On section 5——
Criminal Justice Bill, 1983: Committee Stage (Resumed).
SECTION 5.
Question proposed: "That section 5 stand part of the Bill".
On a point of order, before the Senator commences, could we do something about the heat? The point was raised yesterday and I find the temperature rising. It is becoming quite uncomfortable, and I think other people share that view.
And you have not been in the bar?
I have not.
We will do something about the heat.
I would like on section 5 to ask the Minister for some information concerning one or two suggestions. This is a very important section, indeed. It is a section about the notification of detention and access to a solicitor. The first section deals with a person who is 17 years of age or more; the second with people who are under 17 years of age and the third section allows for the problems of definition which might arise. I am not particularly concerned with the distinction being drawn between those who are 17 and over and those who are under 17 years. In other words, it is the general power to which I want to draw the Minister's attention. The Minister because he has read the document carefully will be aware of paragraph 32 of the Ó Briain Report which I will now proceed to quote selectively for my own purposes. It says:
The exercise by arrested persons of the right of access to a Solicitor seems to have received less than the wholehearted co-operation of the Gardaí. It appears that investigating officers frequently feel that the inevitable consequences of allowing a suspect access to a Solicitor will be a direction to the client/suspect to say nothing in replying to Garda questions.
It goes on to say that the judgments of the American Supreme Court in Escobedo v. Illinois— and it gives the reference — and Miranda v. Arizona— and it gives the reference— indicates that the problem is a real and ubiquitous one.
The revision of the Judges' Rules carried out in England in 1964 gives express recognition in that country to the problem and to the police difficulty when it says in Appendix A to the revised Rules "Every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the process of investigation or the administration of justice by his doing so." The words which we have underlined indicate the possibility of the police fear being justified, i.e. that the introduction of a solicitor will tend to hinder what they regard as the process of investigation.
The Irish courts have had something to say on the right of access to legal powers. I am quoting in particular from page 387 of J.M. Kelly's The Irish Constitution, because that is a handy reference book. It deals with the case of The State (Harrington) v. Garvey. On page 387 it says:
...a prisoner sought habeas corpus on the grounds that while in custody under s. 2 of the Emergency Powers Act, he had been beaten up and had also been denied access to a solicitor; Finlay P. found both those allegations to be unfounded but said that
if he was assaulted, that would in law constitute an illegal act, making his entire detention unlawful and entitling him to be released;
and in regard to the alleged denial of access to a legal adviser said:
Having regard ... to the extreme importance of this right and to the major inroad on the liberty of the individual which its denial or restriction would involve, I am satisfied that, where a detained person is entitled to access to his legal adviser, this must be achieved in privacy and out of hearing of any member of the Garda Síochána.
Furthermore, I am satisfied that the right exists not only in a detained person, who has himself sought to exercise it, but also in a detained person on whose behalf a bona fide request for the availability of a legal adviser has been made.
This matter was discussed at length in the other House and gave rise to a most interesting discussion. Deputy Woods, the Opposition spokesman quoted from a judgment of Mr. Justice Finlay delivered on 24 February 1984. In the course of that judgment he makes the following statement when talking about a parent or guardian in respect of a young person:
The fact that a parent or guardian might advise a young person being questioned by the gardaí to say nothing does not constitute an obstruction of justice.
(Limerick East): I know that.
Putting those two points together I would like to emphasise to the Minister that while the matter has not been specifically considered, to my knowledge, I think it is a true statement of the law to say that when a person is entitled to the advice of and access to a solicitor, the very fact that a solicitor might advise him to say nothing is not an obstruction of justice. This was the core point in one of the amendments I had last night where instead of picking a solicitor because I felt it was not going to be practical, I picked other people to supervise the questioning. In the event of the Minister choosing a solicitor to supervise the questioning, the very fact that the solicitor would advise the person to say nothing would not be an obstruction.
Putting all these things together, what do I think of the section? I think the section is inadequate because it does not confer any additional right on the accused concerning access to a solicitor. It merely confirms and codifies the rights that have existed under the Constitution to which I have already referred —The State (Harrington) v. Garvey. One might say that is all right, but in this case we are going beyond the normal statutory provision. We are creating a new situation. We are creating a situation of detention for ordinary offences in a non-emergency situation and I think we should have a greater guarantee of access to a solicitor. As I suggested to the Minister in the discussion last night and in some of the discussions we had on various amendments — the Ó Briain Report having pointed out the fact that this right was being less than enthusiastically respected — a reasonable time should be allowed to elapse to enable the solicitor to attend. That is not in the Bill and in my opinion it should be.
I want to put on record that paragraph 55 of the Ó Briain Report in that regard is different from the Bill. As the Minister says, the Ó Briain Report is not holy writ but it is at least a reference point which he and I can use. I think the conclusions they arrived at, that the entitlement of the solicitor to attend at the investigation and the questioning, should be in the statute and so avoid the suggestion the Minister might make, because he made it in the other House, that this would give rise to a difficulty if the solicitor was not available. Even if it was only the right to be there from the time he arrived, it would be better than nothing. If he had to be informal at the start and even if there was no suspension of questioning — at the present when he arrives he is entitled to meet his client but he is not entitled to stay with him to the end although it was suggested in the Ó Briain Report that he should and I believe that — to that extent I think section 5 is deficient. Otherwise I think it satisfactorily achieves its own objectives internally.
I want to return to a point I raised on the Second Stage relating to the extension of the legal aid scheme to persons while in Garda custody. The Minister in his reply on Second Stage at column 448 of the Official Report of 20 September said:
In present financial circumstances I do not think there is a prospect of this. I would not see this as a priority. There are other ways of ensuring that we achieve what we all want to achieve.
In his reply I hope the Minister will clarify what he means by that. It seems to me that without legal aid for detainees the protection afforded by section 5 would be undermined. I am not satisfied that the plea of financial circumstances at this time is an adequate answer. After all, section 5 will apply pursuant to section 4, but section 4, in turn, is concerned only with persons arrested and detained in respect of offences which could result in a minimum penalty of five years' imprisonment. Surely the number of people falling into this category would not be very excessive and therefore would not impose a severe penalty on the Exchequer at this time.
My concern is that we should be vigilant to guard the interests of the innocent in particular, and as Members of the House we have a duty to prevent the possibility of an innocent person, particularly as I said at Second Stage, an inarticulate, frightened, poor, innocent person from being convicted. It may be just such a person who does not know his way around and who needs legal aid to secure the services of a solicitor. Such a person may not even know the name of a solicitor which he could give to the Garda, and furthermore such a person would likely not have the financial wherewithal to pay the solicitor even if he knew the name of a solicitor.
In principle, I welcome the statutory provision which places an olbigation on the Garda to notify a solicitor of somebody's detention but it has to be borne in mind that this obligation only commences when the detention commences. Somebody could be in custody for a considerable period of time before the detention becomes operative, even though it may operate retrospectively. For that reason, I am unhappy with the phrase I referred to earlier in relation to seciton 4, but it is a phrase used in section 5, that is, "as soon as practicable". In my view this is extremely loose. The Law Society in their submission to the Minister on this Bill as originally drafted made that very point. I reiterate that point here and ask the Minister to examine it carefully.
In view of our discussion on section 4 and the Minister's statement to the effect that certain Garda stations throughout the country would be used for the purpose of accommodating people for detention, and bearing in mind the fact that there would be — I do not want to use the emotive phrase "detention centres"— a limited number of Garda stations to which people can be brought, the Minister should examine and consider carefully the duty solicitor system suggested by various people in making submissions on this Bill. I do not accept, as some people seem to feel, that solicitors are so difficult to come by or that solicitors when called at unsocial hours will be unwilling to go to Garda barracks, but in many instances it will not be possible for somebody to get a solicitor. Therefore, the duty solicitor situation should be examined.
The phrase "as soon as practicable" when used in that context would seem to indicate that the effective notification of detention to a parent in respect of young persons would frequently be notification by such persons themselves. The person would probably be released from detention and would have the opportunity of notifying his parent, guardian or solicitor before it is practicable for the Garda to do so. I ask the Minister to look at that.
I wonder if Senator Durcan is correct in making a distinction between being in custody and being detained. I doubt if there is any justification——
I mean from the moment of arrest, in that detention operates retrospectively once the member in charge has decided.
Yes. I would not like hair-splitting about whether a person was in custody but not in detention and the situation where the garda was brought into a station but did not arrest him for a couple of hours until that time. Surely there is no distinction between the two. He is quite free to go or not to come until such time as the garda says, "I am arresting you because I suspect you of an offence and I propose to detain you under section 4".
I would submit that section 4 (3) (a) makes the distinction quite clear that the detention operates only when the member in charge makes his determination.
I see what the Senator means. Provided it relates back it is acceptable. I want to mention two points on this section. The first is the question of whether the regulations will provide that when a person is told that he may consult a solicitor and also that he may have somebody notified there will be a form or something of that kind provided which the garda can give him saying: "You are entitled to consult a solicitor and you are entitled to have somebody informed" and perhaps a space for entering the two names, and the person can sign to say that he acknowledges that. In one notable case in recent years a great deal of discussion and argument took place as to whether the accused was ever informed that he had the right to consult a solicitor. He denied that he ever was. The garda said he was. Having a form of this kind would not necessarily ensure that there could be no conflict. The detainee could say that he had never seen the form and did not know anything about it. Nevertheless, it would probably help to ensure that there was not that kind of conflict if the regulations provided for some kind of form which he would sign and on which if he wished to do so he could insert the names of the solicitor and next of kin or whoever he wanted notified.
The second thing is, what does "consult a solicitor" mean? Assuming the person says he wants a solicitor and the solicitor is brought to the Garda station, can the solicitor remain while the person is being questioned? If that is not the case the person detained can get around it by saying after every two or three questions, "This raises a point on which I want to consult my solicitor". If he is entitled to consult a solicitor it appears that he is entitled to consult him on any point that may arise in the course of the detention. It is the simplest thing to say that he may have the solicitor present. Alternatively, is it a fact that he may consult the solicitor perhaps every quarter of an hour or half an hour as different points arise upon which he feels he needs to have legal advice? I would like the Minister's view on these two questions.
Senator McGuinness, my apologies for not calling you the last time.
That is perfectly all right. Some of the questions I would have asked about the section have already been asked by Senator Durcan and Senator Eoin Ryan and I will not repeat these, but there is one matter. Earlier the Minister made reference to the possibility of referring to a responsible relative where a parent or guardian was not available. Would he in this context also be willing to consider providing, where a child or a young person did not appear to have a parent or legal guardian available, for that child or young person to name a responsible rleative? Would it be possible for that person to get in touch with this relative in similar circumstances?
I am trying to choose my words carefully. I do not want to start another row. The Minister in the Dáil, according to the Official Report of 6 June 1984, at column 199, Volume 351, asserted that he thought it would be unusual for a person not to know the name of a solicitor. I do not agree with him and I would put it as bluntly as this. Until I became involved in the mechanics of buying my own house I did not know any solicitor. I may be in that deprived section of the community that does not have access to the finest legal brains, but I did not know a solicitor. I think the Minister was mistaken on that. Either through the regulations he proposes to bring in or through whatever method he can devise, in order to make the spirit of this section become a reality some way must be worked out whereby people who do not know solicitors have some method of having access to a solicitor.
I do not believe that the mechanism for guaranteeing that is an appropriate subject for primary legislation. Everybody, including dissidents like me, agrees that there is no intention in this section to deprive people of the right to access to a solicitor, but it is like the old, hoary saying that the law is open to everybody, just like the doors of the Shelbourne Hotel, provided you can afford to pay for it. Many people do not know solicitors, and this important protection which exists there will be a nonsense for many people if some device is not worked out by which people can have access to a solicitor. I keep harping on this because it is important that in all areas like this those at the margin should be taken into consideration. I am not saying that nobody considers them but I am simply saying that they should be considered. I am thinking of the category I referred to before, homeless children. I am thinking of many people on the margins of society. They do not know solicitors. Some device must be found whereby those people are enabled to exercise the right which it is intended to give them under section 5.
(Limerick East): As Senator O'Leary pointed out, in a number of cases, and, principally, Harrington v. The Commissioner of the Garda Síochána and others, the constitutional right of access to a solicitor has been clearly established. This access is to be in private and out of the hearing of the Garda Síochána. That is established. What is being provided here is that there will be a statutory obligation on the Garda Síochána to inform the person in custody of this right. It was read before we debated it in the other House as the Bill conferring the right of access to a solicitor. The Bill does not do that or purport to do that because that right already esists. It is the right to be informed of the right which is being conferred here. For the people under 17 years of age who are unmarried it is the right of the parent or guardian to be informed and to be present.
Senator O'Leary, after establishing that, asked what is the nature of the access? It is in private and out of the hearing of the Garda Síochána. He raised a second point asking, would it not be reasonable for the Garda not to commence questioning until the parent or the guardian or the solicitor had arrived? Certainly, it is eminently reasonable in the case of the parent or the guardian. That is the situation that pertains at present. It is covered by Garda regulation and would be part of the statutory regulations. With regard to the idea of the solicitor being present I do not think that would be operable in practice. There are situations where a solicitor might not be available for an hour or an hour and a half. It would be unreasonable to put the Garda in a position where they could not take a statement from a person, even if it was voluntarily offered, during that period.
It would also be unreasonable to put a detained person in the situation where if he wanted to consult his solicitor and, at the same time he wanted to answer questions — for example, if he wanted to clear his name — he would have to wait. If, for example, the garda was mistaken in his reasonable cause for arresting him, if the person can clearly point out how he was mistaken and can clear himself it would not be reasonable then to have this delay mechanism whereby if he wants to consult his solicitor also he cannot proceed to clear himself at the first available opportunity.
On the question of the parent or guardian that Senator McGuinness raised, looking at the first draft of the new regulations there is a paragraph at the end of a long section dealing with people under 17 years of age which states that where the person is being questioned in the absence of a parent or guardian the member in charge shall, unless it is not practicable to do so, arrange that some responsible adult who is not a member of the Garda Síochána should be present during the interview.
That would cover a relative?
(Limerick East): That would cover the point the Senator is raising. That is the final piece of a long series of regulations which make it very clear that it would be the absolute exception to the exception that somebody would be questioned at all in the absence of a parent or guardian and it would only be in most extreme circumstances. There are a whole lot of checks and balances and procedures to go through, but in the final analysis I would be happier if there was no situation where a person under 17 years of age was being questioned without an adult being present. If the parent or guardian could not attend, or would not attend, then this provision for the responsible adult is something I would want. What I am quoting from is the first draft of the statutory regulations which we have. The intention is there and, certainly, it will stay as it goes through the different drafts.
If a person is innocent and wants to make a statement explaining the position will he be allowed to keep his solicitor there while he is doing so because he may feel, "I want to make a statement; I am innocent but I want my solicitor here in case I say it the wrong way"?
(Limerick East): No, it is not the intention that the solicitor would be present but it is the intention that there would be access to the solicitor, that it would be out of the hearing of the Garda, that it would be for whatever period would be required to give advice. Also, if the solicitor remained in the Garda station, the courts may find it unreasonable for subsequent access to a solicitor not to be granted if the detained person requested it. That is how I would see that working.
On the question of the solicitor being present right through the period of detention and questioning, I said last night that I was not in favout of that. This brings us to a point made by many Senators and, indeed, by Senator Ryan, the desirability of some formal procedure, some form to be handed to the person who is detained outlining his rights so that it would be done within a specified formulated way and, secondly, so that there would be evidence subsequently that the person had been informed of his or her rights. Members who have the Ó Briain Report will see that Appendix E gives a transcript of the form which is currently used in Garda stations. Referring to facilities it states:
Provided it is reasonable and practicable, the following facilities will be afforded to a person in custody in a Garda station: (1) A solicitor, a member of the person's family or a friend will, by arrangement with the sergeant or a member in charge of the station, be contacted and informed that the person has been taken into custody. (2) The person may receive a visit and consult privately with a solicitor. (3) The person may receive a visit from a member of his or her family or a friend, provided such a visit is not considered prejudical to the interests of justice and is supervised by a member of the Garda Síochána.
They are not recommendations in the Ó Briain Report but simply a copy of the form which is in existence in Garda stations at the moment and is handed to people who have been arrested and are in Garda custody. There is no procedure at the moment whereby the detained person would acknowledge the receipt of that by signature or by any other method. It would be proper to incorporate that in the regulations as well to get over the situation that Senator Ryan adverted to. There is also a procedure whereby a large notice containing the same information is displayed in Garda stations. There is the double check, the notice, or kind of poster in the Garda station outlining this and the individual form being handed to the detained person. We, obviously, will review the format of that form now in the new regulations to make sure it is updated and in line with the Bill but also it might be proper now — I am seriously considering it — that the person who is handed this form would be required to sign it as an acknowledgment that he had received it and that his rights were pointed out.
On the question of a panel of duty solicitors which Senators Durcan and Hillery, and other Senators adverted to, I have no objection at all if the legal profession, as they have suggested, would be able to come up with a scheme which would provide a list in different areas of solicitors who would be available at any hour of the day or night to go to a Garda station and serve in this way. I do not think it is reasonable that the Garda should provide a detained person with a list of solicitors when the Garda would not know whether those solicitors would be willing to attend or not. A composite list of all the solicitors practicising in a particular area would not do. I do not think it would work either simply to provide the detained person with a list of all the solicitors who are available under the free criminal legal aid scheme because, again, not all of those solicitors might be available to attend.
However, if the legal profession nationally could provide a list of duty solicitors, then I would certainly consider communicating this information to detained persons so that they could select a solicitor who would be willing to come, even if they did not know that solicitor. The point I was making in the other House which Senator Ryan has referred to here — a lot of people disagree with me — is that very many people know the name of a solicitor but that is not to say that they know solicitors. Of course, the general population do not know solicitors at all. The general run of people do not know solicitors but quite a large number of people — I am not talking about young people now because I see that the parent or guardian as being the person who is contacted there rather than the solicitor and it would be up to the parent or guardian to contact the solicitor; I am talking about the adult population — know the name of a solicitor. That is not to say that they know the solicitor, and I was making that point in the other House.
If it would be possible for the legal profession to bring about a situation where they could provide the Garda or the Department of Justice with lists of solicitors who would be available in certain areas at specific hours of the day or night, then I think it could be put to use. It could be provided for the information of a detained person who did not know any solicitor but who would be assured that if he selected from that list, whether it be three, six or ten, that a solicitor would be available whom he could consult.
The difficulty arises when it comes to the question of payment. I am not sure when the legal profession put forward this proposal whether they envisaged payment or not. It would have to be without financial commitment on behalf of the Government. That is not to say that solicitors would not have some financial benefit from attending. It would be reasonable to expect that in quite a number of cases people who would be subsequently charged after detention would be eligible for legal aid. It would be reasonable to expect that the person who was charged would retain subsequently the solicitor whom he had consulted in the Garda station as his solicitor under the free legal aid scheme. I am not looking for solicitors to serve the cause of justice purely on a voluntarily basis, that there would be no reward for them whatsoever. There is certainly the possibility of financial reward but any other scheme would lead to enormous expense, such as paying solicitors to attend at an hourly rate if you are detaining people for up to 12 hours and then if you think of extending the same safeguards to the Offences Against the State Act and having a solicitor present or on call for 48 hours. I do not know what solicitors charge per hour at the moment. I presume the profession of solicitors does not charge by the hour. In any scale of charges, no matter what the unit is, if it is multiplied by 12 or 48 fairly heavy expenditure is involved. I can see what Senators are getting at. If the legal profession came up with this list it could be made available through the regulations. If the solicitors who are already in the legal aid scheme were on that list, they would be subsequently paid for defending people in court and they might take that into account in setting up this list of duty solicitors.
I think that covers the points raised. There was the point that the person detained may be married; he would be treated as an adult then and rather than telling his parents or guardian, the other mechanism would be provided. That is self-explanatory.
Question put and agreed to.
SECTION 6.
Question proposed: "That section 6 stand part of the Bill."
I am a little worried about questions being asked, photographs being taken, records kept and so on because there are formal and informal ways of doing those things. There are formal records which may be taken under the powers given in section 6 and then there are the informal methods of keeping records. I understand that I have the honour of being on a video-taping by the Garda Síochána during President Reagan's visit which they initially made in case there was any trouble, which is understandable if not a little disturbing in the light of the commitments we all gave that there would not be any trouble. What is more disturbing is the fact that they promptly insisted afterwards that they were going to keep it. It was not just apparently in case there was any trouble. I do not know under what powers the Garda can do things like that but since I am entitled to make a video of a protest march I suppose a member of the Garda Síochána is also so entitled. What troubles me is that those kind of informal records can be used. I am quite sure the Minister's intentions are quite honourable here but I am not at all convinced that when people are there the opportunity will not be taken for a set of informal records which has nothing to do with the provisions of section 6. Does the Minister have any views on that? How can I be happy in the light of my knowledge irrespective of whether I am ever detained under section 4? The Garda already have a photographic record, at least, of my face and they probably have a similar record of 6,000 other people who took part in the same protest.
(Limerick East): I think a video of a protest march taken by the Garda would be a formal record of the protest march. What is envisaged here is that there are specific powers to search, photograph and fingerprint and certainly the photographing, fingerprinting and the palmprinting would involve records. There is a provision in the section that these records and all copies of the records would be destroyed. There is a formal procedure leading to formal records and then a statutory procedure for the destruction of the records and any copies.
Subsection (2) states:
The powers conferred by subsection (1) (c) and (1) (d) shall not be exercised except on the authority of a member of the Garda Síochána not below the rank of superintendent.
In contrast to the situation which arises in the previous section where if a superintendent is consulted about doing certain things, he must have reasonable grounds, and even the garda in the station must have reasonable grounds for allowing detention, in this subsection, and in the following subsection, certain things cannot be done except by the permission of a superintendent. He can give permission without having any reasonable grounds. Why has not the same provision been put in here that he must only give that permission on reasonable grounds?
(Limerick East): It is put in as a safeguard so that it would not be the automatic procedure that every person who is detained would also be searched, photographed, fingerprinted and palmprinted. A person could be detained and questioned but this procedure would not follow at all and there might be no necessity for it at all in a lot of cases. Any of these procedures could be carried out only if the superintendent gave permission for carrying them out. That is the idea in the drafting and of bringing in the superintendent. It is to make the point that it is not a routine procedure that everybody who is arrested and detained subsequently under the powers of section 4 should automatically be searched, fingerprinted and so on. I can envisage an enormous mumber of cases in which there would be no need to search anybody.
On the reasonable grounds, these are pretty straightforward procedures; I do not think the taking of a photograph or a fingerprint involves an intrusion of any rights similar to detaining somebody for a further six hours. What we have written in is permission. If the superintendent though it was necessary for the investigation of the crime he would give his permission.
The question of searches is somewhat more difficult. The search provisions in the Bill allow the Garda to search a person if the permission of the superintendent is forecoming. It is a search which is not a strip search. They proceed to search a person to underclothing, but not the kind of body search that is permissible under the Misuse of Drugs Act. There is an acutal restriction on the powers of search which are available under other legislation.
I should like to pursue a different line. If Senator Ryan wants to develop that point, perhaps he might continue.
No. It is another point.
I would like to ask the Minister about something we probed a little bit earlier on. I am grateful to him for the information and for pointing out to us that paragraphs (c) and (d) are on the authority of the superintendent.
(Limerick East): Paragraph (b) is not on the authority of the superintendent.
I was aware of that. Paragraph (a) would be something that would happen on a fairly routine basis. I do not think any note should be kept of that or of paragraphs (b) either. The Minister quite rightly pointed out that paragraphs (c) and (d) should not be done on a routine basis. He might like to consider whether the number of occasions on which they are done should be made part of a record so that one could say, in due course, there were 5,000 people detained and of that number 2,000 were photographed and 1,000 had their fingerprints taken. I see from the fact that the Minister is nodding his head that he agrees with that. It is very valuable to have that on the record.
Another point I would like to pursue with the Minister arising out of this section is that it is an offence to refuse to give your name and address or give a wrong name and address. Therefore, it would be very important to be able to ascertain when the responsibility commenced for the persons to give their name and addresses. It says, "Where a person is detained..." Would the Minister tell me when exactly will the person be detained? Will the member in charge of the station say, "You are detained under section 4"? I want to be a little precise at to when this detention will commence. I know it goes back retrospectively to when he was arrested. Obviously if a person is arrested and there is no reference to section 4, he does not have to give his name and address in certain circumstances. But not to do so after detention is an offence. Therefore it is important for this purpose to know when will detention commence.
(Limerick East): I would see it commencing when the member in charge evaluates whether section 4 is appropriate. A garda arrests somebody, brings him to the station and on arrival at the station the member in charge has to evaluate the situation and made a decision. There would need to be a difference in the type of caution from the one current to indicate that a person was being detained under this Bill for the investigation of a crime.
In other words, the Minister indicates that there will be a definite period of time when the detention will commence after caution in the station. What I am afraid might happen — I am sure if the Minister drafts the regulations properly, it will not happen — is that you are stopped on the road in future, the garda will say, "under the provisions of section 4 or section 5 of the 1984 Act you have to tell me your name and address." It is important that the procedure should be laid down and the actual time at which the demand for the name and address and the demand to be searched can become the subject of a criminal offence should be clearely defined in the regulations. If the Minister suggests that is when the member in charge says you are detained for that purpose and this is the caution, that is very satisfactory.
(Limerick East): There are other provisions in law which require people to give their names and addresses to members of the Garda.
I understand that. If I am stopped on the road and asked for my name and address I always give my name and address. I may not tell him where I am coming from. There are few occasions when the garda would be entitled to search a person on the side of a road. As a matter of courtesy one would always give one's name and address to a garda. Searching a person does not require the superintendent's authority and to refuse to permit it to be done is an offence. Therefore one must be quite precise as to when the legal responsibility arises.
The section provides for very severe penalties in the case of any person who obstructs or attempts to obstruct any member of the Garda Síochána acting under the powers conferred by the section. An amendment was put down in the other House asking that where a member of the Garda Síochána proposes to exercise any of the powers conferred on him by this section he shall before doing so explain to the person concerned in ordinary language the effect of the section, including the penalties which the person may incur through failing to comply with the demand for his name and address, or for obstructing or attempting to obstruct any member of the Garda Síochána acting under the powers conferred on him by this section. The Minister did not accept the amendment but said he would give consideration to the question between then and the time the Bill arrived in the Seanad. Has the Minister considered it? Does he propose to deal with this by way of regulation, or how does he propose to deal with it? A person might not realise how severe this penalty was for failing to give a name and address.
(Limerick East): There are maximum penalties. I have considered it, and I do not think it is necessary to amend the Bill. I am still considering whether it is necessary to have something in the regulations to cover the point made. If somebody is arrested, brought to a Garda station, cautioned and understands that he is to be detained for questioning, if the gardaí tell him that the chief superintendent has authorised him to be photographed and fingerprinted and he absolutely refuses to comply, in the vast majority of cases the person would realise that what he was doing was outside the law at that stage. For the purposes of the regulations I will certainly look at that if it is thought necessary.
They might consider it merited a £5 fine.
In respect of paragraphs (b), (c) and (d), it is clear that the Garda Síochána are entitled to search only once? If not, should it be made clear? Similarly are the garda entitled to photograph once, successfully obviously? I am not really worried about fingerprints or photographs, but searching could become a fetish, if one were not careful. On the matter of "seize and retain for testing anything that he has in his possession", I support that entirely. For example, clothing may need to be seized for testing. That is reasonable provided alternative clothing was given to the person, that he was not left standing in his underpants while he was detained for six hours. These things are probably appropriate to the regulations. I would like to hear the Minister's views on them.
(Limerick East): Alternative clothing will have to be provided. That will be provided for in the regulations. The intention is that these thing should be done once. I do not see why a person should be searched a second time if it is done properly the first time. On the question of photographing, if the photograph did not come out there is a case for doing it again. These are what I would regard as features which would help in the detection of crime and which are different in kind from detention for questioning. They are once-off procedures.
I have two questions I wish to raise. I unfortunately missed the early part of the discussion on this section and hope they were not raised before. I am surprised that the proviso in subsection (2) does not apply to section 6 (1) (b). Subsection (2) provides that subsection (1) (c) and (d) may only be exercised with the authority of a member of the Garda Síochána not below the rank of superintendent. I am surprised that that proviso does not apply to searching or causing somebody to be searched. As regards subsection (1) (b), search or cause to be searched, is there any limitation on the individuals whom the Garda can require to search somebody? It would appear to leave it open to the Garda to retain any outsider to do the searching.
(Limerick East): As regards the search it might be appropriate that it would be a doctor who would search in certain circumstances. The regulations will cover that people can only be searched by members of the same sex. That was a cause for concern by some people. As regards the removal of underclothing, subsection (3) does not empower the Garda Síochána to remove the underclothing. The exceptions are what is in existing law. My position on it was that I did not want to interfere with the powers of search which the Garda have under the Misuse of Drugs Act, 1977, or the powers they have under the Offences Against the State Act. I am restricting the power of search here. It is not as extensive as the power of search in other legislation.
Why do other matters require the permission of a superintendent and this not? The answer is that, on arrival at a Garda station, weapons or a knife or other pieces of evidence could be destroyed. It would be normal to search, not down to underclothing but to turn out the pockets of a young person. For example, he might be asked to empty his pockets. That kind of procedure would be normal and would not be something one would envisage going to a chief superintendent about. It would be more the rule rather than the exception at that level.
As I said earlier, there are one man Garda stations. I know it is the intention to have central stations where detention orders will, in effect, be made. It is possible that a very junior members of the Garda — a young man of 19 or 20 or a young woman of that age — could be the member in charge of the Garda station and could demand that somebody be searched down to their underwear. I am not altogether happy with that.
(Limerick East): The Senator will have to think of situations where people would be detained under the provisions of this Bill in central Garda stations which would be better staffed.
There is the case of rural one-man stations where there is a junior member in charge.
(Limerick East): Yes, but what I am saying is in the case of a rural one-man station the accused would be taken to the central station and the person in charge of the central station is the person who would make the decision about whether somebody would be detained under the provisions of section 4 and then the rest would follow from that.
Question put and agreed to.
SECTION 7.
I move amendment No. 19:
In page 7, subsection (3), lines 46 to 48, to delete all words from and including "or of itself" in line 46, down to the end of the subsection.
Some of those I have been working with in opposition to this Bill have suggested that this subsection makes it impossible to take civil action against the Garda in various things. I accept the Minister's explanation on that.
The fact that failure to observe any provision of the regulations shall not of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him is written into the law and is a licence not for any malicious abuse but for sloppiness and a less than wholeheartedly enthusiastic observance of the regulations. I know the Minister will tell me that subsection (4) shall render him liable to disciplinary procedures. In fairness to the Garda, I do not know if we should have in primary legislation a commitment that the Garda should be rendered liable to disciplinary proceedings. I have taken exception in the past to somewhat similar provisions in legislation. The Minister is a bit heavy handed. If gardaí are subject to disciplinary procedures, that should be under their own regulations and not necessarily by way of legislation. I will not oppose that subsection but it is a bit rough on the Garda.
The Minister has elaborated at great length on the role of the courts in this area. He and a number of other people have indicated, for instance, that breaches of the Judges Rules are not necessarily interpreted by the courts as making statements inadmissible or as showing that people were in unlawful custody. It depends on the circumstances. I would have thought the courts would operate in the same way with regard to failure to observe some of the regulations providing for the treatment of persons in custody. I would have thought that it was unnecessary, superfluouss and wide open to severe misinterpretation.
I know the emphasis the Minister has in the past put on "of itself." I have no reason to believe that the Minister will accept my amendment. Would he at least explain to me not just "of itself" but the overwhelming need that apparently he feels is there to make such a provision in that subsection? It is a licence for fairly sloppy behaviour if the Garda know that "of itself" there is no real problem about slipping up on the regulations. All right, there is the possibility of disciplinary procedures: it is quite possible that if a Garda station is extremely busy some night and there is a lot going on, the way human organisations work people will understand that their superiors will not make a fuss about breaches of regulations which they understand to be necessary. The only safeguard people have is the assurance that the Garda know that if they do not operate the regulations as they are set out they are in serious trouble in terms of how the evidence will be accepted in court. That part of the subsection leaves them open to believe that provided there is no evidence of deliberate or malicious breach of the regulations, there is no real problem other than the possibility of disciplinary action. I am not talking about abuse but about breaches of regulations. They may not be major breaches. It is a licence for a sloppy implementation of the regulations under some circumstances. We would be better off without that subsection. I do not know if there is any overwhelming need for it.
(Limerick East): As regards regulations, there are internal Garda regulations and I want to make them statutory regulations. Subsection (2) deals with the kind of ground the regulations would cover. Subsection (3) states that failure on the part of members of the Garda Síochána to observe any provisions of the regulations will not of itself render that person liable to any criminal or civil proceedings. The Senator said he knows why I am stressing “of itself.” It would be up to a court to decide whether evidence was admissible or not and it would be up to a court to decide if a garda had done something which rendered him liable to criminal or civil proceedings. A breach of one of these regulations would not, of itself, be the deciding factor. It would have to stand on its own merits.
The part the Senator seeks to delete, as I understand it, is the remainder of the subsection. The position there is that if a garda is sloppy and does not comply with the regulations — he fails to fill a form or fails to give a form to a detained person outlining his rights — there are a number of parties who could be injured. There is the detained person, because he has not been informed of his full rights. The court can decide whether that is enough to affect the admissibility of evidence but, of itself, it would not automatically exclude evidence being admitted. Also the public, the citizens, the common good can be injured by the sloppiness of a garda.
Take a situation where somebody is arrested, suspected of murder, brought to a Garda station and detained. Procedures in detention together with other Garda investigations establish a case which is an absolute case and it can be proved in court beyond reasonable doubt that the person has actually committed the murder. It would not be in the public interest that that person should be allowed to go free. If a significant part of the case which was obtained during the detention period could not be admitted as evidence because a garda did not fill in a particular form is the issue which is in question there.
The reason why the next subsection is in is that because of section 3 a garda might claim that when, of itself, it did not render him liable to criminal or civil proceedings that that was the end of the matter and it would not render him liable to disciplinary proceedings either. My advice was that it would be better to write in that there would be the question of disciplinary procedure regardless of what was in subsection (3) about or criminal or civil procedures. That is the reason why it is as it is. The point has been made outside the House that this is not a very severe restriction on the Garda that the Garda will be extremely sloppy and that they are not afraid of their disciplinary procedures. I do not think that is so. They are very aware of the risks they are under as a result of disciplinary procedures.
There is a range of procedures, dismissal from the force being, obviously, the most severe one. I do not have a say in who is dismissed from the force. There is an obligation on the Commissioner to inform me if he is dismissing somebody, inform me in writing and outline the reasons why somebody is being dismissed. In recent times I have seen two young gardaí being dismissed, one because he did not have his car taxed and insured and the charges are still pending in court. Another one was where a young garda was involved in malicious damage to property. I am using those illustrations to show that the Garda should not take their internal disciplinary procedures lightly. At present I do not think they have any reason to do so.
To pursue that a little further, first of all, we should be grateful to Senator Ryan for putting down this amendment. This is a new section introduced by the Minister on Committee Stage in the Dáil. It was amendment No. 24 in the Dáil and it was agreed to without discussion. That was not, of itself, very good. The explanations given by the Minister are acceptable and in principle there is nothing wrong with them. The problem is about the effect on the lawfulness of custody. The Minister has the draft regulations in front of him and he knows what is going to be in them. We are only picking it up as we are going along. We ask the Minister if something is going to be in the regulations. The Minister says yes and we say that is a very good idea and then we proceed to forget all about it. It is on the record, but I do not have a list in front of me of all the things that are going to be in the regulations. The problem that I have is that if what is going to be in the regulations are very routine matters like the filling in of forms that the Minister mentioned, there is no difficulty in allowing the judge to decide whether or not that should affect the admissibility of evidence, externally rather than internally, just because it was not in accordance with the regulations. The regulations go beyond that.
Could the Minister categorise for us just the general headings of what is in the regulations? What must be done in the regulations? I am afraid that there would be very serious things in the regulations and that somebody would be prevented from saying that some very serious breach was automatically excluded as a result of this and would have to be argued on its merits on constitutional law or for some other reason. Will the Minister help us in regard to what kind of things will be in the regulations? I think his explanation with regard to the filling of the form was quite reasonable. I do not see any good reason why, because the form was not filed, that that automatically should exclude anything which took place. Are we talking only about filling forms or are there more fundamental things there? The Minister might like to consider that point.
I do not like harping back to something I have mentioned a number of times before. I am sure the Minister believes this to be true, but I do not believe that my experience coincides with his about the fear the Garda have of disciplinary proceedings for breaches of regulations. I did not find any of the gardaí who were involved in the detention of the women in the Phoenix Park the least bit worried about the fact that nobody was allowed to make a phone call for 36 hours. It did not trouble them. The fact that two Members of the Oireachtas raised the question with them did not trouble them either. That is my experience. I want to put it on the record for the Minister in the hope of some further pursuance by him. I did not find the gardaí to be concerned. Neither did any of the 33 women, a large number of whom gave me statements all of which are independently made, all of which coincide and all of which I believe to be true. I do not accept that gardaí feel that the disciplinary proceedings they are liable to run into are serious or significant and there were, at least prima facie, serious breaches of what the Minister has indicated to be the current regulations.
Senator O'Leary raised an important point. There are major regulations and minor regulations. Filling in a form is a minor regulation. Not informing people of their basic rights must be a major regulation. I am still unhappy that, at least in the public's minds, that subsection as it stands seems to be giving a fair amount of scope to the Garda to ignore the regulations that the Minister is making. Unfortunately, my own experience has not helped me to believe that the threat of disciplinary proceedings will really affect the Garda that much in their operation of these regulations, whereas I believe the threat of having a case thrown out in the courts would be very effective.
(Limerick East): I see the difficulties that the Senators are indicating. The threat of having something thrown out in court remains. If gardaí do not inform people of their right of access to a solicitor, for example, the fact that they did not hand them the particular form and orally explain the right to a solicitor should not, of itself, automatically lead to the inadmissibility of any statement in custody. You can see reasons why in cases and especially in serious cases. The fact that a person was not informed of his constitutional rights could be an issue in court when the admissibility of the statements was being contested. It would not be the fact that the garda did not comply with the regulation which would be the issue, it would be the fact that somebody's constitutional right was transgressed under the provision of that section. I do not think there is a problem. I will give Senator O'Leary an indication of the draft regulations, but this is a first draft and I do not want anybody coming back afterwards saying I enumerated something which did not subsequently appear in the final draft. There is a general section, duties of the members in charge, custody records, records of arrest and detention, inquiries about a person in custody, information to be supplied to a person in custody and subdivided into persons not below 17 and persons under 17, notification to solicitor or other persons, visits, searches, fingerprints, cautions, interviews in general, interviews of persons under 17, written statements, explanations pursuant to sections 15, 16, 18 and 19 of this Bill, the conditions of custody, treatment of prisoners in custody, medical treatment, possibly the treatment of foreign nationals, the actual charging procedures, matters to be recorded and preservation of records. I do not want to indicate that it will remain in that order or that it will remain in exactly that way, but at this stage it gives you the flavour. It will be drafted and re-drafted. The basic point I am making remains. A breach of one of those provisions in itself should not automatically exclude evidence, because if it does, then the common good and the interests of society are at risk.
There is a case which, in the opinion of trained observers, is strong enough to convict somebody of murder, rape, kidnapping or whatever, but because one of these provisions is not complied with, and the very fact that it is established that it was not complied with, will be enough to make all the evidence inadmissible. That is not the way to proceed. Of itself it should not disbar evidence, but if some of the provisions are not complied with they would be examined in the court and the decision of the court could very well be that as a result of the transgression of a particular right that evidence was not admissible.
In this regard we are in the Minister's hands. I would like the Minister to have another look at that and see whether there are categories of regulations to which this exclusion should not apply. I cannot do that job. Senator Ryan cannot do that job. We must depend on the Minister to do it, because we do not have the regulations or the resources to do that. I have been confident at all stages that the Minister will ensure that the various provisions under this legislation are applied properly. Here we are legislating not for this Minister, or for members of the Garda Síochána now; we are legislating for future Ministers, Ministers who may not yet be in public life and for people who have not yet joined the Garda Síochána. I would like the Minister to have a look at this between now and Report Stage, now that I have directed his mind along these lines. If the Minister comes back and says he is satisfied with it, I do not think there is anything I can do about it from a practical point of view, but it is my duty to at least point the Minister in the direction of a concern that I have. We are in the Minister's hands with regard to its implementation.
(Limerick East): I am satisfied with it at the moment but I will look at it. The interpretation I have put on it is the interpretation the court will put on it, they will examine situations on their merits. In the notorious Shaw case persons were held for almost three days, which by any test would exceed what was allowed under the law, yet the exception was made in the court on the admissibility of the evidence on the grounds that it was reasonable to hold them because it was hoped that one of the girls who had been murdered might still be alive. That is a very extreme example, probably the most extreme example that is available at the moment, but I am just indicating the difficulty.
Amendment, by leave, withdrawn.
Question proposed: "That section 7 stand part of the Bill".
In the interests of the Garda, the Minister is drafting regulations for the treatment of persons in custody. Over the years I have had a number of complaints from gardaí about one particular category of persons in custody whom they would rather not have, that is, persons who are intoxicated and who are liable to be a little troublesome and who are brought into Garda stations because they are troublesome. I have had experience of one or two deaths in Garda custody not because those people were mistreated, but because they vomited and died while in Garda custody. The Garda reaction is that these people should not be in their custody. There should be a secure unit in medical care for those people. There seems to be a distinct unwillingness on the part of medical authorities generally to take this responsibility, whereas people who have a similar problem with most other drugs can be put under medical care. These people account for a large number of the deaths that take place in Garda custody. I suggest that while the Minister is drafting these regulations and while his mind is on the matter he could talk to his colleague in the Department of Health about doing something to protect the Garda. This is one of the things that causes them a certain amount of embarrassment and sometimes casts a reflection on them.
(Limerick East): I will bring the Senator's views to his attention and I will support your views.
Question put and agreed to.
Section 8 agreed to.
NEW SECTION.
Amendments Nos. 20 and 21 are related and will be discussed together.
I would prefer if they were not discussed together but I will defer to your ruling.
If you wish.
I move amendment No. 20:
In page 8, before section 9, to insert a new section as follows:
"9.—Nothing in section 8 shall prevent the Garda Síochána from keeping information either written or stored electronically on such persons as they see fit, provided that any person not convicted of an offence shall have the right to view and comment upon such information about himself."
Sitting suspended at 6 p.m. and resumed at 6.30 p.m.
We are taking amendments Nos. 20 and 21 together. Amendment No. 20 arises, though I accept its intent is broader, from an amendment that was moved in the Dáil by Deputy Woods on 5 July last. I refer to the Official Report, columns 1723 and 1724 Volume 352. His amendment stated:
"(9) Where proceedings are taken against the person in respect of an offence for which he was detained pursuant to this section or where such person has commenced Civil Proceedings against the State or its Servants or agents in respect of such arrest or detention, or in respect of his treatment during such arrest or detention such person shall, on giving reasonable notice, be entitled, by himself or his Solicitor, to inspect any records kept in pursuance of paragraph (6) (d) and any other records kept in the Garda Síochána station pursuant to regulation or otherwise in respect of his said arrest or detention."
That amendment in the Dáil raised a few interesting questions and I concede it also raised a number of problems of security. I do not share the obsession with security that characterises parts of our society in the sense that I do not accept that some of the things done for our security are necessary. I have often said that I have profound reservations about the sort of security obsession that seems to characterise the way Leinster House is more and more becoming a fortress protected from the marauding hordes outside; at least that is the impression that many people are beginning to get. There was an interesting discussion between, the Minister and Deputy Woods in the Dáil. At the conclusion of the discussion the Minister said that if something emerged in the Seanad which would not endanger other people's privacy or confidential security records, he would be prepared to look at it in a more confined way in the Seanad. Even my capacity for exaggeration would not enable me to say that what I am doing here is a more confined way, but I have a certain commitment to the whole idea of freedom of information.
I believe that it is important, whatever my profound reservations, that at the very least this Bill operates in the way that the Minister and most of its supporters intend it to operate, which is in a very fair way in the interests of the detection and conviction of people responsible for serious crimes. All through this debate one of the themes I have raised is the necessity for ensuring that it is not used for any other purpose, either deliberately or by accident or for reasons of laziness if not for reasons of malice.
I deliberately put in the phrase "stored electronically" in my amendment. It is time we began to look at the capacity of computerised data to be used and abused on individuals and groups and become a serious invasion of people's privacy. The fundamental motivation behind my amendment is the fear I have, based on the limited evidence that one can have since the records are not available, that there are fairly considerable and extensive opinions contained in Garda files about individuals which go well beyond what one would regard as factual information. A solicitor friend of mine had reason to believe that the Garda file which referred to him described him as probably a homosexual and he was somewhat distressed by that. Since he is not a criminal and has no criminal record, if the Garda feel obliged to keep records about him, he should have access to those records and he could state then if he thinks what is there is correct. If we are intent on ensuring that the information gathered under the previous sections of this Bill is to be destroyed, as we are assured, the simplest way is to enable persons who have not been convicted of an offence, law-abiding citizens, to ensure that nothing is contained in Garda records which is untrue or hearsay and perhaps based on inadequate and incomplete information and, I suspect, on a rather limited political perspective which often characterises some sections of the Garda and also on a very limited perspective of the way different groups in society operate.
In order to maintain the sort of trust that should operate between the Garda and the public what the Garda have written, stored or, retained about us ought to be matters to which at least the individual can have access. There might well be problems about defamation and things like that, but it would be healthy exercise for the Garda to have to worry about those things in the sort of information they pass on among themselves. Therefore, it would convey a considerable assurance that the undertakings that have been given in previous sections would be observed both in the letter and in the spirit and that unofficial records or files would not exist or that unofficial bits of information and particularly of hearsay which could be quite offensive and could cause a person to be under continuous Garda scrutiny would not exist.
Amendment No. 21 is yet another attempt on my part to meet what I regard as a major weakness of this legislation. It is the reliance on what I still believe to be the ill-defined concept of reasonable suspicion. Some of the later sections in this Bill raise interesting questions about that also, but I will come to those later. It should be possible for a person to be told, at least in a general way, what it was that caused him or her to come under suspicion. There are good grounds for suggesting that such a requirement would inhibit the Garda quite seriously from irresponsible use of the legislation. The area not covered by what the Minister has said to us is in regard to the problem of those who are detained and not charged, about whom I am most concerned here. Therefore, I suggest that amendment No. 21 either as it is or in a more limited form which we could talk about would give the assurance that the Garda would know that at a future time they would have to substantiate their reasonable suspicion. I specifically excluded the names of witnesses because that was an obvious objection. I am one of the non-legal specialist members of this House attemtping to raise an issue to see where we can get with it. It would provide the sort of inhibition that is necessary to keep people away from the temptation to move from reasonable suspicion to an opinion or a convenience. I have tried, without too much success, to indicate to the Minister that there is some evidence that in section 29 of the Offences Against the State Act particularly "reasonable suspicion" is interpreted as either "we have an opinion" or "we would like to have a look because there might be". I do not think the Minister intends that "reasonable suspicion" should mean curiosity or that it might be interesting to see what is there. Therefore, it is necessary to ensure that reasonable suspicion is reasonable suspicion. One way of doing that is to ensure that the information on which the Garda came to his conclusions should be made available to a person who is not subsequently convicted.
I have profound reservations about the courts and I think there is a certain class bias in the way the courts operate and that justice is not as even-handed among all sections of society as we would like to pretend it is. Nevertheless, a procedure is available, but the only procedure available to somebody who is detained and released without charge is proceeding through the civil courts or through the complaints inquiry, both of which are enormously expensive and, therefore, inhibit many people. I also suspect that anybody who comes into contact with the Garda and is released is not going to be keen to renew acquaintance in a court case or anywhere like that to be cross-examined and so on. My experience is that they would prefer to forget about the whole matter and hope it will not happen again.
(Limerick East): I do not think the proposed amendments are appropriate for this Bill. They are far more wide-ranging than anything that arises out of this Bill. The subject matter of the right of access to computerised information, or personal data, is a matter for data protection legislation. Proposals are being studied in my Department.
The object of such legislation will be to give effect to the Council of Europe Convention on the protection of individuals with regard to automatic processing of personal data and to adhere to the OECD guidelines on the same subject. Both of these international instruments contain basic principles of data protection, the most important of which is the individual's right to access and to challenge data held about him. This right is not an absolute one and exclusions and exceptions are allowed. It is worth remarking that personal data can fall into a number of categories but, certainly, two main categories. Some matters are simply a matter of fact. Others are a matter of opinion. That is one of the distinctions which is worth making early on.
Any legislation dealing with data protection will have to take into account not merely the implementation of the basic principles but also the extent to which exemptions and exceptions should be provided for. The Convention expressly allows for exceptions in the interest of protecting State security, public safety, the monetary interests of the State or the investigation and prosecution of criminal offences. It will be appreciated that since these are matters which require detailed examination and consultation before any final decisions can be reached on the form of the proposed data protection legislation, it would not be appropriate to include a provision of the kind suggested by the amendment in this Bill.
I might add that comparative studies undertaken in the field of data protection, with particular reference to the right of access to police files, illustrates wide variations in the solutions reached in this very sensitive and complex area. In other countries in regard to the right of access to police files it emerged from discussions at a meeting in Strasbourg in the early summer that, according to one country, there is either a direct right of access or an indirect right of access through the intermediary of a controlled body or its members in another country. There is a mixed rate of access in another EEC country and in another EEC country there is no right of access at all.
Senators are probably aware that in the United Kingdom a particular piece of legislation has been published, the UK Data Protection Act, 1984. That has given rise to a certain amount of concern and, certainly, to certain difficulties and controversies. All I can say at this stage is that some work has taken place in my Department, that we are aware of the problem, that we have obligations to fulfil under the European Convention on the protection of the individual and we have to adhere to OECD guidelines as well.
One of the difficulties in formulating legislation, apart from the internal difficulties, is that frequently in a Department such as mine it falls on the same small group of people to initiate, process and get a memorandum ready for Government right up to the stage of having heads of a Bill and then to take part, subsequently, in discussions with the draftsman and the Attorney General's Office on the exact draft of a Bill. We have this Bill at this stage, the draft regulations which we referred to earlier, the final draft of the complaints procedure which will be available in the next week or so, and the Criminal Law Bill which is in the Attorney General's Office and is proceeding towards the final stages of drafting also. With regard to that whole package of legislation and reform of the criminal law and the associated reforms I have enumerated, the same small group of people are dealing with all of that. It is quite a workload.
The only kind of commitment I can give is that as soon as that particular package is out of the way and the legislation, either directly arising out of the Criminal Justice Bill or associated with it as in the Criminal Law Bill which I will be bringing in, we will try to get on then to data protection legislation. Some preliminary work has been done and it remains to carry it forward as soon as the staff who have been carrying a fairly heavy load for the last 18 months or so, and, indeed, prior to that, will be relieved to go on a new project such as this. There is a problem there but it will not be solved and I am sure the Senator does not intend to suggest that it can be solved by an amendment to a Bill such as this. It would require separate legislation which might run to a number of sections. I presume the Senator put down the amendments so that he could discuss the issue here rather than any anticipation that the amendment would be accepted.
I will have to dispute the Minister's use of the word reform in terms of the Criminal Justice Bill. That is his view and I disagree.
(Limerick East): It is a neutral word.
As a well known expert on usage of English said, the Minister has me on that one. My colloquial understanding of the word "reform" suggests that I would not necessarily agree that this is a piece of reform. I am glad that work is being done in that area and I therefore do not want to pursue particularly amendment No. 20. With regard to amendment No. 21, while I am quite happy to accept what the Minister says, that it is sweeping and he is right in saying that I did not anticipate that it would be accepted, he might not be entirely right in his interpretation about my reasons for putting it down. He is quite right that I did not anticipate that it would be accepted.
It is probably my last chance to ask a question which the Minister did not answer. Will the Garda claim privilege and is it anticipated they will continue to claim privilege if the matter of reasonable suspicion is being disputed in the courts? This was an attempt by me to protect innocent people but I would like to know will it still be the traditional position that the Garda, when it comes to the basis of the sources of particular information received, will claim privilege?
(Limerick East): They may or may not but in the courts over the last 12 or 15 years the occasions on which the court allows privilege have become more and more restricted. The particular member of the Garda, or in the situation which the Senator constantly refers to, the superintendent or chief superintendent under the Offences Against the State Act, if he claims privilege is under oath. He is not simply a member of the Garda walking into the court and saying, “I claim privilege.” He is under oath when he claims privilege which is a serious occasion and then it is up to the court to decide whether it will allow the privilege or not. On the question of the search under the Offences Against the State Act which particularly concerns the Senator, the only way to get an answer to the question the Senator is posing is for somebody to take a case and proceed with it. That is the only way to test it. An individual member of the Garda may claim privilege and the individual court may or may not allow it but the trend has been towards a far more restricted agreement by the court in situations where privilege is claimed. The ordinary member of the Garda force under this, the sergeant in charge or the superintendent here or in the Offences Against the State Act, would be under oath when he would claim privilege.
Amendment, by leave, withdrawn.
Amendment No. 21 not moved.
Section 9 agreed to.
Section 10 agreed to.
SECTION 11.
Question proposed: "That section 11 stand part of the Bill."
I am a bit slow about raising the matter of offences committed on bail because I know I will get myself into the position of apparently being more concerned about certain groups than anybody else. I am not trying to suggest that. There are marginal groups in society, and particularly some of the groups I have some knowledge of, and some of them are more or less perpetually on bail for one offence or another and they commit offences while on bail. I do not believe the provisions of this Bill are intended to apply there. We are talking about people who deliberately abuse bail to commit serious offences. I am somewhat concerned that as it stands the section could lead to people whom neither the Minister, myself nor indeed the entire Garda Síochána regard as a threat to society, spending long periods in prison because of the way this section could be interpreted.
I have no real proposal to make to the Minister about it but I do have a genuine concern. There are people who are permanently on bail for petty offences and because of their background and their addresses they tend to be in and out of courts for various reasons. I have a genuine fear — I am not raising imaginary issues — that we will end up having this applied against people for whom it was not intended, against people whom I do not think anyone would regard as a threat to the State and in the process causing the State a considerable amount of expenditure in costs of imprisonment. I wonder can the Minister say anything about it. I am talking about the petty offences, particularly drunkenness, begging and things like that and often people do end up on bail for such offences. I can assure the Minister in the period they are on bail they are probably going to be charged again for the same offence. It is not the same problem as people who are committing serious offences on bail.
(Limerick East): It is a very awkward problem and it is difficult to proceed towards a solution to it. The purpose of the section is to introduce consecutive sentences for offences committed by persons on bail. In 1982, 7,880 indictable offences were committed by such persons. That has been estimated. That is the number in which evidence was available and represents about 24 per cent of all detected indictable crime in that year. It is probably an under-estimation. The Garda are satisfied that many other offences are committed but they are not able to produce the evidence to justify a charge. It is quite a serious problem.
In effect, people are entitled to bail except in the most limited of circumstances. To change the right to bail would require a constitutional referendum and it is not a particular change that I would advocate anyway. In the absence of a willingness to have a constitutional referendum, which would bring about some form of preventive detention in effect, I decided on this particular approach. What it means in effect is that at the moment if there is somebody out on bail and he commits an offence, he has a free run while on bail. There is no deterrent in the sense he will suffer any further penalty because the sentence will be concurrent. The idea is that that period of indemnity while somebody is on bail and is free to commit other offences would be taken away. The power of the District Court to impose an aggregate term of imprisonment in respect of consecutive sentences has gone up to two years.
That is the reason for it and that is the way it is dealt with. A minor example of it is the person who is up for poaching salmon. He is out on bail, and he goes up the river and steals more salmon so that he will be in a position to pay the fine. In house-breaking, somebody is arrested, charged and let out on bail until the court sits again. There is no real deterrent of any further sentence and the criminals know that. It will go some way towards solving the problem but it will not eliminate it and I am not claiming that it will eliminate it.
I am not happy with the idea of consecutive sentences. I accept there is a widespread public perception of a need. It seems to me that it covers every offence, including petty offences which carry very short sentences. There could be a case for inserting a provision, not necessarily for the five-year sentence that is contained in section 4, but for some provision to identify offences which carry sentences above a certain minimum. I have a genuine worry that many people whom the Minister is not thinking about in this particular case of indictable offences, will end up spending long periods in prison. It will not do them any good and it will not do society any good and it will probably be an injustice to them anyway. I am concerned that a large number of relatively minor offences can now result in cumulative sentences. I am not talking about the sort of serious examples the Minister is talking about.
(Limerick East): To examine the matter in practice we should look at the situation first of all where the first offence was serious, carrying a long term of imprisonment, and subsequent offences committed while on bail were also serious. For example, if a person commits several offences while on bail and is sentenced separately for each of them, the sentences for these offences, in addition to being consecutive to any previous sentence, would be consecutive as between themselves. If a person were sentenced to a term of five years imprisonment for an offence for which he had been given bail and was sentenced, say, to five years for each of nine offences committed while on bail, the cumulative sentence would be 50 years. That sounds as if it is extraordinarily harsh. If we bring it back to a situation in the District Court where somebody in an original sentence could be sentenced to a maximum sentence of 12 months, now the jurisdiction of the court extends to sentences of two years and you get a run of offences for which a full period of two years could be implemented.
Within that general scheme of things there is tremendous discretion for a judge in the serious offences area or in the offences which would be tried in the District Court. If, for example, a particular person in the opinion of the district justice is somebody whom it would not be very effective to sentence for two years in jail, this would not put the district justice in a position of having to aggregate up to two years. If his intent was, for example, in the case of concurrent sentences that somebody would serve a prison sentence of 12 months, he could bring about the same situation here if he wanted to, simply by re-arranging the modules. You get two months for one and three months for another and five months for another and so on, making up the 12 months. Within the accumulation of consecutive sentences there is discretion which can be exercised by the judge if he sees fit. In the extreme example I gave where somebody guilty of ten offences could be sentenced to 50 years' imprisonment, I doubt very much if that would happen in court in practice.
The section as it stands could well result in people ending up in prison whom neither I, the Minister nor the Garda believe are proper subjects for imprisonment because of the way it operates. There are a number of petty offences, particularly offences under the Vagrancy Act in connection with drunkenness and so on, where people quite frequently end up on bail. The Minister can rest assured that even if he put light sentences in for consecutive sentences the offences would continue to be committed. It has nothing to do with a deterrent at all.
(Limerick East): The person would have to be subject to imprisonment in the first instance anyway. I did not understand the point until now: that if the first offence did not carry a prison sentence and then he was on bail and he committed other offences of a similar kind, he would have to be sent to jail. That is not so because there would have to be imprisonment in the first instance.
Question put and agreed to.
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."
Am I right in reading into the combination of section 11 and 12 that the ordinary District Court jurisdiction will now be two years, quite apart from the consecutive sentences arising under section 11? In respect of ordinary offences the maximum sentence will be two years. Is that correct?
(Limerick East): No, not for a particular offence but there could be a number of offences related to an incident and then it could run to two years.
I do not seek to suggest that we are changing what was a 12 months sentence to a two year sentence. A number of offences could together now combine to two years. Forget the question of bail altogether. In other words, if I am charged with an offence in the District Court at present, the maximum I can be sent to prison for is 12 months. If, on the next occasion, I come before the District Court the whole question of offences while on bail does not arise but I am charged with two offences, each carrying a 12 months sentence. I can be sentenced to a total of two years. The maximum is being changed in respect of offences which have nothing to do with bail. Is that not correct?
(Limerick East): Yes, but it is not at the same time a general change because the maximum for a particular offence is still 12 months.
To take an example, if I stole an apple out of a shop and it was being dealt with summarily I could probably be sentenced to 12 months imprisonment. I do not know what the term of imprisonment is. In the District Court it would be dealt with summarily. If I stole apples on two occasions and I was charged at the same court with two separate offences each of which carried 12 months imprisonment, could I, under this new jurisdiction, be liable to two years' imprisonment?
(Limerick East): Yes.
I do not object to that. I am afraid it may take away the incentive to behave yourself on bail. That is the problem. The type of people who come up before the District Court, very often ask to have 54 other offences taken into account. Very often many offences accumulate. Forget the question of bail. These people, under section 12, will be at risk for two years. They will be in precisely the same situation with regard to committing offences while on bail. I would have thought it would be sensible not to extend it generally but to extend it only in respect of offences committed on bail. The District Court would still have to retain the 12 months so there would be a real incentive not to commit an offence while on bail. If he is at risk for two years, and if two years becomes the maximum, the offences on bail section loses its incentive. There is a problem there. We might be better if we restricted it to 12 months except in the case of offences committed while on bail. Then there is a real threat hanging over persons committing offences on bail. Otherwise, there is no real threat held over them. I would like the Minister to consider that. I do not necessarily want an opinion now.
(Limerick East): I will consider it. It seems to me that the case of a person who steals an apple and then steals another apple making two offences would be within the experience of district justices and they would be dealing with it within the 12 months maximum at the moment.
The new one will come up.
(Limerick East): It is more likely to happen in a situation where somebody is in a shop and steals an apple and then steals a bottle of tomato juice. For some reason or another, it is two offences. It is the same incident. We can think of any incident where there can be a composite number of offences subsequently. It is in that area rather than in the accumulation of individual offences.
The people we are trying to catch here are habitual petty criminals.
(Limerick East): That is on the District Court side of it. On the other side of it then,' there is the habitual serious criminal who is on an absolutely free run at the moment when he is on bail.
I have no objection to that. I am talking about the habitual petty criminal who is not at risk in respect of two offences committed at the same time, but two offences committed within a short time of each other coming before the court simultaneously. He might have told the Garda about them at the same time or for whatever other reason. He is not really at risk with regard to committing a further offence while on bail. It is something I would like the Minister to think about.
(Limerick East): I will think about it. He is at risk because he would say: “With this number of offences I have a chance of being dealt with reasonably leniently. If I commit others while I am on bail and come back again I will get something like two years”.
If a man is involved in a melee with a member of the Garda Síochána, he may get a summons for obstructing a police officer in the execution of his duties which could be one specific charge. Arising out of the same incident he could also get a summons charging him with assault. Both would relate to the very same incident. Am I right in thinking, as the proposed legislation stands, that man could receive a two-year sentence?
(Limerick East): That is right.
If that is the case I would certainly express a reservation about that.
Could I ask the Minister the rationale behind increasing the power of the District Court to impose sentences from 12 months to two years? As I understand it, in the District Court there is a very considerable amount of business to be conducted which is conducted in a very summary and speedy fashion. I would have thought that empowering the District Court to impose sentences of up to two years will, in fact, increase the volume of business coming before the District Court which is already too busy in any case.
I wonder if the reason behind increasing the power from one to two years in the case of the District Court is prompted really by the backlog in the Circuit Court. If that is the case, surely there must be some administrative procedure which can be adopted to speed up the backlog in the Circuit Court and leave the District Court to impose the maximum of 12 months as at present.
I would be betraying myself to some extent and surprising the Minister if I did not at least make a comment. I do not believe prisons are particularly useful and I do not think they have any purpose. They probably turn people into more confirmed criminals. Increasing the period in which people are detained will not solve the problem. It would be very dishonourable of me to sit down and not say that. I have great worries about the District Court having the power to sentence people to two years' imprisonment. There is a great unevenness in the way the District Court operates. There is some evidence that there are people operating as district justices over whom question marks hang, to say the very least.
The whole concept of longer sentences doing something about crime is one on which I suspect the Minister has no evidence to suggest that it really works. It is necessary sometimes to appease public opinion. Some people apparently believe that if you sentence people to 12 months instead of six months you will do something about the crime rate. Whatever about the need to deal with serious offences committed on bail, I do not think sentencing people to ten years instead of five years because they commit two offences will do much other than increase the prison population and turn people into even more committed criminals in the long run.
(Limerick East): In the absence of any other law common-sense must prevail. That would suggest that if somebody has immunity from punishment while on bail for an offence, it is an incentive to commit other offences. If somebody is out on bail for an offence he has a period of a couple of months when he can break into every house in an estate without fear of further punishment. There is a major problem about offences committed while on bail. The Constitution would have to be changed. If it is changed and legislation is subsequently introduced no matter how you decorate it, it would bring in some form of preventive detention because you would be saying that people who are on bail are innocent until proven guilty but at the same time they have to be detained in prison until their trial comes up. That would be a drastic step. This is a far more moderate approach. I do not think it will affect the rights of individuals. It will go quite a distance to removing this immunity from punishment which exists at present under the law.
Question put and agreed to.
SECTION 13
Question proposed: "That section 13 stand part of the Bill".
Is failure to surrender to bail not an existing offence?
(Limerick East): No. This is a new offence. Absconding while on bail is not an offence. Subsection (1), taking the amendment into account, makes it an offence punishable on summary conviction by a fine of up to £1,000 or 12 months imprisonment, or both. Under existing law, section 33 of the Criminal Procedure Act, 1967, a person who is about to abscond while on bail may be arrested on a warrant issued on the basis of sworn information, given on oath by a garda or the person who went surety for the bail. The offence is not committed until the person fails to answer to his bail on the appointed day without reasonable excuse. It will be a matter for the person to show that he has had reasonable excuse for not appearing and it will be a matter for the court to determine, in all the circumstances, the excuse is a reasonable one. An obvious excuse would be hospitalisation.
Question put and agreed to.
SECTION 14.
Question proposed: "That section 14 stand part of the Bill".
It is regrettable that we have increasing penalties which are largely meaningless. There is not a scrap of academic evidence to suggest that they act as a deterrent. We are going through the motions of pretending to the public that it will make a difference when it will not. I do not think large numbers of people will end up serving the rest of their lives in prison because they were found in possession of firearms. I remain convinced that if the troubles in Northern Ireland were to come to an end, notwithstanding what anybody says, large numbers of people in Portlaoise and Limerick prisons would be rapidly released.
(Limerick East): The sentences are increased because there is a belief that the discretion to impose longer sentences would act as a deterrent in this area. The idea of a life sentence, which was introduced here and is being criticised, is a maximum sentence in this case. The judge, at his discretion, could decide on any term of years as a substitute for life. The argument has been made that a life sentence in prison means seven, eight, nine years or whatever. The point is that it is greater than 14 years at the discretion of the judge. It is not a mandatory life sentence but a maximum sentence. If the judge decides that 15, 16, 20 or 25 years is the appropriate amount, that discretion is there.
There was another reason for doing this. It was to bring the penalties into line with the penalties in Northern Ireland. It was not simply for the sake of neatness that the same penalties would apply on both sides of the Border but on account of the Criminal Law Jurisdiction Act, 1976. A person can opt for trial in either jurisdiction for a schedule of offences, many of them related to firearms. Up to now if somebody opted for trial in the South there was a softer range of penalties for the firearm offences. It has the effect of equalising the sentences. That is a reason which has not been adverted to with any great frequency in this debate.
I want to take up the argument just presented by the Minister in relation to bringing sentences into line. I would not like to think that that might affect the first part of his argument. I want to lend my weight to the voices that questioned the efficacy of longer periods suggestion to the Minister in that regard, without opening up the running wound about the absence of research. As regards the existence of the Whitaker Commission the Minister in the other House went some way to meet my criticisms of that commission when it was established by saying its terms of reference could be to examine the background of those people who found themselves in prison. I would like to think that, when the commission reports and has gathered evidence — the efficacy of sentences, in terms of whether they are long or short in particular circumstances, would be something the commission would look at — the Minister would be willing to review sections and legislation such as this in the light of recommendations it might make. Senator Ryan spoke about increasing the term of imprisonment from seven to 14 years and, we might have some valuable opinions on the efficacy of that at that stage. It would make sense if at that stage sections which deal with terms of imprisonment could be reviewed in that light.
Since the Minister mentioned Northern Ireland one has to ask him — I hope he will not think it is mischievous, it is not — if he is concerned about bringing us into line with Northern Ireland sentencing policy, does he have any intention of bringing us into line with Northern Ireland in terms of the scale and extent of remission, which I gather is normally 50 per cent? It is 33? per cent here? If we are to have the same sentences, justice suggests, if not demands, that the remission should be equivalent also.
A few months ago, the Minister mentioned the question of judicial discretion in relation to sentences. This is an appropriate time to raise the question of the lack of consistency in sentencing policy to which I referred on Second Stage. I recognise, of course, that the Judiciary must have discretion under the Constitution. The reality is that many sentences imposed are way below the maximum, often minimal and often derisory. This is a source of concern to the public at large. There is the impression, justified in many cases, that people are getting off too lightly. There is the argument, of course, that the Judiciary must be independent and, therefore, we cannot interfere unduly with their functions. But since consistency is missing in relation to sentencing policy, I suggested on Second Stage, and would like the Minister's reaction to the suggestion, that the Judiciary should be made to hold review sessions and meetings on sentencing policy from time to time. While I acknowledge and appreciate that they should remain independent, the lack of consistency in sentencing policy has caused widespread public concern and is of concern to us in this House.
To follow through the point raised by Senator Hillery, I understand that there is a statutory obligation on members of the District Court Bench to meet at least annually to discuss matters of mutual interest. Would the Minister consider it appropriate in the next courts Bill to produce a similar proviso for judges of the High Court and Circuit Court who deal with criminal matters?
On that point — I know that it seems to be irrelevant because we are dealing with increasing penalties for firearms offences — it was reported that yesterday in the District Court fines of £2 per person were levied on people who had created tremendous harassment to the public and had broken windows in various areas. When we talk about consistency it does not seem logical that somebody who was part of a gang that went wild after a particular sporting event should be let off with a derisory fine of £2. The sense of fellow feeling with their peer group about going out breaking windows, damaging cars and being involved in civil disturbance landed them in court and being fined £2. I do not think that is going to do anything for justice in this country. They will feel that they have now got a licence from the district justice to go off to wherever the next match is and do the very same in some other town or city. If we are talking about consistency, I hope that what happened in the District Court yesterday in that case will not continue.
(Limerick East): Apart from seeing a headline, I am not familiar with what happened in the District Court yesterday, but it seems to me that if people were charged with the trail of destruction which Senator Lanigan enumerates, it would be surprising if they got off with a £2 fine. I do not know what the full circumstances are and I do not want to comment.
First of all, bringing our sentencing policy into line with Northern Ireland is not what I am saying at all. It is not a question of our sentencing policy being brought into line with Northern Ireland's, it is a question of maximum sentences being brought up to the Northern Ireland level for the particular reason that I have outlined, to bring them into line on account of the provision of the Criminal Law (Jurisdiction) Act, 1976. On the question of remission, I do not know what the policy is in Northern Ireland. I am not sure if they have a difference in policy when they are dealing with persons brought in under the equivalent of our Offences Against the State Act and sentenced under that schedule of offences — whether they distinguish between those and ordinary offences, as we do. Remission of one-third is the normal rule of thumb here but certainly other things are taken into account and greater terms of remission are given quite frequently.
On the question of consistency in sentencing between one case and another if you think of it, consistency can be the very opposite of justice quite frequently, because each case is different and the circumstances are different. That two people are charged with the same offence does not mean that they should be treated in the same way or get the same sentence.
Two particular cases that I like referring to are cases which got a certain amount of attention in the media. In one case, which was generally known as the Fairview case, a particular sentence was applied and there was a certain amount of comment in the other House and in the media afterwards. The charge there was manslaughter. There was another case further up the country. The circumstances if I recall rightly, were that a son came home and there was a quarrel between his father and mother. The father seemed to be abusing the mother in a very severe way. In the family row that ensued, the son shot the father dead. The full circumstances of the case came out in court. The charge again was manslaughter and the young man was given a suspended sentence which was the same sentence as in the Fairview case. The charges were the same and the sentences were the same. The public reaction on the one hand was to be critical of the sentence and on the other hand it was to applaud the sentence when they read the full circumstances of the case in the media.
The solution to the problem is simple enough but it will create a worse problem. That is to bring in minimum mandatory sentences for all serious offences. If one does that, one takes away discretion from the judges and I would not advocate that. I am opposed to minimum mandatory sentences because it is almost a kind of Murphy's law, that as soon as you do something like that and say such as offence has to carry a minimum of three years, one of the first cases to come up will be of such a nature that the new sentence will look outrageous in the circumstances. There will be an obligation on the penal system to contain somebody for three years but the vast majority of the people will think that this is wrong and should not happen. Then there will be petitions to the Minister to overrule the decision and to let the person out. I do not go for mandatory sentences.
On the question of fines, there is a strong argument for maximum fines in a whole range of offences to be brought into line with current money values. There is not a simple way of doing this. You cannot take a base of 1913 and index everything. It does not work that way because the nature of offences has changed. The only way to do it is to examine the pieces of legislation individually and to decide that certain offences will carry a higher fine. There are situations where the maximum fine permissible is so low as to be pretty ludicrous.
Under the licensing laws while the licensee can lose his licence if persons are found on the premises after hours after a number of endorsements, for the person who is found on the premises the maximum penalty is £5. Usually, the maximum is not implemented in court and they are fined £1 or £2. When it comes to closing time, you buy three rounds together and smile at the people who are trying to clear the bar. It is not going to cost you anything anyway, unless you are worried about the social stigma of arriving in court.
It is a badge of honour.
(Limerick East): The other example from the same legislation is that it is an offence for the licensee to serve drink to anybody under 18 years of age. It is not an offence for the underage person to be on the premises, to be drinking and actually to purchase the drink. There is no sanction on the person who buys the liquor while under age and the whole onus is on the licensee or the publican. There are areas where penalties would have to be looked at. This idea of the level of sanction which is available in terms of fines to judges and district justices would want to be updated.
There is another problem in that increasing fines does not help in many circumstances because what is the point in fining somebody £200 if he is on the dole with two kids and he is getting around £78 a week? What happens in that case is that the judge, with the best of intention, puts on a severe fine which is a deterrent. Then a garda calls around months later to collect the fine and the person cannot pay and the alternative is imprisonment. He goes to his local councillor or TD and petitions the Minister and the Minister spends hours at night trying to decide by how much he will reduce fines which have been imposed which he knows quite well that the people cannot pay and that they will end up in prison if he does not reduce them. What I am trying to illustrate is that it is not a problem to which there is a simple solution at all. Certainly, I would be strongly opposed to minimum mandatory sentences. I support the updating of the maximum fines because there are areas where these are derisory now and give the judge or justice no discretion at all.
Section 14 gives extra discretion to the judge. Whether the judges will take that discretion or not is up to them. It does bring it into line, for the reasons I have outlined, with the situation in Northern Ireland.
Very briefly, I just want to say that I did not advocate minimum mandatory sentences. Rather was I advocating the idea that there should be regular meetings among judges to review sentencing policy. Judges, being individual human beings, I think will vary in what they regard as appropriate sentences in particular circumstances. Surely there is something to be said for formalising regular meetings among them to examine and discuss sentencing policy. In so far as the Minister can give a push in that direction, I would suggest that he should do so.
(Limerick East): There is power, as Senator Durcan has remarked, since 1961 and it is mandatory for the President of the District Court to call his justices together to discuss anything they see fit. I do not think it necessary to extend that power to the Presidents of the Circuit Court and the High Court because they do meet periodically and discuss matters. It is not a question of meeting and discussing where the difficulty arises it is the question of, say, an individual justice or judge actually agreeing to be consensus of his colleagues.
Question put and agreed to.
NEW SECTION.
There is an amendment down in the name of Senator B. Ryan.
Do not say it like that.
I was not sure who had the amendment. I was looking to see if I was right.
You did your best at the start of the Order of Business.
I failed in my efforts.
I move amendment No. 22:
In page 10, before section 15, to insert a new section as follows:
".—Sections 15, 16, 18 and 19 will not apply to persons below the age of 17 years.".
I am under no illusion that the Minister is going to accept an age of 17 years, but I harbour a faint hope that he might consider bringing the provisions of this section into line with the amendment he made to section 4 for a number of reasons. First, it may not be the direct intent, but it is fairly clear that a considerable part of the provisions of sections 15, 16, 18 and 19 will be operable because people can be detained, because certain information can be got from them, and because certain things will be found in their possession. I am not saying that is necessarily entirely the case, but there is an area where it is true. Second, there is something unsavoury — and I am not accusing the Minister of doing something unsavoury but I think there is something unsavoury — in children being asked to explain things or to have inferences taken from the failure of children to answer certain questions.
I believe strongly that children are children no matter how clever or how well experienced in the law or how troublesome they may be. Therefore it is only consistent that the exclusions being entered into in the case of section 4 for children aged under 12 years should be applied to these sections. Two agencies with a particular concern for children, CARE and HOPE, have been in touch with a large number of Members of this House, and possibly at another stage with Members of the other House, about the failure to make a similar provision for children under 12 years in the case of these four sections as was made in the case of the other sections because they identify a large number of problems.
I do not want, in Senator Higgins's words, to start another running sore about children, but the Minister knows, whatever he may think about the language I use, the concern I have about young people and the law. It is only consistent in the light of what is being done in section 4 that there should be a provision to exclude children from it. My personal view is, and always has been, that 17 years is about the appropriate age. Below that you are talking about children and it is difficult to make a definite distinction. I think 17 is the appropriate age and I have inserted it. I would appeal to the Minister to consider at least the age limit that he has identified as an exclusion from the provisions of these sections. For instance, under this section there are circumstances in which children could be asked to give evidence against their parents. I find that somewhat distasteful. I find the idea of children being asked to answer certain questions or inferences being drawn from the failure of children to answer certain questions to be distasteful. There is not an awful lot in the area of administration of justice or the bringing to justice of serious offenders that could be threatened by a decision to exclude children from the provisions of these four sections.
I would like to support the principle behind this amendment for the reasons given by Senator Brendan Ryan but I wonder if the amendment is necessary. I would have thought that because a person would be exposed to a possible term of imprisonment a child would be excluded anyway. Children cannot be imprisoned in that sense. Therefore, I would like clarification from the Minister before we pursue this further whether children are necessarily excluded from this provisions by the fact that they would be potentially open to a fine not exceeding £1,000 or to imprisonment for a term not exceeding 12 months. Perhaps the Minister would clarify that?
(Limerick East): I looked at this before because something struck me in the definitions of the Bill in relation to other sections. My initial reaction is that it could apply to people over 16 years — and I think that is right if you look at St. Patrick's institution and places of detention. I will check the point the Senator raised because I have not a categoric answer I can give her but I am working on the basis that it would apply. The only way to deal with the kind of problems which Senator Ryan has outlined is by raising the age of criminal responsibility. Unless that is done, there is a danger that every time a Minister brings any change in the criminal law into either House of the Oireachtas people will be looking for an exemption from the terms of the provision for people below a certain age.
We could bring about a situation where we had the age of responsibility, then a range of offences which did not apply to people until they were 15, 16 or 17 years, or whatever the age would be and then the general corpus of criminal law that applied to the adult population as a whole. The proper way to deal with the situation is to decide on an age when the Minister for Health comes in with his proposal on the age of criminal responsibility. I would prefer that all criminal law would apply down to that age. If we do anything else we are in danger of constructing some kind of dual system which would be highly unusual.
On the particular sections people under 17 years are not involved with firearms or ammunition. Even though section 15 would apply to people under 17 years, I do not think there would be a real problem there. If a person under 17 years did have a gun, or was in a position to give information about a gun or where they got a gun, it would be appropriate that there would be a sanction for the person under 17 years and for the person over 17 years. Section 16 would apply to relatively young people, because relatively young people are in possession of stolen property and it would be of benefit that the provision would apply.
On the inferences sections, there is adequate protection for the interests of young persons in both sections. This is because the question whether an inference is to be drawn under either section is not in the hands of the Garda but under the control of the court and it does not arise until the actual trial. It is a matter for the court or, subject to the judge's directions, the jury to determine the issue. In any case, only inferences may be drawn from the failure or refusal to give an account as appears proper. Again, persons under 17 years have the safeguard already mentioned of having a parent or guardian present if they are questioned.
I am opposed to the amendment but I would like to look again at the point Senator Robinson raised. I looked at it previously in the context of section 4, and I would like to re-examine the situation on account of it not being the practice to sentence to people under a certain age to terms of imprisonment. Sections 15 and 16 are consciously brought in to attempt to deal with a very difficult situation. A large number of guns are in circulation and not just in the hands of the people to whom I referred earlier today who try to subvert the institutions of the State.
One of the great harms that the Northern Ireland situation has done to our society down here is that it has educated criminals in how efficient guns can be and there has been a huge increase in the use of firearms in ordinary crime right through the seventies and into the eighties even for quite small crimes. Somebody produces a gun to take £50 out of a shop late at night or a couple of hundred pounds from a filling station. The law is adequate to deal with people who are found in possession of firearms, and that is not what I am getting at, but there must be a trade in the supply of guns. There are so many guns available, and we have all heard stories that suggest that it does not cost very much to pick up a gun in certain places. Trying to get at the source of the trade and to get the information which would lead one to the source is important. I am not talking about the source of arms for subversive organisations. There are other ways of dealing with that. I am talking about the source of arms for criminals.
Extending that to the other area of concern under section 16, the whole area of stolen goods, if you look at the 1984 crime report and tally up the amount of property stolen, you will find that it comes to about £33 million. I doubt very much that the people who steal property are taking it for their personal use. I do not think that the cars, videos, colour television sets, cameras, mini-computers stolen in break-ins to warehouses, the lorry-loads of cigarettes or the large consignments of whiskey taken from licensed premises are being taken for personal use. They must be coming back into the market. The problem is so extensive that I doubt very much if they are all being traded on the street, the roadside or in the back of the bar on the basis that something fell off a lorry. They must be recycled back into the legitimate trade and there must be a whole variety of stolen goods which were acquired which are being sold over the counters in legitimate businesses. The reason for this section is to try to get the information which would enable the Garda to follow the trail back to the "fences" to use the "in" term—who disperse the stolen property, who buy at a cheap rate and resell it and put it on the market.
These were very difficult sections to draft, but in these two areas I want a specific attempt made to try to get the source of the problem. I will check what Senator Robinson has said about the other matter. I am not accepting Senator Ryan's amendment.
Amendment, by leave, withdrawn.
Amendment No. 23. Amendments Nos. 24 to 26, inclusive, are related to amendment No. 23. Amendments Nos. 23 to 26 are to be discussed together.
They are similar amendments but I would submit that they are not related in the sense that the context in which each amendment is put forward is different. It may be that an amendment would be acceptable in one context but not in another. Certainly we could be briefer on the debate on some of the later ones.
Acting Chairman
You could have separate decisions on them. Discuss them together. If you do not agree to that I am prepared to segregate them but it would be better to discuss them together and have different decisions on them.
Very well. I move amendment No. 23:
In page 11, between lines 8 and 9, to insert a new subsection as follows:
"(5) A request by such person to consult a solicitor before replying shall not be taken as a failure or refusal to give information."
The purpose of these amendments, which are tabled to be included in sections 15, 16, 18 and 19, is to ensure that a person when asked for information in relation to section 15 regarding firearms or ammunition, in relation to section 16 for information regarding stolen property, or in relation to section 18 questions about objects or marks found on that person, or in the case of section 19 to account for presence in a particular place, can say, "I do not wish to answer that question until my lawyer is present", and that would not in any way be construed as a failure or refusal to supply the information such as to be an offence under section 15 or section 16 or a matter about which an inference can be drawn under either section 18 or section 19.
I anticipate that the response of the Minister will be that that would not happen and could not happen and that a person is liable only to an offence if he without reasonable excuse witholds information and that it would be a reasonable excuse to say that you wanted access to your lawyer. I am not so sure that that answers the point fully. These amendments are aimed primarily at ensuring that people know their rights, and in the privacy of the Garda station between the gardaí who are familiar with procedures and the person brought into the Garda station who is being asked questions, there should be this express protection that a person can say, "I do not want to answer that until my solicitor has been contacted and until I have a chance to consult my solicitor". There is the further question of whether when the question is put the solicitor would be present when the person was to answer that question.
I would like to take the amendments separately because slightly different issues arise in relation to each of these sections. Section 15 creates an offence of withholding information regarding firearms or ammunition. Amendment No. 23 is to insert a new subsection (5), that a request by such person to consult a solicitor before replying should not be taken as a failure or refusal to give information. I would like that to be inserted expressly in the Bill because this section is a further departure from or erosion of the principle of the right to silence. The Minister has given some of the reasons why he feels it necessary to have this section, but I think he would accept that it is a departure from the position that obtained hitherto when a person could not be open to penalty, a term of imprisonment, for withholding information. A person had the right to remain silent, therefore we are creating a new offence.
This is why I support Senator Brendan Ryan on the need for special protection for younger people from being exposed to penalties for withholding information. Young people in particular may withhold information simply because they would not tell the Garda anything, because they feel they can brazen something out without saying anything. There would be all kinds of reasons. It is one of those situations in which a person by withholding the information is becoming liable to criminal penalties, to a possible fine of about £1,000 or imprisonment for a maximum of 12 months. It seems a reasonable balance to write in expressly that a request by such a person to consult his solicitor could not be construed as being a failure or refusal to provide the information requested.
The same considerations apply to section 16 where the subject matter is the withholding of information regarding stolen property, where the member of the Garda Síochána has reasonable grounds for believing that there has been an offence in relation to stolen property and he finds any person in possession of any property. It seems to be a minimum protection to an individual who, by taking a certain course of action — in this case withholding information or supplying false information — exposes himself by that fact alone to a charge to criminal penalties, to possible imprisonment, that the person would have the right to consult their lawyer and, if necessary, to have their lawyer present and that it could not be construed otherwise.
That is a very reasonable position to put forward on the record of the Seanad. The Minister may say that that would be implied in the position but the record of the Seanad is not the inside of a Garda station in Crumlin, Finglas or anywhere else where unless there is an expressed right written in and unless it is clear that a request for a solicitor is not to be so construed that request may either be ignored or may, indeed, be the subject in certain cases of a person being told in no uncertain terms not to be a trouble-maker or difficult and that they are withholding information which the member of the Garda Síochána is entitled to have and to obtain.
Slightly different considerations apply in relation to the amendments to sections 18 and 19 where the issue is one of inferences from the failure to account for certain matters. The situations here is that inferences may be drawn from failure or refusal to account for them and that may prejudice in the sense that that may arise when the person is being returned for trial or the inference may be drawn by the judge when the person is tried. It may be the subject of the judge's directions to the jury.
Once again this is a departure from the pre-existing right to silence in its fullest sense where such inferences could not be drawn. The minimum protection in order to ensure a balance and to avoid the risk of any abuse in the system is that the person should feel entitled to request the presence of a solicitor or request that he be allowed to consult a solicitor before responding without risking that any inference be drawn from that or without being the subject of discouragement in his attempts to find a solicitor. I do not say necessarily an outright refusal but discouragement saying, "It is late, your solicitor is not around, answer the question".
That would be a difficulty if, for example, the person was apprehended at 10 p.m. and was asked for the particular information or was asked to account for objects or marks on the clothing and so on under section 18 and said, "I do not wish to answer that until I have consulted my solicitor". Then the response could well be, "We cannot contact your solicitor at this hour of the night; answer the question, we have a right to get this information, you could be exposed to criminal penalties for withholding that information and you have got to tell us".
I want to ensure that it is expressly written in that a person has a right to have access to a solicitor before being required either to provide the particular information or to explain the mark or, in the case of section 19, the presence of the accused at or near a particular place. I submit that this should not be an amendment which would cause any particular concern because the Bill already provides for the right of access to a solicitor. That right is there anyway but this goes further than the present situation which appeared to obtain, that a person is entitled to have access to their solicitor provided they request it. That provision under section 5 of the Bill, which we have already considered, is a much more positive provision in relation to access to a solicitor. It is in line with that that we would have express provisions in these sections ensuring that where a person requested access to their solicitor, to consult the solicitor, before responding to the particular question, that that could not be construed in any way as either withholding information or giving rise to an inference.
It has a further aspect to it in that once a person had requested to consult his solicitor no further questions of that kind should be pursued until the person has had an opportunity to consult the solicitor. This would be particularly important because a person faces the possibility either of criminal penalties for withholding information or of inferences being drawn in a subsequent trial which would be very prejudicial to the person. It is part of the balance in our criminal code that persons so exposed to penalties or risks should have access to legal advice if they so wish. Therefore, it would seem for that reason also that it is important to write in these provisions expressly.
(Limerick East): Sections 15 and 16 make it an offence not to give information about firearms or stolen property. Not to give information under sections 18 and 19 about the presence of marks and so will not be an offence. There is no obligation to give it though a failure to give it may give rise to an adverse inference being drawn at the trial provided it is a proper inference. Clearly, an inference cannot be drawn in every case and provided also that the accused was told in ordinary language when he was being asked for the information that his failure to give it might adversely affect his case. To put the four together is to put four sections together which are not the same for the purposes of this amendment.
I must apologise if I contributed to that confusion earlier on in responding to conversations with the Cathaoirleach.
(Limerick East): There are new offences being created in two of them and there are not in others. The others are different in kind. I will take sections 15 and 16 cases first. These are in the Bill to try to counter very disturbing features of the present crime situation. I am referring to the increased resort to firearms and the enormous traffic in stolen property. Certainly, they are an innovation. I do not deny that they were put in there with some reluctance but it is a huge problem in our society and we should make an attempt under the provisions of a Bill such as this to deal with such a problem. They are necessary and I am very glad at the support they received on Second Stage in the House. It is because they are new in character that safeguards have been incorporated in the sections to protect the person who gives information as to where he got firearms or stolen property. The information that he gives will not be admissible against him or his spouse in any proceedings whatsoever. The sections have been criticised for this very reason, the fact that the information cannot be used against the person or his spouse.
Secondly, no offence arises unless it was explained to the person in ordinary language at the time he was asked for the information what the effect of failing or refusing to give it might be. That is an unusual provision to have in any section creating an offence. It was Senator Durcan who said that the provision was molly-coddling people who were suspects under these two sections. That might be a bit of exaggeration but he was certainly recognising the unusual character of the provisions in that although there are precedents for requiring people to give information under penalty, such as the Road Traffic Act, they do not have this mandatory warning provision.
I mention this to indicate why I would be anxious not to change these sections in anyway that might lead to their effectiveness being reduced or even destroyed. I certainly would not want any changes unless I thought they were absolutely necessary. There are two precedents which I have looked at. The Official Secrets Act, 1963 and the Road Traffic Act, 1961. Under section 17 of the 1963 Act the Garda can be authorised to require a person to give information about an offence or suspected offence under section 9 of the Act. More commonly, and one that people come into contact with with far greater frequency, is section 107 of the 1961 Act: the registered owner of a vehicle may be required by the Garda to say who was using the vehicle at the time of the offence. It could be a minor driving offence which would not be of great consequence but it could also lead to a charge involving the death of one or more people. The provisions under the Road Traffic Act could make it mandatory on a person to give information about who was driving a car and the end result of that process could be that somebody would be charged with manslaughter. That provision is there already. It is a much better precedent than the Official Secrets Act which is not used with any great frequency.
In neither case is there a provision such as the amendment suggests, that a request to consult a solicitor before replying is not to be taken as a failure or a refusal to give information. That is not in the Road Traffic Act and it does not seem to have prejudiced the position of people who were obliged to give information under it.
In another respect, sections 15 and 16 go further than the precedents I have quoted in that a person will not commit an offence under them if he has a reasonable excuse for failing or refusing to give information. The Road Traffic Act provision exempts a person only if he shows to the satisfaction of the court that he did not know and could not with reasonable diligence have ascertained who the driver was. That is far more restrictive than "reasonable excuse" which is what is required here.
I am not going to try to define what a reasonable excuse is; only the courts can do that having regard to the particular circumstances of a case before them. It might be reasonable in some cases not to regard the request to see a solicitor before replying as a failure or a refusal. Equally, it might not be a reasonable excuse. The solicitor might be anywhere from Bundoran to the Bahamas and not due back for a month. I do not think it would be a reasonable excuse in the eyes of the court if somebody insisted that that solicitor be present before they answered a question or that they would have to consult that solicitor. On the other hand, I can envisage situations in which somebody is saying in court that they would not give this information because they wanted to consult their solicitor, outlining the circumstances and this would be taken as a reasonable excuse in the court.
My position is that on the question of consultation with a solicitor under these first two provisions I want to leave it to the court and I do not want to write it into the Bill. I do not want to take responsibility for something that might unnecessarily dilute the effect of these sections. They are innovative sections, drafted to deal with two particular very serious problems and the internal safeguard of the reasonable excuse——
Would fear for his life be a reasonable excuse?
(Limerick East): If I was the judge, I would accept that as a reasonable excuse. There is a question, of course, of intimidation especially on the firearms side and so on. I think we have gone as far as we can go to protect the rights of the person who is asked to give information. We are talking here, as in section 15, about traffic in guns and the threat to maim and kill people. In section 16 we are trying to do something to reduce the traffic in stolen property which is on the market as a result of so many housebreakings and robberies. I want to leave the matter referred to in the amendments to be decided by the courts and whenever it arises to leave it to their good sense. That is the way we should approach it.
In sections 18 and 19 there is less of a case there for accepting them because there is no new offence in either section. These sections refer to a person who is arrested without warrant on reasonable suspicion of having committed some offence and he has some object, substance or mark on him or in his possession. He may be arrested at a particular place about the time the offence is committed. In both cases the arresting garda must reasonably believe that the object, mark and so on must be tied in with the person's involvement in an offence. He asks him to account for the mark or for his presence at the particular place at the particular time but there is no obligation on the person to answer that question. He does not have to give an account. If he does not, it is possible that an inference will be drawn; in other words, it may do his case no good, but it is not a matter for the garda to decide that. All the garda can do is report in court what happened and it is up to the judge to decide whether it is proper for an inference to be drawn and advise the jury accordingly.
It is reversing the principle of silence.
(Limerick East): We are now on the amendment and on the sections I can argue that case. It seems there is a certain amount of common-sense in the situation I have outlined. There are safeguards too. The garda must explain the effect of failure or refusal to give an account. The decision whether or not an inference will be drawn is not in the hands of the Garda. It is a matter for the courts or, if it is a jury trial, the jury, subject to the directions of the judge. It is clear that inferences cannot be drawn in every case but only those which appear proper and what inferences will fall into that category will obviously depend on the circumstances of the case. It will be up to the judge either to decide and act or to decide and advise the jury.
If a person in Garda custody is asked to account for a mark or stain and says he would like to see a solicitor before replying, the garda will contact the solicitor because there is a right of access to a solicitor. The solicitor arrives and tells the client to give an account, then there is no problem for the detained person if he gives an account of the mark or stain or whatever. Suppose the solicitor tells his client not to give the account, that is a failure or a refusal to give it and the court or the jury will decide whether it is proper to draw an inference in the particular circumstance. In that case, the solicitor can do one of those two things. If he says, "do not give the explanation", then it is not a matter for the Garda, it is a matter for the courts as to whether an inference should be drawn or not.
There is another possibility that a solicitor may not arrive before the permitted period of detention expires and the accused has been charged before a court. That would be an exceptional case. I imagine that in the ordinary course of questioning about marks or stains or "how did you happen to be at the scene of the crime" questions would be likely to occur at an early stage of an interview rather than at a later stage and the solicitor would have ample time to attend at the station. Even in that case, I do not see any reason why we should not leave the matter to the judge and the jury to decide. If he tells a story to the court which would have completely exculpated him if he had told it to the Garda in the first instance, he would have been released once they had checked it out they might think it strange that, when it became clear that the solicitor was not going to turn up and that he was going to be charged, he did not tell the story then. On the other hand, there may be an understandable reason for his reluctance. He may have been engaged in something which, though embarrassing, was not illegal. Again, it would be a matter for the court and the jury to sort out at the trial.
To sum up, I do not think the amendments are necessary, especially in the case of sections 15 or 16. We could bring about a situation where the sections would not have a practical value because the request to see a particular solicitor in the case of criminals involved with guns or stolen property, could lead to a situation where the person being questioned was quite sure that the request could never be complied with and, consequently, the sections could be rendered totally ineffective.
I have some difficulties with the Minister's response on these amendments. First, I accept fully the distinction he draws between the first two sections, sections 15 and 16, and then sections 18 and 19. In the case of sections 15 and 16, the Minister had conceded that for grave reasons he is introducing a departure from the pre-existing position where a person had a right to silence which did not result in any risk in this case of criminal penalties.
What worries me is that the Minister appeared in responding to say that, in some circumstances, the request to consult a solicitor might be construed to be reasonable cause for withholding the information as referred to in section 15 (2) and that in other cases it might not. He gave what I thought was a weak example of this. The solicitor named might be anywhere from Bundoran to the Bahamas. I do not think that is a real answer. A person is not entitled to have access to a named solicitor. A person may request his solicitor and, if there is reason why that solicitor is not available, then the person would be asked if there was another solicitor he wished to have access to or he could be informed that there were solicitors on the criminal legal aid panel locally, or whatever. There is no absolute right to a named solicitor. That does not seem to be a real objection.
Even though the Minister clearly feels that these sections are extremely important in seeking to address the problems that he has outlined, they do give rise to a new type of situation. They tip the balance of it. If sections 15 and 16 do apply to children under 16 — that is something the Minister is going to clarify — it is possible that a younger person or somebody who is apprehensive about the consequences of withholding the information, and nonetheless has a reason for not disclosing it and if they cannot have access to their solicitor as of right at that stage, they may be substantially prejudiced because they may be required to withhold information and be liable to criminal penalties.
It may be that the Minister is reluctant to put an amendment of this kind into primary legislation. That would not be a problem. I invite the Minister to consider the possibility of dealing with this in the regulations and of ensuring that, in applying the regulations under section 7, where a person requested to consult a solicitor when asked for particular information under sections 15 and 16, or when asked to account for marks, that request would not be and could not be construed on its own as being either a withholding of information, which is a criminal offence, or a matter on which very prejudicial inferences could be drawn. I accept there is the distinction that sections 18 and 19 do not create criminal offences, but they could substantially prejudice somebody who may not fully understand the rules of the game. They may not fully understand what the implications are, and may find themselves substantially prejudiced by that, whereas if they had access to their solicitor, the solicitor could give them better advice in relation to their rights, and advice as to what course of action they should take.
I accept that the section provides that a member of the Garda Síochána should explain matters to them in relatively simple language. That is not the same as a person's solicitor advising them as to their rights and as to what their risks they might take by pursuing a particular course of action. I ask the Minister to consider the possibility of dealing with this in the regulations, that large volume he is preparing under section 7 of the Bill.
(Limerick East): I will consider it, but I am not in favour of it. From my perspective I started with two areas which were the cause of great concern, the traffic in stolen property and traffic in firearms. Even on a cursory analysis, it seems to me that simply dealing with the person in possession will not bring about any major change. The first two subsections are an attempt to get information to deal with the suppliers. I do not think it should be a practice in the law in general but the two areas are of such concern that it certainly justifies an attempt to deal with the situation. The safeguards written in can be applied by the courts. I will be following these two subsections with interest. I will be very interested in the review in four years time. I will be watching them prior to that.
The continuous review.
(Limerick East): The review in four years time. I will be watching them in the meantime. There is reasonable certainty about the effectiveness of various provisions in the Bill. I like to see this one operating to see how effective it will be on account of the indemnity which we have given. I am not going to make any extravagant claims for these sections. I am saying there is a very real problem. These two subsections are an attempt to deal with that real problem. I do not want to water them down and to put in some provision which would make them totally ineffective. The safeguards are included and, if somebody claims when charged with one of these offences that they are refused access, they were refused the right to consult their solicitor, if the courts decide this is a reasonable excuse in a circumstances, that will be the situation. If they decide it is a reasonable excuse in all circumstances, we will have to do what Senator Robinson suggests and have a look at the statutory regulations to make that provision.
On the other question which Senator Robinson raised about people under 17 years not being sent to prison, the law is that a person under the age of 15 years cannot be sent to prison and between 15 and 17 years what is defined as a young person can be sent to prison but only if it is certified that he is too unruly to be kept elsewhere. That is in a reformatory or some such institution. Also a person between 16 and under 17 years can be sent to St. Patrick's for something for which a person over 17 years could be sent to prison. That is section 13 of the Criminal Justice Act, 1960. All that law applies along with sections 15 and 16 just as it applies with every enactment that creates an offence, for example, like the offence of drug pushing in the Misuse of Drugs Act. Penalties of fines and imprisonment are provided, but there are no special provisions about persons under 17 years.
These special general provisions are in the Children Act of 1908, restriction on imprisonment of children and young persons and the Criminal Justice Act of 1960. Over 16 and under 17 year olds can be sent to St. Patrick's for anything for which an over 17 years person would be sentenced to imprisonment. It seems to me that it would be unnecessary for that reason and would create undesirable precedents to make special provisions here in these subsections about children. The Children Act has the provisions in it anyhow.
The member of the Garda Síochána explaining the effect of a failure or refusal to an under 17 year old will have to say, as the case may be depending on the age of the child or young person, what may happen to him. He may be fined or sent to St. Patrick's for up to 12 months, that is, if he is a 16 year old or he may be sent to a special school, in Lusk or wherever, depending on the circumstances. That is the point which Senator Robinson was adhering to and referring to. I did not have the answer at the time. That probably clarifies that particular area.
Acting Chairman
Is the amendment withdrawn?
It seems to me that the Minister is responding to the spirit of the amendments. I am responding to his almost exclusive concern for pinning down the position of the guilty. I, following logically on the arguments presented earlier on the amendment, can imagine there will be two different groups of people to whom detention will apply. It is somewhat of a presumption to imagine that people who are detained but who will transpire to be innocent will be so articulate that they can explain all of their circumstances. People genuinely get confused and flustered. If experience is anything to go by, these may well be the majority in detention. It is to their problems we must respond as much as to the problems of those who will be found guilty when later charged. This is an argument which arises in relation to the section and the whole different construction of silence that arises from these sections. It seems to me that the circumstances of those who will be found ultimately guilty are being used to seriously mitigate the circumstances of those who may be confused. This raises other questions as well. Given what we know about certain areas where the Bill will be used would tend to argue against the presumption that people will be articulate and be able to give explanations quickly.
I would like a more enthusiastic response from the Minister. The request from Senator Robinson that the Minister, in making regulations, would bear this problem in mind, would be very valuable. I get the impression from the response the Minister made in relation to the first two sections, firearms and stolen property, that he is willing to look at it but he despairs of making a concession. That might not be an unfair construction of his response. I ask him, in view of the implications of the section for the right of silence, to take account of these people who may find themselves in detention but who may transpire to be innocent. It is a little much to ask them to go as far as the court for vindication.
(Limerick East): It is not so much reluctance to do something but there are such variations on what would constitute a reasonable excuse that I hesitate to attempt to define by means of a regulation, which might be misleading for the Garda Síochána, what the courts would consider to be a reasonable excuse subsequently.
As regards people being confused and so on, what we are talking about here is if somebody has a gun and they have no right to have it, they are holding it illegally, and are asked where they got it. That is a simple question.
A 12 year old or 13 year old.
(Limerick East): I am inclined to think of 35 year and 36 year olds.
But it is possible.
(Limerick East): All right, say a 12 year old has a real gun and he is asked where he got it.
Up to now he has the right not to answer.
(Limerick East): He cannot be imprisoned. If he is fined he will not be able to pay the fine. We are back to the old argument of 12 year olds. It will be a 13 year old girl in a minute.
We are back to the scope of the Bill.
(Limerick East): It is directed at people in possession of weapons which they are holding illegally. If the Senator can give me an example of a 12 year old who has been found in possession of an illegal weapon recently where this kind of provision would be necessary, I would be surprised. There are guns — sawn-off shotguns and so on. I cannot see the kind of risks which were enumerated in arguing against section 4 about particular people in society being confused and detained over a long period. What we are talking about here is that if somebody has a gun and has no right to have it, they are asked where they got it. That is a reasonable question. In the interest of the common good it is right that that question be answered. Then it might be possible to do something about the trade in firearms which is prevalent in Dublin and other parts of the country.
The other situation is in relation to televisions, videos and cars. For example, there is a colour television set in a sittingroom. There is a warrant or other mechanism by which the Garda enter the house legally. They check the serial numbers and find it is stolen. The person is asked where he got it. He can say that he bought it in a shop. This is fine. He has complied with the Bill. He can say he got it from his granny. It does not seem to be a difficult question to answer. To say he got a present of it might be an explanation.
The sections require giving information to a specific question. I cannot envisage a situation where somebody has a gun or stolen property and they do not know where they got it from. There is a safeguard in the reasonable excuse. If a person does not want to say where they got it, for any particular reason, they can explain in court if subsequently they are taken to court under these provisions.
I do not want to become involved in the amendment because I do not agree with it. The Minister is using only one of the sections, the one dealing with firearms, to draw his example from.
(Limerick East): I am using stolen property as well.
It does not, unfortunately, refer only to stolen property. The one which refers to guns is perfectly clear. The section which refers to stolen property does not refer to that at all. It refers to a much weaker thing than that. It refers to any piece of property which anybody might have at any time. You are under an obligation if called upon to explain where you got it. That is where the difficulty comes in. I know that I am straying from the amendment but there is a problem there.
(Limerick East): Subsection (1) (a) states:
(1) Where a member of the Garda Síochána—
(a) has reasonable grounds for believing that an offence consisting of the stealing, fraudulent conversion, embezzlement or unlawful obtaining or receiving of money or other property has been committed,
Let us pursue this a little. As regards section 16 (a) a member of the Garda Síochána can say at any time he has reasonable grounds for believing that an offence has been committed. It does not say that the offence has been committed by anybody. It is just that "an offence" has been committed. A person found in possession of property—any property at all — and the garda has reasonable grounds for believing that the property referred to in the paragraph includes or may include the property referred to in paragraph (a), that is stolen property or part of it or the whole or any part of the proceeds, direct and indirect, of that property. In other words, the garda must have reasonable grounds for believing an offence has been committed but he can have that at all times. He can find a person in possession of property. It does not matter what property. It is not stolen property but it can be any property, say a box of matches, a motor car, a £5 note. He must have reasonable grounds for believing that the property may include part of the proceeds of that property.
There is a double condition reducing the certainty of the garda. They could stop the man in the street and say to him. "Turn out your pockets", or if he saw him flashing money, ask "Where did you get that?" Under this section he would have to answer. That is the problem. That is where the amendments in so far as they relate to section 16, might have considerably much more validity than when they relate to section 17. Section 16 is much wider than possibly we realised. Section 16 was not discussed separately at all in the Dáil, sections 15 and 16 being discussed together then. The actual definition of property and what was going to be the subject of the investigation was never considered by the Dáil. They spent their time talking about guns.
But here is a situation where a garda can, under that section, have no grounds for asking anybody at any time to explain how he came by any property which he may have in his possession, including money. That is a very wide power. I do not think the Minister would like to think that the power is as wide as that, but it is. Try to construct a situation in which it could not be applied. That is where the real problem comes in. In other words, we are now getting to the stage where the citizen will be under an obligation to a garda to explain where he got every piece of property which is in his possession. The Minister does not agree. For example, take a coat. "Where did you get it? Is that the proceeds of a robbery?" It might be the indirect proceeds of a robbery, for all the garda knows.
(Limerick East): The garda must have reasonable grounds for believing it is. It is not even suspicion. It is reasonable grounds for believing that.
For believing that the property is stolen?
No, the proceeds of the property. It is not just the property itself.
Subsection (c) is cumulative on (a).
In other words, what I am saying is he does not have to believe that the coat is stolen. If he believes that you got the coat as a result of stealing, by generating money as a result of stealing.
(Limerick East): That is all very well. Subsection (c) is cumulative on (a) and is far more restrictive than the Senator is suggesting — (a) in the first instance and then qualified by (b). A garda cannot require a person to turn out his pockets.
Paragraph (b) is not much of a qualification.
What he has in his possession.
(Limerick East): The turning out of the pockets could not occur. Even to take the Senator's wide interpretation, the garda must have reasonable grounds for believing it. It is not an opinion.
For believing what?
(Limerick East): For believing that an offence consisting of stealing, or fraudulent conversion, or embezzlement, or unlawfully obtaining, or receiving of money or other property has been committed.
By whom?
(Limerick East): By a person or person unknown.
By anybody.
(Limerick East): He also must have reasonable grounds for believing, not suspicion, that the property referred to in (b) includes or may include property referred to in (a) or part of it.
Or part of the proceeds, direct or indirect.
(Limerick East): We go on to ask what can he do about it. We will take Senator Durcan's coat.
A fine coat.
I certainly do not think that my coat was stolen.
(Limerick East): The garda knows that a particular business premises has been raided and that a lorry load of suits have been stolen. He knows that they have been distributed in a certain place. He also suspects that they came on the market legitimately. He asks somebody, “Where did you buy the suit?” That is an outlandish example. The person says he bought the suit in such a place.
That is fair. As long as he believes, as a colleague on my right prompted me to say, that a bank robbery took place and somebody bought a suit as a result of the bank robbery, the garda can ask him where he got the suit. That is the reality. That is what is in the legislation. I think people do not realise how wide it is.
Are we discussing the section or the amendments?
I was just trying to be helpful.
I think the Senator should come back to the subject.
I think we have discussed the amendments. The Minister, not too enthusiastically, has said that he will look into the issue. Perhaps he will look more enthusiastically into it now that Senator O'Leary has shown the scope of the section and what the citizen may be exposed to.
Acting Chairman
Is the amendment withdrawn?
Amendment, by leave, withdrawn.
Section 15 agreed to.
SECTION 16.
Amendment No. 24 not moved.
Question proposed: "That section 16 stand part of the Bill."
We are back to Senator Durcan's coat. It will go down in the annals of this House as being the subject of an investigation by the Members of the House. I sympathise with what the Minister had to say with regard to section 15. Does the Minister understand how wide this section is? In other words, the Minister can say that if somebody robs coats it is obviously in order for gardaí to go around and if they see somebody with a new coat in a particular area in which a robbery took place, ask where he got the coat. That is not unreasonable. But what is involved here is that if a garda wants to inquire about any piece of property owned by anybody, he can find justification for doing so under this section. What he has to say is, "I suspect that the person bought that thing, as the result of the proceeds of a robbery", whether it is a bicycle or anything else. He can ask where he got the money for it.
Do not use the example of a bicycle. The Senator is making me nervous.
Any example. The proper interpretation, in my opinion, of section 16 is that we can be asked to account for everything.
(Limerick East): That is all very well, but it is not a question of the garda having reasonable grounds for suspicion. He must have reasonable grounds for believing under paragraph (a)——
Tell us more about that.
(Limerick East): Under paragraph (c) he must have reasonable grounds for believing. If somebody falls foul of the provisions of this section and is taken to court and there is the £1,000 fine or the 12 months imprisonment, the garda who has the reasonable grounds for believing will have to go into the witness box and explain under oath what the reasonable grounds for believing are. That is a fair test of confining the thing. It certainly prevents the garda walking down the street and approaching everybody with a good suit on the basis that they might have robbed the money to buy the suit. That is not reasonable grounds for believing. Despite the well-dressed Senator, I do not think he will be troubled by the Garda.
Would, for example, the fact that the person involved had taken part on a previous occasion in a robbery and had been found guilty of that offence and served his prison sentence form reasonable grounds for believing that the new suit could be part of the proceeds of a robbery?
(Limerick East): The reasonable grounds for believing will have to be assessed in court. But it is not directed against people involved in robberies. It is directed against the people who are putting illegal guns on the market and people who are putting stolen property on the market.
I am not talking about guns at all.
(Limerick East): I am not saying that the person who has a stolen television set had any part in any robbery. It is a provision to try to trace back where it came from. That is what it is about.
I cannot speak for everybody but I am in agreement with the Minister's objective. If we can stop people selling these goods and acting as fences, I am all in favour of that.
(Limerick East): One of the problems with parliament is that——
If the means are too objectionable I would prefer to put up with the disease. That is the reality. In other words if the only way I can solve the problem is by creating a greater problem or interfering with liberty in too big a way, I prefer to put up with the problem.
(Limerick East): I agree with that.
In other words, we are agreed with regard to objectives and we are agreed that there is a limit beyond which people should not reasonably go. Let us look at the various qualifications —subsection (c) is the only one that matters. Under paragraph (a) a garda need only have reasonable grounds for believing that an offence has been committed, but the paragraph does not say "has been committed by anybody in any area", just that "an offence has been committed". That is very wide. That could not be right. Paragraph (c) reads:
...has reasonable grounds for believing that the property referred to in paragraph (b) includes, or may include, the property referred to in paragraph (a) or part of it, or the whole or any part of the proceeds (direct or indirect) of that property or part,
What does the garda have to actually believe? As far as I am concerned, all he has to believe is that there has been an offence, that a person has property, and that the property may have been purchased with part of the proceeds of an offence which has been committed. They are the only things that are required. The garda could arrive at those beliefs for almost any property a citizen has.
I can understand Senator O'Leary's objection to the principle involved in this section of asking people to account for having the property, but I do not really follow what he is saying about the way in which the property is identified. Take the section as it stands. If we take paragraphs (a), (b) and (c) and then go on to say that a garda may arrest the person and charge him with larceny, would the Senator see any real objection to this? If a garda has reasonable grounds for believing that property has been stolen, and that the property which this person has includes the property stolen, would he not be perfectly justified in arresting him and charging him with larceny? As far as identifying the property is concerned — having reasonable grounds for believing that the property in question is stolen property — in the ordinary course, he could arrest him and charge him with larceny. I do not see that there is any real difference as regards identifying the property. Does the Senator object to the principle of having to account for it?
It is nice to play ping pong with someone else other than the Minister. What do the words "proceeds (direct or indirect)" mean? In other words, it is not just accounting for property which has been the subject of an offence but it is also accounting for property which may have been purchased with the proceeds of an offence? What does the phrase "indirect proceeds" mean? That is the point I am getting at. If somebody has stolen suits of clothes I do not mind anybody asking me where I got the suit of clothes on my back. That is not the point I am making here, but whether I object to it or not is another matter. "Indirect proceeds" is throwing it very wide. That is precisely the point I am making.
I should yield to Senator Michael Higgins because he has more profound knowledge of this matter. If Senator O'Leary's conclusions are followed, we are going to have a problem because those of us who are not stopped in the street will wonder if our suit is worth looking at because the Garda are not taking any notice of us. Is the Senator saying he is afraid of the abuse of these powers by the Garda as distinct from the legal concept, because I am getting a bit mesmerised worrying in case my suit of clothes might disappear?
My question is far from profound. Listening to Senator O'Leary's question to the Minister and Senator Ryan's contribution, it seems to me that two entirely different concepts of enforcement of this section are in question. If I interpreted Senator Ryan correctly for example it is that the property in question can be identified quite early on. To some extent that case is weakened by the suggestion that the proceeds direct or indirect are in question. How could one quickly move from an offence recently committed and suggest that the proceeds, direct and indirect, can now be identified?
We must try to construe how this would be implemented as an enforcement strategy and I come to the conclusion, I am afraid, that the way it would be used would be that property which had been purchased with the proceeds, direct or indirect, of some kind of offence would be taken by the Garda and they would begin working their way back to identifying, let us say, shopkeepers who are selling stolen property and fences, people who are dealing with people who commit offences, and so forth. My mind boggles at that as an enforcement strategy. If we take it that there is a great deal of stolen property in circulation in any large city, and the crime rate is affected by the total amount of property in circulation, is it being seriously suggested that, instead of beginning at the offence and pursuing it, we are looking for the power actually to begin at the point of the diffusion of property and work our way back to an offence? To do that seems to be an extraordinarily strange power to be looking for to justify a singularly uneconomic enforcement strategy in dealing with the crime problem.
I suspect another construction that I might put on this section and the other section is that in order to deal effectively with people who might be involved with crimes of this kind you have to turn your population, and the population of some areas more than others, into a population of potential receivers and users of stolen property. To my mind that path is full of danger not only as I said in being an uneconomic enforcement strategy but it is a singularly disastrous exercise in relation to its community implications and the relationships of communities to enforcement authority.
I support this section. The arguments have been very interesting. The population in general have long since got tired seeing people amassing properties and fortunes with no visible means of support. It is high time the Garda had power to trace this wealth back. I do not see why people should benefit to the extent that some of those in organised crime do.
I could not agree with Senator McDonald on this point because unless a person who amasses property or shows wealth is under great suspicion I do not think the Garda should be called upon to interfere.
Acting Chairman
He might be dealing in drugs.
Yes. You may talk about drug rings and gun trading but the section in the Bill is dealing with much more and can be used in many more cases, than the big ones. We all think about the big crimes. It does not have to be, as Senator Higgins said, a shopkeeper who is trading in stolen goods. It could be a shopkeeper who is legitimately trading but withholds, say, taxes due to the Government and with those taxes he purchases a new suit or a new car or something else. Then he can be questioned under this section. It is leaving too wide a scope for the Garda. A person in a locality who is not known to have a new suit or a new overcoat may suddenly appear in one. If we see a neighbour acquiring things, renovating his property, appearing in a new car or a new overcoat, we might subconsciously ask ourselves where he got the money for that because we have not seen him with a new overcoat in 20 or 40 years. It is the same with the Garda. If the suspicion is there the Garda under this section are entitled to stop that man and question him about his acquisition. That is giving them too wide a scope. It does not have to be the Senator's coat, it could be the Minister's cap for that matter, or any property, or possession that a person could have. If that person is not in the habit of having that kind of possession then he is liable to be questioned.
(Limerick East): I can assure the Senator that this is not directed at the black economy. The key element here is that the member of the Garda Síochána will swear that he has reasonable grounds for believing and this will establish in effect a prima facie case if an offence has been committed. He will not have to justify these grounds unless the defence disputes it. If it is disputed he will have to justify them and the court will have to decide. “Reasonable grounds for believing” is a very strong test, it is not “reasonable suspicion” which is strong also.
The court will have to put themselves in the position of the garda and decide what circumstances constitute reasonable grounds for believing. That is how it would work in practice. Whether it is a good detection strategy or not, certainly it is not meant to be a detection strategy in substitution for tracing an offence from the other end. Obviously the Garda, if an offence is committed, if there is a robbery and a large amount of property is stolen, will do everything in their power to trace from the crime to find who perpetrated the crime. The other fact remains, no matter how unpalatable it might be, that there is an enormous amount of stolen property in circulation. An enormous number of offences, working from the other end, have never produced a case in court to indicate who stole the property. This section and the other section about the guns are not directed at the person in possession or even primarily at the perpetrators of the original crime. They are directed at the people who trade in stolen guns or stolen property. Paragraph (b) is cumulative to paragraph (a) and paragraph (c) is cumulative to paragraphs (a) and (b). I accept it is wide but not as wide as Senator O'Leary suggests because the garda must have reasonable grounds for believing that the offence has been committed. If he has, then he may require the person to give him an account of how he came by the property. If the person refuses that person could be taken to court because it would be an offence and the court would decide whether the garda had reasonable grounds for believing. The garda would have to swear to that and give the circumstances which brought about the reasonable grounds.
It would never arise in a court case.
(Limerick East): On the other hand, if the person voluntarily gives an explanation I do not see any problem. If the garda has reasonable grounds for believing that the car you are driving is a stolen car and he comes up to you and says, “I have reasonable grounds for believing that that car was stolen” and you say, “I am not prepared to make any statement about that”, you could end up in court under this provision. On the other hand, if you say, “Not at all, I bought that in such-and-such a place at such a time”, that is a reasonable account of where you got it. That is the end of the matter. You have given an account. You do not have to write essays about it. You have told him where you got it.
I was prepared to go along with most of this section but when it comes to proceeds you ask a person where he got that car because you have reasonable grounds for believing that it is a stolen car, but you can ask where he got that money. What does "proceeds" mean? Does it mean money? If you say you have £100 and I could have reasonable grounds for believing that that is the proceeds of something that was stolen it is pushing it very far. If it is an object I go along with the section but where you are talking about proceeds direct or indirect then it seems to be going very far.
I do not do this in any destructive fashion. I want the thing to work. Senator McMahon has put his finger on the point. This thing will work on the word "grounds" quite differently from what the Minister says. The Minister says that the garda must have reasonable grounds, but that will arise only if the Garda decide to prosecute. They will decide to prosecute if the garda has cleared his lines, but what will happen if the garda did not have reasonable grounds and he got a half-cock explanation? He just will not prosecute and it will be just forgotten. Because there is no penalty on the member of the force if he had not reasonable grounds and there is no way in which that can be tested as to whether he had reasonable grounds, because there is no forum which can test it unless there is a prosecution, the garda can in safety ask anyone about something because if he does not get a satisfactory explanation and if he is not really sure he does not prosecute. Therefore it is never found out whether he had reasonable grounds. That as Senator McMahon said, is what would happen on the ground. The garda would prosecute only where he had reasonable grounds. Where he had not reasonable grounds he will back off and say, "I got an explanation, let us forget about it, we will just do nothing about it".
At this point in the Seanad, those of us who have disagreements with fundamental provisions in the Bill know that they are not going to be changed and we accept that. In addition there are those of us who support the overwhelming number of the provisions of the Bill. However, we have worked under the illusion that we have a part to play in the process but not one single amendment to this Bill has been made since we came into the House. I am not saying that I, Senator Higgins, Senator Eoin Ryan or anybody else who put down amendments can draft perfect amendments. It has been indicated that there is a possibility that some amendments will be made on Report Stage. This was a much amended Bill in the other House and I give credit to the Minister for that, but it appears that the shutters have come down. We are not talking here about principle. I do not object to the principle of this at all. The Minister knows my views on it. Probably I am more right wing on it than the Minister because of something I will have to say in a minute about subsection (4). I am not accusing the Minister of being right wing in any way.
It is important that the concern expressed in the Seanad in an attempt to improve the measure is given due weight. That is all I ask. Senators, and myself, are articulate enough not to be ever placed in any particularly embarrassing situation, irrespective of what questions we are asked, but we are not legislating for people like us. We are legislating for other people. I do not mind what a garda would ask me. I would give him the answer if I thought it appropriate and, if not, I would tell him that it was none of his business. However, there are many people who will not know. If a garda comes up to a person and says he has reasonable grounds for believing he is involved in a crime and under section 16 of the Criminal Justice Act, 1984 he must answer the question, the average person is going to answer the question. The basis on which I started this off is that this is a licence to ask about anything. It is drafted so wide that it frightens me. I am not saying that it is going to be used like that. I am not accusing anyone, but it is a licence to ask about anything. All I am asking the Minister to do is to tighten it up.
A licence for the curious garda to satisfy his own desires.
I should like to stay with the Minister's example for a couple of moments. If a garda was to ask me, or any citizen, about a car on the basis that he has reasonable grounds to suspect that the car was obtained through stealing or by means of stolen goods being traded or otherwise, many law-abiding citizens would resent this. Many law-abiding citizens who everyday are prepared to assist the Garda would resent being asked such a question by the Garda. This section will probably do more harm with regard to Garda operations than good because it will turn people against the Garda and nobody wants to do that. I am sure nobody in this House wants to do that. Most people stopped and asked about their car or possessions although not obtained illegally, or obtained through the sale of stolen goods, would not want anyone to know how they got them.
Many people win in the prize bonds draw and they never tell anybody about it. They spend that money. They do not want to have to tell the Garda that they obtained their car, an extension to their house or whatever as a result of winning the prize bonds on the basis that if they did it would be out in the locality that they won the prize bonds. People have a thing about prize bonds and winning in that draw. I have my suspicions that many people I know have won money in the prize bonds but they have never told me. They are reluctant to tell anybody.
There is also the case of the favoured son or daughter in a family to whom the father might give a present of a car or some other property or goods and not want another child to know about it. That child would not want to tell the Garda where he got such a car. It is wide open to that. That is why there is the greatest objection to the Bill. It is far too wide a power. Most gardaí will use it as it is intended but there will be some who will not. We all want to see the Garda force supported by the population and by as many citizens as possible — there will be enough who will not want to support them — and we want to see them assisted in eliminating crime as far as possible. We should not be putting this kind of obstruction in the way of the citizen who wishes to assist the Garda.
It is well known that Irishmen resent being asked about their private property, and we should not leave it open to any garda to do so. There are bound to be gardaí — granted a very small minority — who will abuse any Act. In the Garda force today there are people who are not adequately trained. That brings us to some other sections of the Bill. It is generally believed that it takes four years to train a carpenter or a butcher but we can put a garda out on the beat in six months. It is far more important a profession than many others for which it takes years to train. Yet we can put a garda out in six months. This is relevant to the section we are now discussing. The period of training is short and there is a lowering of standards by a small minority in the Garda force and they are likely to abuse the Act. I am sorry to have to say this because I would stay up all night to support the Garda in their efforts to eliminate crime, but I am saddened by many of the things I see a minority of gardaí doing today. It is likely that they are going to use this section in the way mentioned by many Senators.
Will the Minister consider on Report Stage taking out the line about the "whole or any part of the proceeds (direct or indirect)"? Then the section would be reasonably acceptable, because there is a case to be made where there is an object which a garda has reasonable grounds for believing is the stolen object and asking somebody to account for it. I know this is a new principle and something which many people object to but, within that context, the section would make sense and there would be a case for it. Including "the whole or any part of the proceeds (direct or indirect)" puts this into such a vague and dangerous area that it would be difficult to stand over including that line.
I should like to make the point — I am trying to be constructive in this — that my objection to this section has been replied to by the Minister in a particular way. It was based entirely on the implications in relation to enforcement strategy and I hope I do not cause Senator McMahon to faint if I say that I would think there is a very strong case for giving these powers to the Revenue Commissioners, for example. We would be thanked by the people in general if we gave these powers to the Revenue Commissioners rather than to the Garda. It makes no sense for the Garda if they were beginning at the wrong end of an enforcement strategy in the exercising of these powers whereas it would make excellent sense for people who are avoiding their social responsibility of paying tax if these powers were given to the Revenue Commissioners.
(Limerick East): I should like to say in reply to Senator O'Leary that the shutters have not come down yet. When I said I was listening carefully to what the Senators were saying, and when I left open the possibility for amendment, I certainly meant that. I did not accept any amendments in the Dáil on Committee Stage. The amendments made on Committee Stage were ones brought in by the Minister, but I did come back with amendments on Report Stage after listening to the Committee Stage debate.
There is a danger that we are going a little over the top here in talking about prize bonds, cars and all sorts of things like that. The situation at the moment is that the Garda can ask questions. They do not need section 15 or 16 to ask questions.
The Garda can ask questions about anything they like at the moment. As a matter of fact one of the problems we have is that enough gardaí do not ask enough questions. I am quoting from No. 1 in the Judges' Rules — page 25, which states:
When a police officer is endeavouring to discover the author of a crime there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, from whom he thinks that useful information may be obtained.
That is the present situation. You do not need these sections to put questions, you do not need these sections for Senator McMahon's associates who won the prize bonds and the garda comes to them and says, "Where did you get the car?" You can do that now without ever having a Criminal Justice Bill.
He can say to the garda, "Mind your own business", and I want to preserve that right.
(Limerick East): Of course he can say that to the garda. The favourite son can also be questioned by the Garda and asked where he got the Honda 50 or whatever.
He won it at the races.
(Limerick East): That is another one for the Revenue Commissioners. I can see that the Senators have a particular problem but there is no point in inventing problems which would attempt to suggest that for the first time in the history of the State the Garda are being given power under section 16 of this Bill to ask questions of people about stolen property. No. 1 of the Judges' Rules says that the Garda can quite legitimately put the questions in respect thereof “to any person or persons, whether suspected or not”.
Of course the person is not required to answer. In this provision the Garda would ask his questions. This idea of saying, "I am now going to ask you questions under section 16 of the Criminal Justice Act, 1983," is not the way it would happen. A person would be questioned under the Judges Rules. If a person refused, then the Garda could caution him under this provision on the likelihood that he would be committing an offence, the garda could only do that if he had reasonable grounds for believing (a) (b) and (c).
I take the point that it is widely drafted and I take the point that Senator Eoin Ryan makes about the direct proceeds of a robbery. One of the greatest difficulties which the Garda have is in regard to the proceeds of a robbery when it is in currency because if there is no record of the currency which has been stolen from a post office, a bank or a filling station or whatever then it is impossible to identify it and it can be given to other people to hold and to look after it before it is used. If the Garda, on information, search a particular premises and they find £1,000 in notes and they ask the person, as they are quite entitled to ask at present without any section 16, where did they get it, if the person refuses then they could be in difficulty under this section. However, it does not end there because the garda has to go into court and he has to swear that he has reasonable grounds for believing that this money was stolen.
That is the actual money stolen but when you go on with the proceeds of it——
Videos were stolen and were converted into money——
If money is stolen and the Garda come on a wad of money in a man's house I have no objection to the Garda saying "We believe that is the money that was stolen" although it might be difficult to identify. To say, "A car was stolen, there is £1,000 in this house, and we believe that is the proceeds and we want you to account for it" is going a bit far.
(Limerick East): I will examine it between now and Report Stage but I am not committing myself to any amendment. I have listened to the advice of the Senators. It is widely drawn but then it is restricted in operation by the phrase “reasonable grounds for believing”. Reasonable grounds for belief is a strong test and it is a test which the Garda under oath would have to pass in court. It is not that the Garda, as Senator McMahon seemed to indicate, are not being given the power to question people for the first time about anything. They have that power already. They have the power to ask questions about anything in effect at present.
Will the Minister take into account when he says that the reasonable grounds for belief are a strong test that those reasonable grounds for believing will only be tested in the event of a prosecution and in respect of all other occasions where there is not a prosecution, whether or not the Garda ever had reasonable grounds for believing will never be tested? There is no mechanism. The garda controls whether there is a prosecution or not and he controls whether he ever goes into the witness box. That is the problem. If he is in any difficulty he just does not prosecute but that does not stop him using it another ten times in the meantime.
(Limerick East): He has the power to ask any question he likes about any property. That is not at issue. He does not need section 16 to ask any questions he likes about any property. That is the present position. If he wants to operate section 16 he must have reasonable grounds for believing under paragraph (a) and reasonable grounds for believing under paragraph (c). If somebody refuses the information it can be tested in the court if the garda proceeds. If somebody gives information, the particular information cannot be used against the person or against a spouse. There is an indemnity provided for self-incrimination. The indemnity is there as well in the next section. There is the safeguard of the court for the person who refuses to give the information and for the person who give information which might incriminate himself there is the safeguard that it cannot be used against him.
There is no safeguard in the court as long as the garda controls whether it ever goes to court. The garda can question anybody, just like I can question anybody, but the person is under absolutely no obligation to answer the question. I can question Senator Durcan about where he got his coat and he could say, "I will not tell you." The authority of the garda to question Senator Durcan about his coat is no greater then mine. It does not need any Judges' Rules to tell you that. The question is, that a garda armed with this can pick and choose, he can invoke section 16, frighten people into explaining about every piece of their property and choose himself which ones to go to court on. All I am asking the Minister to do is to consider this.
Am I right in saying that under this section there is the creation of a new offence of withholding information? Could I make one other suggestion totally separate from the points that have been made? In subsection (1) (b) I propose to add the words "or control" so that it would read: "finds any person in possession or control of any property". If the section is to stand I am surprised that those additional words have not been included.
(Limerick East): I will look at that. There is one point I want to make about what Senator O'Leary has said. If a garda does as he is entitled to do now and proceeds under the Judges Rules and asks the question and if a person answers there is no problem. If a person does not answer and the garda invokes the offence of withholding information under section 16, the fact that he invokes it means an offence is created and it must be then taken to court.
That is different. Every time a garda invokes the section it must end up in court?
(Limerick East): He invokes the section. The superintendent would have a say in whether a case went to court or not.
If the Minister can say that every time the garda says "I invoke section 16" the case will end up in court, I am quite happy because that will put a restriction on the garda, but if the garda or the superintendent determines whether there is enough evidence to prosecute then that is giving him the licence to appear to be invoking section 16 without ever having the intention of prosecuting.
Surely the case only goes to court if the person withholds information?
(Limerick East): If the person gives an answer there is no problem. If the garda invokes the section an offence is created.
Could I mention one other thing which I mentioned to the Minister privately? I would like to mention it here as well. It applies to sections 15 and 16. I have considerable sympathy with the Minister's inclusion of subsection (4) and a similar provision in section 15: "Any information given by a person in compliance with a requirement under subsection (1) shall not be admissible in evidence against that person or his spouse in any proceedings, civil or criminal, other than proceedings for an offence under subsection (2)", which is a refusal. I understand and appreciate what the Minister is trying to achieve. However, it is going to be subject to ridicule.
In actual practice if a garda invoked section 16 in a totally genuine case and asks: "Where did you get the coat?" and the person says: "I stole it", the fact that the garda cannot then prosecute will give rise to a ridiculous situation. Will he prosecute on the basis of that statement? It is not that I am particularly concerned about the admission. It may be the thin edge of the wedge. Those who would like to do away with the right of silence will use the anomaly which will arise under section 4 to create a situation where they will be able to campaign for the removal of the section at a later date. There is a difficulty there.
I know what the Minister is trying to achieve and I appreciate his approach to the problem. Representatives of those who enforce the law are not just the Garda. They could be Ministers, Ministers' officials, or anybody. In future years it may be said: "One of the reasons we cannot get our crime rate down is that they are telling us in the station where they got the goods, but we cannot prosecute them because of this section". It will look ridiculous. Let us be honest. I want to express my concern about that as being a pressure point in future years. I do not know what the Minister's attitude is on it, but that is my attitude.
(Limerick East): If a person gives information without section 16 being invoked, certainly that information can be used in evidence against the person. On the other hand, the real problem is that is a person is required under penalty to give information, that information should not be admissible against himself or his spouse. What may not have been adverted to is that it does not give immunity from prosecution.
Prosecution in respect of that confession?
(Limerick East): Suppose he says: “I stole the coat”. What is inadmissible is the admission that he stole the coat. But if the Garda have other evidence, then a prosecution can taken place. It is not an immunity provision. It is a provision that the statement cannot be admitted in evidence which is more restricted. It might be a pressure point. I do not think it will be used by people who want to proceed to remove the right to silence. I do not think there will be great enthusiasm among Ministers for Justice in the immediate future to bring in Criminal Justice Bills.
Question put and agreed to.
Section 17 agreed to.
SECTION 18.
Amendment No. 25 not moved.
Question proposed: "That section 18 stand part of the Bill."
Section 18 says: "Where a person is arrested without warrant by a member of the Garda Síochána..." It then goes on to say what the garda may ask him to account for, a mark, and so on. It merely says "Is arrested without warrant". Earlier on this evening Senator Durcan was making the distinction between custody and detention, custody being the time before the person was brought to the barracks and the arresting garda got the approval of the officer in charge of the barracks. It seems to me that the intention of this section is that this questioning would be done during the detention of the person, and not during the hopefully short period when he was brought to the barracks. As it stands, it means that the garda could go through this procedure before he brought him to the barracks, whereas I do not think that was intended. Consequently, it seems to me that the more appropriate wording here should be, "where a person is detained under section 4 a member of the Garda Síochána..." and go on from there. Perhaps it is permissible before he is actually detained.
(Limerick East): First of all, it applies to an offence outside the scope of the offences under section 4. The provision would apply to any offence which would put it outside the scope, even though it would include the scope, of section 4. I could envisage a situation where a garda would arrest somebody without warrant and ask him particular questions immediately, for example, about being in the place where he is at the time of his arrest if it is associated with a particular crime, or being near the scene of a crime, or at the scene of a crime.
It is not necessarily referable to section 4.
(Limerick East): It is not necessarily referable to section 4.
Question put and agreed to.
SECTION 19.
Amendment No. 26 not moved.
Question proposed: "That section 19 stand part of the Bill."
I know that the impact of the section is limited by the opening phrase in subsection 1 (a) "a person arrested without a warrant by a member of the Garda Síochána..." I would welcome the Minister's views on how he sees this being applied in practice. Before he does that, I want to briefly give expression to my own concern about it.
Leaving aside for a moment the whole question of the serious limitation and change in the right to silence that is at the basis of these sections 15, 16, 18 and 19, it seems to me that the notion of inferences from presence at a particular place could be extremely tricky in practice. There is a very long literature on the whole nature of gangs and on the nature of urban social behaviour. I can see the application of this giving rise in practice to very serious difficulties.
I know the Minister might reply to me that where a person is arrested without warrant by a member of the Garda Síochána, there is a great deal of estimation as to the person's presence at a particular place, and the inferences that might be drawn from it have been exhausted. I still think this section, in relation to other sections which represent a significant departure from the right to silence, could be quite indiscriminate in its application. I worry about that. I hope the amendments that have been moved and not withdrawn will be under consideration by the Minister between now and Report Stage, and that one's silence while exercising the right to contact a solicitor would not be construed for the purposes of any penalty. This would be particularly relevant to section 19.
In its social implications this is one of the four sections on which the greatest amount of mistakes could be made. It is a fact that people congregate in collectivities, and gangs that are sometimes not crimigenic although sometimes they are. Different gatherings of people, for example, can sometimes become involved in or associated with the commission of a criminal act and other times not. These are the kind of worries that were in my mind when I was drafting the amendment to this section.
(Limerick East): As regards the kind of practical procedure that the Senator inquires about, the situation would be one which the Garda are familiar with and would take place any night in this city where the Garda find somebody in suspicious circumstances at or near the scene of a crime. As I mentioned under number one of the Judges Rules the Garda have the right to ask him any question they like. They ask him what he is doing there, why he is there, and so on. It is only when a person was proving difficult and not answering the questions or refusing to answer the questions that the invocation of section 19 will become relevant. It could be invoked by the Garda then.
Who makes an estimation as to the sufficiency of the reply? If a person gives a short answer, for example.
(Limerick East): If he gives an answer, he gives an answer.
Any answer?
Out for a walk.
(Limerick East): That might not be a very satisfactory answer but it is an answer. It is not the Garda who will decide whether an inference can be drawn. It is up to the court to decide from a failure or refusal to give the information. The court can only decide when the judge thinks it proper. It is not something that would be left to the jury, for example. The judge would have to evaluate it. If it was the District Court, the justice would make up his own mind. If it was a jury trial the judge would evaluate it an advise the jury whether he thought it proper that an inference could be drawn. An inference on its own could not convict. It would be another piece of evidence in the corpus of the case but, on its own, a person could not be convicted on an inference. That is how it will operate in a practical situation.
I have not directed my mind sufficiently to this section and, therefore, if I am floundering a bit the Minister will excuse me.
There are many sections that the Senator did direct it to.
Am I right in saying this only applies where a person is arrested without a warrant? That is a precondition. I think that is a true statement. It does not apply to fellows walking around the streets. It only applies if a person has been arrested without warrant. I think the Minister is agreeing with me on that. The garda, in my opinion not unreasonably, then says "Why were you there"? Why were you down the quays in Cork? There was a robbery there". The fellow says, "I was out for a walk". A man of my age and of gentle disposition would not normally go for a walk down the quays of Cork. That is not the place I would pick to go for a walk at 2 o'clock in the morning. But if I said I went for a walk, am I right in saying that would end the matter because the inadequacy of my reply could not be put to the judge? Is that correct?
(Limerick East): The member of the Garda would inform the person of his belief and then request him to account for his presence. The person then fails or refuses to do so.
I did not fail. I said I was out for a walk.
(Limerick East): If he refuses to do so it is straighforward. If the explanation is “I was out for a walk”, it could possibly be construed as a failure to give an account as distinct from a reason. It could be construed as such. If the Garda then go ahead and invoke the section and the case goes to court, the garda would say, “He told me he was out for a walk” and the judge, in all the circumstances, would decide whether it would be proper to draw an inference. That is the way it will work.
I wonder is that right. It is important. This might be totally unworkable. A person who says, "I went for a walk" might not be able to give a correct explanation. He might not have given a very believable one but nobody can say he refused to give an explanation. I do not understand the meaning of the word "fail" in that context. I do not think he has failed to give an explanation.
It is not qualified.
I would have failed to give an explanation if I fell asleep and did not answer. That would be a failure. If a garda asked why was I down the quays and I was asleep or pretending to be asleep, I would have failed to give an explanation. I would refuse to give an explanation if I told the garda, "I will not tell you". I do not think an inadequate explanation or even an untrue explanation is covered by the section.
(Limerick East): It is not an explanation that is required but an account.
"I went for a walk", is that an account? I needed a bit of fresh air and went for a walk.
(Limerick East): Being the reasonable man the Senator is he would say, “I left home at around 9 o'clock. I was out for a good walk. I was out with the dog or whatever”. That would comply.
That will not last kissing time. It will not work at all. I am on the Minister's side in this. They will play ducks and drakes with this. The Minister is wasting his time.
I am not anxious to prolong the debate on this. Let us take the unlikely position, in a morally rigid country like ours, that the person was involved in anticipating promiscuous sexual behaviour.
(Limerick East): Has he won the prize bonds as well?
As I listen to debates in this House, I am sure that my case is even far less probable than winning the prize bonds with the odds that I know. I am going by the public statements of people. What is the person supposed to say? Is the person required to relate his answer to the purpose of the garda inquiry? In other words, does the garda make his request in such a way that an answer is indicated in some particular cicumstance, or affecting some particular circumstances? In other words, the garda would not ask the question, "What are you doing here?" I am trying to be of assistance. Does the Minister understand what I am saying?
It is not merely refuses. It is fails to account.
It is adequacy that is the problem.
That means you answer but if you give an absurd answer you are not accounting for your presence.
I can well appreciate that in the example I gave of a person being down the quays — they are very open quays in Cork — and if he said, "I went down to look at the All-Ireland final" obviously that would be absurd in the extreme. I am looking at the practical application of this. I want it to work. I agree with the Minister on this but I do not think it will work. The Minister is wasting his time. People will see through it. I just want to bring that to the Minister's attention.
What I am trying to do for the Minister is what I would do for a client if I had the misfortune to represent him in court. I am trying to do it now so that it will not happen in court. I have no particular expertise in criminal law but if I did happen to represent somebody and if he said he was out for a walk I would put it very strongly to the judge that he had explained his position. I have no doubt, in those circumstances, that the judge would accept it even though it might not be right.
(Limerick East): That is not the problem to which this section will be a solution. Is it not a question of a person giving an account, however inadequate? If he gives an account it is part of the evidence, however inadequate. That can be evaluated. It is a case of where a person fails or refuses to give an account. I am not saying that every time a garda asks a question and is not happy with the answer or thinks it is inadequate, that he should invoke the section. In a whole lot of cases this will not be invoked at all.
It only applies if there is arrest without a warrant.
(Limerick East): That is right. We all agree on that. It will work in case where a person absolutely refuses to give an account. It is limited in its scope, certainly. It is a question of bringing the practice in the court into line with a common sense situation. Sometimes juries are instructed in effect, to act against their common sense. They are told not to draw an inference from a particular situation. It is very hard to know what happens inside a jury room but a jury maybe directed by a judge, “You heard the evidence. He failed to explain why there are blood stains on his shirt, but an inference cannot be drawn from that”. It is to align that.
And the judge winks at the same time, so it does not appear on the record.
(Limerick East): I was never a criminal lawyer or a judge.
One other question I would like to ask the Minister on this section also applies to the previous section. Does the accused comply with the section if he gives his explanation much later?
(Limerick East): The Senator is envisaging a situation where somebody is arrested without warrant, the question is put immediately, he refuses to answer and then he brings himself back——
No. He says, "I will let you know that tomorrow" or "in due course I will give you a full explanation, but I want to get everything right".
(Limerick East): Yes, I think that would put him “on side” again if I may use the expression.
Question put and agreed to.
SECTION 20.
Question proposed: "That section 20 stand part of the Bill."
Am I right in saying that the change here would not apply to the disposition of matters in the District Court?
(Limerick East): Yes, trial on indictment.
It will not apply. It seems to me a good change in criminal procedure but I do not know why it does not apply to all courts, particularly those dealing with criminal matters.
(Limerick East): It is confining it to an area of more serious offences which would not be tried normally in the District Court.
Also, the Minister would be under the difficulty that the prescribed period might be too long for the District Court. Very often trials take place very quickly.
(Limerick East): In the District Court as well, you can more easily adjourn when there is not a jury involved. If there is a problem, the garda can look for an adjournment.
It would be unsatisfactory if there were two different procedures, one for the District Court and one for the Circuit Court.
(Limerick East): I do not know. It is not a procedure for a particular court that was the intention. It is for trials on indictment. I know they happen in the Circuit Court. It is the nature of the trial before the jury, rather than the particular court.
Question put and agreed to.
Sections 21 to 24, inclusive, agreed to.
SECTION 25.
Question proposed: "That section 25 stand part of the Bill."
I just want to give the Minister an opportunity of having my views on the section. The Minister in his Second Stage speech made the case for the change that is involved. It seems that this change is a significant one. I know the arguments in favour of it, but I equally have some reservations about the change involved. That is all I wanted to say.
(Limerick East): I think I referred to it in my Second Stage speech. I just want to make the point that it works both ways. One can be found not guilty on a majority as well as being found guilty on a majority. People looking at it think that people will be sentenced on a ten-to-two majority. If it is a split jury a person can be exonerated as well. This is not often adverted to.
Question put and agreed to.
SECTION 26.
Question proposed: "That section 26 stand part of the Bill."
(Limerick East): I just want to make the point that this section has been substituted for section 15 of the Criminal Justice Act, 1951 to make it clear that a person charged with an offence, whether he has been arrested on a warrant or not, must be brought before a district justice if he is immediately available, or if not, before a peace commissioner as soon as practicable. The existing section 15 provides that a person charged with an offence shall on arrest be brought before a justice if immediately available and if not be brought as soon as may be before a peace commissioner.
There was a doubt as to whether this applies to a person arrested without warrant since he is not a person charged when arrested, whereas a person arrested on a warrant is regarded as having been charged when the warrant is issued. I just wanted to clear up that problem. Section 26 (1) caters for the position of a person arrested on a warrant and is similar to existing subsections (1) and (2) combined of section 15 except that he has to be brought before a peace commissioner as soon as practicable instead of as soon as may be.
Section 26 (2) makes a similar provision in relation to a person arrested without warrant. On subsection (3), this provision is not in the existing section 15 but it represents in substance the existing law as it appears from reported decisions of the courts, at least in relation to arrest without warrant. It provides, in effect, that where a person is arrested on a warrant after 10 p.m. or, if he was arrested without a warrant, is charged after 10 p.m. it would satisfy the requirement to bring him before a court as soon as practicable, if he is brought at the commencement of the sitting before a district justice due to sit on the following morning in the district where he was arrested.
This is a tighter provision than what appears to be the practice in the courts. One would comply with the instructions of the courts if somebody were brought to a sitting at any time on the following day, whereas now it explicitly states at the commencement of the sitting on the following morning.
What is the position on the practicable difficulties?
(Limerick East): The section takes account of the practicable difficulties confronting the Garda in bringing a person before the court where he is charged late at night. In any case, if a person was in fact, brought before a peace commissioner, the peace commissioner would presumably remand him in Garda custody until the District Court sitting. He would certainly do so if the case were a serious one. If it was a minor one, or otherwise suitable for giving station bail, then the member in charge could admit him to bail conditional to appear at the following morning's court. Either way it works and it is more in ease of the person charged than the present practice in so far as the person has to be brought at the commencement of the District Court sitting the following day.
It is important to note that the subsection only applies to a person who is being charged and that a person may not be questioned after he has been charged except to clear up ambiguities in any voluntary statement he has made or, possibly, in exceptional circumstances for the purpose of preventing harm or loss to some person or to the public. Subsections (4), (5) and (6) re-enact corresponding provisions of section 15 of the 1951 Act. They provide for remand on bail or in custody of an accused who is brought before a peace commissioner after being charged.
Section 7 is a saver for other existing law under which different procedures apply in relation to a person charged in certain circumstances. For example, under section 31 of the Criminal Procedure Act, 1967 a sergeant or other member in charge of a Garda station may, if he considers it prudent to do so, release a person on bail subject to recognisances to appear before the District Court at the appropriate time and place.
Under section 26 of the Extradition Act, 1965 a person arrested on a warrant must be brought before a district justice assigned to the Dublin metropolitan district or other justice as the Minister directs. Also under that Act different periods of remand apply in relation to a person arrested on a provisional warrant from those applicable to arrest on an ordinary warrant.
Would the Minister tell me the difference between "as soon as may be" and "as as practicable"? I am not familiar with those terms.
(Limerick East):“As soon as practicable” is used extensively through the Bill. It means without delay unless there is a practical difficulty. I think “as soon as may be” is a looser phrase. There are certain planning requirements to bring out development plans, where the phrase is “as soon as may be” and it can take quite a long time. The main basis for the change is a tighter form of words, or perceived to be a more restrictive form of words.
Question put and agreed to.
Sections 27 to 29, inclusive, agreed to.
Amendment No. 27 not moved.
Sections 30 to 32, inclusive, agreed to.
Title agreed to.
Bill reported without amendment.
Report Stage ordered for Tuesday, 2 October 1984.