The nub of what I was saying yesterday, which I do not propose to repeat, is that I do not think that in the matter of depriving somebody of his liberty we should allow administrative inconvenience, procedural difficulties or administrative complexities to become an argument of itself unless there is an overwhelming associated argument. I have been frustrated on numerous occasions when inviting the Minister to explain to us how those who are detained under these provisions and are not charged can have their interests protected in the way that the courts clearly can vindicate the rights of those detained and charged. I have not had much of a response to those requests from the Minister. It would be very helpful if the regulations which the Minister will bring in under section 7 would contain an instruction to include a written list of the reasons why somebody has been detained and the reasons for their detention. That written information should be supplied as a matter of regulation. If such a commitment were given it would not be necessary to have it in the legislation. If there is to be proper care of people in custody, by regulation they should be informed why they are there and how long it is proposed to detain them.
Criminal Justice Bill, 1983: Report Stage (Resumed).
As the drafter of the amendment I beg the indulgence of the House to make a minor amendment to the amendment. The amendment refers to a "person arrested pursuant to this section". That should read "person detained". It was brought out clearly earlier that there is no provision for arrest in section 4. With leave of the House I propose to amend that word.
A debate here is facilitated if an amendment before the House clearly represents what was intended by those who moved it. I have no objection to this change being made in order to facilitate the debate.
The purpose of the amendment, as clearly stated by Senators M. Higgins and B. Ryan, is to ensure that persons detained under section 4 will have the fullest opportunity to know the context under which they are being detained, that they will know the time of the arrest, the offence or offences in respect of which they are being detained and that when being brought to a Garda station they will be handed a statement in writing of the offence or offences for which they are being detained. In section 4 we are allowing for persons to be held for questioning for an initial period of six hours with the possibility of extending it for another six hours and that a person would be told the period for which he may be detained.
It may seem unnecessary to write this into the legislation but it is one of the real concerns in relation to this section because there is a possibility of the provisions being more onerous than intended by Members of the Oireachtas when considering the legislation. As other Senators have said it can be very frightening, disorientating and very difficult for people who are not hardened and seasoned criminals accustomed to being in Garda stations, not to know how long they will be held there and will be unsure of the surrounding circumstances. When a similar amendment was being discussed on Committee Stage I pointed out that we have the analogous situation in section 30 of the Offences Against the State Act which has meant that there have been occasions when persons properly arrested under section 30 are only told they are being arrested under section 30 and are not told for which offence under the section they are being arrested and may not be told for how long they will be detained.
If it is not possible for the garda in charge of the station when the decision to detain persons under section 4 is being made to say for exactly how long the persons will be detained, it should be made very clear to such persons that they can be detained for up to six hours. It seems obvious that this would always happen, but there is no guarantee that it would happen. If persons are told that they may be detained for up to six hours, at which point there may be a decision to detain them further, at least the persons so detained would know the full context of being detained, that they are not put into a room with somebody asking them questions without knowing that, and are more likely to be in a position to avail of the safeguards and protections. It is extemely important that we ensure that these safeguards and protections will be availed of and fully drawn to the attention of persons so detained.
In particular, it is more likely that persons who face the possibility of being held for six hours, and that they may be held for a longer period, may wish to have access to solicitors. They will be informed they have a right to do so, but it is much more likely that they would wish to avail of that right in full measure, particularly young persons who would also wish to have contact with parents or guardians. In order to ensure that the safeguards continued in the section will work in practice it is extremely important that we are satisfied that the procedure will work so that persons detained under section 4, who in effect are being detained for questioning, will have every possibility of knowing the offences for which they are being detained and for how long it is proposed to detain them.
I do not think the period of detention would be a standard thing: I would assume that in some instances a period of much less than six hours would be sufficient for the purposes of investigations. In this respect the section refers to the person's arrival at the station and that there is reason to believe that the detention of that person is necessary for the proper investigation of the offence. There may be something specific to be checked out and it may be possible to do it in half an hour, and in such cases persons should be told that they would be detained for that period. That would ensure that the persons were informed of the time. They are entitled to know how long they will be detained. They are the reasons why the amendment has been tabled on Report Stage in a slightly expanded form and, with the leave of the House now, amended to be a more correct representation of what is behind this amendment.
Limerick East): We discussed the Senator's amendment on Committee Stage and I was opposed to the first portion of it which provides for the arrested person to be told on his arrest of the offence for which he was being arrested. That was because that was already law and any provision to that effect in the Bill would, therefore, be unnecessary. That is still my position on that.
On the second point which we discussed also, that the arrested person should be handed without delay a statement in writing of the offence in question, I am still of the view that whatever about the merits of the proposal it would not be appropriate to incorporate it in the Bill. If it were to be implemented the place to do it would be in the regulations. As I explained, the arrested person at present is given a form which sets out various entitlements. For example, entitlement to bail, contacting a solicitor and so on. A record is also made of the offence for which the person was arrested in the custody record kept in respect of each arrested person.
I have an open mind at present on the provision to be made in the regulations on this point. It is inevitable that a fair number of additional records will have to be kept as a result of the Bill. That is in addition to those kept already which are fairly substantial. I do not want to impose additional clerical work unless it is reasonably necessary.
Senator Lanigan remarked the other day on the cumbersomeness of the requirements in section 4 of serving a notice to suspend questioning after midnight and having the detained person giving his consent in writing to that suspension. He was not saying these forms are unnecessary but he was pointing out that the reality of the situation in Garda stations was that it could be cumbersome and that too much clerical duties on the Garda could be cumbersome. Whatever needs to be done, or whatever is reasonably necessary, then it should be provided in the regulations.
In this case the person has already been told by the arresting garda what he has been arrested for. That is recorded in writing in the station record and it can be produced if there is any dispute. It might be enough for the member in charge to tell the arrested person then what he was arrested for. I am not sure on that point. I would like to see the regulations as a whole and examined now. We have a first draft, as I said previously, and we will look at the full extent of recording that has to be done. It may be that a requirement for a written notification would be included, but it does not seem to be at present that such a requirement would be so essential a character as to give a definite commitment at this stage. I will give a commitment that I will examine it fairly. If, on examining it, I think it is reasonably necessary then we will put it, and there is no difficulty about that, in the regulations.
A third point mentioned on Committee Stage and again today was that the detained person should be told the period for which he may be detained. I do not see how we could impose that requirement when the member in charge who would make the decision whether to detain or not, will frequently not be in a position to say how long the person in custody may be detained. That would depend on the progress of the investigation. That can be very unpredictable. It would be hard to say, for example, how long it would take to check a person's story. To take the Senator's example, someone saying, "well, all right, you have said that but we need to check it out and that will take a half an hour." It would be reasonable to say, "We will check it out", but actually saying, "We would do it in half an hour", is going beyond what the gardaí could do.
The result of forensic testing, for example, could require further questioning when it was completed. The amendment is inappropriate in the Bill, but certainly, the latter portions of it if considered necessary are appropriate for the regulations. I will consider what has been said when preparing the draft regulations. The matter can be gone into again when the draft comes up for approval by the two Houses.
I should like to thank the Minister for being willing to consider the various strands in this amendment and what has been said in the House on it. I take the point that it might be difficult to give a very precise time. It would be virtually impossible to do so and become a handicap that is not necessary. The main concern that I and Senator Higgins, in seconding, have is that a person would be at least informed, if not of a more precise time, that he can be detained for six hours. If a person is in a never-never land of not knowing how long he will be detained — some people who are very experienced might know their rights fully but the people that perhaps we would be more concerned about would not know — he could be left for an hour in a room and not know for how much longer and not have availed of his right of access to a solicitor which he would have if he realised he was going to be kept that length of time. A person should be definitely informed that he faces a period of detention of up to six hours and, if it is possible to give a more precise indication, it would, obviously, be desirable. In view of the fact that the Minister has indicated that he will look at these areas and will consider the possibility of making appropriate provision in the regulations, and in view of the fact that we will have the regulations before us in draft then I propose to withdraw this amendment.
I move amendment No. 13:
In page 5, between lines 39 and 40, to insert a new subsection as follows:
"(8) Where a person under the age of seventeen years is detained in a Garda station pursuant to this section that person shall not be questioned other than as provided for in section 6 unless and until a parent or guardian or other relative of such person has been informed of the detention of that person and afforded an opportunity to be present when such person is being questioned."
This amendment relates to a concern which was discussed on Committee Stage. It seeks to provide that where a person under the age of 17 is detained pursuant to section 4 that the person would not be questioned except for the minimal question in section 6 which a person is obliged to answer. In other words, he is obliged to give his name and address and he faces a penalty if he refuses to answer or gives a false name and address. Apart from that, the amendment proposes that a person would not be questioned until a parent or guardian or other relative of the person has been informed of the detention of that person and afforded an opportunity to be present when such person is being questioned.
This amendment is couched in terms that are intended to be as helpful to achieve the objective as possible. It clearly would not be appropriate to require the Garda not to question a young person until a parent, guardian or relative had come because they might well not come to the Garda station. The amendment does not confine itself to parent or guardian which other provisions of the section do because the objective would be to have some relative — perhaps not necessarily the parent or guardian, but some accessible relative — informed that this young person under 17 is being detained, will be held and can be questioned while detained, and that the person would be simply afforded an opportunity to be present when the young person is being questioned.
On Committee Stage a number of us expressed concern about extending the provisions of section 4 to persons under a certain age and there were amendments to that effect. This does not rule out the possibility of a person of 12, or over being detained but it simply provides an additional safeguard that before they can be questioned a parent, guardian or relative is afforded an opportunity of being present.
A number of parents have expressed concern, certainly to me and I am sure they have to other Members of the House, about having had their 14 or 15 year old questioned. The amendment also incorporates into the Bill a safeguard which appears to be recognised by the President of the High Court in the Travers case. The Minister may reply by saying that in so far as the courts are concerned about the protection of the individual it is not necessary to write it into legislation, but we are taking a very significant step here in extending the power to detain young people for questioning.
I accept that in the course of an arrest under present circumstances a person may, in fact, be detained for a certain period before being brought before a peace commissioner or district justice. What we are really seeking in this amendment is the additional step in relation to somebody under 17 years, that before they were subjected to the questioning over a period their parent or guardian would be afforded an opportunity of being present at questioning. That is the purpose of the amendment.
I support the amendment. I think the arguments in favour of it have been made on the previous Stage and have been explicitly focused upon by Senator Robinson in moving this particular amendment on Report Stage. The only point I would add is that as we have a responsibility for this Bill as a piece of legislation the safeguards which Senator Robinson speaks about should be incorporated visibly in the Bill. The advantage in that seems to my mind that while one can argue that the courts would uphold the rights of access of parents or guardians or the rights of people of a relatively young age to have access to their parents or guardians, there is quite a distinction between that and the public perception of these in practice. It seems to me that the inclusion of the safeguards which are referred to in this would go a considerable distance towards that in terms of the public perception of the rights which exist.
(Limerick East): I accept generally the principle of what is here. Certainly the rights do exist. Even though the Travers case suggested that the rights existed — I think it was around 14 years — we can take it for granted that they would move from the particular to the general very quickly and would apply to people under 17 years of age. It is on that basis that I will be drawing up the regulations under section 7 and I think the Seanad will be quite happy with the regulations when they are drawn up.
Under the present law the admissibility of statements made in the absence of a parent or guardian would be seriously prejudiced and not just at 14 years of age; in my opinion it would be from 17 years of age downwards. The amendment goes far because there may be circumstances where it is necessary to question the young person before the parent or guardian arrives. The obvious case would be where a delay in questioning would involve a risk of harm to somebody or serious loss or damage to property. In that case there would be a conflict of constitutional rights. In such situations the other person's rights — the person at risk for example — should prevail. The court would find such evidence admissible when it was the rights of a third party that were being potected by having the period of questioning.
I accept in general what has been said. I have a firm intent of covering this in the regulations and I will taken into account the views that have been expressed.
I wish to thank the Minister for his response to this amendment. In the light of it I ask for leave to withdraw the amendment.
An Leas-Chathaoirleach
Amendment No. 14 was discussed with No. 1.
I move amendment No. 15:
In page 6, between lines 7 and 8, to insert a new subsection as follows:
"(12) Subject to the provisions of sections 15 and 16 a person detained under this section shall be questioned only about matters connected with the offence being investigated, or a related offence, or any other offence which a member of the Garda Síochána with reasonable cause suspects him of having committed".
I wish to ask a few questions that I have asked consistently through this debate. First, what about the people, the majority as the Minister has agreed, who will be detained under section 4 and will not be charged? Other than a person's willingness to proceed with matters through the courts or through the tribunal when it is set up what is there to protect him? The curiosity factor, the desire to accumulate information, all of these things are natural human nature. There is a piece on information theory and on communications theory in large organisations to distinguish between what people need to know and what is nice to know. It applies very particularly to the question of questioning people in Garda custody.
There should be clearly delineated legal limits to what it is that people can be questioned about when they are in Garda custody. I listened with interest to other views. While I did not necessarily agree with them, I felt that it would be useful to put down an amendment on this Stage which attempted, even in fairly broad terms, to delineate the limits of questioning that are permissible under this power that I find so objectionable. My original proposal was that it should only be matters on the offence being investigated. People raised various questions, some of which I did not respond that much to, but which they felt rather strongly about. The obvious first one, which is probably straightforward enough, is a related offence. The Minister produced the example of somebody running away from a house whom a garda suspects of burglary and then discover somebody dead inside. He asked, can they not question him about that and I said "fair enough". Suppose a fellow happens to have information or something comes up so that the garda suspects there was something entirely different, where he makes some statement which suggests he is responsible for 15 different major crimes in the previous week, can he not be questioned about that? That seems reasonable also. What is not reasonable, which is what appears to go on at present under section 13, is that the people are not only asked about their activities in terms of suspicion of their membership of an illegal organisation, but they are asked about the activities of organisations with which they are connected, not their own activities in those organisations but what those organisations are doing.
Incidentally among them is the campaign against the Criminal Justice Bill in which some sections of the Garda seem to show a rather excessive interest. Considering that it is a perfectly legitimate political activity to oppose a piece of legislation — otherwise we are all breaking the law — or they show an excessive interest in some of the activities of various groups of the unemployed. There is some concern about a certain organisation which is not proscribed but about which people are very uneasy and its infiltration of these organisations but I would have thought there were ways of dealing with that without asking everybody about the activities of groups like the unemployed action groups. I was quite disappointed at the peculiar judgment involved when I spoke at a meeting in Chair during President Reagan's visit. There were no more than 300 people there but there were about six plain clothes Garda Síochána and about 20 uniformed gardaí. In terms of wasteful public expenditure that most non-violent and peaceful of groups really did not need that much attention and I do not think the State could afford it.
I think there is a tendency on the part of security forces generally to want, understandably, to collect as much information as possible about possibilities for crime, about connections between people whom they suspect of crimes, even if they cannot prove them, about circumstances that might be useful in a future investigation, about a whole host of things. As the section stands, it is a matter for the Garda to decide about what matter they are going to question people. It is a matter for the Garda to decide what is the important line of questioning they wish to pursue.
The answer we have got consistently on this Bill and all through this debate, has been that ultimately if the gardaí exceed what is reasonable the courts will decide that was not lawful custody or that the law was broken and, therefore, any information obtained was unlawfully obtained and would not be admissible as evidence. For the majority of people, there will not be a court available to decide whether what happened to them was lawful or not because they will not appear in court. It is very frustrating to ask in a reasonable tone of voice again and again, what about the innocent people, what about the people who were never charged, and to get no answers.
There is a scenario which I know about and which is fairly well documented, namely, the case of a recent murder where the person in question who was murdered was a practising homosexual and 1,500 members of the homosexual or gay community in this country were questioned by the gardaí because they would be associates of his. Under this section all of those people could possibly be subject for detention under suspicion of homosexual acts in private, that is, if that particular Act does have powers of arrest. Again, I have sought a simple bit of information from the Minister. Is there a power to arrest without warrant in the case of a suspicion of a male being involved in homosexual acts in private? Unfortunately so far the Minister has not given us an answer. Presumably it is either yes or no. If the Department of Justice do not know whether it is true or not, it is going to be very difficult for the Garda to know whether they have the power or not.
If the situation is that there is power to arrest, it would be very simple, for instance, to detain anybody from the gay community where somebody who was known to have such sexual orientation was involved in the crime and arrest him under that 19th century Act and then question him not necessarily about a crime, but in connection with his relationship with the individual in question and with a whole lot of related matters. I suspect that is not the Minister's intention. I hope it is not. Therefore I suggest that a reasonable, broadly based delineation of the garda's right to question should be contained here.
The other comment I must make is that I found a slightly distasteful tone in some of what the Minister has had to say about this whole matter of questioning. It seems that while it is conceded that people have the right to silence, it is hoped that the circumstances will exist during questioning — and I am not suggesting that anybody is talking about anything untoward being done — under which people can be persuaded not to insist on that right. I do not think we have any particular business trying to get people to give up their normal legal rights just because it will help an investigation. If people want to remain silent they should be entitled to do so. If they say they want to remain silent, that should be the end of it. That is not the central issue. The central issue is to try to keep some limit on the extent and the range of questioning to which people can be subjected. Somebody is suspected of having committed hundreds of crimes over a long period, he is detained because there is a reasonable suspicion in one crime. Are we then to have the case where he will be questioned ad nauseum about hundreds of offences because the Garda think he is the type of fellow who might have committed them? There have to be some reasonable grounds for questioning a person about any offence about which he is questioned, otherwise it would be close to an oppressive environment. Therefore I uphold the amendment.
I second that. I am anxious to hear what the Minister has to say.
(Limerick East): First of all, I appreciate that the Senator has redrafted the amendment which he tabled on Committee Stage and has tightened it up considerably. It would now allow the Garda to question a person not only about matters connected with the offence being investigated, as in the Committee Stage amendment, but also about related or any other offences of which he is reasonably suspected. There is a qualification for sections 15 and 16 cases. Nevertheless, the amendment is still too restrictive. A person in Garda custody can be asked questions on various other matters to which no possible exception can be taken. I am not just talking about asking somebody whether he wanted sugar in his tea or not, or any kind of conversation like that not related to the offences which might be necessary simply for the normal welfare of the person held in custody.
I gave an example of what I am talking about on Committee Stage. A person being questioned about an offence might say that he had witnessed another offence, say a hold-up, in which he was not a participant. He could be a very valuable witness for the prosecution in that case. No doubt, there are many other instances of a person in custody giving information to the Garda which is of value to them in carrying out their duty to prevent and investigate crime. For these reasons, I cannot accept the amendment. In any case, if there is a problem of the type outlined, it seems that legislation is not necessarily the way to deal with it. Senator Ryan has asked what options are open to an aggrieved party if he is held and questioned and not subsequently charged. He says I have said that a majority of the people will be released without being charged. I do not recall saying that. I said a significant proportion will probably be released without being charged. I do not think I said the majority would be released.
I have not had the opportunity to check the record.
(Limerick East): We can both check the record, but that is the way I recall having said it. The Senator constantly refers to section 30 offences and I dealt with that matter at some length previously. To take the events at the weekend for example, there were a number of people detained and five people were subsequently charged. You will find that in section 30 offences because in many cases there is not a basis for a charge subsequent to the detention. I do not think, however, that one should transfer the experience from section 30 automatically into matters under section 4 which would be non-subversive offences. The Seanad should take that point. It is difficult to express it more strongly than I am expressing it.
On the question of homosexuality — and Senator O'Leary raised this point previously — the position is that in the 1861 Offences Against the Person Act, section 61 states: "Whosoever shall be convicted of the abominable Crime of Buggery, committed either with Mankind or with any Animal, shall be liable to be kept in Penal Servitude for Life..." Obviously buggery would be included, but I understand that homosexual activity between consenting adults carries a two year sentence. That would not come under the ambit of the Bill.
Senator O'Leary made a point the last day and I feel I should reply to him. He talked in terms of somebody who was a declared homosexual being treated by the Garda on the basis that they had reasonable suspicion that he was involved in homosexual activity and involved in some of the activities that carry serious terms of imprisonment. It would be as reasonable to arrest heterosexual people on the reasonable suspicion that they were guilty of rape. I do not see that the reasonable suspicion arises there to any degree. I know the case that Senator Ryan has referred to on a number of occasions. It was a particularly horrific murder and there was difficulty in investigating it. By and large, the experience has been that known homosexuals in society are not arrested and charged by the Garda and have not been harassed. There was a particular problem in investigating a particular murder and I know that it caused concern but the murder certainly caused concern for other people as well. There was great concern among the Garda Síochána that a murder had remained unsolved.
All I can say is that I do not think that those who are or who see themselves as the victims of the two pieces of legislation which the Minister has mentioned will be reassured. Fortunately, for myself, the implications of these offences do not trouble me, but it does trouble a substantial minority — probably of the order of 10,000 people — in our society who do genuinely feel frightened by this legislation and who so far have not got a sufficient answer to the question. I do not want to become involved in the difference between homosexual acts between consenting adults and buggery, but it is a fact that the two pieces of legislation do exist, that there was a phase in Northern Ireland when particularly the RUC used that legislation in a quite offensive fashion against people who were campaigning to have the law changed. The general secretary of the Garda Representative Association delivered himself of a magnificent piece of self-righteousness about homosexuals campaigning to have the law changed and about how it manifested the basic tendency towards corruption in Irish society. Therefore I regret that the Minister cannot either say that that offensive legislation will be removed or give some assurance to the people involved.
I keep having to express my regret that the Minister still does not give us much indication of what is going to be done for people who are not charged. We will not argue about whether he said a majority or not — a substantial proportion. There is very little written into the Bill to protect those people. The real protection, and I accept that, is that when people come to court they can claim unlawful detention or unlawful treatment. There is no question about that. If people do not come to court, all they have available to them are various procedures which are going to be enormously expensive. I can testify from what people have said to me that if you have been detained in Garda custody the last thing you want to do is to pursue the matter. For many people, the one thing they want to do is to forget about the whole thing. I regret very much, therefore, the fact that various attempts to try to ensure that written into the legislation were protections for people so that people would know in a somewhat clearer fashion what their rights were do not seem to be acceptable to the Minister.
Is the amendment withdrawn?
Yes.
I move amendment No. 16:
In page 6, between lines 41 and 42, to insert the following:
"(4) Where a person is detained under the provisions of section 4, the solicitor of the detained person, from the time of the solicitor's arrival at the Garda station, shall be entitled to be present at any questioning of the detained person. The solicitor shall not be entitled to participate in the questioning.".
Amendment No. 16 relates to section 5.
The purpose of this amendment is to try to change the Bill as passed in Committee to meet some of the problems which were seen to arise during the course of our examination on Committee Stage and the problems that were identified in the other House relating to access to solicitors. We have gone past section 4 and it has been accepted by the House that there is going to be detention subject to a vote at the end of Fifth Stage, but on the basis of earlier votes in this House the pattern would appear to be that there will be detention in the Bill as it will be enacted. Therefore, it behoves us to try to mitigate the adverse effects of the introduction of detention to the greatest degree possible. The necessity for the mitigation of the adverse effects arises irrespective of whether one believes section 4 is necessary.
Three clear viewpoints have emerged in this House with regard to the prospect of detention. There is a substantial, and probably the majority, group of Senators who enthusiastically agree with the concept of detention. There is a smaller and significant number of people who while they agree on the need for detention do so with the greatest reluctance. There is a small number of Senators who do not agree that detention is necessary. The purpose of this amendment is to try to forge a coalition between two of those three categories. I do not make any apology for that. I think it is in the interests of the people who believe that while section 4 is necessary, it has dangers, and it is in their interests to ensure that if introduced, it is introduced with the maximum number and type of safeguards. Similarly there are those who like myself, are opposed to the concept of detention for the purpose of questioning. While these exists in this House these three categories of people, the small category who are against detention for the purpose of questioning have now been beaten. Our race is run and we must now try to concentrate our efforts on mitigating the efforts of the introduction of detention.
During our exchanges on Committee Stage the Minister brought to the attention of the House on a number of occasions certain aspects of the Ó Briain Report. I brought to the attention of the House certain other aspects of the report. The Minister and I had quite a considerable discussion as to the status of the various quotations and the importance that should be attached to them. This section is directly related to recommendations in the Ó Briain Report. The Ó Briain Report, as the Minister said, is not Holy Writ. There is no reason why it should be accepted as being correct in all its conclusions. Therefore, it is open to any of us to agree or disagree with portions of it, with sections of it, or with its main conclusions. There is a thread running through the Ó Briain Report that the people in the care and custody of the Garda Síochána need special attention by reason of the fact that they find themselves in a hostile environment, or, if not hostile, certainly in an unaccustomed and unusual environment. There is reference in the report to the fact that being present in a Garda station can be quite disconcerting even for hardened criminals. Certainly it can be a disconcerting experience for those who, even though they might have committed a crime, are not by any stretch of the imagination habitual criminals.
Having examined that problem and having given the matter as full consideration as they considered right and proper, the committee did make certain recommendations. One recommendation struck me as particularly appropriate. It was in connection with the right of the detainee, or the accused person as the case may be, to access to a member of the legal profession. In response to this the Minister introduced section 5 which recognises that access to a solicitor is an important element in the framework being set up under this legislation. However, when Members examine section 5 they will notice that when the section is stripped of its particular care for those under the age of 17 years, it is a very limited section. It merely enacts what is the constitutional law, the Minister may have added slightly to it in one or two ways and he may, in his regulations, add even more to it. But by and large, it merely confirms the right of access to a solicitor and the notification of detention. Subsection (1) states:
Where a person not below the age of seventeen years is detained in a Garda Síochána station pursuant to section 4, the member of the Garda Síochána in charge of the station shall inform him or cause him to be informed without delay that he is entitled to consult a solicitor and to have notification of his detention and of the station where he is being detained sent to one other person reasonably named by him and shall, on request, cause a solicitor and the named person to be notified accordingly as soon as practicable.
That extends the constitutional rights of the people slightly. In so far as it does that, I think it is right and proper. Having considered the constitutional right which people had under The State (Harrington) v. Garvey case, the Ó Briain Report made a very specific recommendation as to the part that the solicitor should play in the investigative process on his arrival at the station; and it went a little further than that. I will quote from column 750, of the Official Report, of 26 September 1984. Paragraph 5 of the Ó Briain Report reads:
If an arrested person has asked for a named solicitor, a reasonable time should elapse to allow for the attendance of the solicitor. The duration of a "reasonable time" must necessarily depend on the circumstances, but we regard a period of not less than one hour and not more than two hours as reasonable in most cases. Questioning in the absence of a solicitor should not commence until that "reasonable time" has elapsed.
That was the first portion and what it is basically seeking to do is to say not only should the person be informed that they are entitled to have a solicitor, not only should the Garda cause a solicitor to be notified as soon as practicable with regard to the person's detention, but that the questioning of the person in the absence of the solicitor should not commence until a reasonable time had elapsed. It also discussed what a reasonable time is and one can have different views on that.
The Minister during the course of the discussion on the rights of access to solicitors under various headings in the Bill stated that if people were given the unbridled right to the presence of a solicitor they would be inclined to say "I want Patrick Durcan who practices in County Mayo and I am detained in the Bridewell Garda station in Dublin," or Cork, and that would be an unreasonable approach. Because I wish to write in as much protection as is feasible I have decided not to include in my amendment the reasonable time that the Ó Briain Report suggested should be made available during which questioning should be suspended pending the arrival of the solicitor. I have decided not to include that because I felt it might be going beyond what was reasonable in the circumstances or what would be likely to be accepted in the circumstances rather than what was reasonable.
I have concentrated on the second portion of paragraph 55 which states:
The solicitor should be granted access to his client immediately on arrival at the Station, the consultation to be out of the hearing of the Gardaí but subject to such requirements as to safe custody as may be necessary.
I do not think anyone will seriously object to that. I am sure the Minister has every intention of ensuring that all these things will happen. The solicitor should be entitled as of right to attend any subsequent interrogation as an observer. That was the Ó Briain Report's recommendation. In other words, when the person was arrested, when he was going to be questioned the position was that time should be allowed to elapse to allow the solicitor to arrive. The solicitor should then consult with his client and the solicitor should be present for the remainder of the questioning but should not be entitled to participate. I have cut out the first portion and I said that there should be no waiting time, let the questioning commence immediately, but that the solicitor should be entitled as of right to attend any subsequent interrogation as an observer.
I am asking the Minister to accede to my request that there should be no stop on the investigation. The investigation can commence and questioning in so far as it is reasonable can commence but the solicitor from the time of his arrival at the Garda station should be entitled to attend at the questioning of the detained person. That gets over the other problem that the Minister referred to in this House and in the other House. The Minister referred to the difficulties that might arise with regard to having a panel of solicitors available and with regard to the cost that would arise in making this panel of solicitors available at all times and with regard to the difficulty of ensuring the attendance of a member of the legal profession during the whole of a period of questioning. I am proposing that we should leave that aside and we should say for whatever time he is there he should be entitled to be present. Let the person worry about his or her own solicitor; let it apply only to people who want a solicitor but where a person has a solicitor and the solicitor is present at the Garda station, the solicitor should be entitled to be present during the course of questioning for the purpose of this Bill.
The way in which I recommend doing this is by adding a new subsection to section 5 which is subsection (4), stating that:
Where a person is detained under the provisions of section 4, the solicitor of the detained person, from the time of the solicitor's arrival at the Garda station, shall be entitled to be present at any questioning of the detained person. The solicitor shall not be entitled to participate in the questioning
We are at the crucial point here. Is there an objection in principle to the solicitor being present during the questioning? We are not talking about the solicitor being able to say to the accused, "Do not answer that question". I do not want the solicitor to have that right, I just want the solicitor to be there. The solicitor can give whatever advice he wants to give to his client during the course of their initial consultation. All I want is that the solicitor would be there for the remainder of the questioning for as long as the solicitor deems it appropriate to be present. If the solicitor wants to walk out after five minutes let him walk out and let the questioning continue after that, if the Garda think it is appropriate to continue the questioning and they are not being in any way oppressive, restricting or in conflict with the rights of the individual. It is a very limited right I am giving but it is a right which is based on the minimum interpretation of one of the recommendations of the Ó Briain Report and it is done in such a way that it would not involve the State in a colossal amount of money. It would not mean that any individual could not be questioned in the absence of a solicitor. It would not mean that the solicitor would be able to switch on and switch off the investigation by his presence or availability. It would merely allow for the possibility of the solicitor being there even when that situation was appropriate. For that reason I think it is a very modest amendment and I ask the Members of the House, of all political parties, to support this amendment which would be a considerable improvement to the concept of detention which I accept is going to be included in this Bill when enacted.
I think my colleague, my ally and co-struggler, Senator O'Leary, put his finger on the nub of the question. Is there an inherent objection to the presence of a third party when a person is being questioned? That is what we are talking about, not an intervention by a third party, not advice from a third party or anything like that, but an inherent objection to the presence of a third party and in this case the third party whom most of us recognise is most useful to be there, a member of the legal profession. With all my reservations about the legal profession I would concede that. If there is an inherent objection and it is stated I think Senator O'Leary will reply very admirably. For many of us the question of the right of a third party to be present is the nub of the question of why we fear powers of detention, because we think there is going to be either actually or implied or with the various devices available in terms of inducement and persuasion to a professional police force an attempt to induce people to say things that under different circumstances they would be either well advised enough or wise, clever or stable enough not to say. If it is simply that people are to be questioned about things they are willing to talk about freely there is no reason to object to a third party being present.
There are positive reasons for the Garda to welcome the presence of a third party because of allegations about how the questioning was conducted, whether it was oppressive in any form or at any time. When those things are raised in court if a third party had been present, a member of the legal profession, whatever his duties to his client he is not going to perjure himself in the interests of his client. The presence of a third party during questioning would alleviate a considerable amount of unease, fear and worry. The absence of a third party leaves the section unquestioning with some of the implications that we are leaving people with the right to silence but we hope they will not insist on it and we hope the Garda will persuade them not to. I find that profoundly disturbing.
Senator O'Leary made the point perfectly clearly. This is the nub of the issue. Why should there be any inherent objection to a third party being present as a silent observer when a suspect is being questioned?
Briefly I should like to go into the interpretation of this amendment. Senator O'Leary suggested a political type argument, that this is a minimalist type of amendment. It is in a number of ways, not least in the last sentence which proposes that the solicitor shall not be entitled to participate in the questioning. The general argument about access to a solicitor has been considerably shrunken to deal specifically with the right of a solicitor to be present. This is a very considerable narrowing of the general case built around the principle of access which was developed on the Second and Committee Stages.
I wish to raise one point which I found interesting. The amendment is very much less than what I understand to be the thinking represented in the editorials of Gazette of the Incorporated Law Society. Shortly after the initiation of the legislation, in November 1983 Gazette referred to the general principle of access and its importance. It cited two recent cases, the Director of Public Prosecutions v. Lynch and the McShane case. In regard to both, the editorial made the important point about dangerous statements being made in relation to occasions when the principle of access was affected. In the first case the accused person had undergone questioning for a period of 22 hours and later outside witnesses showed that the statement could not be sustained. In the second case, which was a very serious one, an issue was raised about the access provision not being implemented during a weekend. The editorial continues:
It is not difficult to see this provision being construed in the case of an arrest on a Friday evening as notification of the following Monday morning. There is nothing in the Bill to limit the station switching suspects, which the courts have criticised. If the detention parts of the Bill are to be introduced, the introduction of a duty solicitor system in larger urban centres will become essential.
That is a general argument that this amendment does not take on board. Its proposals operate only in relation to a very confined aspect of the argument in respect to access.
Those were the arguments of the Incorporated Law Society in November last year. In June 1984Gazette of the Incorporated Law Society, under the heading “Unbalanced” Bill, repeated its arguments in relation to access by a solicitor to his client or, it stated, more importantly, access by a client to his solicitor. They say this is not adequately covered. By their own admission in November 1983, I regard the Incorporated Law Society as a conservative body. I do not think the journal they publish is an inflammatory magazine of a madly reforming kind.
These editorials, one shortly after the introduction of the Bill and the other much later, did not retreat from one of the core principles of their submission on this legislation, the importance of the principle of access. Senator O'Leary's motion is of the very minimalist because it goes beyond the arguments in relation to a person picking a solicitor in a remote area to whom access might not easily or quickly be effected. It simply asks that from the moment of arrival at the station the solicitor should have access to the client. The amendment goes on to suggest that the solicitor shall not be entitled to participate in the questioning. It seems, therefore, that the argument about administrative difficulties cannot be adduced reasonably in relation to this amendment. The amendment, though minimalist, has great merit.
I support the amendment as one worthy of consideration by the Minister. In one way I wonder if it is necessary at all because the section is not at all clear as to what "consultation" means, as to what "access" means. Even if the detained person was told that he was not entitled to have his solicitor present he could insist on consulting his solicitor concerning almost every question he was asked. He might say, "That question seems to me to be very serious and fraught with all sorts of serious consequences for me and I want to consult my solicitor". In such a case the Garda might like to let the solicitor be present at the questioning because otherwise they would have to stop every few moments to allow the detainee to consult his solicitor. The section is not at all clear as to what "consultation" means, and the section does not have the word "access" in it except in a headnote. The powers given to the Garda under section 6 can be counted as six and all of them are radically different. A person might well say that he wants to consult a solicitor as to whether the Garda are entitled to his name and address, to search him, to photograph him, to take his fingerprints. The person might want to consult his solicitor on numerous occasions in the course of the detention.
A person must be entitled to consult his solicitor at several different times and on several different points during the course of his detention, and therefore I can see no serious objection, particularly in view of the authorities that have been quoted by previous Senators as to the desirability of having a third person present. There is a very strong case for allowing a solicitor to be present during questioning. It certainly does not create the situation which was mentioned earlier on in this debate of a garda having to wait until a solicitor arrived and, possibly, having great difficulty in getting a solicitor. It merely says that if a solicitor is there he should be present.
This is very definitely an amendment which should be considered, which should be agreed to by the Minister and, possibly, as a kind of a footnote to this, even if it achieves nothing else it might have the effect of making the Garda get on with the investigation very quickly and conclude it before the solicitor arrives. That, of course, is not the purpose of this amendment but it might be helpful in achieving what I wished to achieve in one of my amendments, of getting the investigation over quickly and not having people detained for longer than really necessary.
I should like to say how much I welcome the comments of Senators Eoin Ryan and Michael Higgins in relation to this matter. I certainly feel very strongly, as, indeed, I did prior to the Minister's response in relation to the development of an independent tribunal to look into complaints, that in the State of Ireland today, it is particularly important, especially when we consider it is that section of society out of which many of the people may come who are being detained, that they should have access to some form of representation. It should be known in the communities in which they exist that they will have such access. Having said that, I can understand the Minister's predicament. In my profession I am called, as little as possible, I always hope, to the courts in Belfast and one of the first questions I have been asked coming through the door is, "which side are you on"? I cannot, for the life of me, see that in a legal profession which is concerned with justice primarily rather than litigation, that my side should be important. The evidence I would give should be the important matter. We have, in fact, reason to fear the intimidation of lawyers and solicitors as ordinary people. Just as prisoners, or detainees, are terribly intimidated by uniformed people interrogating them, so I would suggest younger members of the Garda, or of a police force anywhere, can be quite intimidated by the legal process.
I am only putting forward one suggestion. I would go further than Senator O'Leary and would be much more inclined to the proposals made by Senator Michael Higgins. The spirit of that was largely supported by Senator Eoin Ryan. If the Minister finds himself in some difficulty in this respect, and if there is fear on the part of the Garda Síochána that clever barristers, or solicitors, will soon become known to equally clever criminals that he might consider that a fourth party should be present, not just a third party. He might consider that there might be a solicitor there who, in his opinion, is concerned with justice and who would be just as concerned that when the Garda were subjected to the legal process in due time in court they got as fair a hearing in the court as anybody else. That is my suggestion to try to overcome a difficulty which I am sure presents itself to the Minister at this time.
I earnestly appeal to the Minister to recognise that at a time of increasing unemployment, social unrest and tremendous tribulation and change, particularly where so many detainees will come from such a small segment of society, it is important — to use the cliché — that justice is not only done but seen to be done.
This is the part of this piece of legislation which, if I did not get it across before, worried me and still worries me. I should like to ask a very direct question and ask the Minister to give me a direct answer. I got a very upsetting letter this morning from a parent of a mentally handicapped child. I am not going to go to cloud cuckoo land and I am not throwing in a red herring at this stage of the debate. That is the last thing on my mind, but for somebody so long involved in this field, the letter I received was one of deep concern and upset me a lot.
This parent asked why some Member in the Dáil or the Seanad had not asked while this Bill went through the Houses of the Oireachtas how would a garda judge if he picked up a 12 or 13 year old mildly handicapped child that that child should not have the protection of (a) a solicitor, parent or guardian or (b) a doctor? I have dealt with these children on a voluntary basis for 20 years and I am aware that nine out of ten gardaí would not recognise a mildly handicapped child. I want the House to be quite clear that I am not getting high about something. I am not throwing in something that will result in all hell breaking loose, but the letter deeply upset me this morning. Until this parent wrote this letter to me, that matter had not lifted its head in this House. The Minister might give me an answer to that question. How would that child in a Garda station be dealt with? What protection and guidance would be given to that child? I hope the Minister accepts my questioning in the manner I sincerely mean it.
(Limerick East): I should like to deal with the point Senator Honan raised. There is obviously a difficulty with children where they interact with the law and this problem is a bigger one and is reinforced if the children are incapacitated or mentally handicapped in any respect, even mildly mentally handicapped. However, as I said previously, there are no new powers of arrest. The garda faced with the 13 or 14 year old at present who is mildly mentally handicapped has the problem that he has reasonable suspicion that this young person is involved in a crime; he arrests the young person and takes him to the Garda station. That is not going to change in any way with the provisions of this Bill. The problem exists already in that respect. On coming to the Garda station — this relates to what we are talking about here — internal Garda regulations, supported by decisions of the court, have ruled that the parent or guardian must be informed and must be present in the generality of situations where somebody is questioned. Naturally, that would be enforced and would be made statutory in the new regulations.
I have had correspondence from associations concerned with mentally handicapped people and, certainly, I am studying their views and talking them into account with a view to seeing if it would be appropriate to have something specific in the regulations covering the situation raised by the Senator separate from that whole section in the regulations which will govern the treatment of young people in custody. I am aware of the concerns of the Senator and I am glad she raised them here.
On the general amendment proposed by Senator Sean O'Leary, I should make it clear again what is and is not in the Bill. What is in the Bill is that people will be informed of their right of access to a solicitor. That is the right that is being conferred in the Bill. I do not purport to confer the right of access to a solicitor in the Bill because that is an existing constitutional right. In the relevant cases which I cited previously, the DPP v. Madden and others in the 1977 Irish Reports, page 336; the State (Harrington) v. the Commissioner of the Garda Síochána and others, the High Court, 14 December 1976, unreported, the constitutional right of access to a solicitor was established in the first one. The second one restates the first judgment and also says that access to a legal adviser must be allowed in privacy and out of hearing of any member of the Garda Síochána. People should be informed of that right because frequently people are not aware of it.
What is at issue in Senator O'Leary's amendment is that the solicitor should be present throughout the questioning of the suspect. That goes much further than the courts have been prepared to go up to now in the matter of reasonable access to a solicitor and I do not think it could be justified in the context of a short detention period such as we are proposing. What the courts have decided is that there should be reasonable access and "reasonable" cannot be interpreted as unrestricted or unlimited access because if that was what was intended the courts had the opportunity on two occasions to say that. They did not say unrestricted access or unlimited access, they said reasonable access.
This brings me to the point that Senator Eoin Ryan raised: somebody is detained and asked a question by a member of the Garda Síochána; he says that is a serious question and he must contact his solicitor. The solicitor comes in, then the next question is asked but the solicitor is gone and he is brought back in again. This would be interpreted as unreasonable demands and unreasonable access but, again, in the final analysis it is a matter for the courts and they said reasonable access, not unrestricted or unlimited access.
Senator O'Leary in arguing the case for his amendment said that we should ignore the cost factor here. Really what he is saying is that we put in the right of the solicitor to be present; if people can afford a solicitor, well and good, and if they cannot they might not want the solicitor and the solicitor might not be there. In the internal safeguards in the Bill and the external safeguards in the complaints procedure and so on, the Government were very careful that whatever safeguards were put in would apply to all detainees. It would not be appropriate that we would have a safeguard which would apply to people who could afford the safeguard and not apply to people who could not afford it.
If you talk about a general right of a solicitor to be present right through a period of questioning, you are talking about some hourly fee multiplied by six or 12 as the case may be. When we are talking about the regulations to govern the treatment of people in custody, it will be politically and practically impossible and probably wrong of a Minister to have a series of safeguards which apply to section 4 of this Bill and which he did not intend to apply subsequently to people arrested under section 30 of the Offences Against the State Act. In section 30 of the Offences Against the State Act we are talking about an hourly fee and a multiplier of 48 in the most extreme circumstance. There are great practical difficulties in this.
The Senators are advocating in effect that a solicitor should act as custodial guardian. This point came up earlier in the debate and we discussed it at great length when Senator O'Leary had an amendment of similar intent where a district justice or a peace commissioner would act as custodial guardian. I mentioned the various alternatives the Government had considered in this connection. We talked about peace commissioners at great length, we talked about other lay persons and finally about solicitors. I dealt with the objections in each one of these cases. In the case of solicitors, I said there was the practical objection that solicitors in general would not be prepared to sit in a Garda station for the whole of a 12-hour period to hold themselves available for those times when the Garda would wish to question the suspect. I said that I did not see it happening purely on a practical basis because the expense would be prohibitive on the client even if solicitors were prepared to do it. I mentioned already that the courts have decided what reasonable access should be.
We should not proceed on the basis that the Garda will act unprofessionally and that all other professions will always act professionally. We should not move on that basis. The right of access to a solicitor has been established by our courts for a long time now. I also know that over the last ten years at least two solicitors were involved in taking advantage of that right to interview prisoners in private and two solicitors participated in a breach of security. It is worth saying that also.
Another point which Senators should bear in mind is that information given in the presence of a solicitor might in certain cases be damaging to third parties named by the suspect. In some circumstances it might result in physical injury to a third party, it might result in the prejudice of rights of a third party to have sources of information divulged in front of a solicitor or any persons other than the Garda. I cannot overlook the fact either that there can be situations where the interests of the public in the proper investigation of offences may require that a solicitor should not be given more than the access he is already guaranteed. That is particularly obvious in questioning persons detained under the Offences Against the State Act. A solicitor could be engaged by a particular organisation to attend the station and sit in on questioning to prevent any intelligence information being given by suspects during questioning. That is not an outlandish suggestion. We are dealing with highly organised people and they could, and would if this provision was in the Bill, ensure that they had a particular solicitor retained who would tell them what happened when the Garda were questioning a suspect. If the person who was being questioned gave information about a particular crime, about associates, or about particular circumstances in which he or the particular organisation was involved, that person would be seriously at risk indeed.
I do not accept either that the presence of a solicitor through the period of questioning is an essential safeguard. Even at present we should remember that the Garda keep people in custody to check out a story before they are charged. The result may be to secure their release or to await the arrival of a parent or guardian. During this period questions are asked and statements are made. That is quite apart from detention under section 30. These procedures have not given rise to any concern although, as I have said, the position of the Garda under the present law is uncertain and unsatisfactory when they are detaining people like this.
In providing by-laws in section 4 for a reasonable two-tier maximum period of detention to replace the present uncertainty, we are adding on and building in substantial safeguards for the detained person and also for the Garda who are liable to have unfounded accusations made against them by accused persons seeking in this way to have damaging admissions made by themselves declared inadmissible.
It is no harm to mention these safeguards again because they are often either ignored or dismissed as if the Garda Síochána were not the disciplined force they are and that they could not be relied on to observe them. As I said previously, detention can only be sanctioned where the member in charge of the station has reasonable grounds for believing that it is necessary for the proper investigation of an offence. The initial detention is for a maximum of six hours and it dates from the time of arrest but the suspect must be released forthwith if he is cleared before that or charged without delay if the Garda are in a position to charge him and have the information to charge him. Again, a maximum period of six hours can be authorised for the same reason, this time by an extension by the superintendent or officer of higher rank and, again, there is the same requirement of release forthwith or charging without delay. Non-compliance with these requirements, and it can be tested in court, could result in the detention being held to be unlawful.
There will also be the regulations for the treatment of persons in custody. They will provide in particular that the member in charge will be responsible for overseeing the application of the regulations at the station. It is specifically provided that the regulations will not disturb any civil or criminal liability the Garda may have arising out of the custody. That liability is not affected in any way but any non-compliance with the regulations can result in disciplinary proceedings being taken against them. There are also specific provisions for contacting a person's solicitor or his friend or the parent or guardian of a juvenile. There are restrictions on the exercise of the powers conferred on the Garda in relation to detained persons.
These are the safeguards that are in the Bill. In addition a complaints procedure with a strong independent element will be in operation before the detention provisions are brought into force. Also there are the provisions for electronic recording of police questioning. As I have said, it is no harm to put this in perspective. We shall have a custodial guardian to look after the interests of the detained person, almost exactly as the Ó Briain Committee envisaged except perhaps that the member in charge under the regulations will be more likely to be a sergeant, whereas the Ó Briain Report thought of him as a garda assigned by the station sergeant or the senior garda present. This system will provide adequate protection for the interests of the person in question, although, as I said on Committee Stage, not quite to the same extent for the Garda, as the accused will continue to have an interest in making unfounded allegations. I said that only electronic recording will fully deal with this problem. That is the background which leads me to argue that there is no need to go further than the present law requires provided the person's solicitor should have unrestricted right to be present throughout the questioning. I am fully in favour of the present position where a solicitor has reasonable access and the Garda will ensure that that reasonable access will be carried out in accordance with the law and that consultations will be in private and out of the hearing of the Garda.
I find the Minister's reply unsatisfactory for a number of reasons. First of all, I did not state at any stage in proposing my amendment that it sought to establish the position that solicitors would have the right to be present throughout the period of detention. That was never my intention. It was never my intention even that they would be present throughout the period of questioning, but merely from the point at which they arrived at the station. The Minister is facing in three directions at the one time.
First, I must consider the arguments being put forward by the Minister concerning the extension of the right of access to a solicitor and its application to this law. The right of access to a solicitor as outlined in the various cases mentioned by the Minister arises in respect of the vindication of the person's right under various headings of our Constitution. It does not mean that they are the only rights that the person has or the only rights that the person should have. It is not a reasonable argument to say that because the court did not extend the constitutional right of a solicitor to be present throughout the questioning that that right should not be given by the Legislature. We are not limited by what is in the Constitution, except in so far as we cannot take away the rights that are in the Constitution. We can, of course, add to the rights that are in the Constitution. The Constitution is not a document which limits the right which we give to the citizens. It merely gives a benchmark beyond which we cannot go.
The court, in considering whether or not to extend the right of access to a solicitor or if it did consider at all the question of the right of a solicitor to be present throughout the period was not considering the position as it arises under section 4 of this Bill because section 4 of this Bill did not exist. It did not consider that. We do not even know whether or not there is a constitutional right to be present in respect of detention which arises under section 4 of this Act. That is something which, no doubt, will be tested in time in our constitutional courts. It is not reasonable to say, because the court did not give to somebody detained under the Offences Against the State Act the right for the solicitor to be present at all times, that they will arrive at a similar conclusion in respect of people detained under this Bill. There is no indication whatsoever or guarantee that they will arrive at the same conclusion. Even if they did arrive at the same conclusion, I put it to the House that we should extend that right, that we should go further than what the Constitution says and confer upon the person the right to have the solicitor present, as in this minimal amendment.
I recognise, as Senator Higgins said, that is a minimalist approach. The amendment was put down in the hope that the Minister would accept it. It was not put down as a benchmark, nor were any of my Committee or Report Stage amendments put down for any other reason but that I hoped that the Minister would accept them. I had made my various approaches under the various sections on Committee Stage of the Bill. My attitude from that on was to help to improve the Bill and it was in that spirit that I put the amendments down.
I concede absolutely what Senator Robb said about there being no question of solicitors being for or against the accused, that solicitors are officers of the court. I must refer to what the Minister has said, directly or indirectly, on a number of occasions about criticism of certain solicitors who have behaved in an irresponsible fashion. I am quite sure there are solicitors like that. For the Minister to base his case on the irresponsible acts of a few solicitors would be as irresponsible as for me to base my opposition to this Bill on the irresponsible actions of a few members of the Garda Síochána.
The Minister has resolutely objected to members saying that because a few Garda Síochána members had abused the powers conferred on them under other Bills that that ipso facto should mean that they should not get increased powers. He has resisted that strongly. The Minister cannot say that that is not a relevant consideration in considering the extension of the powers of the Garda Síochána and at the same time, just because a few members of the honourable profession of solicitors might from time to time misbehave, deny them the right of access to their clients and the right to be present during the course of their questioning.
The Minister speaks about the Offences Against the State Act and about the fact that this could not apply to the Offences Against the State Act. I do not want it to apply to that Act. This is not an amendment of the Offences Against the State Act. Nobody has been more strident than the Minister in saying that we are not considering the Offences Against the State Act. We are not considering that Act. Therefore, what may or may not arise from the same rights that are given to people under the Offences Against the State Act is not a relevant consideration in dealing with the protection of the rights of the individuals who are going to be detained under section 4 of this Bill. If the Minister wants to amend the Offences Against the State Act — and there are one or two ways in which I would like to see it amended, although I do not think this is one — that Act should be amended in so far as the Schedule of Offences should be looked at. The Minister has given an indication of a desire to do that but that is another day out in this House in which we could consider the very genuine problems that arise during the course of the debate arising out of any proposed amendment.
The Minister has looked two ways at once about solicitors misbehaving being used but Garda Síochána misbehaving not being used as the basis for an argument. He has also looked both ways in saying that there might be dangers in solicitors being present because of the information which might be given to outside people. If electronic recording is going to mean anything, there will have to be some system of access to the electronic recording — not necessarily taking copies of it — by those who allege that they have been ill-treated.
Whatever considerations of confidentiality arise in respect of the questions which may be put opposite a solicitor, will also arise in respect of the electronic recording method. You cannot say "I am in favour of electronic recording but I am against telling the people what went on." When you have an electronic recording, everybody is going to know. The reality is that the Minister's advisers are determined that there will never be electronic recording. The Minister will no longer be Minister and they will get their way. The Minister will never introduce electronic recording. He will not be able to do so because he will not be permitted to do so by the vested interests of the security forces of the State.
Electronic recording has already come under attack as being "impractical" by the representatives of the Garda Síochána. This is one of the ways in which it is reputed to be impractical. Let me make this prophecy, an electronic recording will not be included. I am not talking about experimenting. It will not be introduced during the lifetime of this administration.
For all these reasons, this is a most reasonable amendment. It is, as Senator Higgins said, a minimal amendment and it is important that the very limited protections it will afford should be extended to the people detained under section 4. I recognise what Senator Eoin Ryan said. I think it is very valuable and could hurry up the whole process. The question of whether repeated consultation with a solicitor could or could not take place is a very interesting point. More than one consultation with a solicitor could take place, there can be little or no doubt about that, but whether repeated consultations could take place is a different matter. But that is not the issue here, as Senator Ryan has correctly analysed. This is very much less than what might otherwise have been introduced. For these reasons I feel that this amendment should be accepted by the House and I ask them to do so.
Tá
- Cassidy, Donie.
- de Brún, Séamus.
- Ellis, John.
- Fallon, Seán.
- Fitzsimons, Jack.
- Higgins, Michael D.
- Hillery, Brian.
- Honan, Tras.
- Howlin, Brendan.
- Hussey, Thomas.
- Kiely, Rory.
- Lanigan, Mick.
- Lynch, Michael.
- McGuinness, Catherine I.B.
- Mullooly, Brian.
- O'Leary, Seán.
- O'Mahony, Flor.
- O'Toole, Martin J.
- Robb, John D.A.
- Ryan, Brendan.
- Ryan, Eoin.
- Ryan, William.
- Smith, Michael.
Níl
- Belton, Luke.
- Browne, John.
- Bulbulia, Katharine.
- Burke, Ulick.
- Connor, John.
- Conway, Timmy.
- Daly, Jack.
- Deenihan, Jimmy.
- Dooge, James C.I.
- Ferris, Michael.
- FitzGerald, Alexis J.G.
- Fleming, Brian.
- Harte, John.
- Howard, Michael.
- Kelleher, Peter.
- Lennon, Joseph.
- Loughrey, Joachim.
- McAuliffe-Ennis, Helena.
- McDonald, Charlie.
- McGonagle, Stephen.
- McMahon, Larry.
- Magner, Pat.
- O'Brien, Andy.
- Quealy, Michael A.