I thank the House, or those who were here at 2 p.m., for allowing the short suspension. My parliamentary party meeting went on until exactly 2 p.m. and the Acting Leader allowed a 15 minute break out of generosity, courtesy and humanity so that I could have a cup of tea before coming into the House. The level of activity yesterday meant I went from 3 p.m. until midnight without so much as a cup of tea. I apologise to Senator Dardis. I understand his need to be here to discuss this serious issue but, now and again, we should look out for each other with a little humanity.
The Criminal Justice (Drug Trafficking) Bill forms a key part of the comprehensive range of anti-crime measures which the Government is taking and represents one of the strongest anti-crime pieces of legislation ever brought before this or the other House by any Government. The Government believes that these measures, with the appropriate safeguards which have been included in the Bill, are a necessary and proportionate response to the grave threat posed to the community by the activities of drug traffickers whose lack of respect for the lives of individuals is only too apparent. This Government is determined to do all in its power to thwart these evil people and their deadly trade.
The measures contained in the Bill will increase the powers of detention in relation to persons suspected of drug trafficking offences to provide for a maximum period of detention of up to seven days, with the intervention of the court after the first 48 hours has elapsed; it will allow for the detention of persons arrested for such an offence where it is suspected they have concealed drugs in their persons — so-called "stuffers and swallowers"— in places of detention specified by the Minister; allow Customs officers to be present at, and participate in, the questioning of suspects detained by the Garda in relation to drug trafficking offences; permit a court to draw inferences from the failure of an accused in a drug trafficking case to mention, during Garda questioning, some fact which he or she subsequently relies on in his or her defence which could reasonably have been expected to be mentioned; allow members of the Garda Síochána not below the rank of superintendent to issue search warrants in drug trafficking cases where the warrant is urgently required and permit members of the Garda, whether they are in uniform, to enter and inspect places where a public dancing licence is in force for the purposes of the prevention or detection of a drug trafficking offence.
The nature of drug criminality has become all too apparent in recent times. Great efforts are made by those involved in it to frustrate measures to defeat it and I am convinced that to comprehensively tackle drug trafficking we must provide the legislative framework set out in the Bill which enables the Garda to take effective action. Because of the large profits to be made through this vile trade in drugs, those who engage in it are constantly evolving new ways to evade detection. The international nature of the trade is also well documented. Primarily for these reasons I consider it essential that the Garda be given the power to detain suspected drug traffickers for the purposes of enabling them to properly investigate suspected drug trafficking and reduce the possibility that suspected drug traffickers could frustrate those efforts.
I have provided in section 2 for a power of detention of up to seven days in cases of suspected drug trafficking. This represents a significant change but, as I said, it is justified provided it also contains specific and substantial safeguards in terms of the procedures under which it will operate — and it does contain such safeguards. To that end, the Bill provides that the detention permitted under section 2 will effectively be kept under regular review by breaking up the seven days into five separate stages. At the beginning of each of these stages the person authorising the detention is required to be satisfied that the detention is justified.
It is, of course, the case that the courts here would be unlikely to hold as constitutionally sound a provision which purports to allow seven day detention unless appropriate safeguards are included. Furthermore, there is a need to have regard to our obligations under the European Convention on Human Rights. As a party to that convention we must keep under review the jurisprudence which emerges in relation to it.
It is especially as a result of that jurisprudence that we have concluded an essential safeguard which must be included in the legislation is that a person detained under section 2 for lengthy periods must be brought before a court during his or her period of detention. There is a significant corpus of jurisprudence under the convention to the effect that failure to bring a person who is the subject of a lengthy period of detention before a judicial authority is contrary to the convention. I stress that the advice I have received is that it would be contrary to the convention if we applied for anex parte hearing when someone was detained for lengthy periods.
The basis for this is found in Article 5 of the convention. Article 5 (1) states: "Everyone has the right to liberty and security of person." However, deprivation of liberty is justified, according to Article 5 (1) (c), in cases of "the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so". Article 5 (3) states that everyone so arrested or detained shall be brought promptly before a judge.
Having regard to the relevant case law concerning Article 5, it would appear that an arrested person must be physically brought before the court and must be given an opportunity to be heard. The advice available to me is that to do so at the expiration of 48 hours after the arrest would not amount to a contravention of Article 5 (3). At that time the prosecution authority would have to be in a position to establish to the satisfaction of a judge, in relation to a person held on suspicion of having committed an offence, that there was a reasonable suspicion of the person having committed the specified offence and that reasonable grounds existed for the continuance of that suspicion.
The main purpose of Article 5 (3), in relation to Article 5 (1) (c), is to afford to individuals deprived of their liberty a special guarantee, namely a procedure of a judicial nature designed to ensure that no one should be arbitrarily deprived of his or her liberty and to ensure that any arrest or detention will be kept as short as possible. Article 5 (3) implicitly stipulates that the detention must not exceed a reasonable time. The reasonableness of the grounds on which the detention is permitted becomes central to any consideration of whether Article 5 (3) is being observed.
The European Commission of Human Rights and the European Court of Human Rights have defined the powers and qualities required of a judicial officer to comply with the provisions of Article 5. These are that there should be complete independence when performing in the judicial capacity, that the detainee should be present at the hearing and have the right to make representations, that all the circumstances for and against release should be reviewed and that there should be the power to order immediate release where continued detention is no longer justified.
Having regard to the European Convention and the jurisprudence which has built up in respect of Article 5, the approach which is being taken in the Bill is that a person arrested under section 2 must be brought before a judge after 48 hours. Even though the investigation will remain under Garda control, the involvement of the court at various stages of the investigation should satisfy the requirements of Article 5 in the context which I have outlined.
I believe that the provisions in section 2 for the involvement of a judge after 48 hours, together with the requirement that the detained person be brought before the court, will be seen as conforming not only with our obligations under the European convention but also the constitutional imperatives which arise in this area.
Under section 2 there will be an initial period of detention of up to six hours, which may be extended for a further period of up to 18 hours and subsequently for a further period of up to 24 hours on the direction of a chief superintendent, who must have, on each occasion that an extension is granted, reasonable grounds for believing that the further period of detention is necessary for the proper investigation of the offence. Any periods of detention after this first 48 hours will involve the intervention of the courts so that a detained person must be brought before the court on the hearing of each application for his or her further detention and will be given the opportunity to make submissions or call evidence on his or her behalf.
The court, if satisfied that the detention is necessary for the proper investigation of the offence, and that the investigation is being conducted diligently and expeditiously, may extend the period of detention for up to a further 72 hours and for a final period of up to a further 48 hours. The garda who makes the application, who must be of the rank of at least chief superintendent, must at the time of each application to court have reasonable grounds for believing that the further detention is necessary for the proper investigation of the offence.
If the judge decides to issue a warrant for the further detention of a person he or she may at the same time order that the person be brought before the court again at any time or times during the specified period of detention. If the judge is not satisfied at that time that the detention is justified he or she shall order the immediate release of the person. This is just one of the safeguards which is provided for in the Bill.
A further safeguard in section 2 requires the Garda to immediately release a person when there are no longer reasonable grounds for believing that his or her detention is necessary for the proper investigation of the offence, unless the person is to be charged and brought before a court as soon as may be in respect of such a charge.
I believe that the involvement of the courts, taken together with the other safeguards contained in the Bill, should allay any fears that the detention provisions are excessive or open to abuse. The proposals represent a measured response to the unacceptable threat posed by these so-called drug barons.
I have gone into detail on these safeguards because, even since the Bill was announced and we started to debate it, the debate has returned to a sense, by the same people in the media and elsewhere, that the Bill is going too far. In saying this, they have not fully recognised the seriousness of the crimes we are attempting to tackle, nor have they recognised that, since it was available back in 1976-77, many safeguards have now been built into the rights of people who are being questioned in custody by the gardaí. Fears are on the basis of what the regime was then, not the regime that exists now.
I wish to make this clear to those who have come full circle from a position they held four or five days ago that somehow I am not taking cognisance of the dangers to our criminal law. That is not the case. This is a considered, studied Bill, one for which I was criticised for taking my time in preparing. This is not a sudden reaction to a problem; it is a considered response and one which is appropriate.
I mentioned earlier that those involved in the trade of illegal drugs are constantly evolving new ways to try to avoid detection, including the concealing of drugs within one's body — the problem known as "stuffers and swallowers". To provide for the detention of suspected stuffers or swallowers there is provision in the Bill for the making of regulations by the Minister for Justice to prescribe a special detention facility where such persons may be detained. Such a place would be especially equipped to deal with cases of bodily concealment. I do not have to go into the details.
In view of the fact that section 2 represents a major change to our present law it is right that I go into detail. It is important for everyone to appreciate and understand the reasons which are to do with the EU Convention on Human Rights. I have rejected amendments in the other House, and I will have to do the same here if anybody puts them down in respect of this aspect. I cannot allow and agree for anex parte application to the courts for further detention because the appearance of the person being questioned in the court is not just for the sake of having him there; it gives the judge the opportunity to see the mental and perhaps physical state of the person at the same time as forming an opinion as to whether extra time is required for questioning.
Section 3 amends sections 2 and 4 of the Criminal Justice (Forensic Evidence) Act, 1990, which deal, respectively, with the taking of bodily samples and the destruction of records and samples. The effect of the section will be to allow for the taking of bodily samples in the case of a person detained under the Bill. These powers are essential for the full and proper investigation of alleged drug trafficking offences. Without them it is possible for somebody to refuse to give those samples, as they are being advised daily by solicitors and barristers to say and do nothing, including the giving of blood, to avoid the possibility of forensic science and testing linking them to any crime. I have, therefore, built into the Bill the power to take bodily samples in the case of a person detained under the Bill.
Section 4 deals with rearrest. It generally prohibits the rearrest for the same suspected offence — or an offence which should have been reasonably suspected at the time — of a person previously detained under section 2 and who has been released without being charged. Rearrest will only be permitted on the authority of a judge and only in cases where new information has come to the knowledge of the Garda Síochána since the person's release. Furthermore, the judge when authorising a rearrest may also order that the person be brought before a court on arrest or at any other time for the purposes of satisfying himself or herself that the detention is justified. If the judge is not satisfied that the detention is justified then the person will be released.
Recognising the implications arising from seven day detentions, especially in the context of rearrest, section 4 provides for a very significant change in the procedures which follow detention on foot of a rearrest. There is provision for the intervention of the court at an earlier stage than is the case under section 2. Thus under section 4, the rearrested person may be detained initially for up to six hours, which can be extended by up to 18 hours on the authority of a chief superintendent, totalling 24 hours. Thereafter the detention period may be extended for periods up to 24 hours, 72 hours and 48 hours only on the authority of a judge, following procedures identical to those in section 2. It is clear why we must build in these safeguards, lest an attempt be made to get somebody for a second period of seven days without the proper checks.
Furthermore, if a person is rearrested on the authority of a judge for an offence which is not a drug trafficking offence, then that person will be dealt with, not under the provisions of this Bill but under section 4 of the Criminal Justice Act, 1984. Section 4 also makes it clear that where a person has been arrested under section 30 of the Offences Against the State Act, 1939, or detained under section 4 of the Criminal Justice Act, 1984, and is released without charge, that person cannot be arrested again under section 2 of the Bill for the same offence or for an offence which he or she was, or ought reasonably to have been, suspected of having committed.
Here again, the legislation contains appropriate safeguards. However, the gardaí will not be prevented from rearresting a person without a warrant for the purposes of immediately charging that person with an offence. If, after three or four days, they have enough evidence on a person but let him go, they can rearrest him provided they are about to make a charge in connection with him.
Section 5 applies various provisions of the Criminal Justice Act, 1984, to persons detained under section 2, so that, for example, when there are no longer reasonable grounds for suspecting a detained person of having committed any offence he or she must be released. It also covers such matters as the provision of medical attention, access to a solicitor and the destruction of records where a detained person is not prosecuted or where he or she is acquitted.
Hand in hand with these extra powers which the Bill gives the gardaí is the need for close co-operation between the Garda and the Customs Service. With this in mind it is proposed that increased powers be given to Customs officers in relation to questioning of persons detained on suspicion of importing drugs. To this end section 6 of the Bill provides that regulations may be made for the attendance of, and participation by, an officer of Customs and Excise in the questioning of a person detained under section 2 of the Bill or under section 4 of the Criminal Justice Act, 1984, where the offence is one related to drug trafficking. It also provides, importantly, that where officers of customs and excise are invited to participate in such questioning, they will be subject to the same conditions as apply to gardaí under the regulations made under the Criminal Justice Act, 1984, for the treatment of detained persons.
Section 7 was inserted on Report Stage in the Dáil and arose out of a commitment I made to look at the need to restrict the right to silence in drug trafficking cases. Under our criminal law the general rule is that a person is not required to answer any questions in connection with an offence of which he or she is suspected. However, it would not be correct to say that there is an unqualified right to silence — this is something that has been repeatedly said by many media and other commentators.
The general rule — which is in line with a general constitutional protection against self-incrimination — is subject to a number of statutory exceptions, and the most recent of these were included in the Criminal Justice Act, 1984. Sections 18 and 19 of that Act allow a court or jury to draw inferences from an accused's failure or refusal in the course of Garda questioning to account for certain matters; marks on his or her person or clothing or presence in the vicinity of a crime. These inferences cannot be drawn unless the accused was told in ordinary language what the effect of failing or refusing to provide the relevant information might be.
While inferences can be treated as amounting to corroboration of other evidence, the Act specifically provides that they cannot alone form the basis of a conviction. No Government has ever suggested that silence could be used as the only way in which a conviction can be brought about. It has always been accompanied by the need to have other evidence to convict somebody. I do not believe this State would ever see a time when somebody who remains silent would immediately be convicted because they are not giving an account of why they were somewhere. This is not something I would consider.
Section 7 represents a further modification of the right to silence. The Government has concluded that if a person detained on a suspected drug trafficking charge fails or refuses to mention some fact that he subsequently relies on in his or her defence, he or she should run the risk that a court or jury will draw an inference adverse to him or her. The effect of this provision will be that the judge will be able to tell the jury that it may make an inference adverse to the accused from the late explanation if it would be appropriate to do so. It is important to stress that an adverse inference is only possible if the accused remains silent during questioning and he or she then puts forward at trial, as part of his or her defence, some explanation that he or she could reasonably have been expected to have given to the Garda.
As with the provisions in the 1984 Act there is no question of an accused being convicted on the basis of an inference alone. The inference may be treated as, or as capable of amounting to, corroboration of any evidence in relation to which the failure is material. However, an accused shall not be convicted of an offence solely on an inference drawn from such failure. Furthermore, an accused must be told in ordinary language when being questioned, charged or informed what the effect of such failure might be, that is, he must be cautioned about remaining silent. The new section, therefore, represents a necessary and further curtailment of the right to silence and, in the Government's view, it is warranted by the nature of the problem it addresses.
The fight against the drugs menace is not easy and it is essential that we, as legislators, give the Garda all the necessary powers to respond to existing realities. The nature of the menace often requires quick action by the Garda and this is why I am providing in section 8 for the amendment of section 26 of the Misuse of Drugs Act, 1977, to confer power on members of the Garda Síochána not below the rank of superintendent to issue search warrants in circumstances where particular urgency arises and where this is necessary for the investigation of a drug trafficking offence. Since such warrants will issue in circumstances of particular urgency, they will cease to have effect after 24 hours.
Section 9 will insert an additional section — section 13A — in the Public Dance Halls Act, 1935, dealing with the right of access by gardaí to dance halls where a public dancing licence is in force for the purpose of preventing or detecting a drug trafficking offence. The purpose of this section is to deal with a particular problem in the law as it relates to Garda powers of entry to premises where a public dance hall licence is in force. At present, section 13 of the Public Dance Halls Act, 1935, gives a power of entry to such venues to any member of the Garda Síochána in uniform in order to carry out any inspection, examination and inquiry as he or she thinks proper.
In the context of the investigation of drug related offences, the requirement that the gardaí must be in uniform is unhelpful to efforts to obtain evidence of drug dealing in dance halls. The phrase "dance hall" used in the Act refers to clubs, discos and other modern terms used to describe such venues. The proposed amendment, the addition of a new section 13A in the Public Dance Halls Act, will give the power of entry to gardaí regardless of whether they are in uniform — they can enter in plain clothes — for the purpose of investigating drug trafficking offences. Given that the penalty for obstruction or attempted obstruction of a garda acting under powers conferred by section 13 is only £5, there is provision for a penalty of up to £1,000 on conviction for obstructing or attempting to obstruct a garda acting under the new section.
Some confusion arose in the other House when I mentioned that aspect. One Deputy thought it was the only offence of which somebody might be convicted under the new section. However, it relates to offences such a bouncer stopping a member of the Garda Síochána in plain clothes whom they recognise entering the premises. Once gardaí get inside, other offences come into play, such as allowing premises to be used for a particular purpose or regarding people who are peddling drugs on the premises. The section relates to a member of the public or staff of the dance hall who tries to stop somebody whom they know is a member of the Garda entering the premises.
Section 11 is an important section in that it limits the period of operation of sections 2, 3, 4, 5 and 6 to 12 months from the date of commencement unless a resolution is passed by each House of the Oireachtas resolving that a section or sections shall continue to operate. The section also provides that the Minister for Justice will prepare a report on the operation of the sections and have it laid before both Houses of the Oireachtas. This will give the House an opportunity to debate the effectiveness of the sections prior to agreeing to their renewal.
I am sure everyone appreciates why it is necessary to give the powers proposed in the Bill to those charged with the investigation and detection of crime. We must do everything in our power to isolate and remove the malignancy which those who trade in illegal drugs bring to our society. I accept the powers contained in the Bill are, by any standards, harsh and draconian. However, I hope it will be understood that they are necessary and that any fears that they might be abused in any way will be allayed by the emphasis put on providing safeguards, such as those in relation to extending periods of detention, against such abuse.
I commend the Bill to the House. It was passed by the other House and I hope the Seanad will also approve it. All Oireachtas Members should examine the package announced yesterday and consider the many measures of a structural nature which the Government has put in place since it took office. The criminal justice system was neglected by successive Governments in that it was allowed to become overloaded and necessary changes were not made. I reject criticisms which might arise in the House or elsewhere that this is the only Government response to crime. The Government has made successive responses since taking office and it will continue to do so. Measures will be considered and carefully drafted. They will not be knee jerk reactions and they will take into account the varying views of members of the Government and Opposition.
The package announced by the Government yesterday and its programme over the last 18 months will yield the desired results. It includes an examination of the Garda Síochána, how the Force does its business and how it must be modernised to ensure it is effective against present day crime. These issues require the co-operation of Members of the Oireachtas, the public and members of the Garda Síochána, many of whom are expressing frustration. The public is also expressing frustration about the Garda. If these issues are not openly discussed they will fester and cause problems in the system.
I am glad to be in the House again; I have almost earned honorary membership at this stage because I have been here so often recently. I thank Senators for what I hope will be a constructive and supportive debate.