was a difficulty. It is drafted in a negative fashion rather than in a positive fashion. Suspension between midnight and 8 a.m. will be the norm, not the exception. The reason for that is that the courts have been very judicious about the treatment of people who are detained. They are very concerned that people in detention should not be treated oppressively. The Garda are very cautious and very prudent about this, because it is very likely — and the Garda know this — that any statement made late at night, any statement made after midnight, any statement made between midnight and 8 a.m., in the generality of circumstances would not be admissible in evidence because it might prove to be oppressive.

In the operation of the Offences Against the State Act people are not normally questioned in the generality of cases after midnight. An exceptional case can be made. If somebody is in bed all day and is on night duty and he is arrested at his place of work and is brought into a Garda station, then I do not think it would be oppressive to question him during the period in which he would normally be working anyway. The general regulation under which the Garda operate is that the norm is no questioning between midnight and 8 a.m., and that is why this is being put in here. If we had a longer period of detention, if we had 24 to 48 hours, this would not arise. Because of the short period of detention this provision had to be put in. If somebody was arrested at 10 p.m. and the Garda could not question between midnight and 8 a.m., in effect we would be giving the Garda a power which would be inoperable, for many of the arrests they would be making. I am sure a high frequency of Garda arrests takes place at night when people are found in suspicious circumstances. I stress again that the norm is no questioning between midnight and 8 a.m.

We have the procedure then for the records and notices which Senator O'Leary asked about in (6) (a) (b) (c) and so on. Also this section was amended to say that this could only happen with the consent of the detained person so that if somebody had spent 11 hours in a Garda station the Garda would not say at 12 midnight, "Go to bed now until 8 a.m. in the morning. You are staying here for this period and then we will question you at 8 a.m. for a further hour". If a person near the end of a detention period wanted to go home having seen that situation arising, there is an amendment to allow that person to opt in that direction. The interpretation by the courts of what would be or would not be oppressive will guide the operation in practice.

Senator O'Leary referred to the Ó Briain Report and, in effect, suggested that I use it selectively. I suppose I do, but Senator O'Leary does also. In any debate people use the information they have to hand in the best way possible. On the one hand when I put in the safeguards suggested in the Ó Briain Report, or any other safeguards, the Senator suggests that this will make the section inoperable and, on the other hand, if I use the addendum of the Ó Briain Report to justify a period of detention, he classifies me with those various macho advocates of a more law and order society, if I am not misquoting the Senator.

On the question of detention in the Ó Briain Report, of course Barra Ó Briain in his addendum recommended six hours, but he also said that this period should be extended or could be extended: "... a District Justice or a Peace Commissioner to extend the normal period for a strictly limited time in respect of cases covered by that Act and the Emergency Powers Act...". Senator O'Leary might say what he thinks would be a limited period of extension.

Mr. O'Leary

Could I help the Minister? I never objected to six plus six at all. It is the prospect of detention I object to. If there is going to be detention I do not see anything wrong with six plus six. The Minister might like to say why are we not amending the Offences Against the State Act.

Mr. Noonan

(Limerick East): I am coming to that. The Senator has asked about an amendment to the Offences Against the State Act. Lest anybody should think this replaces the provisions in the Offences Against the State Act, that Act in present circumstances is needed and the length of the detention period is necessary. Paragraph 63 of the Ó Briain Report reads:

Many Garda Stations are unsuitable for the detention of persons in custody for prolonged periods. In the case of subversive crime a maximum period of 48 hours' detention is possible under the Offences Against the State Act, 1939. Should the Emergency Powers Act, 1976, be reactivated, a maximum period of seven days' detention would become possible. In no case should a person be detained in Garda custody for more than 48 hours; if detention for a longer period is permitted by law, any period in excess of 48 hours should be spent in prison or other convenient place. We so recommend.

As I say, the Senator started the debate on the Ó Briain Report by saying I was quoting selectively. We can all quote the sections that suit our argument. There are a couple of sections to suit my argument and I think they are equally strong. There were three very eminent people on the Ó Briain Committee. We should not regard the report as coming down from the mountain, from Mount Sinai, Carrauntoohil or anywhere else. It is the opinion of three very eminent people. It has general acceptance, but I do not think we should put ourselves in a position where we should bow to the Ó Briain Report and say that we should implement every section, chapter and verse, regardless of circumstances. I do not think the opinion of the three eminent people who drew up the Ó Briain Report should necessarily cancel the opinion of the two Houses of the Oireachtas or the opinion of many other eminent people or the opinion and the experience of members of the Garda Síochána who are dealing with crime every day and have a particular problem in the area of subversive crime. There are other inputs which are also valuable.

I should like to thank Senator Hourigan for his contribution and for his support on the Bill. A couple of specific points were raised by Senator Lanigan. Section 1 refers to "any offence for which a person of full age and capacity and not previously convicted...". "Full age" is the age of majority which is 21 years and will be 18 years very shortly. "Capacity" is with full mental capacity, not insane. That is not a reference to the age of the person who might be detained under the powers. It is a reference to the type of offence for which somebody can be so arrested. I will put it like this. If a person is suspected of having committed an offence and you ask yourself the question: if this man was brought to court could the court impose a five year sentence on this person if he was an adult and if he was not insane? It is that type of offence. It is the five year formula which is being defined here. On the other side of it, who actually could be detained under this procedure? Before it was amended it was anybody who had reached the age of criminal responsibility which was seven years of age withn the context of what I said yesterday. Now after the amendment in the Dáil it is anybody above the age of 12 years. There is the offence on the one hand and the actual age on the other.

The Senator asked about arrest without warrant and when this power was introduced. As I understand it, it is a very old common law power when there was an arrest without warrant for what would generally be regarded as felonies. The felon, the person who committed the felony, could be arrested without warrant. That was prior to 1914. After that there were various enactments in Britain which, instead of talking about felonies, began to refer to things as offences. In subsequent law arrest without warrant was extended to particular offences named in legislation. This is the origin of that. It is something that the Garda and police forces have been familiar with since police forces were first instituted.

Senator Lanigan asked about subsection (4) — if at any time a person has to be released because there are no other reasonable grounds for suspecting him, unless his detention is authorised apart from this Act. That is where there would be a bench warrant out for someone's arrest. The Garda would be made aware of this and the person could be arrested on foot of this because there were other provisions separate from this in existence for his arrest.

The Senator also raised the question of rest periods at night, rest periods in general and continuous questioning. The present Garda regulations would not allow for continuous questioning of a person even over six hours. The general overriding consideration is whether the detained person is being treated oppressively and what would constitute oppression. Obviously there would be a wide variation on this. It might be oppressive for the young person to question him over a long period. Existing internal Garda regulations have rules laid down which involve periods of questioning followed by refreshments, followed by rest periods and so on.

The statutory regulations governing the treatment of people in custody will be brought before both Houses, and will be revised and expanded. Rest periods and refreshment periods will continue to be provided.

Mr. Lanigan

It was not a rest period but the fact that questioning should be suspended in order to give the person reasonable rest if the person consents in writing to such a suspension. A member may give him notice in writing. If somebody is in custody and is being questioned and the garda says it is time for him to have a rest and that he will not continue with this line of questioning, the accused has to give his consent in writing. The member has to give him a notice in writing. That does not seem to be very practical.

Mr. Noonan

(Limerick East): This is when it is suspended at midnight. It would be the norm to suspend questioning at midnight. It would work when the garda would say: “It is now 12 o'clock. We do not question people after 12 o'clock in normal circumstances. We want your consent to the suspension of questioning”. A person can refuse to give his consent and decide to continue the questioning. But from the Garda point of view, the normal procedure will be to suspend the questioning at 12 o'clock. To have written evidence of that is the idea of the documentation.

Mr. Lanigan

Questioning is not really the issue, it is the fact that the time is extended by bringing in a suspension period. That gives the Garda time to do a little more investigation while the person is in custody. It is only between midnight and 8 a.m. that his consent in writing has to be given. That is what I have difficulty with.

Mr. Noonan

(Limerick East): If the person does not consent to it, questioning would not be suspended. A person can opt out of the suspension process. It is a section that gave great difficulty in drafting. It is quite clear from the way it is drafted that there was a problem with the drafting of it. It arises because if there is a short period of detention and it runs into the night, questioning of people at night could be oppressive and there has to be some mechanism for dealing with that or else the section is inoperable.

There are circumstances in which a person would have to be questioned at night, for example, if information comes to the Garda that a person's life is at risk and the person in detention can help. There would have to be some provision for deactivating the suspension, wakening the person up and questioning him again. In case there is fear of a cat-and-mouse operation where questioning would be suspended and reactivated at intervals during the night, the Garda will have only one opportunity of breaking the rest period. The time would run after that. At the end of the 12-hour period the person would have to be charged or released or if evidence was available before the end of the 12-hour period then the Garda would have to bring charges immediately.

Some of the record-keeping is written into the subsection. The behaviour of the Garda and their treatment of people in custody will be governed by statutory regulations.

The Senator said I would be coming back at Report Stage on the question of the age. I will not. As far as I am concerned it was decided by vote yesterday. I made no commitment that I would be coming back on the question of age again. I have dealt with most of the points. If I have omitted any point I will deal with it after other Senators have contributed.

Mrs. Robinson

The first problem in speaking on the section is to understand fully what it means. We discussed parts of it when we were considering various amendments. We now have an opportunity to look at the whole section. It poses some difficulties because it is a rather long and complicated section. I propose to follow the same course as other Senators and go through it subsection by subsection, raise questions and air problems that are still bothering me before giving my views on the section at the end of my contribution.

I agree with both Senator O'Leary and the Minister that because of its complexity and the powers being conferred in it, this section is likely to lead to trials within trials. To that extent it will be, in some sense, a potential bonanza for criminal lawyers. I share the Minister's view that that is not in itself a criticism of the section; that is a matter for procedure before the courts. A person is entitled to be defended. Lawyers are there to defend and to apply themselves to that. I do not see that as a major problem, though it is probably a fairly accurate description. It may, to some extent, mean that the powers will not be as effective as the Garda thought they would be when they pressed for powers of this nature.

I should like to deal with section 4, subsection by subsection and raise some issues. I will leave out matters that the Minister has clarified and simply deal with those that require further clarification or have not been raised as yet. I refer to subsection (1) and repeat the point made, particularly by Senator O'Leary in his amendment, that the offences, although described in a technical way, are not listed in the subsection. It would be desirable that they be listed in the regulations. It is necessary that the gardaí know what the list is. The individual is entitled to know also whether there is power to arrest and detain him under section 4. We must be concerned about access to that kind of information. I know the Minister said he will have a look at this.

The second problem is the link between subsections (1) and (2) and the risk that, as they read and in the order in which they read, a construction can be placed on subsection (2) which is that it gives a power to arrest without warrant for offences where that power does not exist at the moment. I have reflected on this and still think there is that risk. That is a construction that could be put on it. I know that the Minister said that he will look at it and has been looking at it, but there is that risk in the construction. On both sides of the House Senators have expressed concern about that. Senator Eoin Ryan and Senator O'Leary and I share that concern. Surely it would be useful to eliminate the problem. There is no issue of principle there. It is a very real concern. It might be something that would lead to problems on the ground for the Garda Síochána themselves.

The next problem in relation to subsection (2) turns on the form of caution to be administered to the person when being detained. Will the garda administer a caution and, if so, what will be the caution when bringing the person to the station or, alternatively, when the member in charge of the Garda station decides that the person should be detained because it is believed that his detention is necessary for the proper investigation of the offence? What will be said to the person? What kind of caution will be administered at that stage?

Secondly, will a person know for how long he is going to be detained? Will it always be for six hours unless within that period it is decided there are no charges to be preferred and that person must be instantly released or will it be a question of detaining hour by hour? One of the things that is most distressing to a person held in a Garda station is uncertainty. It is, in fact, one of the issues that can cause the most trauma and upset if the person does not know. If people, for example, are told that they are being detained for six hours, then it seems much more likely that they will want access to their solicitors. But what if they are being told "You are being detained and we will let you know how things go". Whether the Minister will deal with it expressly in the regulations or how it will be dealt with, it is necesarry for us to be clear on what the rights of the person are, both to be cautioned and to be informed of the length of the initial period of detention.

I come now to subsection (3) which deals with the fact that the first period of detention cannot exceed six hours and that a senior Garda officer not below the rank of superintendent may direct a further period of detention and that a direction can be given orally or in writing and if given orally should be recorded in writing as soon as practicable. Again nothing in subsection (3) refers to the right of the person to know that the period is being extended and for how long the period is being extended. The person, after all, at this stage has been held for six hours in a Garda station. That could be oppressive. That could create unnecessary uncertainty. It could be used as a mechanism for seeking to put what would not be an acceptable pressure on a person to make a statement or to answer questions when the person is entitled not to make any statement and not to answer questions. It is extremely important that the person would know for how long more it is deemed by the officer, not below the rank of superintendent, that he should be held for further investigation.

Coming to subsection (4), there is a phrase at the end of subsection (4) on which I would like clarification. Subsection (4) deals with the release of a person if there are no longer reasonable grounds for suspecting that he has committed the offence, that he should be released from custody forthwith "unless his detention is authorised apart from this Act". I would just like clarification of that.

Subsection (9) makes it clear and this was an amendment which was sought to make it clear, to avoid doubt, that a person who has been detained pursuant to subsection (2) cannot be held for more than 12 hours. How does that tie in with subsection (4)? What are the circumstances in which it is envisaged that detention is authorised apart from this Act where he could still be detained and how does that square with a maximum of 12 hours?

Mr. Noonan

(Limerick East): He will have to be charged under a bench warrant.

Mrs. Robinson

I would be grateful if the Minister would spell that out, because the person is, after all, being released because there are no longer reasonable grounds for suspecting that he should be detained or charged with the offence. It requires some explanation.

In relation to subsection (5), again I would welcome some indication from the Minister of the caution which would be administered to a person. "Where a member of the Garda Síochána has enough evidence to prefer a charge for an offence against a person... he shall without delay charge that person or cause him to be charged unless that person is, with reasonable cause, suspected of another offence..." What is the balance there, as far as the individual is concerned? How is the individual to be cautioned in either siutation? Presumably, if he is going to be charged that would be done in the normal way. If he is not to be, what again is the position in relation to alerting him to the risks he runs if he seeks to answer any of these questions on which he is entitled to remain silent?

I come to subsection (6). Yesterday evening, in moving an amendment seeking to raise the age for detaining children under section 4 to a minimum of not below 15 years, I criticised the framing of this section when one considers that it would be applied to 12, 13 or 14 year olds. I cannot really say any more about that except that I will make my general observations at the end as to why I regard that as being unacceptable. I also find it framed in a somewhat unusual way in that it is the member in charge of the station who must form the opinion that any questioning of that person for the purpose of investigation should be suspended. What happens if the individual says, "I am exhausted. I do not want to continue. Stop questioning me. I have nothing to say to you in answer to your questions. Please let me sleep," and the member in charge says that he has not formed that opinion? I accept that there is the check and control that if it is oppressive the courts will rule that any statements made would not be admissible because of oppressive questioning. It does seem that it is a bit one-sided, that it is the member in charge who must form the opinion that any questioning of the person should be suspended to afford him a reasonable time to rest. The person himself can consent in writing but has not the right to say, "Look, stop questioning me. I am tired. I want to go to bed. You have been asking me questions for four hours. I have nothing to say. Leave me alone." I would welcome some explanation of that.

Subsection (7) is the amendment introduced by the Minister that this section would not apply to persons below the age of 12. That in my view is unacceptable. The age is too low for the kind of powers that are envisaged in this section. Subsection (8) refers to the possibility that a person may need medical attention. Again, it is when it appears to a member of the Garda Síochána that a person arrested in certain circumstances and detained is in need of medical attention, or if it comes to his notice that he is in need of attention, he is taken for that purpose to hospital or a suitable place. That affects the calculation of the time for the purposes of the powers of detention for a maximum of 12 hours plus the rest period.

In relation to that, I would like to ask the Minister whether he is going to ensure in the statutory regulations under section 7 that there will be, not just as there is in the Bill itself, the right of access to a solicitor, or also the right of access to a doctor or access to medical attention if the person so requires? Perhaps the regulations should also deal with a medical examination of a person when brought to a Garda station to be detained under section 4. This is something which it would be desirable to have in the statutory regulations. Then, perhaps the provisions of section 8 would not be open to any particular criticism or worry.

Section 10 says that nothing in section 4 shall affect the operation of section 30 of the 1939 Act. I share the view expressed by Senator O'Leary and some others that there is good reason why the Minister might have adopted a different attitude towards the powers to detain under section 30, and could have standardised that power with the power contained in section 4 of this Bill. He refused to do so but did not spell out why.

I appreciate that we are not debating the Offences Against the State Act but it would be very helpful if we did have, as my colleague Senator Higgins keeps saying, the research on which to make an informed judgment. In other words, I would like to know to what exent persons detained under section 30 are held for in excess of 12 hours, and to what extent there is a renewing of the 24 hour-period for a further 24 hours. If the Minister has figures on that, perhaps he could give them to us. For example, is there a second order made holding a person for a further 24 hours or is that only done in the small minority of cases? If so, might we perhaps be moving closer to limiting that period of detention?

There is another aspect of section 30 of the 1939 Act that I would urge the Minister to consider. It does not require legislation, but I think it is a very important issue. The Minister, responding to the debate on the amendment seeking to raise the age under which children would not be detained under section 4, pointed out that there is no lower age limit. There is no protection for children arrested under section 30 of the Offences Against the State Act but the Garda do not go around harassing children for malicious damage to property, which is one of the scheduled offences and one of the main offences for which section 30 is used.

Now that a power to detain is to be enacted in this section — and presumably it will be — I would urge the Minister to seriously consider descheduling the Malicious Damages Act from the Offences Against the State Act. The view is widely held in the legal profession that it is that section which has allowed the net of section 30 of the Offences Against the State Act to be spread very widely. It is not too difficult to suspect some malicious damage to property in order to arrest under section 30 and then have the power to detain for 48 hours. That has even been said, and there may be some truth in this, that in the absence of having the kind of power under section 4 which is now envisaged to detain in a more general way, the Garda have stretched section 30 by using the malicious damage to property provisions.

Therefore, it would be a balancing measure on the Minister's part to bring in a statutory instrument amending the statutory instrument which schedules the Malicious Damages Act and removes that from the scope of the power to detain under section 30 of the 1939 Act. I would urge him to seriously consider that.

The last subsection is a general proviso. If there is any particular reason why it is there perhaps the Minister would tell us. It looks like a safeguard proposal but it leads me to a more general comment on the whole section. As the Minister said, there is the power in the sense that it is not forbidden for the Garda to question suspects. It has not been forbidden in the past; they have in that sense the power to question, although it is not set out in the section itself. The only reference to questioning is in relation to the suspension of questioning in section 6 (a) where a person may be availing of a rest period from midnight to 8 a.m. To many people the power to question means that there is a right to have answers to those questions. I dealt with this point briefly yesterday on Senator O'Leary's amendments. The Garda have a right to put questions but they are not entitled to answers to those questions, except the question asking a person his name and address, and where the questions relate to the mark or other matters in section 18, and to the accused's presence in a certain place under section 19. If the accused does not answer those questions he runs the risk of inferences being drawn both when he is returned for trial and at the trial itself. If that is the case, although the Garda can question they have no right to a reply and indeed the Minister has stated categorically that the accused has the right to remain silent. But there must come a point where repeated questions which the person detained does not have to answer become oppressive. I submit that that point could come quite early in the questioning. If we are talking about interrogation techniques, persistent pressing of questions which a person is not required to answer can be oppressive.

I wonder if the Minister in the statutory regulations is going to deal with this point. If the accused chooses to remain silent, how long would the same questions be able to be put to him? How much repetition of questions will be permitted in those circumstances? This is particularly important because of the kind of person who may be at the receiving end of these questions. As we know from the rejection of the amendment last night, the person may be a 12, 13 or 14 year old who will be asked the same questions again and again. What limit is there to the power to put those questions — although there is no obligation on persons detained to give that information or to speak at all? They have a right to remain silent. That is a power the Garda have but I think the exercise of it requires to be very strictly controlled.

I want to express briefly the reasons why, as it stands, I would find this section unacceptable in the imbalance between the objectives sought and the rights of the individual and the position of the individual brought to the Garda station and detained. I would like to state my objections and my reservations in as clear a manner as I can because it is important to show where the difficulties are. I am not averse to conceding a certain power to detain. That is not what worries me most. I do not like the idea, but we live in very difficult circumstances and all the pressures which led to this Bill being introduced in the first place have been gone into.

It is not the power to detain, which means depriving somebody of his liberty for a number of hours, which worries me. It is the unchecked power to question and the age at which these powers can be brought to bear on persons. If this section applied only to adults, then I would be much happier about it. At a very minimum if it did not apply to persons under 15 years of age, I would find that much more acceptable. At one stage this appeared to be the appropriate amendment to achieve that objective. If there was a satisfactory system of electronic surveillance of questioning, then I would be much happier to permit the questioning of suspects. It is the lack of a realistic, reliable, constant safeguard on the exercise of the power of questioning that worries me.

I am not saying that gardaí would, as a general rule or if they can get away with it, abuse the power, but there would be the risk of circumstances arising where it would be abused. It is not a power which I, as a legislator, am happy to see conferred by this section. Those are the two areas in which I have such serious reservations that I could not support this section.

There are several ways in which it would be possible to ensure that the power to question, such as it is, would be exercised in such a manner that there would be sufficient safeguards. I still would not like it, but there would be sufficient safeguards. One of them would be the kind of amendment that Senator O'Leary moved last night, to provide that you would have a district justice or peace commissioner, or if that is not practicable you would have no questioning in the absence of the accused's lawyer. There may be difficulties about that. The Minister has empowered himself to provide electronic surveillance in section 27. He said yesterday that he was proceeding towards that. A journalist like John Healy could write a long article on the subject of a politician proceeding towards something, and I am a little apprehensive about that.

Mr. Noonan

(Limerick East): I will surprise the Senator yet.

Mrs. Robinson

Good, I would welcome being surprised.

Mr. E. Ryan

Draining the Shannon.

Mrs. Robinson

In whatever period it takes for the Minister to proceed towards and to arrive at the electronic surveillance of questioning, an extremely important value to be secured at whatever inconvenience is that there is monitoring of any questioning. That is the best guarantee, that there will not be a perceived unlimited power of the Garda feeding rumours or allegations of abuse of questioning power and leading to all the problems of alienation, particularly by young people, from the Garda and the sub-culture of such alienation. We are all too aware of how alienation of that kind can build up. We have only to look to Northern Ireland. There are special factors in Northern Ireland, but we know that virtually a whole section of the community there is very substantially alienated from the RUC and what enormous difficulties that poses for the whole social fabric. We have not the pressures that exist in Northern Ireland or the alienation or deep divide, but in certain areas we have very serious problems and those are likely to be areas where the powers under section 4 are the more likely to be exercised, deprived inner city areas, disadvantaged areas where there are a high number of young unemployed, large suburban areas. The policing of those areas seems to be a different problem requiring a different approach. If policing in those areas is to be effective there are much better ways to achieve that than this approach of giving such substantial power over the individual within the confines of a Garda station in circumstances where the mood is already suspicious and in some cases ugly as between gardaí and certain sections of the local population. This is a very dangerous section. As yet we have not got the balance right in ensuring that, if we must have a section of this kind, if we must detain, we are satisfied that any questioning would be done with the proper safeguards.

There is one other question which I should ask now, although it relates to the wording of section 27 which provides for the Minister power to make regulations for electronic surveillance. The side note is "Electronic recording of questioning". Section 27 (1) provides that:

The Minister for Justice may by regulations provide for the recording by electronic or similar means of the questioning of persons by members of the Garda Síochána at Garda Síochána stations or elsewhere in connection with the investigation of offences.

In section 4 the powers are all within the Garda station, but I am concerned about the phrase "or elsewhere" and whether it has a bearing on where the questioning will take place. Perhaps the Minister would relieve my concern in that regard by stating affirmatively that any powers would be only within the Garda station.

Mr. Noonan

(Limerick East): It could be in a hospital.

Mrs. Robinson

Would the questioning persist in a hospital?

Mr. Noonan

(Limerick East): Not necessarily, but it could happen in a hospital.

Mr. Durcan

Or elsewhere.

Mrs. Robinson

But there is no control over the "elsewhere". The inference is that the questioning could happen in the back of a car, in a tunnel or any other place. I would be grateful if the Minister would deal with that. I have put on record my two areas of reservation, that there are not sufficient checks and controls on the power to question; therefore it is open to both a risk of abuse and an alienation factor because of the sub-culture that will be generated by it. Secondly, it is not acceptable, and has not been justified that these sections must be extended to 12, 13 and 14 years olds.

Mr. E. Ryan

I support some of the points made by Senator Robinson, in particular the question of the possible ambiguity in section 4 (2) of arresting without warrant. The more I look at that the more I believe that there is a possible ambiguity. The Bill introduces very new, far-reaching measures and it is possible for a court to accept that new powers of arrest are intended also. I have suggested one possible way in which that could be interpreted, merely to distinguish the situation from a situation where somebody is arrested with a warrant. If a person is arrested with a warrant the procedure is quite clear and this might be interpreted as meaning it can be done where a person is arrested without a warrant. To say the very least of it there is a possibility of ambiguity here, a possibility of it being interpreted in the wrong way and in that situation the Minister should put it beyond doubt.

I also share Senator Robinson's concern about the second six hours. I indicated already that I am hoping to put down an amendment on Report Stage to tighten up this, to make it clearer in what circumstances a superintendent can direct a second six hours. There is no doubt whatever than in certain circumstances this possibility of a second six hours will be used as a kind of threat. We give credit to the vast majority of gardaí of not abusing the situation in this way. However, if a person is not giving answers, not being helpful, not doing what the Garda want him to do, and if it is coming to the end of the six hours, it is certainly, to say the least of it, a temptation for the garda to say, "well if you are a bit more helpful your six hours will expire very shortly and you can go home but if you are not being helpful I will be looking for another six hours". It is certainly a temptation which some gardaí will not be able to resist. It is quite clearly not what should be done or what was envisaged by the Minister in drafting this Bill.

I go a little further and wonder whether, in fact, it could legitimately be used if a superintendent is told that some progress was being made but that the detainee was being very difficult and given another six hours he would break down. If the superintendent is told in that case that another six hours is necessary to really get him to talk, to get him to be more helpful, could it be regarded as reasonable grounds for believing that further detention is necessary for the proper investigation of the offence? Some superintendents might consider that they were good grounds for giving a further period because the Garda were of the opinion that all they needed was a bit more time to put a bit more pressure on the detainee. It certainly would be an abuse of this section if it was interpreted in that way. The whole question of the second six hours is too loose at the moment and needs to be tightened up. I hope it will be possible to do that on Report Stage.

I share the apprehension, the unhappiness that has been expressed by other speakers in regard to this whole question of the absence of a third party when the detainee is being questioned. I certainly agreed with the spirit in which Senator O'Leary put down his amendment dealing with the presence of a district justice or a peace commissioner. I did not think either of them was a practical possibility but it is very necessary that somebody should be present. I wish it was possible to bring forward some amendment or find some way of dealing with this satisfactorily. When the electronic recording comes in I believe the problem will be dealt with to a considerable extent. In the absence of that, and in the meantime, the position is very unsatisfactory and makes one very apprehensive about agreeing to bringing in this section.

In looking at the section generally and reading it again it brings home to one very forcibly how unfortunate it is that at least the drafts of the regulations and the complaints procedure, are not before us. Almost every provision of section 4 is tolerable in so far as it is tolerable at all only if there are adequate regulations to say how the provisions can be carried out. In certain circumstances, if the regulations were very strict and far-reaching, then one might be reasonably happy with the section. Not knowing what they are going to be, one can say that if the regulations are not very adequate, and not far-reaching, then the section must be viewed with the greatest possible apprehension. Regulations are a way of approaching Bills. They are quite appropriate in some Bills.

There are many Bills outside the Minister's area, in agriculture and industry and so on, where a Minister needs certain power but, quite obviously, it cannot be anticipated exactly what kind of goods or circumstances are involved. Obviously, it is appropriate to have a Bill giving fairly wide powers to the Minister and allowing him to introduce regulations and, possibly, to change these regulations from time to time as the position demands. That approach to legislation becomes less and less appropriate when we come to a Bill of this kind. The powers given in this section are so far-reaching, and so dangerous, that a case could be made for saying that regulations are not the appropriate way of doing this at all. The Bill should spell out exactly what the powers are, what the precautions are when anybody is detained. We do not even know the regulations at the time we are discussing this section and that is very unsatisfactory. It makes it impossible to say what our opinion is on this section. If the regulations were very stringent, we could be reasonably happy, but if they do not turn out to be very stringent we could be anything but happy. Not having those regulations before us so that we can look at the section on the one hand and look at what the regulations are on the other and see to what extent the section is going to be curtailed or governed in practice makes it very unsatisfactory. The ideal would be to have the draft regulations before us and to be able to say to the Minister, "well we will go along with the section as it stands provided you amend or add to the regulations in one way or the other". If that did not seem to be possible then one could say, "if it is not possible to deal with it by way of regulation then it will be necessary to amend the section in some way". The position we are in is that we do not know the regulations and for that reason we do not know what the possibilities or dangers are. Although we will see the regulations in due course it will then, of course, be too late to do anything about this.

It is unfortunate and very unsatisfactory to say the least that we do not have the regulations and the details of the complaints commission before us in considering this section. It certainly makes it absolutely essential that the Minister should agree to write into this Bill the undertaking that the section will not go into operation until the regulations and the complaints commission have been considered by the House and approved by it.

Mr. M. Higgins

The points I want to make in relation to the section will be very brief. I hope that I can allow plenty of time for other Senators who wish to contribute on this section. As the amendments have not been accepted, section 4 now stands before us in its principle. I want to make one or two basic points — concerning the heart of those amendments and the heart of that section which is the principle of detention.

I agree very much with Senator O'Leary when he raises the question of the significance of the introduction of powers of detention. The powers of detention have been the subject of comment in court judgments and there is the very explicit connection between those judgments and the constitutional right of liberty. It seems that there is considerable force in the argument that if you are to make such changes that come so close to the core of a constitutional right, the more public consensus you have behind you in that by way of an electoral mandate the better. That is my main point there.

I am very suspicious historically of politicians who discern the will or the consensus of the people either from their hearts or any other part of their anatomy. Equally I am suspicious of polls. I made this point and I will not be out of order by making this point in extenso again. We have evidence from several legislative systems of people polling, for example, on the basis of public fear and then expressing their manifestos and I gave an example, in relation to the last British election, of playing on public fears and so on.

I think there is a considerable force in the argument that the public have not given their assent by way of vote to the granting of new powers of detention. The kind of general questions that must arise for me, therefore, are what are the purposes of detention, its procedures, its results and its consequences and in terms of its effects as it arises from the exercise of this section 4, which we now accept or reject.

By way of gratitude let me say that, unlike the Senators who suggested yesterday we had a great number of people with legal training and legal background offering opinions, I want to be on record as expressing my gratitude for the legal knowledge they have brought into this chamber. I have the same respect for a person who offers a competent view from a basis of expertise in the legal system as I have for somebody who a long time ago taught me how to cut turf properly. Excellence in any task has to be respected.

I note in such comments which are made in the Dáil and Seanad from time to time — and it is something the Minister has not defended us from — a certain strain of anti-intellectualism which proceeds beyond that simple belief to the suggestion that the people who are in favour of safeguards in this Bill and the people who are expressing fears about its abuses are somehow or another either academic or intellectual or not in touch with reality and that the plain people really should discount their arguments. In saying this I realise that to be accused of being an intellectual is just very short of being accused of sexual depravity while on the other hand to be alcoholically debauched is a matter of cultural amusement.

I respect the legal opinions that have been put forward on this Bill. They are valuable. It is appropriate that the legal points be argued here because the point has been made that we are sent into this Chamber to vote on potential statutes. It is highly appropriate that now the arguments should be made rather than teased out tortuously in a series of court cases and indeed trials within trials. I am not happy with the suggestion that the trial within trial process is something that is almost inevitable and that is part of the evolution of the inevitable interpretation and practice of this Bill. It is in the principles of good legislation that trials within trials be avoided in terms of the way the sections are worded.

I want to give a practical example of my general worry about the notion of detention as well as a general comment about it. I feel that we are missing something in this debate on section 4. Again, I want to give another background point to it which is not offered. I am in a state of apprehension at making some suggestions because if you make any comment by way of criticism it can be quickly inflated to a general criticism. You are not protected by saying, for example,"I know you did not mean that". The public are invited to make such a general construction of what you say that you inevitably find that is the reaction that will take place. That is my experience. It is reflected in some of the letters I receive and in some of the comments that have been made about my own position on radio.

Regarding my point about detention, I wonder in this debate if we have really managed to create for ourselves the ambience of the Garda station in a highly urbanised area. I do not intend to get involved again in the question of the crime rate and what is happening to crime statistics. There would be no disagreement among any of us who are involved in the argument as to their appropriateness, adequacy or their construction or to the fact that the major increases in crime are related to urbanisation and that crime is now an urban phenomen. We had a crime wave in the last century which was rural-based. We have now one which is urban-based. Missing very often is the concept that these detention powers will be exercised in an urban ambience and you can go further than that and say in an urban setting of definite characteristics, in a family setting. If you want to judge the exercise of the detention power that section 4 gives, you must mentally put yourself in that position.

In the debate in the other House and in this House, if in this case we are blessed with too much legal opinions we are in fact not blessed with a great deal of urban experiences in relation to crime. Quite frankly, we have had in public comment, in the giving of some court judgments in the lower courts, in the media comments and so on, the beginning of a rural construction to urban events in the crime area. I have watched this for a number of years. One of the defects of our consideration in legislation is that we have not yet learned to conquer this anti-urbanism in ourselves. These detention powers will impact on a particular kind of urban community. I have said what the effect will be in relation to the age sections and it has been repeated in summary by Senator Robinson.

I am as anxious as anybody to confine myself explicitly, narrowly and briefly within section 4, but section 4 says in subsection (10):

Nothing in this subsection shall affect the operation of section 30 of the Act of 1939.

There is a question here to which I have no doubt the Minister can reply. I am not sure of the interpretation of this subsection. As I listened to the replies and comments on it so far, I know there is an assurance, which I welcome, that any powers granted in this Bill will not be used in addition to powers that might arise under the Offences Against the State Act. What I am concerned about is whether a choice is given as to which of the two Acts will be followed. Obviously if there is an overlap in relation to the offences, this choice is there.

This brings me to the experience I have had in relation to the submissions which have been made to us. I do not intend to deal with a particular case when discussing the general appropriateness of section 4 of this Bill or to raise a particular experience. I have been in communication already with the Minister's Department about a memo sent to me dated 6 June 1984 by a woman arrested under section 30 of the Offences Against the State Act around the time of the visit of President and Mrs. Reagan to this country, the basis of the arrest being section 61 of the Malicious Damages Act. That memo by a woman who is articulate, who is an intelligent and sensitive woman, showed how she could be frightened and confused by the circumstances in which she found herself in a cell. I do not want to judge the statement until I have had a reply and until it has been closely investigated to see if what she says actually took place, and so on. That is highly appropriate.

The point I am making is that there are people who will be less articulate. There are people who are even more sensitive and who will be even more frightened by the exercise of a detention power. Obviously we have decided that this section may apply to people over the age of 12 years. There are many difficulties that arise, and Senator Robinson adverted to some in her speech, for example, in relation to making choices in some of the safeguards that arise within the Act as to who will, in fact, make them. Will it be the relatively young person himself — a child, as Senator Brendan Ryan reminds us — or will it be somebody on his behalf?

At column 1995 of the Dáil Official Report of 12 April 1984, Deputy Skelly quoted a law lecturer from UCD, Tom Cooney, as follows:

...the inherently coercive atmosphere of police custody. Incommunicado interrogation of individuals in a policedominated atmosphere, while clearly not physical intimidation, is inherently coercive. The suspect who submits to interrogation faces strong pressures towards self-doubt, conformity and ultimately confession. He or she would encounter interrogators, who, over the duration of six hours, would concentrate solely on establishing the guilt of the suspect.

Such encounters would involve police control of the setting, exclusion of contact with the outside world, in-depth techniques of persuasion and interrogation.

It goes on.

The thrust of Mr. Cooney's remarks as quoted by Deputy Skelly in the other House was that we must take cognisance of the ambience of the police station. I want to make that point very forcefully, I want to say that that will be a contributory factor to my suggestion that we may end up creating a basis of alienation, particularly among people in their teens and we will, in fact, be destroying the possibility of future community co-operation.

When I say that in relation to the question of the ambience I want to draw a related point and it is not an abstract point. Everybody present may discount it, but no more than the lawyer who can draw on his experience in court and in legal training, I can only draw on mine in the realm of the social sciences. Many of us who have been working — in my case for nearly two decades — in this area have never been satisfied with the notion that a simple court decision of innocence has removed a social stigma from the person who has been, perhaps unreasonably, questioned, arrested or detained.

Can any Senators in their lay experience tell me that the person to whose house a car will arrive on a regular basis after every robbery, even though all the members of the house who will be spoken to will be found innocent, enjoys the same status as his neighbours to whom the car has not come? For example, do districts where there is a great degree of vigilance enjoy the same estimation and status as districts where there is not such great vigilance? We know from newspaper reports that the concept of a tough or bad area arises precisely in this way. Technically those of us who work in this area use the term stigmatisation, the whole question of some stigma. I cannot but feel that, however, we like it, we are falling back on the unsatisfactory measure of the operation of the Offences Against the State Act if a small proportion of people are charged and a great number are not. They will be carrying a certain kind of badge of experience and they may turn this into a positive reason for linking up with others with a similar experience. Certainly they are not the same as if they are not been arrested and detained.

I am not making a general case against detention. I am simply saying these are facts which would argue for the sensitive application of this. The onus is not on me to show where powers like these have been sensitively applied. The onus is on the authors of the legislation. The experience historically is that powers such as these are not applied with such great sensitivity. That is a matter for Senators to make up their own minds about. I want to turn this argument around another way.

Sitting suspended at 1 p.m. and resumed at 2 p.m.

Mr. M. Higgins

The point I was about to make before the sitting was suspended was that if there are difficulties associated with the construction of detention in terms of the experiences of people, the majority of whom could be innocent, this argument can be changed around and used the other way, but the conclusion will be equally unsatisfactory. People who are hardened in relation to police stations procedures are unlikely to be affected in the way I have described. They will probably come to the station better prepared and much tougher and will be able to use whatever safeguards there are to protect their position. My case is based on the vulnerability of the majority of people for whom no basis will be found on which to press charges against them.

It is incumbent upon people like myself, if you say you are making a case against the introduction of new detention powers as section 4 does to expand on my point. I have suggested already that there may be a considerable alienation of the community from the enforcement authority. In relation to community police models, there are two points. One is to see community policing as extension of the enforcement authority. It is quite different altogether to invite the community to come to terms with the crime that arises within the community and to invite the police authority to discuss with the community their role in reducing crime. That is the crucial distinction. It is the distinction between the neighbourhood watch experiments in the United States and the neighbourhood watch experiments, for example, in London with the exclusion of Islington. They are two totally different concepts. In one case the community police project is an extension of centralised police norms, structures, activities, regulations and so forth; in the other, the police are invited to come within a community definition and a community strategy in relation to the problem of crime in the community. This is only relevant in relation to section 4.

I accept the Minister's assurance that this is but one measure among a series of measures in his total approach towards the problem of crime, particularly the rise in crime in urban areas. This means that he must, at some stage, consider using the models of community policing. My point is that any alienation that will arise from the implication and application of this Bill, particularly under section 4 and the detention provisions, will make the option far more difficult. You cannot operate with one instrument in one way without the consequences having some implication for the other strategies that are available.

I have said quite as much as I want to say about what for me is one of the most worrying aspects of this section. The point was summarised by Senator Robinson this morning. It is the importance we attach to the experience of young people and to the issue of people who are between the accepted age and 15 years of age. I agree with the Minister when he was commenting on statistics that I provided in moving an amendment to this section in relation to juvenile crime, that perhaps the low figures were a major contribution to successes in the juvenile liaison system. I wholeheartedly agree. I applaud the system and I wish that it was accorded a greater status within the ideology of the Garda and was written about more positively and enthusiastically in their journal and was not looked at with such cynicism by a number of the more hawkish elements within the Garda and the people who write about the system. It has been a success among young people. This is the very reason why I attach importance to the experience of young people and their experience with the detention provision.

The juvenile liaison system is the road to go on and from that road into a system of interaction within the community. I cannot but contrast the juvenile liaison scheme with what will be the experience of relatively young people when section 4 affects them. I could speculate but I want to be hopeful. It could well be that the provisions of this Bill will be directed towards young people in some social and urban settings and that the juvenile liaison scheme might be implemented for other young people in different social settings. You might find that these sets of measures will be applied selectively. That would be a great pity. I am not saying that will happen. I am saying it is a possibility and I would like to know that it will never happen.

As regards the new powers of detention, we would not want to become too technical in considering this. We have tried to amend this section. We are now looking at the section as a substantial innovation dealing with a new power of detention. The changes being suggested are very significant. I tried to make, perhaps inadequately, a point when we were discussing some of the amendments as to the importance of restoring an integral relationship between enforcers and the courts and the people who are affected by the law, be they people who are accused or people who are innocent.

I place again on record that people like myself, who have an interest in the impact of the legal system on socio-economic groups, do not exclude consideration of the victim. More has been written by people like myself about the victims of crimes than the people who would make this accusation. It is there for people to read about the impact, for example, of crime among lower class people on lower class victims. It is factually untrue to say that we are not concerned with the question of victims. The evidence can be provided. Let that be there for another day. But the point I am trying to make about it is that it is such a significant innovation that I cannot help but conclude that some of the procedures that were the work of the courts are being moved to the police station. I cannot but get that sense. It is the sense of a lay person in looking at this.

Equally, I cannot but feel that the courts as a consequence of this legislation will be changed in turn. It might sound a very conservative opinion for someone like myself to hold, but nobody from our perspective has been attacking the courts or driving wedges between the courtroom decisions and the enforcement authorities. For example, I think of the decisions at the end of the seventies of Mr. Justice Walsh, of Mr. Justice O'Higgins — all of these judgments were offered as interpretations of the right to liberty as it derives from the Constitution. We must try to evaluate critically the response to their decisions. There was very much a lay response that, "Now it is open season for the criminals." This is very unfair construction to put on these decisions. To take up the Minister's point, we make the law and we have it there for interpretation. I am in favour of there being such a response that these wedges will not be drawn. In so far as these are the last remarks I will make about the public debate that has surrounded section 4, I repeat because the Minister did not comment on it previously, it has been a most unedifying experience to read comments from very senior people within the force that the Minister correctly pays tribute to and that I pay tribute to. The vast majority I know operate in the Garda Síochána with courage and some have died in the service of protecting the citizenry. I share the Minister's views on that. No one side of this argument has a monopoly of such compassion or concern. I feel it would be very wrong of me not to say something that was not said sufficiently here, how very irresponsible it is for people in senior positions on the other side to say something like, "It is these liberals and clerics and so on who are making it difficult for us to attack the base of crime." That is a wrong attitude. It is not excused by saying that they have been driven into a state of nervousness, which was the phrase used by people who might worry about safeguards and so forth. If we were to take that argument people like myself who belong to a minority tradition in Irish politics would be out of our minds long ago. I doubt if our nervousness would be used to excuse any actions that we might take that would be beyond the most tame ones of offering our parliamentary options. It is not an excuse and it should not be presented as an excuse. I hope that the debate that will surround this Bill and the temperance and the moderation that has been urged on everybody and which has been present in this debate will extend outside these Houses into the commons.

I am not speaking about the force in general. I am not speaking, either, about an inconsequential one or two individuals of no authority. I am speaking about people who have not retracted their statements and who have cast suspicion on the motives of the people who have been concerned about this legislation. The last thing I want to make about this is that these people know what they are doing. Just as the subversive organisations can move into an area where a wedge has been driven between the community and the enforcement authorities and exploit that distance, in exactly the same way the fear about the crime rate and particularly about the perceived crime rate and the moral panic that has been generated around it can be exploited to, unfairly I think, cast aspersions on those who had been anxious, either from a civil libertarian framework or from a framework of worrying about the impact on the different vulnerable socio-economic groups in our society who have been expressing concern about this Bill.

The main reasons why I have reservations about this section, as I have made it clear in some of the amendments so far, why I cannot support it is that the case for detention has not been made. The whole question of where detention ranks with other options has not been made in any convincing was to me. What contribution with other measures will detention make? Will it increase detection? It is not clear. We are told in a rather vague way that it will increase the powers of the police, but to what end? Will it give us a more satisfactory detection rate within a period of years? Is it worth — and this is the question we must ask — taking all these powers, these innovations, these new procedures for a purpose that has not been explicitly defined? I doubt if this can be done in so far as we have not looked. We have been told that the legislation is not being presented in isolation, but the ideal way would have been to look at a total approach towards crime and to be able to assess the justification for these measures in comparison with other measures.

Two other main bases for my own opposition to this section are founded, unfortunately, on what I believe to have been the historical use of detention that has arisen under the Offences Against the State Act, 1939, section 30, to which I have made reference, but very particularly and above all, I believe, in general, the use of the detention powers in the circumstances within large cities will have a major alienating effect on the community. That alienation will be felt particularly by younger people who, if approached differently, would respond far more positively to invitations for involvement in their community and towards tackling crime in a different way. With reluctance, I cannot say that these general points have been answered in a way that at least satisfies me.

I asked one rather specific question in relation to subsection (10) which states that "Nothing in this section shall affect the operation of section 30 of the Act of 1939." What I had in mind there was that where offences are listed in relation to the ambit of both pieces of legislation, does it make available a choice of measures to the enforcer and what might be the consequences of that where two instruments are available?

Mrs. McGuinness

I would join with previous speakers in expressing considerable reservations about this section, both in detail and as regards its general purpose. First of all, I would be concerned about subsections (1) and (2) with regard to the possibility of the creation of new offences that would carry arrest without warrant. I welcome the Minister's undertaking to look at this again. I would share Senator Eoin Ryan's worries about this. I hope that the Minister will see his way to amending it to clarify the situation. As has been said, it does not affect the policy of the Bill at all. But if we are going to set out something like this, we should set it out as clearly as possible. I understand the point the Minister is making when he says that he is not particularly concerned about the trials within trials arising to clarify definitions within the Bill, and so on. But we should not deliberately walk into extra trials within trials that we can possibly avoid. I have no doubt that these will arise, but we should try to minimise them by clarifying the drafting of the legislation as best we possibly can as we go along.

With regard to the question which arose in the amendments about the possibility of a list of the offences to which section 4 would be applicable, either for the Garda or for individuals, I would on consideration support the necessity for such information to be made available. This was referred to by Senator Honan in an earlier speech. The amount of information the individual garda on the ground has about this sort of thing can be exaggerated. The period of training for gardaí is relatively short. There is a distinct case to be made for provision of more in-service training for gardaí as they go along. I would doubt that the ordinary garda in a Garda station necessarily knows exactly to what offences this would apply. I see no reason why, for the information of the Garda and for the individual who may be at risk, one should not provide some sort of list of offences, whether as part of the statute, as part of the regulations or whatever way it might be most suitable.

The question of what sort of caution might be given to people detained under the section and what sort of information might be given to them about the length of their detention has been raised. I would emphasise this: I agree with Senators who said that for the vulnerable, the innocent or the less hardened, it is a frightening experience to be detained and questioned in a Garda station, however innocent one may be. The fact that one might be uncertain as to how long this is going to go on would have a very strong effect. If we know when a particular situation is going to end we can deal with it in a certain way psychologically and intellectually, but if we think it is going to go on for an indefinite length of time, it has a much more psychologically pressurising effect. Persons who have to wait around at an airport not knowing whether they are going to get a visa in or out of a country know that this can have a strong psychological effect.

It is essential that in the regulations at least the Minister should make it clear to anyone detained that the process will end in six hours, or in possibly a second six hours. Again I share with Senator Eoin Ryan the fear that possibly the second six hours might be used, if not as a threat, perhaps as an additional pressure. This particularly applies in the instance where persons are not answering questions, when they are making use of their right to silence as limited by the various sections of this Bill. If they are not answering the questions there seems to be very little purpose in holding them for six hours and a second six hours, except for the purpose of putting psychological pressures on them. If they have started by saying "I have a right not to answer this question and am refusing to answer the questions", what is the basic purpose of holding them for six hours and another six hours and repeating the questions again and again and getting no answer, if it is not to make them feel that they will have to answer them sooner or later.

We need to watch this situation. This was touched on by Senator M. Higgins and I feel quite strongly about it from my experience of criminal law courts, which is relatively limited, but from my experience it is quite clear that people to whom we might refer as experienced or hardened criminals know their rights very well and very often know the law a great deal better than many lawyers. One has only to watch people who may be making personal applications in court for habeas corpus against the governor of Mountjoy, for instance, to realise that they know very well what their rights are and how the law affects them. The people who are more likely to be intimidated by this sort of detention and questioning are the people who are less likely to be guilty of offences.

Mr. O'Leary

On a point of order, could anything be done about that awful noise? The Minister might be in favour of the noise but I think it will drive us mad.

Mrs. McGuinness

I welcome the Senator's intervention. I find the noise very trying. Perhaps we might close the windows.

Mr. O'Leary

I would be interested to put on record what the Minister said sotto voce.

Mrs. McGuinness

The amendment about the increase in the age this should apply to, and the amendment dealing with children under 15 years have been defeated, but I re-emphasise that I have very grave reservations about the effect of this section as it will practically operate in Garda stations on people of this age. I continue to feel that it will have a very alienating effect.

I have had a certain amount of personal experience of being involved in situations where children were being dealt with through the juvenile liaison scheme. I have nothing but admiration for it. I was extremely impressed by the gardaí who were operating it. I feel sure the Minister would agree that it should be extended and improved. I am not suggesting that he would not agree with this but such extensions and improvement may be contradicted by the effect on young people of the operation of this section. The whole question of the operation of section 30 of the 1939 Act has been called into question by the figures which tend to suggest that it is being used on a sort of round-up-the-usual-suspects basis and that very often people are taken in and held under this section but in only about 10 per cent of the cases do they end up by being charged with an offence. What has happened under section 30 should be a warning to us as to what might happen under this particular section.

For me the difficulty is on principle with regard to this section — what is its purpose and what is it going to achieve? Other speakers have referred to the fact that those of us who object to the section say very little about the victims of crime. I find this a very unfair accusation. Again, as Senator Higgins said, perhaps we are regarded as not being the plain people of Ireland but the one thing he left out that intellectuals might be accused of being is subversives. That is probably another stone that might be thrown. As I explained in my Second Stage speech, I have been a victim of this type of crime by a young person. There is nothing like being a victim of crime to bring home what victims of crime feel.

There is no question of us not having sympathy for victims of crime, or wanting to protect victims of crime, or above all wanting to prevent those sorts of crimes occurring, but the question we are asking is, will this power really have this effect? What is the purpose of the section? Is it supposed to lessen crime? Is it supposed to increase detection? What is it supposed to do? Is it supposed to act as a deterrent? The case for deterrence is a non-proven case in all the research that has been done into the effect of punishment for crime and so on. It would be very interesting to see, in connection with the measure the Minister has wisely introduced into the Bill, a survey of the operation of the various powers at the end of four years. I hope that the statistics and information that will be available at that time will show whether the operation of section 4 has brought about an increase in the rate of detection as opposed to just an increase in the rate of taking people in. The rate of detection is relatively low. If one can argue at all about deterrents I feel it lies in the rate of detection rather than anything else. The fear of being caught or the conviction that one is likely to be caught is much more likely to be a deterrent than heavy punishments when the chances of getting away with the crime are very high. Therefore, I hope that whatever information is to be given in the survey of the workings of the Bill will show us whether these powers have increased the detection rate. I question whether they will do so in any substantial way.

I am afraid that any advantages of the operation of the section will be more than offset by the increasing alienation of the population, particularly in certain socio-economic groups and among the young which will be brought about by the operation of section 4.

A point raised by Senator Eoin Ryan was that it would be much more desirable if we knew what the regulations were going to be at the time of the passing of this Bill. The regulations may work in a way to ameliorate the operation of section 4 which we cannot now forecast. On the other hand, the regulations may not be sufficient to deal with the reservations which many of us have. It would be excellent if, in addition to having the impartial body to inquire into complaints against the Garda brought in along with the operation of these sections, we could have the regulations brought in at the same time and know what they were in advance.

Mr. Durcan

I have no objection to the fundamental principle underlying this section. Detention of arrested persons in certain circumstances is necessary to enable the investigation of criminal activity. To suggest otherwise, would be unrealistic. However, I share the concern expressed by some Senators, particularly Senator O'Leary, about the efficacy of the section we are discussing and I wonder if it will achieve its purpose. I agree with the point made by Senator O'Leary that its operation may lead to many trials occurring within trials and I do not agree with the Minister's response to that. If that happens on a large scale it may bring the operation of the law into disrepute.

Section 4 (2) worries me. Senator Brendan Ryan raised the question of the phrase "with reasonable cause". The sub-section provides:

Where a member of the Garda Síochána arrests ... with reasonable cause.

What is the difference between that phrase and the phrase which is used subsequently on two occasions, "on reasonable grounds"? In other words, a young recruit may with reasonable cause arrest somebody, but the detention may be brought into operation only if the member in charge of the Garda station had reasonable grounds for believing that such is necessary for the proper investigation of the offence. Secondly, the detention may be terminated if at any time during the detention there is reasonable grounds for so terminating it. It seems that the phrase "reasonable grounds" would be more appropriate as a test to be applied by the arresting member than the test to be applied when the detention or the termination of the detention is being considered. I would like the Minister to comment on the difference between the two phrases and why they are used, one in one circumstance and the other in two other circumstances.

I am also a little worried about the phrase in the subsection which states as follows:

...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...

How do we construe the words "at the time of that person's arrival"? Does it mean that at that immediate moment, or is the member in charge of the Garda Síochána station to be given a reasonable time within which to consider? If he is to be given a reasonable time, then it seems that the inclusion of that phrase restricts him. The phrase "as soon as practicable" is used in section 4 (3) (c) which provides that:

A direction under paragraph (b)... shall be recorded in writing as soon as practicable.

The phrase is also used in section 5 which deals with the access to a solicitor and notification of detention to solicitor, guardian or parent. If section 4 (2) is to be operational and effective, then consideration should be given for the inclusion of the phrase "as soon as practicable" rather than "at the time of arrival".

Who is the member in charge of a Garda Síochána station? This phrase gave rise to an amount of litigation when the regulations made under the old breathalyser legislation were being construed by the courts. I would like the Minister to direct his attention to this. There are many Garda stations where there is only one garda. There are many Garda stations where the only garda is a recruit of 19 or 20 years of age and he is the member in charge of the station. The more one looks at section 4 (2) the more the idea of detention centres spotted all over the country is envisaged. Section 27 which deals with the electronic recording perhaps gives some substance to that suggestion. Section 27 (1) provides that a person may be detained at a Garda station or elsewhere. Are we to have specific detention centres in each division as distinct from the cosy Garda station situation we are all aware of? I would like to have the Minister's comments on that.

Section 4 (3) (b) deals with the extension of the detention period for a further six hour period and where a direction must be given by an officer of the Garda not below the rank of superintendent. This direction can be given by any superintendent. He does not have to be a superintendent in the district or division where the person is detained initially. He can be a superintendent at the other end of the country. It is not satisfactory if somebody who may not be aware of local circumstances and many relevant factors can give that direction.

I am a little worried about section 4 (6) and section 4 (8). Senator Robinson pointed out that these subsections can be operated only at the initiative of the Garda. They cannot be operated at the initiative of the detained person. Somebody may be detained at six o'clock in the evening, still detained at 12 o'clock at night and a second detention period of six hours may become operational in so far as that person is concerned, and at one o'clock in the morning the person may be absolutely exhausted. That person does not have the statutory right to apply for a rest. Only if the member in charge of the Garda station "is of opinion" will that person be given the option. It is disappointing that a detained person does not have the right to apply for a suspension or a rest period. I am also concerned that the rest period which is specified is to afford the person a reasonable time to rest. It relates only to questioning. The subsection reads:

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 ...then the section may take effect.

It does not deal with the suspension of the other rights which the Garda have under section 5, the right to search, the right to photograph, the right to fingerprint or the right to carry out certain tests for firearms purposes or the right to seize and retain for testing anything which the suspect has in his possession. Am I right in saying that somebody within a rest period may be subject not to questioning but to the rights which the Garda have under section 5? If I am correct, that is something which is worrying. The same would appear to apply in relation to sub-section (8) which deals with the giving of medical attention. Medical attention is only given at the initiative of the Garda and it cannot be given or provided at the request of the detained person. That is unfortunate. I am amazed that subsection (6) (c) does not use the phrase that is used in sections 15 and 16. That subsection states:

A member of the Garda Síochána when giving notice to any person under paragraph (a) or (b) shall explain to him orally the effect of the notice.

The interesting phrase is used in sections 15 and 16, that the garda has to use "ordinary language". I am surprised that that phrase has not been used in subsection (6) also.

On the question of the keeping of records, under subsection (6) (e) there is an obligation that:

Records kept in pursuance of paragraph (d) shall be preserved for at least twelve months and, if any proceedings are taken against the person in question for the offence in respect of which he was detained, until the conclusion of the proceedings...

Am I right in saying that there is no obligation to take proceedings within 12 months, that proceedings of a criminal nature could be initiated two or three years subsequently? Further information could come to light and there may be an obligation on the Garda to take proceedings at that stage. If proceedings were taken at that stage, records kept under the section would not then be available.

Mrs. Honan

I find myself agreeing totally with my colleagues who have reservations about this legislation. I am not saying that if in Government I would be taking such a strong stand as Senator O'Leary has taken but I feel deeply that some parts of this legislation will create problems rather than correct them. I am nearly afraid to stand up here today and speak on section 4 because, as I said on Second Stage, any of us who have a sincerely held view on a section of the Bill, are being put into the category of "those liberals". Persons who would think that Tras Honan is a new found liberal from Clare are wrong in their jugdment. I am a firm believer in saying what I have to say. I do not believe in going down corridors here or at home. At least I must be honest with myself. I am deeply worried about section 4. I hope the Minister will accept my criticism in the way it is intended.

There are several things in section 4 I do not agree with. I respect the Garda Síochána. I know there are some members in the Garda Síochána who, like some in the political arena that I am lucky to serve in, abuse it. Only a small percentage of those in the Garda Síochána do damage. Similarly a big percentage of those in public life serve sincerely the people of Ireland. I accept that we are all as politicians on a sticky wicket in regard to the question of a 12 year-old child. Those who burn cars and so on are playing into the hands of those anxious to get this legislation through. They are making the case for the Minister. I am trying to find a balance between the 12 year-old innocent child — having reared two children myself — or the child who has nobody, who is taken to the Garda station. That child may not have a father, or a mother or a guardian but has to go through this long stretch of questioning. As legislators we must remember that even the thugs are still only 12 years of age. The Minister's children may not have reached that age but I have dealt with two. I was lucky that I did not have any hassle with my children at 12 but I am deeply concerned about this provision as a parent. I have been nearly hassled, because I have deep feelings about section 4, by members of my own party. They were being nice to me and yet suggested that I should not say anything. That is not my style.

The legislation is necessary. I have spoken to gardaí and inspectors about section 4. Some of them expressed the view that they have the power under present legislation and that this Bill was not needed if they could implement existing legislation.

Where child welfare is concerned, we have our Constitution. Whether there are Members in this House, or the other House, who intend to carry on with crusades to do away with that Constitution does not matter. To me that Constitution is sacred. Children are named in it. The 12 and 14 years olds are named in it. We as legislators, have to see that that Constitution is adhered to. Therefore, it is our responsibility to protect the 12 and 14 year old child. I am worried about the right to a solicitor in a detention situation. It will affect young and old.

I accept the view of the Garda that the measures we are talking about, detention in particular, will help them to overcome the present problem. Sometimes we may not like the extent to which they enter into the political arena; nevertheless we accept the view that they hold in relation to this matter that this essentially will give them more confidence in the job they are trying to do.

I referred to the availability of solicitors in my Second Stage speech and I refer to it again here. Bill or no Bill, vote or no vote, I intend going home tonight because I left there at 6.30 on Tuesday morning. I do not think, in the event of a child being detained in, say, Ennis Garda station, that a solicitor will be waiting for a phone call from the Garda asking him to come to the station to tell that child his rights. It is not realistic to say that in the case of a 12 year old, a 17 year old or a 40 year old person, all they have to do is name a solicitor and next thing he is down in a car to the station. That will not happen. They are not available. What will happen at weekends?

I ask the Minister to accept that Members of this House have strong and sincerely held convictions about section 4. There has been no politics played here. We are all worried that it is not a good section and I am convinced that this legislation is not necessary at all. I will hold that view even if the Bill is passed. Section 4 is in it because of pressure. The awful impression has gone from this House that the Members who spoke with very sincerely-held views were taking a stand critical of every man in uniform. Nothing could be further from the truth. Senator Higgins is trying to get up to the level of the lawyers around us and I am trying to get up to the level of Senator Higgins but the Minister is sitting there taking no notice and he is not going to budge an inch. It is on the record of the House. I intend to be here some years ahead; I do not know with what status——

Mr. McDonald

In spirit.

Mrs. Honan

Not in spirit. I will be in this House, perhaps up there. I have said my piece. The Minister did not seem to grasp my meaning when I said that the gardaí coming out of Templemore, are not qualified at the moment to deal with section 4 of this Bill. Some of them do not know the implications of section 4. On Second Stage I spoke strongly about the training of the gardaí of this nation. I am still concerned and I will remain concerned until the Minister or his successors do something about the matter. Then the gardaí will be doing the job they want to do because they will be trained to deal with the community, to serve in the force that they are proud to serve and of whom I am glad to be a friend.

I feel strongly about section 4. I still say it is wrong for a Minister to come in here and talk about bringing in a child of 12 years of age and to detain that child for six hours and perhaps overnight with no second person to stay with that child. I have to balance that by saying that I do not support the 12 or the 14 year old thugs who are making some people's lives in this nation this evening wretched by their behaviour. The Minister is accepting what we are trying to get across. We are all here as legislators but we are also here as people who have reared families. I am worried about section 4 and its implications. I do not think it will get the results that the Minister thinks it will.

Mr. Noonan

(Limerick East): There are just one or two preliminary remarks about the section I would like to make before I go to deal with the points raised by individual Senators. The position at the moment is that, apart from section 30 of the Offences Against the State Act, it has been held that the Garda may not detain for questioning a person arrested without warrant suspected with reasonable cause of having committed an offence. He must be brought before a district justice or peace commissioner with reasonable expedition. This was decided in the case of Dunne v. Clinton in 1930 — page 366 of the 1930 Irish Reports— and it did not seem to have much effect on either the consciousness of the public or the Garda Síochána because the practice continued through the forties, the fifties and the sixties. The decision was that “failure to comply with the law in this respect renders his custody unlawful”. Consequently any statement made by the accused during such custody is inadmissible at his trial since the evidence would have been obtained in breach of his constitutional right to liberty.

Later, the Supreme Court decided in the case of the Attorney General v. O'Brien in 1965 — page 142 of the 1965 Irish Reports— that evidence obtained by a conscious and deliberate breach of a person's constitutional rights is inadmissible unless there are extraordinary excusing circumstances, for example, preserving the life of a victim in peril or preserving vital evidence where there is imminent danger of its destruction. That is the starting position for any Minister like myself who started examining the criminal law in respect to detention.

Senators will have noticed in what I read there about the case Dunne versus Clinton in 1930 that the judgment said that the person must be brought before a district justice or peace commissioner with reasonable expedition. At present the Garda have powers to keep people in detention or custody which is the same thing — I am not talking about section 30 — for a reasonable period after arrest before charging before a PC during which time they can question the persons. It hinges on this definition of what is reasonable expedition. It happens continuously in serious cases. It is fair to say in cases such as murder the Garda are more inclined to stretch the period and to restrict the period when offences are of a less serious nature. They get statements on this basis and often the taking of the statement takes a good while. Nobody in court sees anything wrong with that at present. Occasionally there are trials within trials. The Garda are all the time under the pressure that anything said may be thrown out. It may be decided in court that they have held the person for an unreasonable period, that they have not proceeded with due expedition, and consequently statements are inadmissible. We are trying to state in law what we consider to be a reasonable period and to allow the Garda to operate within that context.

The Garda do not know where they stand at the moment when they arrest without warrant, during that indeterminate, limited period between the arrest, the taking to the Garda station and the bringing before the peace commissioner or the district justice. They are not sure where they stand. The courts — you will hear this privately from judges — are not quite sure about the admissibility of statements gathered in that period. That is the opening problem.

There is a second problem and it is a constitutional problem. You will find it in article 40 of the Constitution:

The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.

There is a constitutional obligation on us to legislate to protect the rights, including the property rights, of citizens. Article 40.1º goes on to say:

No citizen shall be deprived of his personal liberty save in accordance with law.

The difficulty that arises at the moment is that, if somebody is arrested without warrant, brought to the Garda station, held for some time there, questioned, a statement taken and then he goes to a peace commissioner or a district justice, the justice, the peace commissioner, the courts cannot be sure that this person is held in accordance with law. I am trying to provide the legal basis for that kind of situation. In matters as serious as detaining people it should be a matter of clear law and not a matter of the individual opinion of the Garda and a variation in the case of individual crimies or suspects of individual crimes.

I should like to refer the House to a judgment of the Supreme Court, Shaw v. the People, 17 December 1980. Talking about the Offences Against the State Act, Mr. Justice Walsh said:

Even the Offences Against the State Act 1939, which has no relevance whatever to the present case, does not purport to give any such power. Section 30 of that Act, which permits the arrest and detention of suspected persons, only permits a person to be arrested where a member of the Garda Síochána suspects that that person has committed or is about to commit or is or has been concerned in the commission of an offence under any section or sub-section of that Act or an offence which for the time being is a scheduled offence for the purposes of Part V of the Act or whom he suspects of carrying a document in relation to the commission or the intended commission of any such offence or whom he suspects of being in possession of information in relation to the commission or intended commission of any such offence or whom he suspects of being in possession of information in relation to the commission or intended commission of any such offence as aforesaid. Any arrest under that section which is not based on such a suspicion is illegal and contrary to the Constitution. While it is true that a person may be interrogated after he has been arrested (or even without being arrested at all), what is quite clear is that the desire to interrogate him cannot be put forward as the justification for his arrest. Section 52 of the Act permits a person who has been lawfully arrested under section 30 to be questioned in respect of the matters specified in that section and makes it an offence to refuse to give the information sought or to give information which is false or misleading. No such obligation is placed upon any person who has not been lawfully arrested.

It is further to be noted that section 30 of the Offences Against the State Act 1939 expressly provides that

a suspected person arrested in accordance with the provisions of that section must before the expiration of the period specified in the section be either released or charged before the District Court or the Special Criminal Court, thus emphasising that even under that Act the purpose of arresting people is for the purpose of charging them before a court.

If Mr. Justice Walsh can speak of section 30 of the Offences Against the State Act and uphold it in the terms of his judgment here, why cannot a court also uphold section 4 of this Bill which is drafted on the same basis of reasonable cause, arrest, on reasonable cause and proceed then to questioning on specific offences? That is the basis of what we are doing here. It is necessary to give that power to the Garda Síochána, to remove doubt about what they are doing now between the period of arrest and charge, to remove doubt about the inadmissibility or admissibility of statements which are gathered during this period, and to remove doubt also from the courts. If that leads to difficulties of trials within trials I do not think it will lead to any greater difficulty than is the experience under the Offences Against the State Act at the moment. That is the first thing I would like to say of a general nature.

Mr. O'Leary

But more extensive.

Mr. Noonan

(Limerick East): That is a fair point. The second thing I would like to say is that I accept, and I accepted when we were talking earlier about amendments, that it would help the Seanad if they had a complaints procedure before them and if they had the regulations before them. There are difficulties in anything a Minister tries to do, and progress, while it is thorough, is reasonably slow. I have here the first draft of the regulations. It runs to 40 pages. It is not appropriate that that kind of detailed regulations should be in as part of the Bill.

There is a whole series of things that is proper and right and practical to perform by statutory regulation rather than by primary legislation, and that is the course I am following. I cannot bring regulations into force until there is a Bill, because the regulations depend on the Bill having passed both Houses. That is the first draft. The complaints procedure is at the stage where I am expecting a final draft very shortly. The Seanad will be seeing a lot of me over the next couple of months.

Mrs. Honan

On 24 May the Minister said it was with the Government. It has taken a long time to come from the Government.

Mr. Noonan

(Limerick East): It takes a long time to draft. That is the normal procedure. The Government sanction the heads of a Bill and then it goes to the Attorney General's Office and translating from the heads into a Bill is a slow and detailed process. It has been thoroughly processed over the summer period. It is at final draft stage now.

Senator Robinson commenced by talking about the desirability of having a list of offences. I dealt with that previously when Senator O'Leary proposed his amendment. She was as concerned as other Senators were about the link between subsections (1) and (2) and the possibility that new powers of arrest were being granted under subsection (2). I do not believe they are. I said I will examine the point that Senator O'Leary made on his amendment.

It is also appropriate to point out at this stage that, as a package of legislation which will be coming before the Houses, any one element of which should not be seen in isolation, this Bill is the first instalment. The complaints procedure and the regulations can be seen as items 2 and 3. Then there is the Criminal Law Bill. Senators in the legal profession will understand the difficulties of the distinction between misdemeanours and felonies. If I bring in a Criminal Law Bill, as I intend to in this session, abolish the distinction between misdemeanours and felonies obviously that will have an effect on the powers of arrest without warrant, because there are no powers of arrest without warrant for misdemeanours. Senators are raising points about the connection that they see between subsections (1) and (2). This will become a larger issue when we will be looking at a codifying of powers of arrest under the Criminal Law Bill. For the purposes of this Bill, I will have that examined. If the fears which Senators have expressed prove to have foundation or if a doubt is raised, then we will remove that doubt from this Bill.

Senator Robinson asked about the form of caution. It is necessary to change the form of caution. I am trying to find the note I have on that.

Mrs. Robinson

The caution did not fall to the floor, did it?

Mr. Noonan

(Limerick East): It did actually, but it bounced. There will be some additional caution required under the Judges' Rules. There might have to be some addition to it to indicate that a person might be detained as well. This is a matter which we are studying with the regulations and we can cover it there.

Regarding the question raised by Senator Robinson about telling a person how long he will be detained, I do not think we will be able to meet that point. If somebody is cautioned that they will be detained, in the first instance there will be a caution that they may be detained for a period of six hours. The clock will begin to run from the time of a person's arrest. From the time a person is taken to a Garda station, all the form filling and preliminaries are gone through, the decision of the member in charge to detain and so on is made, the clock is running. The first period of detention will be much shorter than six hours in terms of detention. We should see it in that light as well.

Many of the Garda stations around the country are not suitable for detaining people. There is no intention of detaining people in small Garda stations in villages around the country. We discussed that when an amendment was moved in the Dáil which made it clear that a person could be arrested and moved from a very small Garda station to a larger station which would be properly equipped. We are talking about four or five Garda stations in a division. I gave examples yesterday. Take County Kerry, for instance, that is a division. You could envisage Garda stations in Tralee, Killarney, Castleisland or Kenmare. There are good buildings there and proper accommodation. One would be able to record electronically in these stations.

Senator Durcan inquired if I envisaged a number of detention centres around the country. "Detention centres all around the country" is a fairly emotive term. What I envisage is a number of properly equipped Garda stations where people can be kept and have rest periods in reasonable comfort, where the accommodation is good and appropriate to citizens who are brought in for questioning by the Garda Síochána. It is in that sense that Senators should see the practical situation.

The clock begins to run from the time of arrest. If somebody is arrested initially in an outlying district and has to be driven to a place which is an hour away, then that is an hour subtracted from the first module of six hours. If it takes another hour or half hour to go through the proceedings in the Garda station before actually coming to the point of questioning, quite a reasonable amount of time could have elapsed.

A number of Senators expressed unease about the provision for the extension of the period. I will put it this way. The decision initially was that the Garda would require about 12 hours. The idea of breaking it up into six hours plus six hours and have a superintendent, or as it was originally a chief superintendent, to authorise the second module was to have a safeguard so that people would not be kept for 12 hours on all occasions. For that reason, this break into six hours plus six hours was put in.

Senator Ryan was anxious to come back to this on Report Stage and I would like to hear his views. Certainly it would not be at the whim of a superintendent. Senator Durcan said it could be a superintendent anywhere and he might be at the other side of the country on a long distance telephone call or perhaps out of the country. The point about it is that there is an objective test as to whether it was reasonable. It would be difficult to justify, if there are local superintendents, the reasonableness of the action of contacting somebody who is a 100 miles away and then the reasonableness of his making the decision if there were other people on the spot to make it. In any legislation it is possible to take an extreme example and bring it to centre stage for examination. That is a good idea here because it is by examining the most extreme possibility that one grasps the extent of the Bill.

A number of Senators, especially Senator Robinson, asked about the phrase in subsection (4), that is, in relation to authorisation apart from this Act, where somebody is being released and then there is the saving clause "can be held". The possibility of a bench warrant existing for somebody's arrest is the point at issue there. This would be brought to the notice of the Garda. If they had decided that a person was not involved in the offence they were questioning him about and were releasing him and then got notice of a bench warrant, the person could be detained on foot of that. That is what is meant there. It is not a reference to the Offences Against the State Act. That is dealt with in a subsequent section.

The Senator asked what protection there was for a person who was being questioned about one offence and said something that could implicate him in another offence and the Garda proceeded in the six hour or 12 hour time module to ask about the second offence which came up in conversation even though it was not the offence which had caused the original arrest. There would have to be a caution of some kind there. That is the law. It would be necessary to caution the person that there was a danger of him incriminating himself about the second offence. That is part of existing law and it is not necessary to put it into the Bill.

Senator Robinson also asked about access to a doctor. Other Senators remarked on this as well. The present regulations cover access to a doctor and will be incorporated in the new statutory regulations. As regards the garda being the initiator in calling medical attention or sending somebody to a doctor or to hospital, it is very difficult to switch the balance around and say that it should be in the hands of the detained person. If that was the situation, the experienced criminal, especially, would look for medical attention on every occasion to avoid detention in the Garda station and to avoid questioning by the Garda. It is covered at present by regulation. Offhand I know of only one case in which it was an issue in recent years. When people are in detention and look for medical attention, the Garda are very careful to make sure that they get medical attention and one can see why. If somebody is ill or has a medical problem while in detention the Garda are very quick to get medical attention. They are very cautious about that.

Senators Robinson, Durcan and Ryan and others spoke about the member in charge of the station being the person who could suspend the questioning at 12 o'clock. It is worth saying that the norm would be the suspension of questioning. As a result of particular decisions in court and because of the idea of oppressive behaviour towards detainees, in normal circumstances the Garda will not question somebody after 12 o'clock at night. They are instructed not to do so because of the risk of statements made after midnight being deemed inadmissible in court. When one sees the section in that light, it is a different situation. We have had the arguments about the age of 12 again. I dealt with them last night.

Mr. B. Ryan

The Minister did not.

Mr. Noonan

(Limerick East): I did. At present we will agree to disagree because there are two points of view and I cannot get agreement from the Senators who are contributing to the debate here to agree with me. The question of medical attention has been dealt with by me. Senator Robinson asked about removing malicious damage to property from the schedule of offences in section 30. I will look at that, but I am not giving a commitment to change it. I can see particular difficulties that arise but there will also be particular difficulties if we remove it. This brings me to Senator Higgins's point. Because there is a schedule of offences on section 30 and because there is a five-year formula in section 4 of this Bill there is this particular choice element to which the Senator referred, or, at least, there appears to be. The Garda would be instructed that the Offences Against the State Act would be applied to those crimes which have a subversive relationship, if I may put it that way, and that would be the way in which it could operate. Because there are two parallel pieces of legislation which are, in the case of the Offences Against the State Act, part of our permanent law and in the case of this legislation operational for at least 4 years, there is this particular situation. There are particular crimes which are associated with the Offences Against the State Act where those involved in them are suspected of being members of subversive organisations.

Senator Robinson and Senator McGuinness asked about the limit on the power to put questions and if people were being questioned about a particular situation and they refused the first time to answer, why would the Garda continue questioning and why would the people not be released. First of all, in the investigation of crime the Garda should put questions to people who are detained and they should put questions in a particular way. They should attempt to get the persons to tell them their position and to check out stories. As well as that, in the Garda station there are facilities for gathering forensic evidence, photographing, palmprinting and so on. That is another reason for the detention provisions. There is also the opportunity to check out alibis, to get a search warrant to search for stolen property and so on. It would be wrong to envisage periods of detention which would consist of questioning and continual questioning and that there would be no other Garda activity, such as searching for circumstantial evidence, direct evidence, specific evidence to tie somebody into a particular crime.

A number of Senators referred to section 27 regarding electronic recording and wondered why I had included in the provision "or elsewhere". I put it in specifically to cover situations and to enable me to deal with any problem which might arise if people were being questioned in places other than Garda stations. It is a kind of saving clause for a Minister so that he is not restricted subsequently. One obvious example is if somebody is in hospital and it is deemed necessary to question him in hospital. There might be a risk to third parties, for example. You can get the dramatic example of a bomb having been placed somewhere and the detained person is the person who knows when it is going to go off and exactly which part of the building it is in. He is hurt and he is in hospital. I can envisage a situation where it would be appropriate to question him in hospital.

I can also envisage a situation where it might be appropriate to record that particular conversation in hospital if the practice had been established of recording the statements of people who were being detained. Also, in our short experience of electronic recordings since the publication of the Bill where we studied what has happened in other countries, in Scotland, for example, there seems to be an increase in the number of statements which are being made in police cars on the way to the station. I am not sure whether I can cover that situation or not. By having a phrase in such as "or elsewhere" the safeguard is not confined to the Garda station and, at least, it leaves the possibility open of dealing with problems which might arise in the application of the electronic recording.

Mr. O'Leary

The Minister is mentioning a fine body of men in the Scottish police force.

Mr. Noonan

(Limerick East): I did not mention the Scottish police force, I just told you one of the experiences of a committee I have set up when they began to research the pilot schemes in Scotland. Senator Eoin Ryan again referred to the ambiguity between subsections (1) and (2) on the powers of arrest and I have dealt with that. He is worried especially about the second six hours and he is thinking in terms of a possible amendment on Report Stage and I dealt with that. He was uneasy about the fact that the regulations are not available and I have indicated the position on the regulations at the moment.

Senator Michael D. Higgins had a very interesting contribution, which ranged very widely indeed. I understand his position. He is opposed to the section in principle and, I suppose quite rightly then, he did not concern himself so much with particular aspects of the section or particular phrases and subsections as with making a speech in opposition to the section as a whole. He talked about the public not giving assent to a provision such as this. That certainly is true in so far as it goes, but in any parliamentary democracy I do not think there is the kind of direct relationship between the lawmakers and those who elect them to make the law which seems to be contained in that remark. We do not have a situation where particular Bills are put to a referendum of the people. There is always the criticism that a Government or a Parliament or an Oireachtas have not a mandate to do a particular thing because it was not or it was a plank in their election programme.

All I can say is that the Bill as you see it had support of the three main parties in the other House and when it came to Fifth Stage and the proposition was put that the Bill would pass, when a vote was called there was only the party which has two members in the other House who were opposed. That degree of consensus is very important. I accept absolutely, when major changes are being made in the law, when major changes are being made in areas of law which affect the rights of individual citizens, that it is important that the Government should look for a lot more support than a mere majority of the electorate. I do not think one should attempt to split people on serious matters into percentages of 51 per cent and 49 per cent. A far greater degree of consensus is necessary, especially for a country such as ours which is small and still reasonably homogeneous. That is important. We have succeeded in getting that balance and there is extensive support for the Bill.

An Leas-Chathaoirleach

After amendment, Minister.

Mr. Noonan

(Limerick East): Yes. That support has increased as a result of the amendments which, of course, I conceded quite willingly. Most of the significant amendments were brought in by me on Committee Stage. I took the position from the very start that I was prepared to amend after I heard the considered views both inside the other House and in the debate outside.

Mr. M. Higgins

You say that with becoming modesty.

Mr. Noonan

(Limerick East): I am a very modest person, Senator. The Senator also talked about anti-intellectualism and Senator McGuinness talked about this as well. She was worried that we would think she was an intellectual. I do not want to follow that argument. It is the nature of parliamentary democracy that people can bring professional expertise or experience of life to bear on debate. They are all valuable contributions and certainly I am not in the business of stigmatising or branding people because they have particular professional experience or because they take up a particular stance on legislation. Senator Higgins talked about there being no urban experience in these Houses. I will take him up on that because I think there is. There are a number of Members of both Houses who have urban experience, who represent urban constituencies, who were born and reared in urban areas and have insights and they gave those insights in the debate in the other House. I have dealt with the relationship between this and the Offences Against the State Act, the Schedule and so on.

I have another note here which says "cut across other measures" but I cannot decipher it. Is there a point I missed?

Mr. M. Higgins

What about the community options?

Mr. Noonan

(Limerick East): Yes, that is a risk. If one tries to move in a number of areas at once to solve any particular problem, the initiatives one takes cancel each other. That is a problem I am aware of. I do not agree this initiative cuts across the idea of community policing.

Mr. M. Higgins

Juvenile liaison?

Mr. Noonan

(Limerick East): I do not think it cuts across the juvenile liaison scheme either. My position on the age to which this section should apply was that we would have been better off if we simply left it at the age of criminal responsibility, because the experience is that the Garda have always treated young people, up to 14 and 15 years of age, with care and respect and many of them are being dealt with under the juvenile liaison scheme informally. The experience is there of bringing people into Garda stations and sending for their parents or guardians. The statistics read out last night show how few people under 14 years are brought before the courts. As well as indicating the small number of people under 14 years who are convicted, they indicate something else as well. They indicate that the presumption of innocence of people under 14 years weighs heavily on the Garda and the rigours of the law are not enforced by the Garda Síochána on the young people who are at risk with the law and cut across the law. There will be a very small minority of young people to whom these provisions will apply. I presume, hope and trust that the Garda will do it in a caring way.

As I said last night, if in the subsequent debate on the Children Bill the Houses of the Oireachtas decide on an age above 12 years for the age of criminal responsibility — if it becomes 13, 14 or 15 years — so be it, then section 4 will not apply below that age because it cannot do so. What we are doing is highly unusual — we are putting in an age clause. I do not know of any precedent where any Minister amending the criminal law put in an age clause and said that it would apply down the age league and not go down to the age of criminal responsibility. If I was not absolutely confident that the age of criminal responsibility is going to be changed and moved upwards, this would be a peculiar kind of precedent which might put subsequent Ministers in difficulty. I am explaining my position. I am not looking for the agreement of Senators who I know are opposed to me on this ground.

I am very appreciative of what Senator Higgins said about the juvenile liaison scheme. I, like Senator Higgins, hope it will not be selectively applied. I would absolutely deplore a situation where one particular group, category or cohort of young people would be dealt with under section 4 of this Bill and another category would be dealt with under the juvenile liaison scheme. That is not the intention and the experience of the way the Garda operate the juvenile liaison scheme would indicate that we need not fear that, but I think it is worth saying.

The Senator made a point about the Constitution, the courts and so on and I dealt with that in my initial remarks. He also talked about Garda criticism. He talked about certain members of the Garda Síochána making rather extreme statements about the changes in the law they felt were necessary. I would make a distinction between individual members of the Garda, no matter what their rank, and members of the Garda Síochána who were representing a particular organisation, whether it would be the Garda Representative Body or the Association of Garda Sergeants and Inspectors. Personally I thought that the criticism of the amendments I produced on Committee Stage, which were published just prior to the conference of the Association of the Garda Sergeants and Inspectors, came in for a rather extreme from of criticism and I remarked on that at the time but I understand why it was done. The Garda association as distinct from the individual member of the Garda Síochána would have seen a situation where there were organised groups looking to defeat the Bill or looking for, as they would put it, the watering down of the Bill. They would have seen themselves as an organised group who wanted the Bill to go through. In the public statements of those who wanted to defeat the Bill and those who wanted the Bill to go through there was a tendency to take up extreme positions, even though privately they were reasonably happy with the amendments and privately there was a very large measure of consensus achieved.

Senator McGuinness mentioned other reasons for holding a person except for questioning. I have dealt with that. She talked about detention not being a deterrent. It is not intended to be a deterrent. She went on to say that the best deterrent would be detection. The only reason why there is a detention period and the Garda are being given certain powers during that detention period is to enable them to detect crime. It is like the arguments about the prisons. We have a criminal justice system. We have law. People break the law. The Garda arrest the lawbreakers and have a case against them. They are taken to court. Persons are sentenced to prison. If they are sentenced to three or four years imprisonment and the State cannot implement that sentence, in my view the whole process is a meaningless exercise. The detection of crime and the fact that justice is done and seen to be done I think is a deterrent.

I agree with the Senators that detection is the deterrent but that is not to disagree with Senator O'Leary when he says that much of our resources might be used more effectively in crime prevention rather than crime detection but deterrent is a detection.

Senator Durcan has agreed to the principle of the section only. I would like to thank him for supporting it. He talks about "reasonable cause" and "reasonable grounds" and the difference between them, The advice I got was that the phrase "arrest without warrant... with reasonable cause" is the nearest we can get to the common law power which the Garda have at the moment to arrest without warrant and that the situation of the member in charge and of the superintendent who is extending the detention period would be that of examining the matter and wondering whether there were reasonable grounds for doing what he wants to do. That is the reason why there is a difference there. The Senator is also worried about "at the time of a person's arrival" being the time when the member in charge of a station has to decide whether there are reasonable grounds for his detention. That was put in so as not to leave a loophole. The phrase "at the time of the person's arrival" the member in charge would make the decision. I envisage that he would take his time about making the decision and consider the situation, but if I put in "as soon as is practicable" or "after an hour" or "he has to do it in the first hour" we are allowing a time lag between the arrival of the person at the Garda station and the decision as to whether he is being detained. It is that kind of area of uncertainty that we are trying to get away from.

The Senator suggests that "as soon as is practicable" would be put in there and talked about this phrase being used in the Bill in a number of areas. It is a phrase which was criticised in the other House. People wanted to substitute "immediately" or "without delay" and various phrases like that but if we use something like "immediately" if there is a practical difficulty, how do we implement some thing immediately? The same problem arises with the phrase "without delay". At least "as soon as practicable" is a phrase which has been used in law and with which the court is familiar. The test of it is that it has to be done immediately if it is practical to do it immediately.

Mr. Durcan

Why not include it?

Mr. Noonan

(Limerick East): I will look at that. If I had moved such an amendment in the other House it would have been seen as an attempt to have some kind of time lag when a person arrived at the Garda station and was in a kind of limbo, not knowing whether he was arrested to be charged or whether he was going to be detained, and there would be this kind of interval which would not be to the benefit of the detained person. I will examine that if the Seanad wishes.

A question as to who was the member in charge of a station was raised and the Senator quite rightly pointed out that there are still one-man Garda stations around the country where in effect the person arresting could also be the member in charge if there is only one garda in the area. In the case of the smaller Garda stations it will be possible that a young garda will be in charge of the station and another garda will be out on the beat. I have cleared that up by pointing out the intention of how it should operate and that detention should take place in the well-equipped Garda stations, three or four in a division, rather than in every one of the small Garda stations.

The extension of the period of six hours was mentioned and I have referred to that and to the rest period. I have dealt with the question of medical attention. The requirement that the person be informed in ordinary language of his rights is in sections 15 and 16 of the Bill, and I will examine it in the context in which the Senator remarked on it.

I am very glad of Senator Honan's contribution. She is genuinely worried about section 4. She need not be. She is speaking as somebody who has reared children and is worried about the effect that this would have on children, and we have gone through that on a number of occasions. She said that the Garda say they have the power in present legislation, if they were only allowed to use it. That is not so. The Garda probably said that they have this power of arrest without warrant, that there is no requirement on them to take somebody immediately and charge him before a district justice or peace commissioner, and that there is this period of indeterminate length when they are not sure where they stand or whether statements made in that period will be admissible in evidence. The Garda say that they want this regularised and put beyond doubt.

Senator Honan in talking about children or young people in detention proceeded as if their parents or guardians would not be present. There is a requirement in law which I quoted yesterday that the parent or guardian would be contacted and would be present. She made the valid point that in some home circumstances either the parent would not be available to come to the Garda station or, to put it bluntly, would not bother to come and the child then would be on his or her own. We will have to examine that in the regulations and see if it would be possible to have a fail-safe provision there where an adult relative would be an appropriate person to come to the Garda station. I share her concern that a young person — somebody under 17 years of age; that is what I am talking about in the Bill — would not be questioned by gardaí without the presence of another adult there.

Senator Robinson referred to section 4 (11). This proviso was incluced as a precaution to ensure that any other powers that are exercisable in relation to offences other than section 4 offences will not be affected by the specific provisions in section 4. These provisions are designed to ensure that for section 4 offences a person may be lawfully detained after arrest for up to 12 hours and may be questioned or the offence otherwise investigated during that period. It might be argued that by making no provision at all for such a period after arrest in the case of other offences there is an implication that for those offences the arrested person cannot be kept in Garda custody for any period but must be brought before a peace commissioner or a district justice immediately. At present the requirement to do this is "with reasonable expedition" and clearly a fair amount of flexibility is necessary in meeting the requirements so as to get this reasonable expedition, which was the phrase used in the court case which established the procedure here.

I think I have covered everything that I have to hand at this stage. I am sure there are other questions that Senators want to raise.

Mr. B. Ryan

In my previous contribution Members will recall that I concentrated exclusively on the question of reasonable cause, and what the Minister had to say then and subsequently has not reassured me in the least. There will be a fairly close scrutiny of the justification of reasonable cause where somebody is brought before the courts. There is no argument about that. Where somebody is brought before the courts there will be no problem. Quite often, presumably, when the Garda have sufficient evidence to charge somebody they can quite truthfully demonstrate reasonable cause for the initial detention and for the search under the Offences Against the State Act. What the Minister has singularly failed to address himself to most of the time during this debate and what we have raised over and over again is the vast number of people who under both the search clauses and the detention clauses of the Offences Against the State Act are not charged. How can the Minister give me or this House any assurance that people will be detained and not charged in a way which is unlawful but which simplifies some investigation for the Garda or just enables them to keep tabs on people when it is suitable? The standard reply is that they have the courts to deal with these matters, but the truth, from my experience, is that most people who have the frightening experience of being held in Garda custody or searched by gardaí are too frightened, disturbed and perturbed to want to do anything other than forget about the whole thing and keep away from it. The number of people who have made complaints to me about abuses of sections 29 and 30 is quite substantial. The number of them who are prepared to pursue it is quite small, largely because they suspect that if they pursue it they are liable at some stage to come under the same sort of scrutiny again. Therefore, it is not good enough to say that the admissibility of statements issued will be subject to check. It is the large number of those detained who, the Minister concedes will not come before the courts, that I am concerned about.

Strangely enough, notwithstanding some of the abuse to the contrary, most of us here are concerned about the victims of crime. We are concerned that people who commit serious crime should come before the courts so that society can protect itself, but we are also concerned that in a slightly hysterical attempt to satisfy public opinion many innocent people will be threatened. There is an interesting irony in the astonishing contrast in my relatively brief legislative experience between what I have learned about the elaborate process which we must go through in order to deprive a person of a quarter of an acre of land in the interests of the community — which usually takes between seven and nine years under compulsory purchase procedures — and the fact that we propose to give every single garda the right, at least temporarily, to deprive anybody of his liberty because the garda is of the opinion that somebody has committed an offence. I stand over that until the Minister can give me some assurance about it. This will operate for many innocent people when a garda thinks that somebody did something irrespective of whether there is any of this alleged external evidence.

I am not implying bad faith on the Minister's part. I am implying that he is poorly informed and that for good reasons he wants to leave and ignore a large section of the problems that many of us identify with the Offences Against the State Act without too much scrutiny. For instance, I asked him if, in the case of an arrest being made on the basis of information received, the gardaí will continue to claim privilege in court if there is an attempt to determine whether the Garda had reasonable cause. They have done so traditionally and will they continue to do so? If so, the court is simply left with the opinion of a garda based on information received, the source of which he is not prepared to disclose. That seems to have been accepted as reasonable cause in the past. If that is the case then the whole assertion by the Minister that this reasonable cause is subject to some sort of external scrutiny is nonsense. It will simply mean that the Garda can say that they had information and it could be anything from an anonymous telephone call to information from somebody whom they could trust. I appreciate the problems involved and it is because I do that I have put it to the Minister that the whole question of reasonable cause is inadequately covered in this Bill. If this section, which I find quite loathesome, is to be operated in the manner in which the Minister feels it should be operated the whole question of reasonable cause has to be elaborated upon. It has not been and that is quite unsatisfactory.

The Minister referred to the conditions for detention. Am I to believe, therefore, that people in this city are not going to be detained in the Bridewell for questioning because it is manifestly unsuitable. From personal experience recently — I do not want to go through what I had to say about the Reagan visit again — I know what the conditions in the Bridewell are like. To suggest that innocent people could be detained for the perfectly lawful reasons that the Minister suggests they would be detained for in conditions like that is, of course, to brand them as criminals effectively. To detain any innocent person in the conditions that prevail in the Bridewell is to impose a stigma upon them apart from the personal trauma involved. I do not believe the accommodation exists and I doubt if there are any plans to make the accommodation available. I believe many innocent people will end up there. Ann Joyce of the travelling community has a fairly colourful account of her experience of being detained in the Bridewell.

On a number of occasions I have referred to one of the more astonishing facts about this debate and because it has come up again, I want to repeat it. A large number of Members of this House, and the other House, have been eloquent in here in their defence of the Garda Síochána and in their assertion of what a fine force they are. Most of us will agree that the majority of the gardaí are very fine people doing an enormous amount of useful work. It has been quite scandalous that outside of this House the Garda having been left to bat on their own about this legislation while all their brave defenders in here have kept a quite extraordinary silence outside where they might have to argue with some of us about it. They have left the Garda to defend this legislation without any public support from any backbench Members of both sides in this House or the other House who so bravely defend them in here in fairly hot-house conditions. I am amazed at the number of times that I had to debate on this issue where there was a Garda representative to defend the Bill, myself to criticise it and no public representative available from a large region prepared to defend the Bill. It is a betrayal of people and it shows a certain hypocrisy to preach about the Garda and about what the people think of them and not be prepared to come to their defence in an intelligent, democratic debate.

I am still extremely worried about the social prejudices that understandably but, nevertheless, realistically exist among the Garda. I have quoted twice the comments of a senior Garda officer about travellers and crime. It appears to me that since that person is a superintendent he has already made up his mind that whenever there is a crime in that area there is reasonable cause to suspect a traveller of being involved in it without any further investigation. I do not think he will have any problem about authorising any of the necessary procedures under this Bill.

I have mentioned already what happened to a prominent traveller who was arrested on serious charges. First of all, the charges were adjourned, then the charges were reduced and then withdrawn. I know that she has neither the resources nor the will to pursue that through the courts but the fact is that prejudice does exist. That is quite reasonable and is not an attack on the Garda. It is a criticism of Irish society that such prejudices exist.

An Leas-Chathaoirleach

We are still on section 4, and at this stage I would ask the Senator not to swing into a Second Stage speech.

Mr. B. Ryan

I do not intend it to be a Second Stage speech.

An Leas-Chathaoirleach

I do not know about the Senator but I am getting tired.

Mr. B. Ryan

I am still talking about the inadequacy of the definition of "reasonable cause" and my belief as to how it will be interpreted. I wish to make a brief quote on the question of prejudice from The Irish Times, 27 September 1984. There is a report of a rather distressing case involving an elderly lady. There is a quote from a Garda spokesman to the effect that the raiders were not “run of the mill gougers” but were well dressed and well spoken. That article articulates a certain prejudice. It behoves the Minister either through regulation or otherwise to indicate that that particular form of prejudice must be adverted to and avoided in the operations of our police force.

A matter that has not been discussed and should be discussed here is the profound apprehension that members of the gay community — practising homosexuals here — have expressed about the operation of this Bill. There was a very benign and healthy attitude towards people of a homosexual orientation here until the time of a recent murder case. Then the same community were frightened out of their wits by the way they were treated. They feel extremely vulnerable because of the possibility that this Bill presents for their community, bearing in mind the existence of the nineteenth century Act. I may be under a misapprehension. Senator O'Leary and I were trying to find out if that particular offence is an offence for which people can be arrested without warrant. If it is not, then a considerable part of their fears may be allayed. If it is, the Minister could do something about it in his forthcoming Criminal Law Bill or in some other legislation which at least would ensure that is not an offence for which people can be arrested without warrant.

In talking about arrest without warrant, the Minister did a very poor job in explaining this idea that there are no new powers of arrest. It took Senator O'Leary to clarify to me in the ante-room yesterday after nine months what precisely the Minister meant by the statement that there are no new powers to arrest without warrant. I do not think I am stupid and it did not get through to me until yesterday what precisely was intended. Up to yesterday I assumed that for every offence carrying a five-year sentence or more, irrespective of anything else, a person could be arrested and detained. That was my bona fide understanding until yesterday afternoon outside in the Seanad.

The remainder of my contribution will be brief.

An Leas-Chathaoirleach

The Senator's idea of briefness differs a little from mine.

Mr. B. Ryan

My ideas and those of the Leas-Chathaoirleach differ in many ways.

An Leas-Chathaoirleach

On everything.

Mr. O'Leary

Except section 4.

Mr. B. Ryan

We will test that shortly. I am probably more than anything else revolted by the provisions that would allow a 13 year old girl to be detained overnight in a Garda station and to be offered to be allowed to sleep there. I choose a 13 year old girl because 13 year-old children are the most vulnerable groups.

Mr. Noonan

(Limerick East): It is also the most emotive example the Senator can think of.

Mr. B. Ryan

Will the Minister assure me that it will not happen if it is so emotive? The Minister has picked emotive examples occasionally to justify some of his own fairly unusual possibilities which he has used to justify some ambiguities. I find it quite revolting. The Minister has stated that he does not agree with us but on this particular issue he has been singularly unsatisfactory in his justifications for that insistence. The age of criminal responsibility has nothing to do with it. Juvenile crime has nothing to do with it. We all believe that there is a problem of juvenile crime. The issue is, why should it be that in our response to juvenile crime, the power to detain children in a Garda station is either necessary or justifiable. I find both unsatisfactory and, with respect to the Minister, I find it profoundly uncivilised. Children are special irrespective of whether they behave properly or not. Children are different from adults irrespective of whether they behave properly or not.

This Bill singularly lacks that sort of respect for children. The provisions that are there are inadequate. In a society which provides no proper accommodation for homeless children, no proper treatment facilities for young drug addicts, we are, apparently, prepared at the same time to contemplate detention of young children overnight in Garda stations on the basis of a formula of request and approval which a semi-illiterate homeless 13 year-old person would not even remotely begin to understand. There are homeless children whose parents they do not know and are not available. It is to those homeless children, incidentally, that large numbers of crimes are frequently attributed by the Garda. The usual media reference is to itinerant children, because to describe them for what they are, homeless children, is, in fact, to win sympathy for them, which is what they deserve. The less attractive term "itinerant" is used instead. Homeless children have no contact with their parents. A large number of offences are attributed to them. Are they or are they not going to be questioned? Are they or are they not going to be detained under the powers of this Bill? If they are, then it is a mark of a profound lack of civilisation in our society. I remain inexorably opposed to this section.

Mrs. Robinson

I welcome very much the Minister's indication that he will examine the scheduling of the Malicious Damages Act under the Offences Against the State Act, which enables a person to be arrested and detained under section 30 of that Act. It is very desirable that the Minister would give this urgent examination. The position would be very undesirable if, in a very wide range of offences relating to property and damage to property of one sort or another in the 1861 Act, there was discretion whether to move by arresting without warrant and detaining under section 4 or arresting and detaining under section 30 with the possibility of a maximum 48 hours detention.

The Minister has implied that he would direct, urge or suggest that section 30 of the Offences Against the State Act be confined to subversive crimes. That is not the position at present and the Minister will have to acknowledge that. Again, we do not have the empirical data to see the extent to which it is not the position. Section 30 has been used where there is no connotation that the activity is subversive or that the person carrying out the activity is a member of an unlawful organisation. I said already when making this point that there is a strongly held view that section 30 has been stretched in this way because of the absence of a power to detain such as that contained in section 4. The scheduling of a whole Act is over-stretching what was intended under the Offences Against the State Act. It has never been challenged as such. Having the capacity to schedule an entire piece of legislation containing numerous different offences was a very wide casting of the net enabling a very broad exercise of a power to arrest and detain under that section.

That is one of the reasons why we have what is an unacceptable lack of proportion between those arrested and detained under section 30 and those subsequently charged. Approximately 90 per cent of those arrested and detained are not charged subsequently. Therefore, that issue seems to be one of urgency and I welcome the fact that the Minister is going to look at it. I hope when he has examined it that he will conclude that it is not necessary to schedule the whole Act, that it does leave itself open to another kind of possible abuse, of discretion by the Garda in using the greater powers to detain under section 30 where they should have been arresting without warrant and detaining under section 4.

Mr. Noonan

(Limerick East): I would like to reply briefly to the points made. I compliment Senator Brendan Ryan on his great love and concern for children, which is far more elevated and in far greater proportion than that of the Minister. Maybe at some stage the Minister will also achieve that level of concern for children.

Mr. B. Ryan

That is very unworthy of the Minister.

Mr. Noonan

(Limerick East): The Senator's remarks were equally unworthy. I commented on the Offences Against the State Act last night and today but if Senators want me to go over the ground again I will do so. I am glad that we have the Offences Against the State Act in this country. I am also glad we have section 30. I have no intention, apart from in one particular area which Senator Robinson referred to, of contemplating any change in it. We have an organisation who have publicly stated that they are going to subvert this State with the Armalite in one hand and the ballot paper in the other. I am glad that we have the Offences Against the State Act to deal with them. I could quote case after case where members of one or other of these organisations have murdered, kidnapped, robbed and have not hesitated to shoot gardaí or innocent members of the public while they went about these activities. I do not have to remind Senators of what they do with the money they get from robberies or other crimes. We need only look at the news from Northern Ireland and we can thank our lucky stars that we have the Offences Against the State Act and section 30.

On the question of the number of people arrested under section 30, I have said frequently that it is arguable that some people arrested under section 30 would not be arrested under that section if the Garda had other powers of detention such as those they are being supplied with under this Bill. The vast majority of people arrested under the provisions of section 30 are members who are involved with a subversive organisation, and particularly with one particular subversive organisation. The major reason why the statistics show that many of them are released without charge is not that they have no involvement or because they have no information about subversive crime, it is because they are trained on how to resist Garda questioning. They walk out of the Garda stations smirking at the gardaí after they had put their eyes on a particular spot on the wall inside the station while the gardaí asked them questions. These things need to be said also. If Senators want to have a debate on section 30, I will oblige the Seanad.

On the question of the great concern about the detention of children, we have gone over that ground frequently. Now we have the most emotive example that Senator Ryan could think of, the 13 year old girl, that will appeal to every parent who hears him. The situation at present is that under section 30, a 13 year old girl can be held in a Garda station for 48 hours. Under the common law provisions of arrest a 13 year old girl can be brought to a Garda station and held there while the Garda are looking for her parents or guardian. If a 13 year old girl runs away from home — and many do for a variety of reason — they could end up in a Garda station at night and for the whole night because that is the only place where they would not be at risk. That happens frequently. It is not because this Minister or this Government are introducing section 4 that the possibility of 13 year old girls being held in Garda stations overnight is suddenly opened as a major fear and worry for parents. I have consistently said on the question of children in relation to the Bill that the experience is that the Garda have been very solicitous in their care of children. Small children have come into the care of the Garda, not with any intention of cross-examining them to haul them before the courts, but to establish who they are and how they could be got home to their parents. That is the way gardaí have dealt with young people. We know young people are at risk. If children are in the streets at night or have run away from home, or if they are the victims of drug abuse, the Garda have looked after them. I deplore the kind of attack that has been made by Senator Ryan here.

Mr. B. Ryan

I never attacked the Garda.

Mr. Noonan

(Limerick East): The Senator attacked the Minister.

Mr. O'Leary

Our discussion on the section has probably outlived its usefulness. I have a few questions to put to the Minister and I ask them without emotion. I would be very anxious to know whether the Minister would answer them in the same way. The Minister says that 90 per cent of the people who are detained under section 30 are released without charge and that arises because they are trained. If they were not trained therefore, a greater number would be charged. Can the Minister answer one simple question? What improvement in the detection rate will be brought about as a result of section 4? We know what the detection rate is now. What will it go to? That is all I want the Minister to put on record in this House so that in four or five years time we can check.

We can take all the other things into account. We can take into account the way it has gone down gradually over the years. I want the Minister to put on record whether there will be a 5 per cent increase, or a 10 per cent increase, or a 25 per cent increase, or will it make no appreciable difference whatsoever. I would like the Minister to put that on record so that he and subsequent Ministers can be judged.

I would like the Minister to say what is the position if a person detained under section 4 says to a garda: "Leave me alone. I do not want to talk to you"? That is it. "Just leave me alone. Go away. Stop talking to me. I have fulfilled all the requirements under the Act and just stop talking to me." Would the Minister explain to us if in those circumstances questioning continues any statement given by the person subsequent to a statement like that can be voluntary? Those are the questions I would like the Minister to answer.

Mrs. McGuinness

The Minister referred to what I said about detection being a deterrent, I stand over that completely. In saying that I was making the same point that Senator O'Leary is bringing out. I found it difficult to believe that a very great difference in the rate of detection would be made by the operation of this section. I asked if the statistics that the Minister would be compiling with a view to surveying or reviewing the operation of the Act would bring out this matter of the increase or otherwise in the rate of detection.

The Minister has now said he feels that a number of people are being arrested under section 30 because the powers under section 4 are not now available. That is quite a logical statement by the Minister. I will be interested to see that whether that would be brought out in a review of this legislation, whether there would be a decrease in the number of people arrested under section 30 and released without charge, or people arrested under section 30 once section 4 comes into operation. I am inclined to feel that the thing will probably be cumulative. These are the kind of figures we will need in our review of the Act. I would like the Minister to tell us if this is the type of information he will bring before the Houses of the Oireachtas when reviewing the Act.

Mr. Noonan

(Limerick East): I would like to make two points. First of all, as I said when I was making my substantive reply on the powers being given under section 4, one of the main reasons for section 4 is that it removes the uncertainty of the present situation. The Garda are uncertain. There is a question about the admissibility or not of evidence. That is the first justification for section 4 — to remove the uncertainty and to make sure that the Garda know they are acting within the law when they question people and when they take statements from people and that the courts will know the Garda have acted within the law and that evidence can be admissible.

On Senator O'Leary's request for me to prognosticate on the increase in detection which will occur as a result of this provision, I think it is a silly question and it would be a silly Minister who would attempt to say the detection rates will go up from 32 per cent or 33 per cent or 43 per cent as a result of this provision.

Mr. O'Leary

Will they go up at all?

Mr. Noonan

(Limerick East): The Senator had his chance. What I have said is that it will remove the uncertainty. It will give the power to the Garda Síochána which they need and I believe it will help significantly in the detection of crime. Because of the connection which most people will agree I have established between detection and prevention of crime in response to a remark made by Senator McGuinness, it will also help in the prevention of crime. What was the second point?

Mr. O'Leary

The second point was what happens in the case of a person who says: "Leave me alone. I do not want to talk to you"?

Mr. Noonan

(Limerick East): Persons can exercise their right to silence and, as I explained to the House, that is what frequently occurs under section 30 of the Offences Against the State Act.

Mr. O'Leary

Can they be further questioned if they say that?

Mr. Noonan

(Limerick East): Yes, but they do not have to answer. I think I have dealt with the point raised by Senator McGuinness. What precisely is the concern?

Mrs. McGuinness

What I asked was would this be the kind of information that would be available when the time came to review the Act — changes in the rate of detection and changes in the number of people arrested under section 30?

Mr. Noonan

(Limerick East): I will be trying to get the fullest possible statistics, especially in relation to section 4. We are not reviewing section 30 in four years time. We are reviewing section 4 and other provisions of this Bill.

Mr. O'Leary

Finally, I must put on record the fact that the Minister has done a complete about face. The justification given for this provision all along was that it would increase the detection rate. I invited the Minister to speculate on what that would be. He does not think it is reasonable. I am entitled to say that, in those circumstances, we can only presume that it is not capable of being measured at this stage. It is as reasonable to think there will be no change in the detection rate as that it will be significantly increased. Consequently I must oppose section 4.

Mr. Noonan

(Limerick East): I should say I am not surprised that Senator O'Leary is opposing the section. I am surprised if he expects the House to believe that he is opposing the section because he finds my last answer unsatisfactory. No matter what one does in the area of law and order, whether it is community policing, or a juvenile liaison scheme, more gardaí in the streets, or anything else, how can anybody say what the increase in detection will be as a result of a particular measure? How can anybody say that? Various people advocate community policing. I ask Senator O'Leary how many crimes will be prevented and consequently not go into the statistics as a result of community policing in a particular area? He cannot answer that question. Nobody can. If we put another 500 gardaí in the streets in uniform, what will be their effect on prevention and their effect on detection? We can establish that there are the relationships and trends and that things will move in a certain direction, but to be looking for absolutes is not fair.

Mr. O'Leary

Will they move in a direction of more detection? That is all I am asking. Will there be more detection?

Mr. Noonan

(Limerick East): I have already said — and if the Senator wants to check the record I said it about a minute and a half ago — that I expected that there would be a significant increase in detection. I have said it already. I said it in reply to his original question.

Mr. B. Ryan

I will be brief. I am personally aware of the compassion and concern that the Garda show for children. It was never intended on my part that the Garda should be in any way maligned. I would never suggest that they would deliberately oppress children. I never intended that, and I did not say it. The Minister was a bit unfair. We are all a bit tired and short on the fuse. The reason I used the language I used is that I know this Minister to be a very humane and compassionate man. Most Members of this House have had ample evidence of that. Therefore, I find his defence of the detention powers for children very difficult to accept. I do not believe that an argument that such powers exist in some cases already is a justification for extending those powers. There is no logic in that argument. I did not and have not any reason to criticise the Garda for the way they deal with children by and large.

Question put.

The Committee divided: Tá, 27 7; Níl, 7.

Tá

• Belton, Luke.
• Browne, John.
• Bulbulia, Katharine.
• Burke, Ulick.
• Connor, John.
• Daly, Jack.
• de Brún, Séamus.
• Durcan, Patrick.
• FitzGerald, Alexis J.G.
• Fitzsimons, Jack.
• Harte, John.
• Higgins, Jim.
• Hillery, Brian.
• Honan, Tras.
• Howard, Michael.
• Howlin, Brendan.
• Kelleher, Peter.
• Kiely, Rory.
• Lanigan, Mick.
• Lynch, Michael.
• McAuliffe-Ennis, Helena.
• McDonald, Charlie.
• Mullooly, Brian.
• O'Brien, Andy.
• Quealy, Michael A.
• Ryan, Eoin.
• Smith, Michael.

Níl

• Higgins, Michael D.
• McGuinness, Catherine I.B.
• O'Leary, Sean.
• O'Mahony, Flor.
• Robinson, Mary T.W.
• Ross, Shane P.N.
• Ryan, Brendan.

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

Question declared carried.

Progress reported; Committee to sit again.