That Seanad Éireann takes note of the White Paper entitled "Treatment of Persons in Custody in Garda Stations": proposals for regulations to be made by the Minister for Justice.
Vol. 113 No. 12
That Seanad Éireann takes note of the White Paper entitled "Treatment of Persons in Custody in Garda Stations": proposals for regulations to be made by the Minister for Justice.
The White Paper which this motion asks the Seanad to take note of contains the Government's proposals for the regulations on the treatment of persons in custody in Garda stations which are to be made under section 7 of the Criminal Justice Act.
The debate here today is the first of two steps which will be required before the regulations are made. Section 7 of the Act — as Senators may recall — differs from the usual procedure for the making of regulations by requiring a draft to be laid before, and to be approved by, each House of the Oireachtas before the regulations can be made. I will, therefore, also be seeking the approval of the House to the text of the regulations once it has been finalised. The debate in the Dáil demonstrated a wide measure of agreement in regard to what is being proposed. I would hope that these proposals will be broadly acceptable to this House also.
I do not propose to speak at any great length on the detailed proposals which the White Paper contains. They are, of their nature, largely self-explanatory. There are, however, some features of the proposals which I should like to mention briefly.
The regulations will be concerned with persons in custody in Garda stations and have no application to persons who may voluntarily attend a station to assist the Garda with their inquiries. There has been some confusion regarding this point which may stem from the fact that the head note to regulation 16 refers to "persons other than arrested persons". The persons to whom that regulation applies — which the regulation itself makes clear — are persons who are in custody in a Garda station other than those who have been brought there under arrest or who have been arrested in the station. These would include persons in transit from prisons to the courts or persons remanded into Garda custody by a court or peace commissioner. It is with this category of prisoner that regulation 16 is concerned. As many of the provisions relating to arrested persons would not be relevant to such persons, that regulation makes the necessary modifications.
With regard to the provisions dealing with arrested persons, I should, perhaps, also make it clear that these are not confined to persons detained under section 4 of the 1984 Act. They will apply equally to persons detained under section 30 of the Offences Against the State Act, 1939, and to persons arrested in the ordinary course but for whom detention under section 4 or section 30 would not be appropriate.
As I have mentioned, the regulations will have no application to persons voluntarily attending at a station. The enabling provision for the regulations — section 7(1) of the 1984 Act — provides specifically that the regulations will deal with persons in custody and any attempt to make provision for persons attending a station voluntarily would, therefore, be ultra vires that provision. That is not to say that persons who attend a station on that basis should be treated any less favourably. My intention is to ask the Garda Commissioner to ensure that persons attending a station voluntarily are treated with no less consideration than those who are there under arrest.
Central to the scheme of the regulations and the safeguards they will provide are the provisions dealing with the member in charge and his responsibilities. The member in charge will usually be of sergeant rank and the regulations will ensure that he is readily identifiable by requiring a written record to be maintained in each station containing the name and rank of the member in charge at any given time. He will be responsible for overseeing the application of the regulations in his station. That responsibility will include such matters as ensuring that a person in custody is informed of his rights and arranging for a solicitor to be contacted or some other person to be notified where a person in custody has decided to exercise those entitlements. The member in charge also has the authority to make decisions in relation to many important matters during the course of a person's detention. His authority is required before a young person can be interviewed in the absence of a parent or before a person can be questioned between midnight and 8 a.m., for example.
The regulations will also, subject to some limited exceptions, require the member in charge to visit persons in custody in the station from time to time and to make any necessary inquiries to ensure that the regulations are being complied with.
Finally, the member in charge will have overall responsibility for the accuracy and completeness of the custody record. The custody record itself is another important element in the scheme of the proposed regulations. The information which must be recorded will provide a full and detailed account of any period during which a person is in custody in a Garda station.
The final provisions of the proposals for the regulations which I should like to mention at this stage are those which deal with young persons and the mentally handicapped. The provision for notifying a parent or guardian that a person under 17 years of age is in custody corresponds to the provisions of section 5 of the Criminal Justice Act, 1984. There is one important difference however. The regulations will apply to all persons under 17 in custody following arrest, whereas section 5 applies only to those detained under section 4 of the new Act or section 30 of the Offences against the State Act. The regulations will provide, additionally, for a parent of a young person to be asked to attend at a station and will prohibit questioning of a young person in the absence of a parent or guardian except in certain limited circumstances. Where those circumstances exist and a person under 17 is to be interviewed in the absence of a parent or guardian, arrangements must be made for the attendance of some other adult relative or a responsible adult unless it is not practicable to do so.
These provisions will also apply to any person in custody whom the member in charge suspects or knows to be mentally handicapped in addition to any other provisions which apply. The question of making special provision in the regulations for the mentally handicapped was raised in this House in the course of the debate on the Criminal Justice Bill and I believe that the provisions which are proposed in this respect will find general acceptance.
These, then, are some of the important features of the present proposals. I should also mention the extent to which the proposals in the White Paper will implement the recommendations of the Ó Briain Committee report and the more recent report of the Select Committee on Crime, Lawlessness and Vandalism on safeguards for persons in custody and for members of the Garda Síochána. Virtually all the recommendations relevant to the present proposals in both these reports will be given effect in the new regulations although there are, of course, some differences of detail between particular recommendations and the provisions in the White Paper.
Two of the Ó Briain recommendations relevant to the new regulations are not being implemented. These are that where a person in custody has asked for the attendance of a solicitor, a reasonable time — which would be between one and two hours in most cases — should be allowed for the solicitor's attendance before questioning could commence. The second recommendation not being implemented is that a solicitor should be entitled, as of right, to attend any questioning of his client as an observer. The Government are not inclined to accept either of these recommendations for a number of reasons. There would be practical difficulties involved which will be obvious when it is borne in mind that the recommendations were made in a context where detention for questioning was statutorily permitted only by section 30 of the Offences against the State Act. Under that provision a person may be detained for an initial period of up to 24 hours, whereas under section 4 of the Criminal Justice Act, the initial detention period permitted is only up to six hours.
Further to require a reasonable period for the arrival of a solicitor before questioning could commence could throw doubt on admissions volunteered by a person to the Garda during that period. Such a requirement would also fail to take into account circumstances where questioning might be urgently necessary — where a person's life was endangered for example.
What the regulations propose in this regard is that the Garda should not be required to delay questioning but rather that a reasonable time for the attendance of a solicitor should be allowed before a person in custody is asked to give a written statement. This is in accordance with the approach decided on by the Government in office at the time the Ó Briain report was published and corresponds to existing Garda practice.
The second of the Ó Briain recommendations not being incorporated in the proposed regulations is, as I have mentioned, that a solicitor should be allowed to attend any questioning of a person in custody as an observer. The Government believe that such a provision is unnecessary. It can only have been intended, in the context of the committee's report, to provide a guarantee against improper questioning or false allegations against the Garda arising from an interview. The regulations already provide a number of safeguards against such abuses. In addition, arising from the preparation of the then Criminal Justice Bill, the Government decided that electronic recording of questioning of suspects should be introduced and section 27 of the Act makes provision for it. Preparations are being made for field trials in electronic recording which will get under way shortly after the powers of detention under section 4 are brought into force.
Similarly with regard to the report of the Select Committee on Crime, Lawlessness and Vandalism, there are only two recommendations for which specific provision is not made in the proposals. These are that the custodial guardian should certify that the detained person has been treated properly and in accordance with the regulations and that each person, provided there is no risk, should be allowed to retain his or her watch. The second of these recommendations is unnecessary because the person would be entitled to retain his or her watch in those circumstances under existing law provided, of course, the watch itself was not required as evidence of some offence.
Requiring the member in charge to certify that the detained person was treated properly is not a practical proposition. The member who acts as member in charge can change over a period of detention: in the case of a person detained for the maximum period under section 4 of the Criminal Justice Act — 20 hours — there would be at least three different members in charge over that period. In the case of a person detained under section 30 of the Offences against the State Act, the possibility is that even more members would have acted as members in charge. Even if each of those members were to certify the proper treatment of the person for the period in respect of which he or she acted as member in charge, such a certificate would be of little value in the event of a dispute. In those circumstances the member or members in charge would have to give evidence of the matters in question.
More significant, perhaps, than these limited exceptions are the respects in which the proposals in the White Paper go further than the recommendations contained in both these reports. The select committee, for example, recommended that the safeguards which they proposed should apply — initially at least — only to persons detained under section 4 of the 1984 Act, whereas the regulations will, as I have indicated, apply to all persons in custody. The regulations will also deal with a large number of matters which were not the subject of recommendations in either the Ó Briain or the select committee's reports. These would include the special provisions which are being made for persons under 17 and the mentally handicapped as well as the provisions dealing with searches, the taking of fingerprints, foreign nationals and so on.
These regulations are not unrelated to other measures which are at present or already have been before this House. The House will be aware that — by virtue of section 1 (2) of the Criminal Justice Act — the detention and related provisions of that Act may not be brought into force until these regulations have been made, the Garda Complaints Bill enacted and the board it proposes to create established and operational. Together these measures represent a very significant and far-reaching reform. The Criminal Justice Act itself has been described as one of the most significant reforming measures in the field of criminal law and procedure since the foundation of the State. These regulations will provide, for the first time, a comprehensive statutory code of conduct for the treatment of persons in Garda custody. Finally, the Complaints Bill will provide a completely new framework incorporating an independent body for dealing with complaints against the Garda.
I look forward to hearing the views of the House on the proposals. As I said at the beginning, our debate today is the first step which is necessary before these regulations can be made, and draft regulations will be laid before the House in due course for its approval as required by section 7 of the Criminal Justice Act.
We can all recall the debate on the Criminal Justice Bill and the fact that we were very concerned about certain aspects of the Act, particularly in relation to detention. It was at that time finally agreed under section 1 (2) of the Act that the detention-related provisions of the Act would not be brought into force until these regulations had been made and the Garda Complaints Bill had been enacted. The undertaking by the Minister to introduce these regulations and to pass the Complaints Bill did ease the minds of people who were very concerned about some of the provisions of the Act.
Looking at these proposals today, I have to say that they are a reasonable attempt to meet the wishes of the Members of the Oireachtas who discussed this matter at the time of the Criminal Justice Act. Although there are aspects of these regulations or proposals which we might not be entirely in favour of, nevertheless, they do go a long way to meet our requirements.
It is rather difficult to discuss these proposals by way of making a speech. It would have been preferable if we could have gone through them regulation by regulation or proposal by proposal. I hope that when they come back to us again in a few days time we will be able to look at them in that way because they are not really a matter for making a speech about the principles involved. The principles have been accepted and have, by and large, been implemented in these proposals. It is the details that we would like to discuss.
I want to comment on certain aspects of these proposals. My contribution may be a little patchy because I will have to go through them and refer to certain points in the proposals which are of importance. First, the concept of a member in charge is important. It is very important that there is somebody whose concern will be to ensure that people in detention are properly looked after, that their rights are respected and that they have somebody to refer to if they feel they are being victimised or treated in an unfair way.
The duties of the member in charge are set out in a number of places in these proposals. They are, by and large, very useful and comprehensive. What has not been done — in a way that goes to the heart of the whole matter — is that the arrested person or the person who is in custody other than by being arrested is not told that the member in charge is the person to whom he should refer if he has a problem or if he feels that he is not being properly treated. The duties of the member in charge are set out very fully. If he is a conscientious person he will pick up any problems that will arise, he will become aware of any unfair treatment of the person in custody. But it is most unlikely that the person in custody — coming in off the street — will be aware of these proposals which will ultimately become regulations. He probably will not even know that there is a person called the member in charge. He will not know if he feels he is being treated unfairly that he is the man he should send for and ask for protection. This is a gap in these proposals. The duties of the member in charge are set out very fully but nowhere does it say that the person in custody shall be told that there is a person called a member in charge to whom he should refer if he feels that he is being treated in a way that he regards as being harsh or in some way unfair.
Regulation No. 9 subsection 2 refers to the fact that:
The member in charge shall without delay give the person, or cause him to be given, a notice containing the information set out in subparagraphs (b) and (c) of paragraph (1) and such other information as the Commissioner, with the approval of the Minister for Justice, may from time to time direct.
The information which shall be given to the arrested person is, first of all, to inform him in ordinary language of the offence in respect of which he has been arrested; second, that he is entitled to consult a solicitor and that he is entitled to have notification of his whereabouts sent to another person recently named by him or, in the case of a person under the age of 17 years, that a parent or guardian or, if he is married, his spouse is being given the information required. Subsection 2 says "and such other information as the Commissioner, with the approval of the Minister of Justice, may from time to time direct". That notice should include the fact that there is a person called the member in charge and that is the person to whom reference should be made if the arrested person has any complaint to make. There is a small point under subsection (3): "Paragraphs 1 and 2 apply only in relation to the member in charge of the station to which an arrested person is taken on arrest or in which he is arrested." It seems that there is no provision made, not clearly anyhow, if he is arrested in one spot but immediately moved on to somewhere else. It is not quite clear who is responsible in that case for giving the notice with the information in question.
Paragraph 10 subsection (3) states:
Where a person has been transferred to another station or where it is proposed so to transfer him, any person who has been notified or informed under this regulation shall be informed or caused to be informed as soon as is practicable by the member in charge of the transfer or proposed transfer.
Again, I am not clear as to the situation if the transfer takes place very quickly and nobody has been notified or informed under these regulations where he is in the first place what the responsibility is or what the procedure is when he reaches the station to which he is transferred.
Under paragraph 11, subsection (3):
The arrested person may receive a visit from a relative, friend or other person with an interest in his welfare provided that he so wishes and the member in charge is satisfied that the visit can be adequately supervised and that it will not hinder or delay the investigation of crime.
In some cases it is necessary for the member in charge giving authority for certain things to say why he is doing it. As far as I can see, in this case there is no onus on the member in charge to justify the fact that he is refusing to allow the visit but it may be in the small print and I have not noticed it. There is the question of interviews, paragraph 12, subsection (3):
Before the commencement of an interview, the member conducting it shall identify himself and any other member present by name and rank to the person being interviewed. Not more than two members shall question the person at any one time and not more than four members shall be present at any one time during the interview.
This is a very good and detailed provision. For the man coming in off the street it is a million to one that he knows of this regulation, that he should be counting the people present, that if a third person starts to question him that person is doing something which is contrary to the regulations, or if more than four people are present at any time during the interview it is a breach of regulations. This is something that in principle is very good but who is going to know that this regulation exists? Even if a person did by some chance know, he would not be aware that he should send for the member in charge and say that this is contrary to regulation 12, subsection (3). It is most unlikely that in practice this will be the position. It is not much good having regulations, no matter how carefully they are drafted, if there is not a reasonable chance that the person arrested is aware of them and knows what to do to ensure that they are observed.
Subsection (4) of that regulation states:
A person shall not be interviewed for continuous periods of more than four hours without a reasonable interval between the periods.
I suggest that four hours is much too much. Four hours may sound like a relatively short period if watching a television show or something of that nature, but under intensive questioning four hours is a very long time.
For example, the normal sitting of a court is two hours with an interval and then another two hours. The reason for that is that intensive examination and cross-examination of witnesses is a very trying ordeal. One needs to be able to concentrate and to be at the top of one's form to continue for more than two hours. The two hour period has been regarded for centuries as the maximum. For a person who has been arrested and whose future is very much in the balance, to be cross-examined intensively by two people for four hours is too much. I urge the Minister very strongly to say that the maximum period for questioning without a reasonable interval shall be two hours.
Under paragraph 12, subsection (8):
A person who is under the influence of drink or drugs to the extent that he is unable to appreciate the significance of questions put to him or his answers shall not be interviewed in that condition except with the authority of the member in charge, which authority shall not be given unless the member has reasonable grounds for believing that to delay interviewing him would involve a risk of injury to persons, serious loss of or damage to property, destruction of or interference with evidence or escape of accomplices.
I think a case could be made for saying that the interview should take place if there are very serious grounds. An argument can be made for it. There are other implications here which are very serious. If a person is under the influence of drink to the extent that he is unable to appreciate the significance of questions put to him or his answers, he may be in a position where he will incriminate himself. If he does that in such a situation then it is quite contrary to the basis of law. Very serious exception could be taken to this proposal. If this question of incrimination can be avoided, what is the purpose of this questioning of somebody who is under the influence of drink or drugs to that extent? Can this statement be used if it is acknowledged that he is so affected by drink or drugs that he does not appreciate the significance of the questions or the answers? What purpose is served by this? What use could be made of answers given in these circumstances?
I would like to hear the Minister elaborating on the justification for this subparagraph and dealing with the question of incrimination. For example, in the case of a kidnapping, a person under the influence may say that the kidnapped person is at a particular house. That would be extremely important information which could result in the person being rescued, if such answers were to be used for some purpose other than to secure the rescue of a kidnapped person or recovery of stolen money, or something of that kind, they would have to be dealt with very circumspectly. The same applies to paragraph 13 which provides that arrested persons under 17 years may not be questioned unless a parent or guardian is present. Nevertheless, it says that the member in charge has reasonable grounds for believing that to delay questioning the person would involve a risk of injury to persons or serious loss of or damage to property, destruction of or interference with the evidence or escape of accomplices, questioning may be authorised.
Again, I would like to put the same questions in relation to this. The regulations or proposals go a long way to ensure that persons under 17 years are dealt with properly and that they cannot be, generally speaking, questioned unless their guardian or parent is present but nevertheless in special circumstances these protections are removed. I wonder what was in the mind of the Minister or the person who drew up these proposals in relation to the information given in circumstances where the safeguards have been removed.
In paragraph 14 dealing with foreign nationals there is a very small point in relation to subparagraph 4(b) which provides that if the foreign national is a political refugee or seeks political asylum, a consular officer shall not be notified of his arrest or given access to or information about him except at his expressed request. I think that "his" could be ambiguous. It is not quite clear whether it is the political refugee or the consular officer who is referred to in that case. Almost certainly it is the refugee but it might be read the other way.
If you refer to paragraph 20 it says that no member shall subject a person in custody to ill treatment of any kind or the threat of violence whether against the person himself, his family or any other person connected with him or permit any other person to do so. Again, I get back to my objection or my query as to the necessity for the arrested person to be aware of his rights. In any situation where an arrested person or person in custody is being treated unfairly or ill treated or anything of that kind all the precautions and protections provided in these proposals are really almost worthless unless he is aware that he should be immediately calling saying that he wants to see Sergeant McGilligan or whoever the person is. He should know exactly whom he should be relying on in a situation such as this.
I think these are really the points I wanted to make about these proposals. They will be coming back to us, I understand, in a few days time. It is unlikely there will be any big changes in between the proposals and the regulations. I would like to think that the discussion in the Seanad would result in some points being taken but in any event if they are not taken between now and the time the regulations come before us we will be able to raise them again. In general terms I think this is a reasonable effort to meet the points made during the discussion of the Criminal Justice Act and it also seems to go a long way to meeting the provisions of the Ó Briain Committee and the Oireachtas committee dealing with detention. So for the moment I think I can only say that this is a reasonable effort to meet the requirements of the situation.
I agree with the initial point made by Senator Ryan that this is a difficult debate in that we are making what is in essence a Second Stage speech in relation to detailed regulations. We are making a Second Stage speech in relation to what appears to be an ordinary motion on the Order Paper but in fact when one examines the White Paper one observes that it contains merely the draft regulations. It is unsatisfactory in that sense that one does not have available within the Standing Orders of this House a facility to have, as it were, a Committee Stage type debate when considering a motion of this nature which is a motion to consider draft regulations. For that reason I hope the Minister will respond in some detail to the points raised in relation to specific regulations.
A little over two and a half years ago we were debating the Criminal Justice legislation in this House but it was also being debated in the country at large. The principal opposition to the basic principle underlying that Bill related to the fact that the Bill conferred too much power on the Garda in relation to persons suspected of crime. The Criminal Justice Act, 1984 gave the Garda powers of pre-charge detention in section 4 and also other additional powers in section 6 in relation to detained persons, powers in relation to the demanding of names and addresses, powers in relation to searching, photographing, finger-printing and the carrying out of various types of tests. The allegation was made that these powers were themselves draconian.
I suppose it is true to say that allegations and suggestions of that nature are understandable in the light of the recent background of allegations that have been made against the Garda. In the late seventies a considerable number of allegations were made to the effect that members of the Garda in various specific instances had abused persons in custody. Those allegations were refuted but they led to the establishment in the late seventies of the Ó Briain Committee and although that committee were primarily concerned with dealing with the safeguards which should be provided in the case of gardaí dealing with persons in custody it nevertheless addressed itself also to some of the allegations which had been made in relation to alleged abuses of Garda power in the years prior to that.
One of the startling facts that emerged from the submissions to the Ó Briain Committee was the fact that 80 per cent of convictions obtained in crimes of a serious nature were obtained primarily as a result of confessions made by persons in Garda custody. That fact alone aroused many fears and perhaps many of these fears are and were justifiable. The essential point and the point that was made when we considered the Criminal Justice Act in this House and more recently when we considered the Second Stage of the Garda Complaints Bill was that the balance has to be got right, as it were, as between the rights which members of the Garda should have on the one hand and on the other hand ensuring that the constitutional right which a citizen has of his or her liberty should be protected. We really have to address ourselves, in considering these regulations, to whether within these regulations and bearing in mind the contents of the Criminal Justice Act, and the contents of the Garda Complaints Bill, the overall package gets that balance right. I believe that one can truly say that in essence the balance is reasonably correct.
I welcome the fact that we are debating these regulations at a time when we are also debating the Garda Síochána (Complaints) Bill. It is appropriate that both measures should come before the House at the same time. It gives us the opportunity of looking, as it were, at both aspects of one side of the scale, the other side being the powers conferred by the Criminal Justice Act of 1984.
It is true to say at the outset that one should not over-estimate these regulations because these are regulations made under section 7 of the Criminal Justice Act, 1984. That is a limiting section in the sense that it provides first, that the Minister shall have power to make regulations, second, that the regulations shall include provision for the casting, as it were, of the member in charge. Most importantly, the section provides that a failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him.
Subsection (4) of that section does also say that a failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall render him liable to disciplinary proceedings. Whereas section 7, which is the enabling section for these regulations, is limiting, it gets the balance right in the sense that no member can be put in double jeopardy. On the other hand, the question should be raised at this stage whether, bearing in mind the contents of the Fourth Schedule of the Garda Síochána (Complaints) Bill, a complaint can be made under that legislation against a member of the Garda Síochána who acts in breach of these regulations. It can perhaps be suggested that article 4 of the Fourth Schedule of the Complaints Bill does give that power, but I would like the Minister at the outset to spell out whether the citizen can make a complaint under the Complaints Bill in relation to a breach of these regulations by a member. That is something we should address ourselves to more appropriately on the Complaints Bill but I believe that it should be specifically included in the Fourth Schedule of the Complaints Bill that a member of the public or a concerned person has a right to make a complaint through the complaints procedure established under that legislation in relation to any breach of the regulations specified in the White Paper. I would be concerned if it should emerge that breaches of these regulations which will not render a member of the Garda liable to criminal or civil proceedings should also be such that a member of the public cannot make a complaint under the complaints procedure and that the only remedy available to a member of the public would be to make a complaint to the Garda under the Garda Síochána internal disciplinary regulations — that is the regulations which will replace the 1971 regulations. I would like clarification from the Minister on that point.
Coming to the draft regulations, I welcome particularly regulations 3, 12 and 20. These are the regulations which state the broad principle of what the Government are attempting to do. It may be no harm to read into the record regulation 3 (1) which states:
In carrying out their functions under these regulations members of the Garda Síochána shall at all times act with integrity and with respect for the personal rights of persons in custody (particularly any of them who may be under a physical or mental disability) and their dignity as human persons while complying with the obligation to prevent escapes from custody and continuing to act with diligence and determination in the investigations of crime and the protection and vindication of the personal rights of other persons.
That sets out clearly the broad principle of what we, in this House, spoke about when considering the Second Stage of the Criminal Justice Bill.
I also welcome the broad statement in regulation 12 (1) and (2) which is along the same lines. Regulation 12 (1) states:
Interviews with an arrested person should be conducted in a fair and humane manner.
Regulation 20 (1) which is a further statement of the principle contained in regulation 3 states:
No member shall subject a person in custody to ill-treatment of any kind or the threat of violence (whether against the person himself, his family or any other person connected with him) or permit any other person to do so.
I welcome these very definite statements in these three regulations of what the approach of the Garda should be to persons who have been detained by them, to persons who are in their custody and to persons to whom in a sense they have a certain obligation.
Having said that I think that the point made by Senator Ryan in relation to regulation 4 is a very valid point. That point is that whereas we in this House know that we will shortly have regulations under section 7 of the Criminal Justice Act and the Garda know they will shortly be subject to regulations under this Act — albeit regulations which are limited by virtue of the very nature of section 7 — and whereas a limited group of people in the country will be aware of these regulations, it is probably true to say that the criminal population or persons who are suspected of being members of the criminal population or persons who may be detained under the Criminal Justice Act may not be aware of these regulations. It is quite possible that somebody may be detained in a Garda station and may not be aware of his rights under these regulations.
It is not sufficient to say that a person shall, under regulation 9, be given certain information. That regulation is welcome — the fact that a detained person should be told in ordinary language of the offence in respect of which he has been arrested; that a detained person should be told that he is entitled to consult a solicitor, and that a detained person is entitled to have notification of his whereabouts sent to another person named by him. These are reasonable provisions and are welcome. These provisions do not get over what I see as the lacuna pointed out by Senator Ryan in regulation 4, that is, that the detained person himself or herself may not be aware that there is a person called "the member in charge". The detained person in a time of trauma, difficulty and weakness by virtue of his surroundings and situation, should be made aware that there is a member in charge. I would ask the Minister to take on board the worries and concerns that have been expressed in that regard. These are draft regulations but I would hope that by the time these regulations come back to this House in a final form they will include a provision, perhaps inserted in regulation 9, to the effect that the detained person shall also be advised first, of the existence of and, second, the duties of the member in charge.
I am not entirely happy with the concept of the member in charge as defined in the regulations. I am not happy that the member in charge may be any member. I accept that there may be difficulties in different Garda stations. I accept that the size, location and the physical surroundings of Garda stations may create their own difficulties. I believe that regulation 4 gives a very wide power to the superintendent in charge of a district to determine who may or may not be a member in charge. Second, it also envisages a situation in which the member in charge could be a very young and inexperienced member of the Garda Síochána.
I make that point because the Minister, in her opening speech, said that the member in charge will usually be of sergeant rank. While I accept that there is underlying these regulations the concept of a holding station — the concept of a type of Bridewell — the facts of the matter are that there are many things which happen in the place to which the person is initially brought. The member in charge there may be a very young and inexperienced member. It is something which should be addressed before these regulations reach final form. I have to admit that I can see certain practical difficulties. There are many stations where there are no members other than very young members. Some of the duties and functions which devolve upon the member in charge are duties and functions which in many cases can only be properly exercised by a person of maturity and experience. I would ask the Minister to consider that point before the completion of these regulations. Hopefully, something more satisfactory may emerge.
I am also unhappy with the very wide power which the member in charge has to delegate or transfer his duties to another person. That power is conferred by regulation 5 subsection 4 (a) which reads:
Where, by reason of the number of persons in custody or other exceptional circumstances, the member in charge is unable to carry out adequately the duty imposed on him by paragraph (i) in relation to visiting persons in custody and making any necessary inquiries, he may authorise in writing another member to carry out that duty.
That means that any member who is in charge, who may be a very young and immature member — I mean that in a professional sense — and who may be a very inexperienced member, may for what he deems exceptional circumstances delegate his power to somebody else. I am unhappy with that bearing in mind the fact that the appointment of a member in charge, which is provided for in regulation 4 (2), is a power that lies with the superintendent in charge of a district. Yet, in exceptional circumstances, which may be determined by a very young, immature and inexperienced member of the Garda, that appointment made by a superintendent in charge of a district can be devolved upon another member. For that reason I am not happy with regulation 5 (4) (a). If there is to be a transfer of power the transfer or delegation should be effected by somebody of higher rank, of greater experience and, certainly, of greater professional maturity.
Regulation 6 deals with the custody record. I welcome this regulation. It is essential, if these regulations are to operate properly, that there should be such a concept as a custody record. I note that the custody record is, in effect, to follow the detained person. In the preparation of documentation which will be used for the keeping of a custody record, could provision not be made for the keeping of a copy also in the station or place where the person was first detained? Where a person is detained under the provisions of the Criminal Justice Act a record of that detention and of what happens should be kept at every place of detainment. There should also be a provision for the record to follow the detained person.
I welcome regulation 9 which provides that certain information should be given to the arrested person. It is wise that this regulation should provide as it does. Regulation 12 deals with the interviewing of an arrested person. I have already referred to regulation 12 (1).
I also take up the point which Senator E. Ryan mentioned in relation to regulation 12 (4) which provides that a person shall not be interviewed for continuous periods of more than four hours without a reasonable interval between the periods. Four hours is an excessive period. Four hours may seem to be a short period in normal circumstances but we are talking about situations where normal circumstances do not apply. When somebody is arrested and brought to a Garda barracks, normal circumstances do not apply. Abnormal circumstances apply. Most people would find the experience extremely stressful, worrying and unusual. Bearing in mind the unusualness of the situation the four hour period is unreasonable and could lead to consequences which were not envisaged when we spoke about these regulations in the course of the debate on the Criminal Justice Act and when certain commitments were given by the then Minister in relation to these regulations. I would ask the Minister to reduce that period. Two hours has been suggested and that would not be an unreasonable period. I would regard it as being a maximum period. It is amazing the amount of interviewing that can be carried out in a two hour period. It is also amazing the amount of information and assistance that a person being interviewed can give an interviewing member in that period of time.
I welcome in particular regulation 13 which deals with the specific situation where a person under the age of 17 years is being interviewed. The balance here is more than right and the provisions are good. Finally, I want to refer to reguation 15 which deals with charges. Regulation 15 (1) provides:
Where a person in custody is charged with an offence, a copy of the charge sheet containing particulars of the offence shall be given to him as soon as practicable.
I do not like the words "as soon as practicable". These are words which appear very frequently in the Road Traffic Act, 1978.
Intoxicating Liquor regulations.
Exactly, and they are words which have given rise to certain difficulties. They are words which have allowed members who operate the provisions of that Act to effect certain abuses, albeit perhaps innocently but, nevertheless, abuses are effected by virtue of the existence of these words. I prefer the words which are used in regulation 9 which deals with information to be given to an arrested person. Regulation 9 (1) reads:
The member in charge shall without delay inform an arrested person or cause him to be informed —
I would prefer if regulation 15 (1) were to read: "Where a person in custody is charged with an offence a copy of the charge sheet containing particulars of the offence shall be given to him without delay". That would put a greater onus on the members of the Garda and, indeed, would secure the balance in a way that is overall more reasonable.
They are my comments on the White Paper entitled Treatment of Persons in Custody in Garda Stations. I hope that the Minister will take on board some of the specific matters that have been mentioned. I look forward to his response at the end of this debate in relation to these matters. Overall, the White Paper, with the exception of the matters which I have mentioned, gets the balance right. That is what we are talking about — getting the balance right as between the rights of the citizens on the one hand and the duties of the Garda on the other hand.
I would like to make a brief contribution to this motion on the White Paper. As the Minister has stated, these regulations provide for the first time a comprehensive statutory code of conduct for the treatment of persons in Garda custody. They are very comprehensive, and are very welcome. Also, in a sense they afford protection to the Garda where complaints might be made.
I remember, as a young boy, reading about the exploits of the legendary Sherlock Holmes. It seems that that role appeals to every young person, but it might not have the same appeal if all these bureaucratic conditions applied, as they must at the present time. As Senator Durcan has said, the Garda have a very difficult role. On the one hand we must be concerned with not restraining them in that role and making it more difficult than is necessary. It is very important that we should be concerned about the treatment of people in custody. It is not easy to get that balance. Any of us who saw the recent "Today Tonight" programme with regard to the Garda, realise that by and large, very little of their time is spent on actual police work. Much of the work they have to do could be done by people outside the force. Much of their time is spent on patrol work. People who criticise the Garda might take into consideration that they get little time to do the work for which they are best equipped.
Senator Durcan raised a point with regard to the terminology in the White Paper, for example, "without delay", "reasonable" period, "as soon as practicable" and "within a reasonable time". In a sense these are very indefinite. Different interpretations by different people could result. A time limit with regard to hours could be added. This might help with regard to a dispute about a definition in this regard. These phrases appear almost on every page. I am not saying this in a critical sense. I know it would be very difficult in all cases to put a time constraint but, nevertheless, in many respects it is open ended.
I would like to refer very briefly to a few points from some of the paragraphs. Paragraph 2 states:
If and for so long as the member in charge of a station in which a person is in custody has reasonable grounds for believing that the person is not below the age of seventeen years, the provisions of these regulations shall apply as if he has attained that age.
In many cases there would be great difficulty in this regard. For about two years on either side of 17 years it would not be easy for a garda to decide with reasonable confidence that a person was not below the age of 17 years. I would be concerned about what would be "reasonable grounds". Otherwise the balance is not in favour of the person in custody in this section.
Paragraph 3 states:
In carrying out their functions under these regulations members of the Garda Síochána shall at all times act with integrity and with respect for the personal rights of persons in custody (particularly any of them who may be under a physical or mental disability) and their dignity as human persons while complying with the obligation to prevent escapes from custody and continuing to act with diligence and determination in the investigation of crime and the protection and vindication of the personal rights of other presons.
The Garda have a very tough role to play. On many occasions they come up against desperate individuals. This tough aspect should be taken into consideration when recruiting gardaí. The garda also has his profession to look after. A recruit who could be termed "soft" would not be suitable.
Paragraph 4 deals with the member in charge. This was raised by other Senators. Could a member in charge leave the station without appointing another member in charge? This would have serious implications, not alone in terms of paragraph 4 but of paragraph 9 (3). I am not clear as to whether a member in charge could leave the station at any time.
Subparagraph (3) states:
As far as practicable the member in charge shall not be a member who is involved in the arrest of any person for the offence in respect of which he is in custody or in the investigation of that offence.
It was a mistake to close down small Garda stations. These regulations do not favour the small station. It would not be possible to implement this subsection where the small station is concerned.
Paragraph 5 deals with the duties of the member in charge. It states:
The member in charge of a station shall be responsible for overseeing the application of these regulations in relation to persons in custody in the station and for this purpose shall visit them from time to time and make any necessary inquiries.
Subparagraph (2) qualifies that to some extent:
Paragraph (1) is without prejudice to the responsibilities...of other members.
From "time to time" is a vague way of dealing with this responsibility. A specified time limit might be helpful as is the case in a later paragraph when dealing with persons under the influence of alcohol and where time limits of half an hour and quarter of an hour are specified. Subparagraph (3) states:
Where it appears to the member in charge that a direction given or action taken by a member of high rank is inconsistent with the proper application of these regulations, he shall inform that member accordingly and, unless the matter is resolved, report it without delay to another member of or above the rank of superintendent.
There is a time factor here. In most cases there is the pressure of time. In most circumstances it might not be possible to comply with this time factor.
Subparagraph (4) (a) gives authority to the member in charge to authorise another member to carry out the duty for him. "Authorise" may very well be the proper verb to use, but something stronger would be necessary. To "authorise" does not seem to pose any obligation on the other member, whereas an order would. This might be looked at again.
Regarding subparagraph (3) of paragraph 6, where a person in custody is transferred to another station, the member in charge shall send with him the custody record relating to him or a copy of it to the member in charge of that station. A copy would be more appropriate. It would seem to me that it would be proper to keep the custody record in the station.
Paragraph 7 deals with the record of arrest and detention. Subparagraph (a) states that:
...a record shall be made of——
the date, time and place of arrest and the identity of the arresting member (or other person),
That would seem to imply that an arrest could be made by other than a member of the Garda Síochána. This may very well be right. I wonder if that is what is intended. It seems to me that the arrest would be by a member of that body and that should be stated in that subparagraph.
Paragraph 8 deals with inquiries and reads:
Information as to the whereabouts of an arrested person shall be given——
(c) if the arrested person consents and the member in charge is satisfied that giving the information will not hinder or delay the investigation of crime, in response to an enquiry by any other person.
Again, this qualification that "where the member in charge is satisfied" seems a weakness. We could hardly blame members in doing their duty if they were overcautious. This qualification seems to me to encourage a member to be overcautious.
Subparagraph (3) relates to notification with regard to where a person resides. It would also seem to me that there could be a difficulty in some cases in determining where somebody actually resides. This is an area which gives discretion to the Garda.
Paragraph 9 deals with information to be given to an arrested person.
Subparagraph (1) concludes:
The information shall be given orally. The member in charge shall also explain or cause to be explained to the person that, if he does not wish to exercise a right under subparagraph (b) or (c) (i) immediately, this will not preclude him from doing so later.
I am wondering if, in that situation, there is a time factor. For example, if somebody did not exercise that right but changed his mind after half an hour or an hour, would that facility be extended to him then?
Paragraph 11 deals with visits and communications.
A consultation with a solicitor may take place in the sight but out of the hearing of a member.
It would be more satisfactory, where consultations take place, that they would take place with the member out of sight as well as out of hearing. I am not sure if that is a very important point, but I believe that would be more satisfactory. The paragraph continues:
The arrested person may receive a visit from a relative, friend or other person with an interest in his welfare provided that he so wishes and the member in charge is satisfied that the visit can be adequately supervised and that it will not hinder or delay the investigation of crime.
Again, this gives this qualification and the matter of interpretation. I am sure that in many instances there will be dispute about this interpretation. Subparagraph 4 (a) reads:
The arrested person may make a telephone call or send a letter ... provided that the member in charge is satisfied that it will not hinder or delay the investigation of crime. A member may listen to any such telephone call and may terminate it if not so satisfied, and he may read any such letter.
Again it seems to me that the person arrested at this time must be considered innocent until proved guilty. It would be more satisfactory if whatever telephone call was made or letter was written would be private and confidential, and treated as such.
Paragraph 12 (1) states:
Interviews with arrested persons shall be conducted in a fair and humane manner.
This is something with which we would all agree. Indeed, as I have said before in my experience over a long number of years as a peace commissioner and in different capacities I have never known a single situation where interviews in special courts were not held in such manner. It is a great credit to the Garda, under such pressure from every quarter that, in spite of what has been said and in spite of the few situations, unfortunate and serious though they were, that they have been able to conduct themselves in this fair and humane manner.
According to subparagraph (4):
A person shall not be interviewed for continuous periods of more than four hours without a reasonable interval between the periods.
Like Senator Eoin Ryan, I think that four hours is a very long time for somebody under such terrible stress. A reasonable interval is an arbitrary condition. The time could be very well reduced to half that. I feel that it would certainly improve these regulations if the Minister consented to do that. The paragraph continues:
A record shall be made of each interview either by the member conducting it or by another member who is present. It shall include particulars of the time the interview began and ended, any breaks in it, the place of the interview and the names of the members present.
The next subsection states:
Where the interview is not recorded by electronic or other similar means, the record shall — ... be in accordance with other conditions.
I suppose electronic records are the most satisfactory. I gathered from the Minister's introductory speech that this will be the long term objective. I would agree with it. There is always the danger in that kind of situation, as we know, that equipment can break down but it seems to me to be perfectly satisfactory and there should be no problem. In this regard it would be necessary to duplicate equipment. We would have extra expense, but it would be very much worth while.
Paragraph 13 deals with interviews with persons under 17 years of age. Subparagraph (c) states:
An arrested person who is under the age of seventeen years shall not be questioned in relation to an offence or asked to make a written statement in the absence of a parent or guardian except with the authority of the member in charge, which authority shall not be given unless ...
... it is not practicable for a parent or guardian to attend within a reasonable time ...
"Reasonable time", again going back to my original complaint, is not specific. Many homes might not have a telephone. Indeed, I can envisage in some situations the Garda squad car calling to give notice to the parent or guardian. Many people might not like to go to the station in the squad car. In the absence of a specific minimum or maximum time to fulfil this obligation, the Garda should be careful to interpret it on the generous side.
Paragraph 17 deals with general provisions and states:
(1) A member conducting a search shall ensure, so far as practicable, that the person in custody understands the reason for the search and that it is conducted with due respect for the person being searched.
(2) A person in custody shall not be searched by a person (other than a doctor) of the opposite sex.
We all agree with that. It is quite right and proper.
Paragraph 19 deals with conditions of custody and states:
A person shall be kept in custody only in a station which has facilities to enable him to be treated in accordance with these regulations for the period during which he is expected to be in custody in that station.
That begs the question: are there stations which are unsuitable for that purpose and what kind of stations are they? It further states that access to toilet facilities shall be provided. Have all stations proper toilet facilities? Can somebody go to the toilet if they want to rather than having to get permission and be ushered through part of the station? Paragraph 19 (b) states:
Where a person is confined in a cell, a member shall visit him at half-hourly intervals. A drunken person or a person under the influence of drugs shall be visited and spoken to and if necessary roused for this purpose every fifteen minutes for a period of two hours or longer if his condition warrants it.
I recall in the not too distant past reports in the papers where if this had been done it might have prevented serious problems from arising. Subparagraph (7) states:
A member shall be accompanied when visiting a person of the opposite sex who is alone in a cell.
Does that mean that a member shall be accompanied by another member, because it does not state that. Would the condition be fulfilled if the garda had with him a person who was not a member of the Garda Síochána? This is a very good condition but will it always be practicable?
Paragraph 20 deals with persons in custody: they should not be illtreated. Senator Eoin Ryan dealt with this. I will not go into it but it is a very important paragraph.
Paragraph 21 deals with medical treatment for persons in custody. Subparagraph (2) states:
Notwithstanding that paragraph (1) may not apply, medical advice shall be sought if the person in custody has in his possession, or claims to need, medication relating to a heart condition, diabetes, epilepsy or other potentially serious condition. This paragraph shall not apply where the person is expected to be in custody for a period of less than one hour.
Why should it not apply? A person suffering from a heart condition or a problem of that kind would be put under very severe stress. I see no reason why this should not apply where a person is expected to be in custody for a period of less than one hour because it might happen that, contrary to expectations, this time would be extended. I should like to see this sentence deleted.
Paragraph 21 (4) states:
If a person in custody asks to be examined by a doctor of his choice at his own expense, the member in charge shall, if and as soon as practicable, make arrangements accordingly. This shall not preclude his examination by another doctor summoned by the member in charge provided that the person in custody consents to the examination.
If a person in custody asks to be examined by a doctor of his choice, but not at his own expense — take the case of somebody who could not afford to pay a doctor — would he be denied that facility? It is wrong that he should be so denied. I recall that at one of our meetings on the Oirecahtas Joint Committee on Women's Rights, there were representatives from the Rape Crisis Centre and I gathered from the statements they made that when a rape victim is taken to a Garda station she can ask to be examined by her own doctor. If this request is made it is complied with. I know that in these regulations we are dealing with people in custody. I suppose I am out of order in referring to that. If that is the case with regard to rape victims, I am very glad.
Throughout the White Paper the words "without delay", "reasonable period", "as soon as practicable", "within a reasonable time", are used. In many instances they are not definite enough and some time should be specified. From the point of view of treatment of persons in custody, these regulations look very comprehensive. I welcome them. They afford protection as well to the gardaí who are involved in those circumstances.
I can see the case made by previous speakers who welcomed the publication of statutory regulations for the treatment of persons in custody in the circumstances of the Criminal Justice Act, 1984, having now been made law. I join with them in welcoming the replacement of the voluntary code by a statutory one. However, we are encouraged both by the Minister of State's introductory speech and also by elementary logic itself to go back to the basic Act which is involved, the Criminal Justice Act, 1984. On the occasion of the passing of what was then the Criminal Justice Bill through this House, the Minister for Justice gave an undertaking that sections 4 and 6, which had been the subject of an extensive Committee Stage debate with a number of amendments in my own name and that of Senator Mary Robinson, would come into effect only when the requirements of section 7 had been fulfilled. The amendments in both Senator Robinson's and my own name at that stage were placed on behalf of the Labour group of Senators.
We are not debating these regulations and we have in another part of our procedures started to discuss a complaints procedure. So the regulations and the complaints are conditions. We are encouraged to ask whether they are sufficient for the implementation of sections 4 to 6 of the basic Act. I expressed a great deal of reservation about the Criminal Justice Bill, 1984, when we were discussing it. The Bill was, of course, passed. My doubts remain in many ways but that is so much water under the bridge. The whole purpose for the keeping of people in custody was changed by that Act. Everyone who spoke on Second Stage who followed that kind of logic felt that people were being detained and held in custody for purposes that were quite different from what had prevailed previously. This was debated at some length. Deputy Noonan, the then Minister, replied at one stage that everybody knew that people had been detained in stations before. That was a very straightforward reply. I quote column 1193 of the Official Report of 11 July 1984:
As I have already mentioned, for many years most people in this country assumed that the Garda had the power to detain suspects for questioning and the Garda acted as if they had.
The interesting point was made that that was one of the most unusual justifications for the introduction of the new powers under the 1984 Bill, later to become an Act. A number of judgments, held particularly by Mr. Justice Walsh in the Supreme Court, laid down the clear principles upon which a person could be arrested and detained.
There was a particular intention behind the Bill. The purpose of custody was being changed. It was changed in the direction of investigation. I recall the circumstances; we were in the middle of the crime panic that had been created in the country. Only recently we had somebody convicted of a crime of attacking elderly people who lived alone. The problem of elderly people living alone is one that is being addressed now by the Minister as much as it was addressed by previous Ministers at the time when the peculiar moral panic was created concerning it. The problems and vulnerability of those living alone goes on over a long period of time. Sometimes the media address it and it creates a problem in the people's minds and so on. That panic was going on at that time in 1984 and it lent colour to the context in which we were discussing the Bill. The idea clearly was that we needed to be able to retain people in custody for purposes of investigation.
I do not find it extraordinary that the Minister made that statement. The public demanded that there be a response. Thus in the debate in 1984 many attempts were made to strike what was felt to be a balance between two opposing forces. On one side, you had a fairly hysterically developed crime panic. I refer to that deliberately because I am using the words "crime panic" in the sense in which particular words are invented to suit moral panics. For example, the word "mugging" which did not exist in the English language was imported from California and was first used about a poor man who had gone to the theatre, come home a little drunk and was "rolled" to use the other phrase, by a group of youths. The word "mugging" crept into English criminology parlance only to be imported here. People had been getting drunk, going to the theatre and being rolled or assaulted for years. Fashions come and go in relation to the creation of moral panics about crime and 1984 was a virulent period for hyping crime, particularly in the newspapers. Crime sold newspapers as I said then.
One end of the spectrum was communal concern that crimes were being committed and that the capacity did not exist to investigate them. It was felt that there was a need to change the regulations under which people could be held in custody and crimes investigated. At the other end of the spectrum was a concern with two different things. One was concern with individual rights and liberties. This provided the main balance in the argument on the Criminal Justice Act in 1984. To what extent did the person have rights? These rights were felt to be the right to be silent, the circumstances in which statements would be made, the right to have professional advice in attendance and so forth. There was another position in the 1984 debate which argued — and I will take this as my point of departure for my remarks this afternoon — that there was another perspective and that one had to look at the relationship between the community and the Garda. What we have to look for now in 1986, looking at the implementation of section 7 of the 1984 Act, is what kind of balance we wish to strike in relationships between the community and the police. That was neglected in the 1984 debate apart from the very significant and valuable speech of Senator Mary Robinson.
Taking that as my departure point, you will see that the community, looking at the procedures of arrest and the procedures of detention are looking for certain things that are reasonable. They may be looking for some things that are unreasonable. Equally in relation to the Garda, they are best served by procedures that are open and that are in themselves satisfactory. It helps us to enter into a new relationship between the community and the police.
There are two purposes for having regulations governing people in custody. One of them is that it is in the interest of the Garda so that the good name of the force and of individual gardaí can be protected. Many of the gardaí to whom I have spoken in the community in which I live are very anxious that procedures would be very clear so that their good name, both as a force and individually, would be protected. The second reason is so that the individuals who are detained would enjoy reasonable protection as citizens before the law.
What is the position of a person responsible for a breach of community police relations? Even a person as far removed from the law as I am, can, in reading these regulations, see that great onus that is placed on the member in charge. If the member in charge is in breach of any one of these regulations what happens at that stage? I think I am reading it correctly by saying that it becomes a matter for internal police discipline. If it is, is it therefore exclusively a matter for internal police discipline separate from the complaints procedures which are envisaged in the Garda Síochána (Complaints) Bill? Perhaps I do not see this as clearly as others. What are its implications in relation to, for example, an individual wanting to pursue a breach under any one of the regulations in terms of the civil law? To what extent would the records referred to later on be admissible as forms of evidence and as material in a civil case and so on? There is the problem of having a system that will be seen to be transparent both by the community and the Garda.
There will be a difficulty in the implementation of these regulations. I can see one sense in which they are very welcome, that is in the transition from a voluntary to a statutory code. I have an unreserved welcome and admiration for such a transition. Equally in application to normal circumstances they might be useful. There was a set of circumstances which governed the introduction of the basic 1984 Act. That was that it led to new circumstances for detention and questioning. Can these regulations be adequately exercised and, at the same time, fulfil the intent of the basic legislation? There is a tension there. The major case made on Second Stage for the Criminal Justice Act, 1984 was that there were circumstances and crimes which needed to be investigated and which required that certain kinds of measures be taken and that the hands of the gardaí needed to be strengthened and so forth. Those of us who argued against that said that we should be approaching the crime wave in a slightly different way. That argument is over now but the stated intention of the Criminal Justice Act, 1984, and the particular logic and philosophy behind it will cast a certain colour over the implementation of the measures we are looking at here.
I am not as hooked on the case of individual rights as other contributors were on the Second and Committee Stages of the Criminal Justice Act. I am much more influenced by the argument that correct procedures in custody can be more easily approached in terms of the implication of all of this for relations between the community and the police. You can look at it from that perspective rather than that of individual rights. You can satisfy individual rights in a legalistic or formal way but the rights may never be delivered on. Therefore, there is some merit in points made by previous speakers this afternoon in asking questions about the form in which these new regulations will be made accessible and available to the people who are affected by them, the people in custody.
There is one thing that worries me about the language in the regulations. If I was in custody and I was looking for regulations to guide me I would not be looking for flourishes or for idealistic statements — maybe it is because of my personality — but I would be looking for something that rather clearly guaranteed a right. Thus regulation 3, paragraph 1 says:
In carrying out their functions under these regulations members of the Garda Síochána shall at all times act with integrity and with respect for the personal rights of persons in custody (particularly any of them who may be under a physical or mental disability) and their dignity as human persons while complying with the obligation to prevent escapes from custody ...
I readily applaud such a statement but I suggest that what we need to be very clear about are the procedures that will prevail. I presume the procedures are what would interest people who might find themselves in custody. For example, they would be interested in seeing what rights they had. Will a copy of these rights be held before them on a card? Will a card be handed to them? Will they be given details in writing rather than verbally of what they are charged with or will they be informed in writing by the time they have been an hour or two in custody what it is that they are being charged with and under what Act and so forth? People are governed by practical things rather than by knowing they are in the clutches of an idealistic legal system.
Said with a very delicate flourish.
This is not to take from the high-minded, ethical and well-disposed intentions of those who drafted these regulations.
I agree with what Senator Eoin Ryan had to say earlier about the definition of the member in charge. I recall a clear example of looking for a member in charge. It was on the occasion of the arrest of a large number of women in the Phoenix Park under the by-laws which govern the Phoenix Park. These women had been removed to a Garda station. I may have asked the more earthy question such as, "who is in charge?" A very kindly and co-operative man volunteered to say "I am in charge". I had been invited there by the husband of one of the women who had been detained. The poor man — he was very courteous — was overwhelmed by what was taking place. There was about 30 women in a small number of overcrowded cells. They had been arrested at the time of Mr. Reagan's visit to this country.
The women were in the cells. People were trying to see them. The phone was out of order, which brings me to the phrase "as far as is practicable". I remember asking if the woman I was visiting had been able to make a phone call. She wanted to make a call to her husband. I was told that there was a phone across the yard but that it was not working. We were in the position — there were only a small number of cells and about 30 women — that some of the women had seen solicitors two or three times but more than half of them had seen no solicitor at all. People were arriving and seeing large numbers of people in the same cell. No one knew who was visiting who in relation to a professional visit. It was very interesting because it has stayed in my mind as an example of a practical situation — perhaps unusual because large numbers of people were involved — in which these bits of language are put to the test.
Paragraph 4 (2) states:
... the superintendent in charge of a district shall issue instructions in writing from time to time, either generally or by reference to particular members or members of particular ranks or to particular circumstances, as to the member who is to be the member in charge of each station in the district while the station is open.
(3) as far as practicable the member in charge shall not be a member who was involved in the arrests of any person for the offence in respect of which he is in custody or in the investigation of that offence.
I am unsure so I am willing to be guided as to the force of the phrase "as far as practicable" which is used so extensively throughout these regulations. If you take it that the appeal for the invocation of these regulations is to be one that is an internal matter within the Garda rather than one of appealing to an appellate authority outside of the Garda, and if you add to that the phrase "as far as practicable" surely you erode very considerably the impact of these regulations in terms of protecting the people who might be detained.
In paragraph 5 (3) the points I have just been making are made rather pithily:
Where it appears to the member in charge that a direction given or action taken by a member of higher rank is inconsistent with the proper application of these regulations, he shall inform that member accordingly and, unless the matter is resolved, report it without delay to another member of or above the rank of superintendent.
How practical is that? It is very easy to write down. I can tell you from reading cases that the natural tendency of people within a profession is to protect each other. Such an action is very unlikely to take place in a practical sense.
When we were discussing the question of records in the Seanad during July 1984, there seemed to be a difference of opinion between the sponsors of the legislation and those of us who suggested that as quickly as possibily there should be placed in the hands of the person being arrested or the person being detained in custody a specific statement in writing rather than any oral statement as to the precise offence that the person was supposed to have committed. That was a very valid point because it arose in the course of the exchanges at that time.
Many Senators on both sides of the House spoke about the fact that people had been arrested by the simple formula of saying: "I am arresting you under section 30" or "I am arresting you under section 30 of the Offences Against the State Act". When we raised, on the occasion of that debate, the question of the person being told for what he was being arrested under section 30 of the Offences Against the State Act, the Minister conceded that it could indeed be made a matter of test as to whether the person had been told what the particular offence was. It was argued at that time that section 4 of the Criminal Justice Act, 1984, gave no new powers of arrest so that therefore these considerations did not arise. What it did lead us to speculate about was the giving to a person as soon as possible a statement in writing about the offence of which the person was accused. Regulation 6 provides that:
(1) A custody record shall be kept (2) ...
(2) The member in charge shall record or cause to be recorded in the custody record as soon as praticable such information as is required by these regulations to be recorded. Each entry in the record shall be signed or initialled by the member making it.
May I ask a question here again? Let me be more brave about it: would it not be better to require the record to be kept and then later perhaps to allow mitigating circumstances to be adduced by the person who was in charge, in other words the person would say: "Yes, the duty was on me to do this, but I did not do it because of so and so". My argument is that by putting in "as soon as practicable" you are creating a circumstance in which the person will be able to say: "I did it as soon as practicable". What is "as soon as practicable" and how will that be judged? You can reply, I suppose, by saying that judges have interpreted phrases like this and they have nearly always interpreted this kind of phrase as meaning as soon as was reasonably possible. I think the phrase is not an advantage in the regulations by and large. Let me just say that about it. I would have spoken about it every place else it occurs. It occurs equally in relation to 8 (2). I take Senator Durcan's point that under regulation 9 there is departure from the "as soon as practicable" formula and the phrase "shall without delay" is used. I would agree with him that "shall without delay" is better than "as soon as practicable".
In relation to the question of the record the requirements of keeping the record as one goes is much more important than allowing it to be completed at a later time. I see in the regulations, but perhaps I am wrong, that a person could comply with the details of the record of custody, at considerable time after a number of the different complying actions had taken place.
Again, in relation to this regulation and all these questions about the phrase, "as soon as practicable", to go back to my experience of the Phoenix Park women, I want to ask whether it would handle the situation of where a telephone was not working and, whether in such circumstances, the regulation could be implemented. I can think of instances in which someone would ask, "what did you expect us to do, does this mean that you go out and go to a nearby telephone if your own phone is not working?" and so forth. Equally it arises in relation to transfer. Let us say that the person is brought to a particular station that is not the headquarters and therefore is moved at a later stage to some place else. Regulation 8 (2) says that the relation involved shall be told that as soon as practicable. If this area can be tightened, that should be done.
In relation to the information that is to be given to the person in custody, we really have to think very carefully about that. A previous Senator, I think it was Senator Durcan suggested that while we in the Oireachtas and such people as lawyers and the Garda Síochána may be aware of what these rights are, the criminals may not be so aware. I do not subscribe to that. I think that some hard core criminals will be very aware of their rights within a matter of hours of these regulations being passed but a great number of people from the socially deprived areas who are not hard core criminals but who are coming into conflict with the law for perhaps the first or second time, may not be so aware; likewise, people with literacy problems, and who are subject to other forms of social disadvantage. I am still concerned, as I was in July 1984 on the occasion of the passing of the Criminal Justice Act, about the section governing children. May I just add to this question of the six hours detention? The point has been made already that six hours was too long a period especially when you take that in conjunction with the provision that no questioning shall take place between midnight and 8 a.m., unless the offence has been committed in that time and unless the person has consented or something like that. If you are in a situation where questioning has begun two hours before midnight, you are facing the reality that the person being questioned will have to remain at the station until morning. The reality of being there until morning would in itself put powerful pressure on somebody.
I do not see the advantage of very long periods required for questioning.
I have a doubt altogether about the use of detention for investigative purposes but even in legal systems where this principle is accepted, I do not think it is being very fruitful. There is no point in pointing out to places where they can hold people for 36 hours or something like that. What I am interested in is where it has yielded results that have been accepted as being beneficial in terms of the quality of law. All the questions about the rights of notification to solicitors, to other persons and to relatives was useful but all of these are qualified by this phrase "as soon as practicable". I am at a loss to understand it because I believe that by putting it in like that — the example was correctly used in relation to the Intoxicating Liquor Act in the context of knowing a person's age, as to whether you "knowingly" served drink to a person under the age of 18 — is really making all of the guaranteed aspect of the regualtions almost a matter of discretion. That "knowingly" has proved of great service to publicans for decades.
I support the regulations regarding visits and communications. The Minister said she had not accepted one of the recommendations of the Ó Briain report which was that a solicitor be allowed to be present in an observer capacity. This is disposed of in the Minister's speech by saying that the purpose of such observational presence would be to make sure that no unfair allegations were made against a garda and to guard against improper questioning and in so far as procedures to protect against both of these existed elsewhere in the regulations there was no need to allow for this. I do not agree.
In many ways, to go back to my criterion or the test by which I measure this, I think that by the balance of community gain, police behaviour being measured against trying to forge a better relationship with the community, it is another aspect of openness to have the legal representative present in such an observer capacity. I think it would assist.
On the question of the charge sheets I said already that I believe that these should be completed as quickly as possible. On the other point in relation to regulation 20 it is again, if I might call it, a 1937 constitutional type of phrase with a flourish:
(1) No member shall subject a person in custody to ill-treatment of any kind or the threat of violence (whether against the person himself, his family or any other person connected with him) or permit any other person to do so.
And so say all of us. I certainly agree, I am not being cynical and I do not take from the spirit of it; it is a phrase that we would all agree with. I wonder about:
(2) no member shall use force against a person in custody except such reasonable force as is necessary
(a) in self defence,
(b) to secure compliance with lawful directions,
(c) to prevent his escape.
Perhaps these are taken from other police codes. How are they ever to be measured, and I am back now to the question with which I began? If they are ever to be measured or tested or adjudged in terms of their impact on anybody, is it by internal investigation by one own's peers within the police force? There are implications in that. Again it raises the question whether the breach of these regulations is outside of internal discipline or not.
A very interesting point was made initially by Senator Eoin Ryan in relation to the purpose of interviewing a person who is obviously under the influence of drink. Talking to people under the influence of drink is something to which perhaps politicians are condemned but perhaps the Garda need to be. I agree with those who question the utility of talking to a person under the influence of drink. Does this mean that the person could affect being under the influence of drink. You could imagine that that speaks for a sizeable proportion of the Irish population. How would you know? Here again the quality of the evidence that is given has implications for the use of any statement a person might make. Can you envisage a situation in court where a person would ask, "was my client drunk? Was my client drunk in a way in which, to use 21 (b), he could not be roused? Was he drunk in a way that he could communicate with people?" And so on, and what is the status of the statement that he might have made?
I want to join with other Senators in welcoming the publication of the regulations and everything I have said, contrary to any impression I might have given, is in an attempt to be positive. I have said that my attempts to be positive are undoubtedly hampered by the fact that I feel that sections 4 to 6 are a misconstruction of what is necessary in relation to controlling crime at this particular time. In so far as statutory regulations are appearing instead of voluntary ones, I welcome them, but I would like to think that those regulations could be enforced by appeal to an authority outside of the participants beyond the offenders and beyond those who are in charge of the Garda station.
I am very anxious that even if these questions can be satisfied that the regulations themselves could become basic principles for action that would be welcomed by the Garda themselves as providing guarantees which they can show to the public by which they live as minima, not as things which they are enforced to observe and thus they would create better relations between the Garda and the community. Equally in relation to the community and particularly the more vulnerable sections of the community — not the hard core criminals — who come into contact with the law will know that they are coming into contact with a force that has basic custodial regulations, that they are safe and therefore that a dialogue can take place in conditions of custody which are assisted by these regulations.
That brings me to my very last point, that I think these conditions cannot be met if the regulations have attached to them language or conditions which take from their guarantee aspect. If they are made conditional by the phrase "as far as practicable" or if they are made conditional in the sense that appeal from them will only be an internal matter, I feel they are lessened and I hope that when the regulations come back to us perhaps they may have removed some of the doubts that I have expressed already.
I am afraid that these regulations share with certain people something which has become to be known in this country as a flawed pedigree. They are really part of the obstacle course established and inserted by the Oireachtas in an attempt to delay and ameliorate the effects of sections 4 to 6 of the Criminal Justice Act, 1984. Initially, without reopening old wounds and leaving aside the merits of the proposals themselves because they bring closer the implementation of these most divisive sections of the Criminal Justice Act, 1984, I cannot welcome it.
Turning to the regulations themselves, the first thing I would like to ask the Minister is, why are regulations like this or proposals for regulations like this not circulated to Members of the House? None of these proposals were circulated to the Members of this House or the Members of the other House. It is true to say they were laid in the Library of the House, but no copy of the regulations was circulated to the individual Members. I think that is quite incorrect. I think all matters which require an affirmative resolution of this House should be circulated to Members. We are fed up with getting annual reports of bodies in which many of the Members of the Oireachtas have very little interest as such. We are inundated with irrelevant pieces of paper and we are not circulated with regulations in respect of which we are expected to give opinions at short notice.
In this case because the considerations of these matters was delayed over a number of weeks I think most of the Members of the House who wanted to attend to the matter were able to do so. Had it been taken the first time it appeared on the agenda then very very many Members of this House who were interested, if only interested to the extent of reading them and not participating in the debate, would not have had the opportunity of doing so because the regulations were not available. When I went to get a copy of the regulations in the Library they were unable to give it to me. I could only get a photocopy of the regulations and I notice that at least one other Senator was using a photocopy of the regulations today in the consideration of the matter. Subsequently I did get a copy of the regulations but I do not think it should be necessary to go to that extent. Anything, whether it be draft regulations or proposals for regulations or whatever you call it, which requires an affirmative resolution of this House should as of right be circulated to Members.
These regulations are being made by the Minister under the power given to him and subject to the restrictions conferred on him by section 7 of the Criminal Justice Act, 1984. Therefore to look at the regulations in their entirety one has to look at section 7 of the Criminal Justice Act. Therein lies the most central problem with the regulations as far as I am concerned. Sections 7 (3) and (4) of the Criminal Justice Act contains the problem with the regulations. Subsection (3) states:
A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall not of itself render that person liable to any criminal or civil proceedings or of itself affect the lawfulness of the custody of the detained person or the admissibility in evidence of any statement made by him.
Subsection (4) states:
A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall render him liable to disciplinary proceedings.
I think that was a mistake by the Houses of the Oireachtas, but that is what the Houses of the Oireachtas have decided and there is no point in my reploughing that land. The usefulness of the regulations must be considered in the context of a flagrant abuse of them by members of the Garda Síochána which will not render the members, in respect of that failure to observe any of the regulations, open to criminal or civil proceedings. They may, of course, be open to criminal or civil proceedings for some other reason but not as a result of the making of the regulations. It must be unique that regulations become part of the law of the land. This imposes a duty on a person but there is no criminal sanction in respect of the person who does not adhere to the regulations. That seems to be very strange.
When these regulations are implemented it will become the duty of the member in charge to do the various things that are outlined in the regulations. That actually will be part of the law of the land. It is not just an internal matter, it is part of the law in precisely the same way, as is displaying your tax disc or not parking on a double yellow line. Almost uniquely with regard to these regulations there will be no sanction in respect of the people who break the law. That appears to me to be quite grotesque. I do not think the House has properly considered or understood that these are not like internal regulations. These are part of the law of the land. There will be a duty on the member in charge to advise the person in the various ways set out in the regulations. If he fails to do that he will have broken the law, but he will not be subject to the law in respect of that failure. That makes no sense at all. Surely it must be unique that we are passing a law by way of regulations because that is what it is. This is the law in precisely the same way as the Finance Act or anything else. People who break the law will not be subject to the criminal law.
I am not aware of any other regulations which are so structured that they impose obligations on people in certain circumstances and impose no criminal sanction in respect of those people who do not live up to those sanctions. That appears to be quite an extraordinary matter and is proof or an indication of the very strong lobby which is represented by the forces behind these regulations — that a law imposing duty on people to do certain things would be enacted by both Houses of the Oireachtas with no provision for punishment if that law is ignored. There may be punishment if somebody mistreats a person in another way. Members of the Garda Síochána or those in custody and all parties concerned including solicitors will all be subject to the normal punishment but not in respect of the duties imposed on people under these regulations. That appears to be an extraordinary omission. For that reason I cannot welcome that aspect of the regulations, no matter how good the regulations are themselves. By and large the regulations are fairly good. I cannot really accept that things could be put into law with no sanction on those who choose to ignore it.
It seems very doubtful to what extent a member who ignores his duties under these regulations will be subject to the new complaints procedure, for example, a member in charge who fails to give people the things in writing they are supposed to get, fails to read the particular notice to them, or fails to make the entries in the books or fails to contact a solicitor when it is suggested he should contact a solicitor. The new complaints procedure is such that it is splitting the disciplinary offences within the Garda Síochána into two sections. It is quite right in doing that. Unless a disciplinary offence is actually within the Act, it falls to be dealt with internally. The only way it can be within the Act is if it is recited within the Act. There are certain things that are recited. There are certain things which you might be able to interpret as including a failure to do some duty which is imposed under the regulations. One of them is the abuse of authority. That abuse of authority is only defined in respect of two particular aspects, oppressive conduct towards a member of the public including without sufficient cause making an arrest or using unnecessary violence towards any person. If it falls outside that definition or other similar definitions it will not be capable of being investigated except internally within the Garda Síochána. That is a failure of the regulations and in that regard they fail to back up with sufficiently strong disciplinary procedures, the onerous duties which they put on the members of the force. The disciplinary procedures which one can expect in those circumstances will be less than satisfactory, because they are internal, and not because anybody is going to act deliberately — certainly not anybody within the hierarchy of the Garda Síochána. These matters should be settled long before they go to the hierarchy of the Garda Síochána.
It is true to say — and the Minister made copious references to it — that the regulations will not apply to those voluntarily attending at the station. Those who voluntarily attend at the Garda station are an extraordinary group of individuals. They are people whose thirst for justice is so strong that they are suddenly impelled to give up free time to go to Garda stations to help the members of the Garda Síochána in a voluntary capacity with regard to unsolved crimes. The Minister said that to apply the regulations to such persons would be ultra vires the legislation. That is true but it is a disingenuous argument to say that it is ultra vires the legislation which is to say: it is ultra vires the legislation which I drafted myself. If the Minister requires an additional piece of legislation, he will get our co-operation to ensure that these relevant portions of these regulations, or some of them which would be relevant, should apply to those who voluntarily attend a station. A problem does exist in this area, which the Minister is well aware of. He could hardly fail to be aware of the problem when he considers the excellent report of the Tribunal Of Inquiry into “The Kerry Babies Case”. In chapter 32 headed “Freedom?”, it was quite clearly stated by the tribunal that the members of the Hayes family were not free in any real sense of the word to leave the Garda station even though they had not been arrested in a formal sense. There is a necessity for the Minister to clarify to a far greater extent than has been done — I do not want to go into that in great detail, we will have another day on that — the extent to which he proposes to grant aid and support to those who attend a Garda station on a voluntary basis. No doubt a considerable number of people will continue to do so on a voluntary basis. How will their rights be protected bearing in mind the new sets of discipline that will be in place in respect of those who are in custody? While it is accurate for the Minister to say that he cannot do this under present law, he is not limited to making regulations under this power. He can always make regulations under other power and if he has not got the power, he can get himself the power. He can certainly make internal regulations which mirror image these regulations and impose similar disciplinary obligations on the members of the Garda Síochána who are fortunate enough to have neighbours and friends who voluntarily come to the Garda station from time to time.
I shall not go through the regulations one by one but Regulation 9 is an important one as it deals with the information to be given to an arrested person about his entitlement to consult a solicitor and the facilities laid out being made available to him. The Minister raised the problem that the postponing of the questioning until the arrival of the solicitor would more or less eat into the six hours. Those are not the exact words he used but that was certainly the import of what he said.
If a person was entitled to the attendance of a solicitor at all times during his questioning, I am sure the Minister would find Members of this House very open to a suggestion that the six hours should commence until the arrival of the solicitor. The detained person should be left on his own or left unquestioned until the arrival of the solicitor and let the six hours start then. I do not think that that would give rise to a major problem and I do not want to refight old fights but I think the Minister raises the problem that the attendance of a solicitor is impractical. I do not think that the attendance of a solicitor is impractical in so far as the vast majority of cases are concerned. The attendance of a solicitor during questioning, far from giving rise to any of the problems which the Minister seems to anticipate would, in fact, be a positive matter and I would not mind if that was coupled with imposing an obligation on people to answer questions in a structured way, but I do object to this furtive questioning which is such an essential part of the structure we are now putting into operation.
In Regulation 12 the Minister talks about four hours as being the period of time beyond which persons should not be continually questioned. I share totally with the other Members of the House the objection to four hours as a period of time for continuous questioning. The presence of four members of the Garda Síochána and the participation of two such members in the questioning on a rota basis over a four hour period, is enough to break the will of even the most determined person. If the Kerry Babies tribunal report proves anything, it is that a person with a guilty conscience will, without bullying or without actual or even threatened violence from the gardaí admit to crimes that they did not commit. That will be a very significant problem if the period of questioning is four hours. Four hours is far too long a period of questioning. A much more appropriate length of time would be two hours with two hours off and the remaining two hours of the six hour period if it was necessary. That would be far more appropriate than four hours followed by four uninterrupted hours. I will not go into that in any further detail because the Minister knows my views on those matters.
There are, however, two drafting points that I want to bring to the Minister's attention. Paragraph 12, subparagraph (4) seems to be rather peculiarly drafted. It relates to the length of time to which a person may be interviewed. It says:
A person shall not be interviewed for continuous periods of more than four hours without a reasonable interval between the periods.
That could be interpreted as applying only where there is more than one period. It refers to "continuous periods". What happens if there is only one period of five hours? A better draft of that would be: a person shall not be interviewed for a continuous period or periods of more than four hours. "Continuous periods" would suggest that a break-up into sections comprises the four hours but, obviously, what the Minister has in mind is that that triggers it, and also where a person is being questioned for a continuous period of four hours. That is inaccurately drafted and is capable of incorrect interpretation. I could argue if I was put to it that a person who was interviewed for five hours continuously was only interviewed for one period of five hours and was not interviewed for continuous periods of five hours. The Minister should examine this before making the regulation. Just to prove that I did read this: on the last page there is a misprint. Paragraph 24 (1) relates to preservation of custody records and states:
Custody records shall be preserved for at least twelve months or, if any proceedings to which a custody record would be relevant are instituted of any complaint....
What is "of any complaint"? Surely this should be "or any complaint"? It goes on:
...is made in respect of the conduct or a member...
"Or a member" should read "of a member". The Minister may have to take advice as to whether he will have to come back to us with these regulations printed correctly and that might delay the introduction of the obnoxious section 4 even longer.
Generally speaking, the House has made its decision with regard to these matters and I will not quibble at that. However, while the regulations, as drafted by the Minister and produced here in the form of a White Paper conform with section 7 of the Act, there are extremely foolish omissions from the regulations, particularly the lack of certainty in respect of those who deliberately flout the regulations. I realise, of course, that in running any institution from time to time things may happen which are not exactly according to the book. I understand that. What concerns me is that if there are continuous minor breaches of these regulations — when they become regulations — and nothing happens as a result of it, as I believe nothing would happen in the vast majority of cases, over a period of time these regulations, because they do not specifically have any penalty attaching to them, will become more honoured in the breach than in the observance or will be performed in a manner which is inconsistent with the spirit behind the regulations. For these reasons, while I recognise the attempts made by the Minister to introduce a degree of humanity and sanity into the proposals until the proposed operation of the Criminal Justice Act, I would be untrue to myself if I did not continue to place on record my most fundamental objections to the legislation for which these proposals for regulations are designed.
I thank the House for a very thorough examination of the contents of this White Paper. If I may be forgiven for replying immediately to a point raised by Senator O'Leary at the end, it is with the greatest of pleasure that I can give Senator O'Leary full satisfaction in saying to him that I will have to come back to the House with these regulations properly printed because what we have before us is a White Paper, a device——
——which I deliberately adopted so that we could have this kind of debate in circumstances where I could listen to the House and change my mind if I were so persuaded by the arguments of the House. These are not the draft regulations. This is a White Paper setting out what I intend to put into the draft regulations. They will be before the House again for formal approval. I can assure the Senator that at the very minimum all three of the textual amendments he has identified as being necessary will be implemented. I know the Senator would be insulted if I were even to suggest that in any way I were to congratulate him or commend him for having arrived on his reading of the document to the end of regulation 24.
The points raised cover all the main concerns we must have about the treatment of persons in custody. To take up the point raised by a number of Members during the course of the debate, these proposed regulations apply to the treatment of persons in custody in Garda stations. The Minister of State and I have made it quite clear in this House that I will be asking the Garda Commissioner to ensure that the same kind of treatment is afforded to persons in Garda stations who are there voluntarily and not in Garda custody. I am persuaded by the kinds of considerations that Senator O'Leary and others have developed to the effect that that should be so.
Might I make one brief remark out of sequence to Senator O'Leary? I would ask him to reflect whether he would prefer the truth to be ingenuous or disingenuous. That is an argument we might reserve for another part of this House at a time when we have more leisure to examine it in detail.
Senator Eoin Ryan raised a number of detailed points. He began by suggesting that the arrested person, the person in custody, might not know who is the person to whom he should complain if he feels that he is being harshly treated and suggested that there is no provision here for telling that person to go to the member in charge. He suggested that this information might be included in the notice of rights to be given to each person in custody. That is a perfectly justified and reasonable suggestion. I will ask the commissioner to include it in the notice of rights to be given to the person.
There is also a provision in regulation 12 (9) for complaints to be made either during an interview or in regualtion 20 (7) for a general complaint about conduct from the moment of arrest. Those complaints will be handled under the new statutory complaints procedure and will be subject to all of the safeguards that are provided for in that procedure.
Senator Eoin Ryan asked if a person were brought on arrest to one station and then immediately transferred to another station, who would give that person the information provided for in regulation 9. Once the member in charge of the first station is made aware that a person has been brought on arrest to his station he must give that person the information required under regulation 9 before any transfer can take place. It is at the station to which the person is first brought that that information must be given to him.
In relation to regulation 11 (3), Senator Eoin Ryan suggested that the member in charge must have reasons for refusing a visit of that kind, but that elsewhere he has to explain himself differently. The member in charge is the one who is most clearly in the best position to satisfy himself as to whether the visit could be adequately supervised. That would depend on the number of gardaí available, the number of persons making visits and also whether a visit would hinder the investigation of the crime. It is true that the decision is being left to the judgment of the member in charge and to his judgement alone. There is no way of avoiding that in the operation of circumstance. The judgment as to whether to permit a visit is being left to the member in charge and only to the member in charge.
My point was that in other cases he had to record the reasons why he would not allow such thing to happen but does not have to record it there.
In that particualr circumstance, as I was about to point out, we are leaving the judgment to the member in charge because he is the only one operationally who can make that judgment. If the member is acting unreasonably and it can be shown that he is acting unreasonably, there is a sanction against the member in charge. The person who is being refused the ability to make the visit, can go to the complaints board or can complain about the matter on the spot. If a complaint is made on the spot, it has to be recorded and it would then be sent to the complaints board for investigation.
Regulation 12 (3) in Senator Eoin Ryan's view is very good in principle, that is the requirement that the member conducting the interview identify himself and that not more than two members may question the person in custody at any given time. The Senator asked would the person know about this, what would happen, for example, if three members were questioning at one and the same time. It goes without saying that numbers of persons might not know or will not know about the details of the regulations. I would make the point that they can complain afterwards. They can complain or take the matter up when they speak to their legal advisers or to their friends. The way is open to them to make a complaint to the Garda Complaints Board. The regulation in question sets the standard. It is up to the members of the force to observe that standard and given the provisions set out in relation to complaints, they would ignore it only at their own risk. The breaches there would be proper subjects for complaint afterwards either by the person in custody or by somebody acting on his behalf.
In relation to regulation 12 (4) there has been some debate, particularly about the question as to whether a period of four hours is too long during which to subject a person to questioning. Senator Durcan, Senator Eoin Ryan and Senator O'Leary took up this point. It is always difficult to provide for a single fixed time limit where the circumstances can vary widely from case to case. Four hours was selected because that is the period specified in the present Garda instructions which, in turn, were based on the recommendations of the Ó Briain Committee. The Ó Briain recommendation was that at most four hours of questioning should be allowed followed by a break of one hour or a break of two hours if that break were a period during which a meal would be provided. I fully recognise that what might be oppressive for a young and inexperienced person might not be at all oppressive for a more mature or more experienced, not to say a more hardened, person. There might be cases where a period of less than four hours would be oppressive in the one case and a period of more than four hours might not be oppressive in another.
On balance — and this is the only way we can deal with it in a case like this — a period of four hours is a reasonable compromise bearing in mind the fact that it is always subject to scrutiny by the courts in a particular case. The court itself could decide that a lesser period in a particular case could be held to be oppressive.
Paragraphs 12 (8) and 13 (1) (d) make provision for questioning on the authority of the member in charge if it is his opinion that to delay questioning would involve a risk of injury to persons or destruction of evidence.
Senator Eoin Ryan asked for clarification and suggested that the ban on questioning could be circumvented easily enough by invoking this provision. This provision is necessary, as had been pointed out during the introduction of the debate, to deal with the situation where the rights of other persons come into conflict, or could come into conflict, with the rights of the person in custody. An extreme example would be where a person was suspected of having placed a bomb and it was believed that he knew where that bomb, or even another bomb, would be. There is a danger then to the rights of other persons. We have a constitutional obligation to defend and vindicate the rights of other persons also and in such circumstances if we were simply to say that there could be no questioning, we could render that guarantee of the rights of other persons ineffective. If that provision is unreasonably invoked, the aggrieved person can complain about the conduct of the member in charge. I am right in saying that a complaint which was held to be well-founded on grounds of that kind would be a matter which would be taken into account by a court.
Senator Durcan asked if the regulations should not provide that the member in charge should not be a young or inexperienced member of the force. It would not be appropriate to include a specific provision to that effect in the regulations because one cannot foresee in advance all of the circumstances that might arise in particular cases. It would certainly happen only very rarely, if at all, that an inexperienced member of the force would be the member in charge. But, of course, I readily concede that we cannot absolutely rule out cases where in smaller stations in particular that might happen. It would be a matter for detailed implementation by the Garda to try to ensure as far as possible that that kind of situation would not arise. There would be an interest from the Garda authorities' point of view in avoiding such a situation for reasons that have nothing to do with these particular regulations.
Senators Durcan and Michael D. Higgins referred to regulation 15 (1) which provides that a person should be given a copy of a charge sheet as soon as practicable. They suggested that they would prefer to have this done without delay. It does not always follow that "without delay" is always quicker than "as soon as practicable". If it is practicable to do the thing immediately, then "as soon as practicable" is exactly the same thing as "without delay"— it is immediately. The term "as soon as practicable" relates more to the realities of the situations that we will meet in practice, as Senator Michael D. Higgins referred to, a situation, for example, that could arise in any Garda station where it would not, in fact, be practical for perfectly good reasons to give a charge sheet to everybody on the spot, to all persons in custody. In the case in which the Senator mentioned, for example, I cannot imagine that we would often find circumstances in which 30 people could be brought all together into a Garda station and find that there was enough Garda manpower and elbow power around to give each one of those persons a charge sheet, without delay. If there are abuses in that regard, they would come into the category of matters about which complaints could be made.
Commenting on regulation 21 (2), Senator Fitzsimons suggested that this should apply irrespective of the period during which the person had been in custody, and that the reference to a period of less than one hour should be deleted. I am glad to be in a position to say that I can agree to that. It is a modification which will be incorporated in the draft regulations when they come before the House.
Senator Fitzsimons asked about facilities at Garda stations. He pointed out that not all stations would have adequate facilities for the detention of persons for anything more than very short periods or for the detention of persons overnight. Where persons have to be detained for longer periods, or for an overnight period, they will be detained in designated stations which will have the necessary facilities.
I would remind the House that we are fairly well advanced in a programme of providing the required facilities in a number of locations throughout the country; at all divisional headquarters and in larger Garda stations that are not divisional headquarters. We will be pressing ahead with that and, indeed, I narrowly escaped being photographed in one group of such facilities in the divisional headquarters in Galway in the company of the Bishop who seemed to be reluctant to come into the cell with me. I cannot imagine why because when the two of us were in it there was some chance that we would both get out of it again. Had we gone in separately the situation might have been somewhat different.
Senator Fitzsimons asked if there is a time limit on the exercise by an arrested person of his entitlement to request the presence of a solicitor or to have a person notified of his detention. There is no time limit in that connection.
Again, Senator Fitzsimons wondered whether a member in charge could leave the Garda station without somebody else replacing him. The answer to that is no; there must be a member in charge at all times and the custody record must be kept in each case.
Senator Michael D. Higgins asked if the custody record would be admissible evidence in subsequent civil proceedings against a member of the Garda. Strictly speaking, the custody record would not be evidence unless both sides agreed that they would treat it as such. The person in question could certainly summon the members involved to give evidence, including evidence related to the matters contained in the custody record. In this connection I would remind the House that the custody record must be given to the person who is being held in custody or to his legal representative within 12 months of his leaving custody.
Senators Michael D. Higgins and O'Leary asked what would be the position of a member if he breaches the regulations. Such a member could be liable to criminal prosecution if the grounds for a criminal prosecution were there; he may also be liable to civil proceedings if the person in custody chooses to pursue an action against him. It is clear beyond doubt that nothing in these regulations for the treatment of persons in custody detracts in any way from the rights of such persons before the law.
A member of the force in breach of the regulations might also be subject to discipline by the Garda Complaints Board if a complaint is made by a member of the public, or under the Garda discipline regulations if the breach with which he is charged is one that falls to be dealt with under the Garda discipline regulations.
Senator Durcan asked that the custody record be kept in each station in which a person is detained. I can confirm that that is the intention. Regulation 6, paragraph 3 provides that even where a person is transferred to another station the custody record or a copy of it shall be sent with him. That is flexible enough to allow the original record to be sent. But that is to cover the case where a copy could not conveniently be provided, in which case the original would be sent. Obviously, good management requires that a record be preserved in each station and that will be done. The Garda authorities, with whom we have discussed this particular point, would prefer that the original record should be kept in the original station. But the Senator will agree that we need to have perhaps a little flexibility in that regard in order to ensure that a copy can be kept in every station. It is not a matter that would arise very often, but the Senator's concern is a well placed one which I would want to meet.
Senator Higgins asked how effective regulation 5 (3); that is the one which provides that where it appears to the member in charge that a member of higher rank is acting contrary to the regulations he must tell that member so and unless the matter is resolved report it to a member of at least superintendent rank. That provision deals with a very difficult situation that can arise in a disciplined force with a chain of command. First of all, the member in charge would make an effort to resolve the matter by taking it up with the superior officer concerned, pointing out the respects in which he is contravening the regulations. It is only if that fails that he would report it to a superior officer.
Of course there would be problems for a particular member in a case like that, but if the problem is not faced up to the member involved might find himself answering a complaint made to the complaints board and it would be no excuse for him to say that he knew that the superior was contravening regulations but he thought that in the circumstances he should do nothing about it. These regulations put a number of specific duties on members of the force in relation to the way in which they must treat persons in custody. In that regard I was a little taken aback, I must confess, by Senator Michael D. Higgins alleging — I will not say accusing — that the regulations were written with an unnecessary flourish. I am not quite sure just what he has in mind, but in relation to specific questions that he asked it seemed to me to be very difficult to imagine a different way in which could express what was intended. For example, Senator Higgins missed a bit of regulation 20 which is on page 22, but I cannot, rereading the regulation, think of a clearer or more direct way of stating the obligation that is there, by using different language. It might perhaps be put in racier language, but the language that is used here is very clear and is no more and no less than is required to convey very clearly what we want to convey to the members of the Garda force, to people in custody and people who act on behalf of people in custody.
I do not intend to follow Senator O'Leary in other remarks that he made which have more to do with the Criminal Justice Act than with these regulations themselves. I take his point about his own feelings about the Criminal Justice Act. I do not share those and this is not the first time I have said that to Senator O'Leary. There is a very clear injunction on me in the Criminal Justice Act to put forward these regulations. I think the tenor of the debate in this House, as indeed elsewhere, has been that the regulations cover what we require to be covered in as reasonable, direct and forceful a way as we require.