Amendment No. 1, amendments Nos. 4 and 8 are related and may be discussed together.
Criminal Justice (Forensic Evidence) Bill, 1989: Committee Stage.
SECTION 1.
Government amendment No. 1:
In page 2, between lines 16 and 17, to insert:
"‘lprison' means any place for which rules or regulations may be made under the Prisons Acts, 1826 to 1980, or section 13 of the Criminal Justice Act, 1960;".
First, a Chathaoirligh, may I take this opportunity of offering you my congratulations on your appointment to the very high office of Cathaoirleach and to Senator Naughten on his appointment as Leas-Chathaoirleach.
The purpose of amendments Nos. 4 and 8 is to extend the power to take samples from persons who may be imprisoned, on remand or on conviction and who come under suspicion of having committed an offence in relation to which they would be arrested and detained in custody and be required to give samples were it not for the fact that they were in prison. From time to time cases arise where a person who is in prison, whether on remand or following conviction, becomes a suspect for an offence unrelated to that for which he is in prison and where the Garda would like to be able to obtain a sample from him in an effort to procure evidence in support or in contradiction of that suspicion. The effect of what is proposed in the amendments under discussion is to place the prisoner in exactly the position he would be vis-ávis the powers proposed in the Bill if he or she were a free person. This is a logical and sensible approach.
I would emphasise, lest there be any doubt, that a prisoner from whom a sample could be required under the extended powers of the Bill proposed in amendment No. 4 would enjoy all of the safeguards provided in the Bill, for example, the provision in relation to authorisation, consent, the taking of intimate samples, destruction of records, and so on.
Amendment No. 4 is a substantive amendment. It extends the power provided in section 2 (1) to enable samples to be taken from persons in prison in the circumstances which I have described. Amendment No. 1 is consequential on amendment No. 4. It defines the term "prison" for the purposes of amendment No. 1. Amendment No. 8 is also consequential on amendment No. 4. The existing wording of subsection 2 (3) (a) needs to be altered to make it consistent with subsection 2 (1) when amended as proposed in amendment No. 4.
In relation to amendment No. 1, I refer the Minister to the section where it includes the Prisons Acts, 1826 to 1980, whether the Children Act, 1908, and the provisions therein where somebody can go to prison if they are termed unruly, particularly in relation to section 2 (8) (c). This Bill refers to the case of a person who has not attained the age of 14 years and the consent of the parent or guardian of that person. In other words, is it intended that under the Bill imprisonment could take place for a person between the age of criminal responsibility and the age of 14 years, and that these regulations and rules could apply thereto?
Secondly, in relation to section 4, would the Minister clarify subsection (3) (a), where the sample to be taken is required in connection with an offence other than the offence in respect of which the person is in prison or an offence of which he could be convicted on indictment alleging the offence? First, could he exemplify the type of offence that he has in mind? Would it not be more appropriate that "or" be deleted "and" put in its place? It would then state that it must be an offence in respect of which the person is already in prison and that it must be an indictable offence.
As we know, in the prison rules and regulations there is provision for the internal disciplining of an offender for offences that are prescribed under the 1947 rules and regulations, and that they can amount to very substantial disciplines in internal hearings. Considerable harassment is possible within the confines of a prison. It would be proper that it would be a substantial offence whereby such extensive powers are prescribed under the Bill. It would be appropriate for the Minister to delete the word "or" and include the word "and".
On the amendments, may I draw the attention of the House to a small matter? The press gallery is now empty, and the next time they write about the work of this House it might be appropriate to remember that. It is a particular habit of the press to vacate the gallery whenever there is a debate on Committee Stage of a Bill, which is when most of the work of both Houses of the Oireachtas is conducted.
On these amendments, I have to say that I agree entirely with what Senator Costello has just said. The provision that is being made here seems to me to invite a rather peculiar practice whereby a person could be charged with one offence, remanded in custody and then a detailed investigation takes place on another offence, which perhaps might take time. Whatever is wrong with the Offences Against the State Act and the Criminal Justice Act, there is at least a time limit under which investigations must be carried out. In the case of the Offences Against the State Act, it is 48 hours, and in the case of the Criminal Justice Act, it could be 18 hours if you include a period of overnight detention, etc. But we are talking about fixed periods.
I would like to have clarified whether these amendments would apply to people who are remanded in custody as well as to convicted prisoners. Does it apply to anybody who is in prison? First of all, it seems to make a distinction between people who are remanded in custody and people who are remanded on bail. I would like to inquire why this is. If we are talking about convicted persons under these amendments, that is fine; but if we are talking about people who have actually been on remand, then you have a rather peculiar situation in which the Garda would have powers over people who are on remand which they would not have over people who are not on remand.
I would simply like to clarify what is going on, because people who are on bail would still be subject to strict time limits under the Offences Against the State Act or the Criminal Justice Act. But if the people are on remand in prison then you effectively have an open-ended investigation period, which does not seem to me to represent a fair balance between the interests of a suspect and the interests of the law enforcement agencies.
I would like to support what Senator Ryan has said. I am a little concerned at some possibilities that seem to me to be inherent in the impact, or possible impact, of this amendment, particularly if I take into consideration some of the abuses of the Offences Against the State Act that have been noted, particularly by civil liberties organisations, and to express concern that there seems to be a possibility that this amendment could permit fishing expeditions by members of the Garda looking and trawling very widely for new evidence in order to convict people in prison.
I would like to say that I share Senator Ryan's concern with the fact that no distinction seems to have been drawn, if I took up his point correctly, between people who are already convicted on the one hand and people who are remanded on the other. It seems to be important that this distinction should be maintained in the legislation so that we sustain a very important point of law and that is the presumption of innocence.
Finally, I would like to say that I cannot fully accept what the Minister says when he remarks that the people who are directly affected by this amendment, that is, persons in jail, are in exactly the same position as persons who are not in jail. I may have taken the Minister's emphasis slightly incorrectly, but I do not think this is true. We must be aware of the fact that persons who are already in prison are vulnerable, and I do not want to raise a scare. I fully support the excellent work of the police. I know there are already many difficulties surrounding their attempts to secure conviction, but nevertheless I would be slightly concerned that the wide powers conferred under this amendment could be abused if a malevolent member of the Garda — and there may from time to time be such — decided to use this as a form of harassment. Therefore for that reason I think that, in the case of persons who are in prison, not the same safeguards but considerably greater safeguards need to be instituted to protect the rights of prisoners.
First, I want to make it quite clear to Senator Costello that in regard to the person who is in prison the answer is yes, a sample can be taken under the powers proposed in the amendment. The same applies to a person in prison or a person outside of prison.
In relation to Senator Ryan's point, there is no hidden motive to these amendments. They are intended to cover the situation where a prisoner may, following his imprisonment, become the suspect of a serious offence, like murder. It would be wrong if the Garda could not get a sample to gain evidence of his or her guilt or innocence simply because he or she is in prison. The safeguards of this Bill apply to those in prison as they do to somebody who is not in prison. We must bear this in mind. Every safeguard in this Bill applies to those same categories.
I feel that it is unfair to indicate any hidden motive or that the Garda would take any particular advantage of the fact that somebody was in prison or on remand. They would have the same powers and the same rights to obtain a sample as they would in respect of a person who was not in prison or in custody. The person involved would also have the exact same rights as a person who was not in custody or in prison. Therefore I would recommend the amendments to the Seanad for adoption. We are quite confident that they will safeguard the interests of all citizens of the State, whether they are in prison or whether they are outside of prison.
May I just mention two points to the Minister? First of all, would he not accept my point that the samples will be taken in different conditions, both physically and psychologically, from the point of view of the prisoners? Secondly, I am less convinced now, having heard the Minister's speech. Nobody wants a murderer, for example, to be facilitated in getting off scot free. But there is a well-known procedure where by people on release from prison on one charge are immediately re-arrested on another. Certainly, with regard to taking genetic fingerprints, the genetic fingerprint will, I understand, remain the same and will not be altered by the process of time, so there may be circumstances in which this amendment is not necessary.
Can the Minister say specifically "yes" or "no": do the provisions of these amendments with respect to persons in prison apply to people on remand? "Yes" or "no"? It is a reasonable question. I am not trying to be unhelpful.
The simple answer is "yes".
Can the Minister explain the wording of subsection (3) (a) then, an offence in respect of which the person is in prison? How can you be in prison for an offence if you are on remand? I would like to understand what is going on.
I would like to support what Senator Ryan has just said. I think there are needs for extra safeguards, particularly in the context of the prison situation, which is covered by the Official Secrets Act and where there is more scope for abuse, more scope for harassment. There is not in the section any provision for the taking of samples; and, where some of these samples can be taken compulsorily, there is scope there. I, too, would like to see a distinction made in relation to remand and to convicted offenders.
In regard to the two question I have asked, the Minister has not referred to the terms of the Children Act, 1908, and whether under this Bill it is intended that children between the ages of seven and 14 can be imprisoned. I would like an answer to that. Is that intended and is that part of the definition of the word "prison" here?
Secondly, in relation to section 4 (3) (a), surely an offence under which such wide powers can be granted should be an indictable offence? I would like the Minister to address that.
In relation to the point raised by Senator Norris, I want to emphasise that in prison an intimate sample cannot be taken without consent, just as in the case of a person outside prison. It is very important for us to realise that, in respect of a person on remand or in prison, you cannot extend greater rights to them than to the ordinary citizen. I cannot understand the logic of the points being made by the Senators.
A different environment.
The protection is there in the Bill to all citizens of the State, whether they be in prison or in prison on remand. If an offence comes to the attention of the Garda Síochána and they wish to interview a person, surely you could not give extra rights to someone in prison than you would give to a free citizen. I cannot understand the logic behind the arguments put forward by the Senators. Quite frankly, I do not know who you are actually representing in this regard. A person on remand in custody is in prison — a point raised by Senator Ryan — and if you are on remand in prison then it applies.
In relation to the point raised by Senator Costello regarding the Children Act, 1908, it is not affected by this Bill.
I believe I have put forward the case for these sections. I am satisfied with the arguments we have put forward and I am not convinced by the arguments put forward here by the Senators. I recommend, therefore, that we proceed.
Is it agreed?
Most assuredly not. I want the Minister to explain to me, in the sort of English I can understand, how these sections are envisaged as applying to a person on remand, because a person on remand is not in prison for an offence. There are two reasons why people can be remanded in custody in our society. One is because the person is accepted by the court as being liable to attempt to interfere with witnesses and the second is because the Garda have satisfied the court that the person is likely not to turn up for trial. You are not remanded because the offence is serious or trivial; those are the two reasons for keeping people on remand. There is no offence. The person is presumed innocent.
What I am saying is that in the case of innocent people who have not been charged with an offence our law is extremely precise about the periods of times for which people can be detained and the rights they have. There are very detailed regulations governing the rights of persons in custody in Garda stations, very important regulations which have legal force because they are regulations approved by the Houses of the Oireachtas. We are in a very different situation when a person is in prison. I think it would be possible for the Minister to produce an amendment which would meet the objective he has, which is where something comes up under very specific circumstances what we have instead is a classic Department of Justice amendment which gives them a kind of a trawling power.
We are entitled, not just in this House but in this country, to have precision in our legislation. There is no reference in this amendment to people who are on remand. They are a specific category and I think that the Minister forgot about them. Persons who are in prison do not have the right to a solicitor where a person in custody who has been arrested has such right. They do not have the right to make a phone call and do not have the protections that exist under the regulations governing persons in custody. The situations are entirely different.
If the Minister wants to extend these powers to persons in prison, then he should very carefully define the rights of the person in prison and make them clear and identical with those of a person in custody. If a person is getting a sample taken, because he or she is suspected of an offence for which they have not either been charged or convicted, then they have the same rights as a free citizen outside. Under this Bill as it stands they would not have those rights. It seems to me that if a person is suspected of a minor offence — for instance, of breaking a window — and of a serious offence such as a crime which follows subsequent to that, then the simple thing to do is charge the person with the offence of breaking a window. If the person has a record you can say that the person is liable not to turn up and stand trial, remand them and then continue the investigations, not just within 48 hours but when you have sufficient evidence, and then come back when you have your evidence together and do your samples, perhaps a week or a month later.
It seems to me to open possibilities. It is not that I believe there is conspiracy, but I believe that the Houses of the Oireachtas are entitled to have legislation presented to them which is precisely drafted to meet only the precise objective that the Government say they want it to meet, and not with a lot of other possibilities that either they have not thought of or that they have decided to ignore.
Just before I call Senator Norris, I would like to welcome the Mayor-elect of Phoenix, Arizona, Mr. Howard Adams, and his son, Howard, to the House. He is visiting Ireland on an industrial and tourism promotion and I understand also that Phoenix is twinned with Ennis, County Clare. You are very welcome, Sir.
I am sure we all join in those sentiments of welcome to our distinguished guest.
Senator Ryan has brilliantly amplified the points I was trying, imperfectly, to make and as he does so I find myself more convinced than ever of his correctness. I used the phrase "trawling" for further evidence in a situation in which it is perfectly clear that a person in prison is not in the same situation as a person at liberty and that it is quite appropriate to be worried where a citizen is placed on remand. I, again, return to the fact that there is a presumption of innocence.
I think the Minister is quite incorrect in maintaining that there is an equality of situation between a person in prison and a person at liberty. Some of the technical legal aspects and ramifications have been placed before the House by Senator Ryan. I believe the Minister has not taken on board fully the differences in both physical and psychological environment. It is particularly important to make this point on a day when we read in the newspapers that a young member of the travelling community has actually hanged himself in one of our prisons. The psychological pressure on inmates in our prison system is clearly such that there is a very disturbing rate of suicide in the system and I believe this would certainly be an additional pressure. Is the Minister prepared to accept an increase in the rate of suicides within the prison system? Is there in the Department of Justice an acceptable level of suicide? These are the sort of questions that have to be answered.
I will not be at all derailed by the kind of impertinent remark the Minister addressed to the House when he said that he wondered who we represent. He ought to know perfectly well, if he understands the Constitution under which this House of the Oireachtas is established, who we represent because it is laid down there. It is not for him to question in any sense who we represent. I ask him to withdraw that extraordinary and unjustified remark.
I am delighted to hear the Minister state that the provisions of the 1908 Act do not apply to this Bill or, vice versa, that this Bill does not cover that area. If that is the case, could the Minister explain why we have sections granting powers in relation to minors under the age of 14 — from the age of criminal responsibility to the age of 14 — if it is not intended that the provisions of this Bill apply to the 1908 Act?
Secondly, why there are inferences to be drawn in relation to those young people as well? I am pleased that is the Minister's interpretation but on reading the Act I am still puzzled as to why, then, there should be sections like section 2 (8) (c), why the inferences in section 3 should refer to the same and why there should be a reference in section 5 (2) (b) making provision for the taking of samples from a person who has not attained the age of 17. I would like further clarification on that point.
In relation to the taking of samples in prison, the Minister has not in any sense attempted to clarify section 4 (3) (a): "...where the sample to be taken is required in connection with an offence other than the offence in respect of which the person is in prison..."— there is a slight misspelling there — that can mean an offence, obviously, for which the person was arrested and is in prison, but it could be another offence committed outside other than that for which the person would have been put in prison on remand. Secondly, the second section would suggest an offence on which he could be convicted on indictment alleging that offence, and that could be an offence that could have taken place inside prison.
So what precisely is he talking about here? If the offence would be other than the offence for which the person would have been remanded in prison, then surely it is an trawling matter? Surely the person is being put into custody for the purpose of the samples to be taken in that environment? A member of the Garda Síochána may take or cause samples to be taken. At the same time, remember that the prison environment is a totally separate environment. It is covered by separate legislation, the Official Secrets Act. It is not subject to the standard laws of this country under the Constitution. Senator Norris referred to the young man who tragically died in prison yesterday. He was on remand and he was under very severe pressures and the maximum sentence he could have received if he was convicted was 12 months. We can all understand just how different a type of society people in prison live in.
Senator Ryan mentioned a point about a person on remand, that he cannot be arrested under section 4 of the Criminal Justice Act, 1984, or section 30 of the Offences Against the State Act. The only way a sample can be obtained from them is under the powers provided in this amendment. It does not matter for this purpose why they are actually on remand.
In relation to Senator Norris's point, there is no question of trawling. This amendment is simply and solely for the purpose I mentioned. There is a limit to what we can do by way of safeguards. If we water down the provisions any further there would be no point in having them at all.
In regard to Senator Norris's point about "represents", what I am referring to is the general public outside prison. They have the same rights as those of the person in prison. The person in prison has the same rights as somebody outside prison. There is a group out there in the population who also have a point of view as well. That is the point, a Chathaoirligh, I am making in relation to the representation here of the other viewpoint, the viewpoint of the person who is not on remand or not in prison. The person on remand or in prison has the same safeguards — I accept that it is a different environment — as a person who is free. That is in the Bill.
In relation to Senator Costello's point that the power to take samples should be restricted to indictable offences, the offences which attract the power to take samples are only those to which section 30 of the Offences Against the State Act, 1939, or section 4 of the Criminal Justice Act, 1984, apply and which carry a penalty of five years. The provision in the Bill about 17-years-olds is there to safeguard young persons outside of prison, just as they safeguard young persons in prison if that arises. I feel that the fears being expressed by the Senators are genuinely unfounded. The safeguards here apply to all citizens equally. That is why the amendments are there. That is our case and the argument we put forward.
I do not want to prevent anybody on such an important matter, but if Members feel that they have exhausted the debate I will put the question.
Not quite.
I do not believe in being repetitious on Committee Stage but I do believe that when a Minister lands an amendment — I do not want to start a row about it — on the House at relatively short notice, we are entitled to considerable latitude in discussing what it means. I do not know whether the Minister knows this, but if somebody is detained under section 30 of the Offences Against the Stage Act for 48 hours on a particular offence, then the Garda will have considerable difficulty in repeating that operation a second time without running into considerable problems with the courts. You cannot keep on re-arresting somebody under suspicion of the same offence under section 30 of the Offences Against the State Act, any more than I believe the Garda could do under the provisions of the Criminal Justice Act, 1984. The courts will not tolerate repeated re-arresting of people under the provisions of this legislation. Therefore, there is a very specific provision which protects the rights of the citizen. In the case of a person in prison, there is no such provision. The context is different, the atmosphere is different, the sense of having a right taken away is different.
It seems to me there is a very good case for saying, for instance, that the only offences that could be referred to in the amendment would be offences of which the person was not suspected at the time they entered prison. For instance, if a new offence arises for which the Garda have reasonable suspicion after the person has entered prison, then the Minister has a case. What is not given here is any guarantee that a person will be charged on one offence, remanded in custody on one offence and then if there are a number of other offences of which they are suspected and they have not got around to investigating, where they have not got around to getting the forensic samples back perhaps from the victim, they can hang on a while if the person is remanded in custody and when they are ready go through them seriatum one after another. Since the provisions are for a variety of samples, they could look for a blood sample one week, a urine sample some other time, a sample of saliva another time, a sample of nail another time, depending on the forensic evidence that became available over a period of time and depending on how their forensic people work.
It seems to me it is an entirely different context from that of a person who is arrested under section 30 on suspicion and is then kept for 48 hours and then either has to be charged or released and cannot be re-arrested on suspicion of the same offence in a short period of time. It is extremely important to remember that.
The other thing to remember is that the provisions of Offences Against the State Act, in so far as they apply to scheduled offences, are a fairly wide operation. I do not know whether people realise it or not, but malicious damage to property is a scheduled offence under the Offences Against the State Act, and that is a fine, sweeping one to enable people to be arrested and charged under a large variety of offences.
While the Minister may feel he has answered the questions, we are only beginning to understand the questions, because the amendment is late and, in my view, is quite poorly drafted. It deserves at very least to be withdrawn, reconsidered, and the Minister can reintroduce a better worded amendment on Report Stage. That is what I suggest he should do simply to meet the precise demands he thinks need to be met by the amendment.
Like Senator Ryan, I do not wish to be repetitious but I have about five points I would like to make. The first one is that the Minister can — and this has happened in the past — come back on Report Stage with some consideration of the argument that has been made in the House this afternoon.
The second point is that this Bill and these amendments really bear quite a lot of relation to the Offences Against the State Act, which springs from the emergency which was declared in 1939 and never repealed. It is all legislation that comes in under that general body. That is the general context in which it is placed. That clearly implies that there is at least, as originally conceived, some possible political dimension and it is clear that in trials involving people who would consider themselves to be political activists we have an interesting context because the Minister, I am sure, will recall the campaigns against strip-searching in prisons. This is well worth bearing in mind in the context of these amendments. I would like also to point out that if the procedures of taking intimate samples are not carried out under the provisions of this legislation they would themselves constitute a criminal offence. It would be assault.
Progress reported; Committee to sit again.