Criminal Justice (Drug Trafficking) Bill, 1996: Committee Stage.

Section 1 agreed to.
SECTION 2.

Here we have amendment No. 1. Amendment No. 3 is consequential. Both amendments may be discussed together.

I move amendment No. 1:

In page 5, subsection (2), lines 6 to 22, to delete paragraph (e) and (f), and substitute the following:

"(e) (i) At any time prior to the expiration of the second 24 hour period of detention provided for under paragraph (c), an application may be made to a judge of the Circuit Court, who, if satisfied by oral evidence made by a member of the Garda Síochána, not below the rank of Chief Superintendent and such other evidence as may be called at an ex-parte hearing, that the further detention of the arrested person is necessary for the proper investigation of the offence in respect of which he has been arrested and that the offence being investigated is a substantial and serious offence, may direct that the period of detention be extended by any period of time not exceeding a further 72 hours from the expiration of the second 24 hour period of detention.

(ii) If, within the final 6 hours of a period of detention authorised by a judge of the Circuit Court under paragraph (e)(i) of this section, an application is made to a judge of the Circuit Court, that period of detention may be extended by a period of time not greater than 48 hours from the expiration of the period of detention under paragraph (e)(i) of this section if the judge is satisfied, by oral evidence of a member of the Garda Síochána, not below the rank of Chief Superintendent and such other evidence as may be called at an ex-parte hearing, that the further detention of the arrested person is necessary for the proper investigation of the offence in respect of which he has been arrested and that the offence under investigation is a substantial and serious offence.”.

The Minister of State may have read the record of last week's Second Stage debate on this Bill where it was clearly indicated that this Bill enjoyed the full support of the Fianna Fáil Party and that the Fianna Fáil side of the House would be fully and positively engaged in helping the Government in the fight against crime and in particular by passing this Bill as speedily as possible. Before I speak on the amendment I want to reiterate on behalf of the Fianna Fáil Party our congratulations to the Government and the Garda Síochána on the two large drug finds recently. Any such discovery is welcome because it will mean much less misery on our streets. We wish the Garda, the Navy and Customs and Excise officers every success in the future and I am sure I speak for all.

This is a tough Bill. On Second Stage the Minister said it was harsh and draconian. If we are going to be tough, let us be really tough. Let us not send the officers of law enforcement into battle against people who are hell bent on destroying the fabric of society with only one glove on. This amendment relates to periods of detention. If the person under suspicion or their legal representative is in court during a hearing when the reasons, which may include evidential reasons, for the continued detention of the suspected drug trafficker have to be made known, it could arm them with information they may subsequently use in their defence.

This amendment proposes that such applications should be made at an ex parte hearing, in other words, there should be only one party present. When a superintendent goes to court seeking a search or an arrest warrant in other cases, the subject of the warrant will not be in court. The Government must justify the insertion of the section in the manner in which it is drafted. Will the Minister consider accepting this amendment?

There is no question of Fianna Fáil disagreeing with the seven day detention period. The rationale for the extension is widely accepted. As many of those involved in the drugs business —"death business" would be a more appropriate title — have international connections or live in foreign jurisdictions, a period of seven days detention may be necessary for the gardaí to make international inquiries. We will not object to a longer than normal period of detention for persons suspected of drug trafficking. There is no question of extending it to other crimes. The drug trafficking menace will have to be met with an adequate legislative response and the best way to do that is to provide for ex parte hearings. The Government should accept this amendment.

The essential difference between what is being proposed in these amendments and the approach taken in the Bill is that, under these amendments, an application to a court for the continuation of a person's detention would be made ex parte, in other words the detained person would not have to be brought before the court.

The Bill provides that a detained person must be brought before a court and have a right to be heard on the basis that such a provision was considered necessary to comply with requirements under the European Convention on Human Rights. Having regard to the jurisprudence which has built up in respect of Article 5(1)(c) and (3) of the convention, it is clear that provision must be made for the arrested person to be brought before a court after 48 hours. There is a substantial body of jurisprudence in this regard. It would not be sufficient to simply require a chief superintendent to apply for an extension in relation to detention. The detained person must be physically brought before a judicial officer and given an opportunity to be hard.

In the case of Schiesser v. Switzerland, the European Court of Human Rights defined the powers and qualities required of a judicial officer to comply with this provision. These include complete dependence when performing in the judicial capacity; the detainee must be present at the hearing and the judicial officer must listen to the detainee's representations or those of his or her representative; the need for all the circumstances for or against release to be reviewed and for the judicial officer to decide, by reference to established legal criteria, whether there are reasons to justify detention and the power to order immediate release where continued detention is no longer justified.

The Bill has been carefully drafted to take into account these and other requirements arising from that case and subsequent cases dealing with related matters. I recognise the concerns which have been raised about the practicalities of what is proposed in the Bill but, on the basis of the advice available, the safeguards provided are necessary if we are not to fall foul of the convention and I am sure nobody would suggest that we should deliberately include a provision in the Bill which would be in breach of the convention. It will, of course, be a matter for the judge in an individual case to decide on the evidence that is necessary to enable him or her to conclude that further detention is necessary for the proper investigation of an offence and that the investigation is being conducted diligently and expeditiously. We could not realistically include in legislation more precise guidelines which would deal with every eventuality in detail, but I am sure we would all accept that in exercising judicial discretion the Judiciary will take into account any implications that particular information might have in terms of prejudicing an ongoing investigation.

In all the circumstances the proposed amendments cannot be accepted for the reasons which I have already stated.

In broad terms, the Minister of State's reply reflects the Minister's reply on the last occasion we dealt with this matter. On that occasion I stated that drug traffickers do not have much respect for the European Convention on Human Rights. They will not have read a word of that convention before plying their deadly trade. Would the Government prefer if the applications to court were made ex parte? Would the Garda and others investigating drug trafficking offences prefer if applications were made ex parte? Is the European Convention on Human Rights an obstacle to the proper prosecution of drug traffickers? If that is the case, should we not take up the matter with the Council of Europe? I am sure it was never envisaged that the European Convention on Human Rights would act as a shield for persons who seek to destroy a fabric of our society. If that is the case, we should consider making an application to the Council of Europe in the hope that a Protocol or amendment could be made in these extraordinary circumstances.

I understand Deputy Mulcahy's point, but the people with whom this Bill will deal have no concern for human rights and would laugh at the mention of a European Convention on Human Rights. We must have confidence that our courts will be objective and sensitive to what the Garda is doing to ensure the full facts are obtained in terms of drug trafficking. If Senator Mulcahy's amendment is passed it would be misused by certain sections to undermine the work the Garda is doing in this area.

We must ensure the proposals are workable and transparent and that they do not impinge on the European Convention on Human Rights. We have signed this convention and we must adopt a positive approach to it. Involvement by the courts in deciding that further detention should take place will not inhibit the Garda in progressing its investigations into drug arch criminals — as I call them. If we have confidence in our courts we should support the views of the European convention and accept the Bill as it stands.

It is the intention of the Government to do precisely that suggested by the Senators — to meet head on the very serious threat to society from the activities of people involved in the importation and distribution of drugs; because of the magnitude of the fortunes they make, those people are a great threat to society. In view of the Government's intention to tackle the problem head on, it is essential that legislative changes made are constitutional and come within the parameters of European law. If, for instance, a case was brought before the European Court of Human Rights, it would bring the law into disrepute and would hinder the Government in its efforts against the drug barons.

In recent years we have witnessed an increase in the activities of those involved in drug trafficking and in the extent to which they circumnavigate the law. Those involved in such activities must not be given the opportunity to circumvent the legislation. The combined efforts of everyone involved will be required to ensure the legislation has the maximum impact on those for whom it is intended. I am sure that is the Senator's intention in moving the amendment, as it is the Government's intention. It is our advice that the inclusion of the amendments might create an advantage for those whom we seek to dispossess and for that reason I cannot accept them.

Question, "That the words and figures proposed to be deleted stand", put and declared carried.
Amendment declared lost.

I move amendment No. 2:

In page 5, after line 56, to insert the following new subsection:

"(3) A direction of a member of the Garda Síochána, not below the rank of Chief Superintendent, under section 2 of this section may be given orally or in writing, but if given orally, shall be confirmed in writing within 12 hours of it being so given.".

This amendment relates to detention and proposes that the chief superintendent should confirm the direction in writing within 12 hours.

Section 2(2)(d) provides that a direction given by a chief superintendent under paragraph (b) or (c), that is, a direction for the extension for periods of detention, may be given orally or in writing and, if given orally, shall be recorded in writing as soon as practicable. Paragraphs (e) and (f) further provide that details of the date and time when the direction was given as well as the name and rank of the officer who gave it and the fact that he or she had reasonable grounds for believing that the further detention was necessary for the proper investigation of the offence, will be recorded and attached to, and form part of, the custody record of the person detained.

This amendment provides that where a direction is given orally it shall be confirmed in writing within 12 hours of it being given rather than as soon as practicable. Obviously it is desirable that a written record should exist as quickly as possible, but the setting of a 12 hour limit would be to some extent arbitrary and a dilution of the protection already in the Bill, which provides that the direction must be given in writing as soon as it is possible to do so. The effect of the amendment would remove the requirement to provide written confirmation as soon as possible if that is within 12 hours of the direction being given. The amendment would weaken rather than strengthen the Bill; consequently it is not acceptable.

Amendment put and declared lost.

I move amendment No. 3:

In page 6, lines 1 to 5, to delete subsection (3).

Question, "That the words proposed to be deleted stand", put and declared carried.
Amendment declared lost.

An Leas-Chathaoirleach

There is an error in amendment No. 4. and amendment No. 4a has been circulated in substitution.

Amendment No. 4 not moved.

I move amendment No. 4a:

In page 6, subsection (9), lines 49 to 52, to delete paragraph (b) and substitute the following:

"(b) (i) The Minister may make regulations for the treatment of persons detained pursuant to this section, whether in a Garda station or in a place of detention.

(ii) Such regulations shall include provision for the assignment to a member of the Garda Síochána (not being a member who was involved in the arrest of the person) of responsibility for overseeing the application of the regulations in respect of that person, without prejudice to the responsibilities and duties of any other member of the Garda Síochána.

(iii) Such regulations shall provide for the making of an audiovisual record of any interview between a person detained pursuant to this section and a member or members of the Garda Síochána, and of any physical examination of such person.

(iv) Such regulations shall provide for the provision, to a person detained pursuant to this subsection, of access to a solicitor.

(v) Such regulations shall provide for the provision of medical treatment for persons detained pursuant to this section who have, or who appear to have, a physical dependence on controlled substances.

(vi) A failure on the part of any member of an Garda Síochána to observe any provision of such regulations shall not of itself render that member liable to any civil or criminal 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 or her.

(vii) A failure on the part of any member of the Garda Síochána to observe any provision of the regulations shall render him liable to any disciplinary proceedings.".

The Progressive Democrats fully support this Bill which proposes major changes in periods of detention. One of the concerns raised is that, because of the increased powers of detention, safeguards should be introduced and the conditions under which a person is detained must be carefully considered. The Minister stated that the regulations made under the 1984 Act for the detention of persons for questioning will equally be applied in terms of the increased periods of detention under this Bill.

My party believes that regulations in respect of the 12 hour detention provision under the 1984 Act and those applying to detention under section 2 of this Bill in a Garda station or place of detention are not the same because of the increased period of detention. It is necessary to deal with contingencies which might arise in respect of seven days' detention and this is the purpose of this amendment. For example, how often will a detained person have access to his or her solicitor? What happens if a person detained under section 2 of this Bill is a drug addict suffering from withdrawal symptoms and is somebody who would be likely to confess to anything in order to get a fix? There is no provision under this Bill for the videotaping of interviews while persons are being interrogated.

I acknowledge the fact that the Government has accepted a curtailment on the absolute right to silence in drug trafficking cases but if we are making these changes in the law it is very important that the Government introduces corresponding safeguards, not just from the point of view of civil liberties but also from the Garda point of view. People in custody can allege that they have been abused and if interviews were recorded on video we would have an independent reference. In many cases people have injured themselves and have then alleged that these injuries were inflicted by gardaí and that confessions were obtained by force.

It is regrettable that while this Bill was passing through the other House the safeguards proposed to balance the extended powers this Bill gives the Garda and the extended powers of detention it contains were not accepted. Provision for videotaping has been in force since the 1984 legislation was introduced and it is my understanding that a pilot project is being carried out at the moment, but a delay of 12 years between the introduction of legislation and its implementation is unacceptable. It is unacceptable that safeguards cannot be put in place to balance the introduction of measures which we all support.

I have considerable sympathy with this amendment but I am not in a position to support it. As far as I am aware Garda custody regulations are already in place. It is a while since I accepted my last criminal brief but as far as I recall the Garda custody regulations apply to anybody taken into any Garda station once arrested. I have sympathy for this amendment because, as Senator Honan has correctly said, a detention period of seven days is new in our criminal law. Safeguards are already built into the system whereby the accused or his or her legal representatives will come before the court on one or more occasions before the seven day period is up and if a prisoner is being ill treated, his or her legal advisers have an opportunity to inform the judge.

We tend to go overboard with regulations. It is possible to over-regulate and this is part of the problem with our criminal justice system. On any visit to any court it is possible to see gardaí being put through the hoops by clever lawyers who point out that they have not complied with this or that technicality. Cases can be dismissed because of these technicalities and they are often incidental to the main subject at issue. Will we arrive at a situation where it could become virtually impossible to secure a conviction? If there are too many regulations it will be impossible for people to be detained legally in Garda stations.

I have sympathy with the amendment but I am worried — this is why I cannot support it — that gardaí would be afraid to do anything once a person was in detention for seven days. That is no excuse for breaches of civil liberties; nobody is for a moment suggesting that gardaí have the right to assault prisoners or treat them in anything other than a very dignified fashion. However, there are remedies available at civil law and before the courts under the seven day system and a remedy is available under the Garda Síochána custody regulations already in force. We do not need any more regulations, we need to get on with convicting people who are pushing drugs.

There is much merit in this amendment. We have to consider the sort of people who are likely to be remanded for this length of time; seven days is a very long time. We have not encountered this situation before so I tried to look at the type of people I thought would be taken into custody. I am sure the Minister is aware of what was described as Penrose's law. In 1939 Penrose discussed the inverse relationship between the populations of mental institutions and of penal institutions. Of course in this country we have been trying to close down our large mental institutions and treat people on a community and outpatient basis. There are varying reports on the influence the closure of large mental institutions is having internationally on those who end up in prison but there is quite a bit of evidence coming forward to show that if long-term beds had been available, certain people might not have become involved in crime.

The drugs problem is very serious. Colleagues of mine recently did a survey on psychiatric disease in Irish women prisoners and the figures that really worried me were those to do with remand prisoners. These were the nearest I could get to what I thought would be the type of people we would be likely to be holding for these drug related offences. Although only a few were in a seriously psychotic situation when they were examined by these doctors, the incidence of a past or present history of major psychiatric illness was much higher among remand prisoners, at 28 per cent, than among sentenced prisoners, at 18 per cent.

This was a specific survey dealing with women prisoners and it is reckoned that women who become involved in crime are more likely to have psychiatric problems than men. Over 50 per cent of women prisoners surveyed have these problems compared to just over 30 per cent of male prisoners. However, we do not have many of the safeguards operating in England about transferring people to psychiatric hospitals as soon as possible.

It may have been decided to put these women in Mountjoy Prison for their own good while they were being psychiatrically assessed before they came before the courts again, but under this legislation many suspects with psychiatric diseases will be in Garda stations or other places of detention and there is a lot of merit in Senator Honan's proposals regarding the regulations for their treatment, and specifically about the provision of medical treatment for persons detained who may have a physical dependence on controlled substances.

People on Ecstasy often think they can fly. How reliable will their statements be without good audio-visual records, etc., of their interrogation? We will not be dealing with major hardened criminals all the time — they manage to elude this kind of situation — but with people who are referred to by those involved in crime as being disposable because they are easily replaced. If some of these people are removed from general circulation, they are easily replaced by their brothers, cousins, sisters or aunts.

This psychiatrically vulnerable group, although criminals, are involved and many of them are dependent on drugs, particularly those involved in acquisitive crimes, such as shoplifting, passing stolen goods, etc. All safeguards, for our benefit as well as theirs, should be put in place.

Section 7 of the Criminal Justice Act, 1984, provides that the Minister for Justice shall make regulations providing for the treatment of persons in custody in Garda stations. Such regulations have been made in the treatment of persons in custody in Garda Síochána Stations (Regulations), 1987. Those regulations will apply to persons detained under the present Bill and they already deal with many of the matters contained in this amendment, such as the role of the member in charge, access to a solicitor and medical treatment.

As to the question of audio-visual recording of Garda interviews with persons detained at Garda stations, the position is as follows. Provision was made in section 27 of the Criminal Justice Act, 1984, enabling the Minister for Justice to make regulations providing for the electronic recording of Garda interviews with suspects. In 1990, a committee established under the chairmanship of Judge Frank Martin to inquire into certain aspects of criminal procedure strongly recommended as a safeguard towards ensuring that inculpatory admission to the Garda Síochána are properly obtained and recorded and that the questioning of suspects takes place before an audio-visual recording device. The committee also recommended that the audio-visual recording should, in the first instance, be introduced in selected Garda stations by way of a pilot scheme.

This recommendation was accepted and in March 1993 a steering committee was established under the chairmanship of Circuit Court Judge Esmond Smith with representatives from the Attorney General's Office, the DPP's Office, the Law Society of Ireland, the Bar Council of Ireland, the Garda and the Department of Justice together with an expert in the field of electronic engineering. The steering committee was asked, for the purposes of establishing field trials, to make recommendations on the necessary features of such a scheme and having attained the Minister for Justice's agreement on the features of the pilot scheme, to arrange for the stringent monitoring of such a pilot scheme.

It was also asked to arrange for an assessment of the operational cost of the scheme, the likely effects of audio and audio-visual recording on the criminal justice system as a whole and to identify the extent to which the pilot scheme shows that an effective and economical basis can be found for a national scheme. It is to submit a report to the Minister on the outcome of such an assessment.

After an initial research and planning phase, the steering committee presented an interim report in March 1994 which recommended that the questioning of suspects in Garda stations should take place before an audio-visual device. However, recognising the considerable cost involved and other time consuming factors, such as the selection and purchase of equipment and the provision of training, it also recommended that implementation should commence with the pilot scheme. The committee's recommendations were accepted and it proceeded to establish a pilot scheme involving four selected Garda stations — the Bridewell in Dublin, Cork, Tallaght and Portlaoise. The scheme commenced in Tallaght in May 1994 and was fully introduced at the other stations in April 1995.

The committee decided that, to obviate the need for making of regulations under section 27 of the 1984 Act at that early stage, participation by detained persons in the scheme should be voluntary. However, this proved to be a problem as it turned out that only around 10 per cent of the persons detained had agreed to participate. That in itself probably underlines the situation as practised and foreseen at present. In these circumstances, the amendment is not deemed necessary or desirable, despite the cogent case put forward.

I thank the Minister for his reply but I do not accept it. The 1987 regulations, which came from the 1984 Act, are not adequate to deal with periods of detention of up to seven days. We accept that these major provisions are a departure from anything in existing legislation and that they were introduced specifically to deal with drugs, the drug barons and our serious law and order problems.

An Act was passed in 1984 and regulations were introduced in 1987. A committee under the chairmanship of Judge Martin was set up in 1990 which recommended the audio-visual recording of interviews. Another steering committee was set up in 1993. Its 1994 interim report seemed to recommend the audio-visual recording of interviews but the cost was a consideration. It is now 1996, 12 years after this Act was put in place, and we still do not have the procedures that could be implemented under it.

We have also seen changes, since this Bill was introduced, between Committee and Report Stage in the other House. On 18 June, the curtailment of the right to silence was rejected by this Government. However, when Report Stage was going through on 2 July, this curtailment was accepted because of the changed circumstances in the country at the time and because the Minister and the Government felt the public wanted a response to what was happening.

I find it extraordinary that when we are curtailing the right to silence, we are afraid to insert safeguards. I am not just talking about protecting the rights of the accused. It is important to protect the public interest in this matter so that the Garda, the public and the authorities who will have to adjudicate on these matters will have an independent record of what happened when such an interrogation took place. A trial might collapse because of insinuations of abuse by gardaí. If we had independent records and recording, that could not happen.

Senator Henry said that many of the people being taken into custody will be drug addicts. Their state of mind, health, etc., will be obvious from the recording. We are not talking about people at the top of these drug empires but addicts who are being used by the drug barons. We should strike a balance. If we are introducing strong measures, which I support, justice should be done as well as seen to be done. Otherwise we will regret the fact that we have not introduced these safeguards.

It is a pity Senator Mulcahy cannot support this amendment, although his colleagues in the other House did. Not alone do these measures have the support of the Fianna Fáil Party but it has the support of the Independents and Deputies from the Government benches. We all want a balance. We want to introduce stringent measures but we also need safeguards so that we are not left open to criticism in the future as being seen to have rushed in and curtailed one side of the right to silence while not providing safeguards to protect not only the accused but also the Garda and the public. I am sorry the Minister does not see it fit to accept my amendment.

Since I am a great believer in judging society by how it treats its outcasts, I will again refer to drug addicts. Treatment is specified in this legislation, but will drug addicts be expected to go cold turkey if they are remanded in these places of detention? Heroin addiction is no joke. Addicts have a terrible physical as well as a psychological dependence on heroin. That is why they are in such an appalling mess in the first place. They become involved in crime to feed their terrible habit. Does the Minister have any specific proposals in mind, if they are not written into the Bill, on how these people will be treated? At least if they are committed to prison they will get involved in an admittedly very brief detoxification programme. There is nothing here to say someone can bring them in a fix. Are we going to do anything for them while they are within the confines of the place of detention? They could become increasingly ill while they are there and their witness could be considered less reliable.

We must bear in mind that this Bill deals with drug traffickers, not the drug victims. I know there is an overlap——

There is a very big overlap.

The people we are discussing are trafficking in drugs; they sell them to people who are victims of the drug culture. After 48 hours, the lawyer of the accused can bring all aspects of the interrogation and the case to date in front of a judge. There are provisions for checks and balances in the system. Of course, we would love to go the full way with regard to the proposal being made. However, these are extraordinary times and it has been shown repeatedly over the last few weeks that we have to introduce measures which none of us would have tolerated years — or even months — ago.

We now realise the extent of the problem and must take measures which we might not have supported in the past but which we must support now. However, there are checks to ensure that abuses do not take place; under section 2 the courts have an involvement at a reasonably early stage in the seven day detention period.

The purpose of the Bill is to deal with the serious crime problem which everybody agrees exists and must be tackled. The object of the exercise is to bring those people before the courts and, if they are found guilty, to incarcerate them for the regulatory period.

Senator Honan referred to the Government's anxiety to respond quickly to the people. Great stress was laid on the fact that there should be no dramatic or knee-jerk response, because that would be the weakest way to deal with this situation. The Taoiseach and the Minister for Justice repeatedly stated in the other House that it is imperative to ensure that whatever legislation is being contemplated at the moment should be seen to be effective and constitutional. That is why it is necessary to refer to what the Senator said in her opening remarks. It would be very misleading and wrong to assume that the legislation was inspired by a ground swell of opinion rather than dealing with a situation with which had to be dealt, and with which we are dealing.

Access to solicitors and medical attention at all reasonable times is already provided for under the present custody regulations. These regulations deal with detention for 48 hours under section 30 of the Offences Against the State Act, as well as the 12 hours detention under the 1984 Acts.

I would also respectfully suggest that the committee of experts which has studied the situation in relation to audio-visual supervision, etc., is probably in the best position to make recommendations, although it has not done so yet. Having given the committee a job to do, which responsibility it accepted seriously, I assume that the obvious thing is to await its final recommendations, which might or might not be in accordance with the suggestions set out in the Senator's amendment. I already mentioned the low participation rates when the voluntary system was introduced. It is necessary to introduce the legislation in the form in which it is couched. It is felt there are adequate protections there already.

As I said earlier, it is important that the legislation we introduce on a matter of this nature, which is likely to be tested many times in the courts, be constitutionally sound and stand up to the rigours of international statutes. Notwithstanding all that, I take the point that we must ensure there are safeguards. However, do not forget that the safeguards will also apply to those who are not so vulnerable.

It is a question of finely balancing the direction of the legislation and ensuring it takes account of the people to whom Senators referred — vulnerable drug addicts and those who might not be as able to speak for themselves as their richer overlords who have access to the highest paid legal opinion and have every intention of ensuring that every syllable of legislation targeted against them is questioned. The legislation is considered to be the best which can be introduced in the circumstances, having regard to the need to protect people's human and civil rights while, at the same time, tackling the serious problem of organised crime and racketeering which has become the scourge of society.

I was delighted to hear the Minister of State's reassurance that the 1987 custody regulations apply to this Bill. I had anticipated that; I am glad I can still remember the date of the custody regulations. I have read those regulations on several occasions and I have gone through them in great detail. They are a very broadly based but detailed framework for the treatment of persons in custody. They are very specific about hours of rest, food, water, access to solicitors, custody records and so on.

Many cases have been thrown out of court because some part of those custody regulations was not complied with. Non-compliance with custody regulations has been successfully used as a full defence and many serious criminal cases have had to be thrown out of court as a result; bringing in more custody regulations is going too far. The good custody regulations we have are adequate. It is time we got on with this and let the Garda do its job.

The people want action and results. If we are to reflect the mood of the people, we must make it clear that we do not want to tie the Garda Síochána up in knots when its members are trying to question suspects. However, this must be achieved in a correct and humane way.

I take issue with the tenor of Senator Henry's contribution. I accept that I do not know many drug lords. However, my impression of drug lords or barons is that they are never "high" or "spaced out" on hallucinogenic drugs. These people appear to be cold, calculating and logical in their own perverted way and seem to have thought things out very well. There is no particular need for special treatment facilities for accused drug traffickers. As Senator Neville stated, this is a drug trafficking Bill; it is not a misuse of drugs Bill. It is not intended that people who purchase drugs for their personal use will be subjected to a seven day detention order. If they are, the Minister of State will agree that this would represent a gross misuse of the Bill.

On Second Stage I stated that section 11 is one of the most important in the Bill; it contains a clause calling for an annual review of the Bill. In other words, sections 2, 3, 4, 5 and 6 will automatically expire every 12 months unless they are renewed by the Oireachtas. If there is any evidence that the Garda have abused their powers under section 2, that matter will be brought before this House at the time of the annual review.

I am entitled to engage in intellectual disagreements, even with my colleagues. They would be first to encourage me to do so. No one wants to be hidebound or stifled. We are trying to create a consensus toward an intellectual endeavour to obtain the best solution to deal with this problem. We are attempting to do this in a unified way because recent tragic events have impelled us in that direction. The public will not tolerate differences for the sake of differences. It wants action and results and is entitled to them. For that reason I respectfully suggest that the proposed amendment be seriously reconsidered.

The Minister of State indicated that this matter was considered at great length and was not part of an immediate response to demands for action from the public. The curtailment of the right to silence was voted down by the Government on 18 June when Committee Stage of this Bill was debated in the Lower House. On Report Stage, however, the Minister accepted an amendment tabled by one of my party colleagues which advocated the curtailment of the right to silence. The safeguards we are proposing in the amendment before the House should be incorporated into the Bill because of that curtailment of the right to silence.

I take the Minister of State's point regarding the constitutionality of the Bill, which is very important. The Bill was very finely balanced to ensure its constitutionality. I believe the safeguards proposed in amendment No. 4a would further enhance that constitutionality. I was also interested by the Minister of State's statement about awaiting the committee's final report. All the indications from the 1987 regulations, Judge Martin's original committee in 1990 and the interim report of the 1993 committee are that audio-visual recordings should be put in place. The only concerns raised seem to relate to the cost involved. The Minister of State indicated that, where audio-visual recordings were utilised, only 10 per cent of suspects volunteered to have their interviews recorded.

The proposed safeguards are important from the point of view of suspects, but they are equally important to protect the interests of the Garda Síochána and the public. As already stated, only 10 per cent of suspects were interested in having their interviews video recorded. In many cases allegations are made against the gardaí which can prove difficult to deal with when there is no video evidence to act as an independent record of what occurred during an interrogation. Therefore, these safeguards are very important and would improve the constitutionality of the Bill. All the indications seem to be that audio-visual recording should be introduced. This modern method was introduced in other countries and it is not satisfactory that our criminal justice system should remain in the dark ages. If the facilities are available, they should be used.

The Government is taking a multi-faceted approach to the problem of drugs in this country. This is essential. However, we should not fool ourselves that this Bill will facilitate the arrest of those who make most money from drug trafficking. Such people will be apprehended under the freezing of assets Bill and legislation dealing with the powers of the Revenue Commissioners. Those dealt with under the Bill before the House are people identified as "mules"; such individuals are also indelicately referred to "stuffers" and "swallowers" and it is they who will be subject to seven day periods of detention.

It was correctly stated that the gardaí are extremely careful about the custody regulations because, if these are not strictly observed, the courts come down on the side of those being interviewed and have been seen to favour the civil rights of such individuals. The Garda was extremely annoyed that good cases were lost due to any small infringement of the regulations. I hope the Minister of State's and Senator Mulcahy's reassurances that the present regulations will be sufficient are correct and that Senator Honan's amendment is not needed.

I wish to refer to Senator Honan's contribution. I have debated many Bills in this House and during my time as a Member of the Opposition, I considered it a positive step when a Minister did not accept an amendment on Committee Stage but gave an undertaking to reconsider the matter for Report Stage. I felt I had influenced the system if a Minister did not accept an amendment on Committee Stage but introduced a similar amendment on Report Stage. When in Opposition, I recognised that we lacked the support to force the issue. During this debate, Senator Honan criticised the Government for doing exactly that with regard to the right to silence. I do not understand why she feels it necessary to do so.

The point I made was that if we curtail the right to silence, a move that I support, these safeguards are necessary. I welcome the fact that the Minister introduced an amendment on Report Stage in the Dáil to curtail the right to silence. However, these safeguards are more than necessary as a result.

To accept the Senator's amendment would effectively be to dismiss the advice of the Martin committee and the steering committee. It would also compel the introduction of electronic recording without the necessary prior testing and evaluation and without knowing the likely consequences. It would not be advisable to do so because it is not possible to anticipate the recommendations of the committee. In those circumstances, I cannot accept the amendment

Will it be introduced if the committee so decides?

Yes. It will be acted on immediately.

Amendment, by leave, withdrawn.
Question, "That section 2 stand part of the Bill", put and agreed to.
Sections 3 to 5, inclusive, agreed to.
SECTION 6.

I move amendment No. 5:

In page 8, lines 47 to 52, and in page 9, lines 1 to 11, to delete subsections (1), (2) and (3) and substitute the following new subsection:

"(1) Section 2 of the Customs and Excise (Miscellaneous Provisions) Act, 1988, is hereby amended by the insertion of the following subsections after subsection (8):

‘(9) An officer of the Customs and Excise in the course of exercising any power under this section of this Act, may ask a person any question provided that, if the officer is of the opinion that the person has committed or is committing any criminal offence in respect of which the officer is exercising a power under this Act, he shall inform the person—

(a) of his suspicion,

(b) that the person is not legally obliged to answer any questions put to him,

(c) that the answers given to any questions may be given in evidence in any prosecution brought against him.

(10) Any questions put to a person and the answers, if any, given to those questions shall, as soon as is practicable, be recorded in writing by an officer of the Customs and Excise and read over to the person at the termination of the interview or as soon as is practicable, thereafter.

(11) Any failure by an officer of the Customs and Excise to observe the provisions of subsections (9) or (10) of this section, shall not of itself affect the lawfulness of the power being exercised by the officer or the admissibility in evidence of any statement or comment made by the person in respect of whom the power is being exercised.'.".

I said earlier that if we are going to get tough, let us get really tough. One of the ways we can do that is to give those at the forefront of drug seizures, that is, Customs and Excise officers, powers to ask alleged drug traffickers questions without a garda being present. The intention behind amendment No. 5 is to delete section 6 (1), (2) and (3) and to replace it with the wording contained in the Customs and Excise (Miscellaneous Provisions) Act, 1988.

The amendment states:

‘(9) An officer of the Customs and Excise in the course of exercising any power under this section of this Act, may ask a person any question provided that, if the officer is of the opinion that the person has committed or is committing any criminal offence in respect of which the officer is exercising a power under this Act, he shall inform the person—

(a) of his suspicion,

(b) that the person is not legally obliged to answer any questions put to him,

(c) that the answers given to any questions may be given in evidence in any prosecution brought against him.

The amendment also provides for the recording in writing of questions and answers. This point was ably articulated by Deputy O'Donoghue in the Dáil. I do not know why the Minister is not prepared to accept the amendment. I compliment the Government, the Garda and the Customs and Excise on the recent drug seizures. In both instances, the Customs and Excise was very much involved, as it has been in the large seizures in the ports.

I hope the Minister will not say he cannot accept the amendment because he has received legal advice and that the amendment is not well drafted. I must inform him that Fianna Fáil has excellent legal advice available to it, of which I am not part. A team of legal experts has given advice on the drafting of this section. It is frustrating when a Minister says the Attorney General has advised that an amendment is illegal, unconstitutional or badly drafted without providing the rationale behind the decision. While the Attorney General may be the adviser to the Government, he is not the adviser to the Oireachtas or to the Fianna Fáil Party. We are entitled to put forward differing legal opinion and advice. It is our opinion that this amendment is legal. It would make it easier for Customs and Excise officers to question those they find at the scene of a drugs seizure. If this amendment was accepted, it would allow for the successful prosecution of drug traffickers. I look forward to the Minister's response.

I am sure there is adequate legal advice available to parties in both Houses. I have the height of respect for the legal profession, although I am not a member of that august body. The Senator was correct when he said the Attorney General is the legal adviser to the Government. He has a responsibility to point out the possibility of legislation being flawed. Legal expert opinion can be sought from many sources, all eminent. However, the ultimate test of legal opinion is in the courts and we must remember that sometimes it does not prevail, depending on its basis.

There was no suggestion from any quarter that one opinion was inferior to another but the Attorney General has specific responsibilities. On a number of occasions in the past year or two the Attorney General's opinion has proved to be correct when tested in the courts. That is not to say it will always happen, but I am sure it will again. It is virtually impossible to anticipate the ultimate arbitration of legal opinion.

The amendment seeks to delete section 6 (1), (2) and (3). This would remove the provisions allowing Customs officers to be present at and to participate in the questioning of persons detained by the Garda. The Senator's amendment provides for the amendment of section 2 of the Customs and Excise (Miscellaneous Provisions) Act, 1988, with the purported aim of giving Customs officers additional powers to stop and question persons. These are identical to the provisions in section 4 of the Private Members' Criminal Justice (Misuse of Drugs) Bill, 1996, introduced by Deputy O'Donoghue in the Dáil earlier this year.

The amendment is not acceptable primarily because it goes beyond what is appropriate in the context of the Bill and would eliminate the sensible provisions which it contains dealing with Customs and Garda co-operation. I assure the Senator that in devising its proposals for special organisational measures to be taken in tackling organised crime, the Government is prepared to bring forward any legislation conferring additional powers which may be required after time has elapsed.

The purpose of this exercise is to have the maximum impact on those for whom the legislation is intended while at the same time providing for the protection of people's constitutional and human rights. If we do not do that, we will bring our legislation into disrepute and this will weaken it and the thrust of our policy against those involved in drug trafficking. It is not in the interests of this House or society that the Government deviate from targeting individuals involved in drug trafficking. The amendment is not acceptable for the reasons indicated.

Amendment put and declared lost.
Question, "That section 6 stand part of the Bill", put and declared carried.
SECTION 7.
Question proposed: "That section 7 stand part of the Bill."

I wish to give notice to the House that on Report Stage I will table amendments to section 7, which deals with the right to silence, to include a reference to Customs officers as well as gardaí and a drafting amendment dealing with references to gender.

It would be appreciated if the Minister of State would give us as much notice as possible of proposed amendments.

We will give as much notice as possible but we are curtailed by the logistics of the manner in which the Bill is being taken; Committee and Remaining Stages are being taken together.

I understand it is not proposed to take Report Stage today.

Committee and Remaining Stages are being taken.

I wish to raise a point of order. It is unfair to expect the Opposition to respond in a matter of minutes or hours to a proposed Government amendment which may materially alter a section of the Bill. If amendments are being put forward by the Government, there should be time to reflect on them. I do not make this proposal to hold up the passage of the Bill because we made clear our determination to pass it quickly, but there is no point in passing legislation that has not been properly examined.

Acting Chairman

On the Order of Business the Leader indicated that the Whips would agree as to the progress of the Bill and I am sure a small amount of time can be found between Committee and Report Stages for the Deputy to consider amendments which I understand are mainly drafting ones.

They are precisely that. It is intended to make the amendments available as quickly as possible, but they cannot be made available until we have finished this Stage. The amendments are not of a nature which would cause major deviation from the Bill as drafted and, consequently, I do not see any great difficulty arising, but I am willing to accommodate the House in so far as it is possible in terms of a sos. It is not in anybody's interest to delay the process of the Bill.

The Minister of State has allayed my concern. I agree with Senator Mulcahy that it is not a desirable procedure, but the key issue is, as Senator Mulcahy said, that Report Stage amendments may materially alter the content of the Bill. However, the Minister of State confirmed that they should not materially alter it and in that case I hope they can be accepted.

Because the Minister of State said that drafting as distinct from substantive amendments will be tabled on Report Stage, I, too, will facilitate the taking of Report and Final Stages today.

Question put and agreed to.
NEW SECTION.

I move amendment No. 6:

In page 10, before section 8, to insert the following new section:

"8.—(1) If a member of the Garda Síochána, not below the rank of Superintendent has reasonable grounds for believing that—

(a) a person is in possession, in contravention of the provisions of the Misuse of Drugs Acts, 1977 and 1984, on any premises, of a controlled drug or any documents relating to the importation, possession or distribution of a controlled drug, and (b) there is a serious risk that the controlled drug or document may be moved or destroyed if the premises is not searched immediately, and

(c) it is not practicable in the time available to make an application for a search warrant pursuant to section 8 of the Misuse of Drugs Act, 1977, or pursuant to section 3 of the Customs and Excise (Miscellaneous Provisions) Act, 1988,

such member of the Garda Síochána may issue a search warrant mentioned in subsection (2) of this section.

(2) A search warrant issued under this section shall be expressed and operate to authorise a named member of the Garda Síochána, accompanied by such other members of the Garda Síochána as may be necessary, at any time within 3 hours of the time of issue of the warrant, to enter, if need be, by force the premises named in the warrant, to search the premises and any person found therein, to examine any substance or article found therein, to inspect any book, record or other document found therein and if there is reasonable grounds for suspecting that an offence has been or is being committed under the Misuse of Drugs Acts, 1977 and 1984 in relation to a substance or article found on the premises or that a document so found, is a document of the class mentioned in subsection (1)(a) of this section or is a record or other document which the member has cause to believe to be a document which may be required as evidence in proceedings for an offence, to seize and detain the substance, article or document as the case may be.".

This amendment deals with search warrants and is self-explanatory. Section 8 (g) sets out details of a search warrant.

It is essential that where members of the Garda Síochána ascertain controlled drugs on a premises they should be able to move speedily. The net effect of accepting this amendment would mean that gardaí would be empowered to issue a search warrant to carry out quick searches and would not have to make a court application for one. I would like to hear the Minister's rationale on this matter if he intends to propose the amendment providing for the insertion of this new section.

The issuing of search warrants is dealt with adequately in section 8. Under that section a member of the Garda Síochána, not below the rank of superintendent, may issue a warrant if he or she is satisfied it is necessary for the proper investigation of a drug trafficking offence and that the circumstances of urgency giving rise to the need for the immediate issue of the warrant would render it impracticable to apply for a search warrant under section 26 of the Misuse of Drugs Act. It is a question of a time factor.

The amendment is fairly similar to what is being proposed, but the criteria set out in section 8 represent the best approach to the issue. In particular, the amendment would not appear to be confined to drug trafficking cases. It might be used in cases of simple possession of a small quantity of drugs for personal use. It seems to be right to confine the power to drug trafficking cases. The criteria set out in section 8 provide appropriate safeguards and operational flexibility for the gardaí. I refer to the discussion on the previous amendment when concern was expressed as to whether sections might be seen to target a more vulnerable group in society, hence the reference in that section.

Under the amendment the lifetime of the warrant would expire after three hours whereas under the terms of section 8 the currency of the warrant would be 24 hours. The three hours' time limit proposed in the amendment is too short and I would prefer to adhere to the 24 hour limit. Any shortening of the period during which a warrant would be valid would tend to hinder the gardaí and prevent the new provision being truly effective. Therefore, I am not in a position to accept the amendment.

Senator Mulcahy raised a fair point. He should not have to deal with amendments at such short notice. However, they are simple and straightforward and he should not have too much difficulty with them, but if he requires a sos between Committee and Report Stages, I will be happy to facilitate him.

Amendment put and declared lost.
SECTION 8.
Question, "That section 8 stand part of the Bill", put and declared carried.
SECTION 9.
Question proposed: "That section 9 stand part of the Bill."

I welcome the section. It amends the Public Dance Halls Act, 1935, and applies to discos, raves and other such modern phenomena in which many Members may not have been entertained.

The Senator should speak for himself.

The reality is that it is in such places that drugs are not only misused but presumably are being peddled, or to use the more technical word, "trafficked". This is a good amendment because a new offence is created to deal with anybody who obstructs a member of the Garda Síochána in or out of uniform from carrying out a search on such premises. I record the support of my party for that section.

On Second Stage I said we fully supported the amendment tabled by the Minister in the Dáil. However, I question the fine being increased from £25 to £1,000, which would be an insignificant amount of money to people with a vested interest in preventing the Garda detecting those carrying drugs. Did the Minister consider further increasing that amount?

I re-echo Senator Honan's sentiments in welcoming this provision while questioning a fine of £1,000 which, in the circumstances, would be mere peanuts to such people. Is there some limit beyond which one cannot go in setting the levels of such fines? If there is a possibility of imposing a larger fine, I would certainly recommend it.

I thank Members for their support of this section and entirely agree it is time we modernised the law to meet modern day requirements. To answer Senator Lee, section 13A(2) of the 1935 Amendment of Public Dance Halls Act reads:

This subsection provides that it will be an offence to obstruct or attempt to obstruct a Garda acting under the new section. The penalty for such an offence, following summary conviction, will be a fine of up to £1,000. This penalty is only in respect of the offence of obstruction or attempted obstruction. The appropriate penalties will apply where there is a conviction for a drug trafficking offence.

I support what other Members have said on this section, particularly on the proposed fine, while appreciating that it relates only to obstruction. In the case of renewal of licences, in circumstances in which parties may have committed offences in premises and so on, has any consideration been given to allowing such evidence at the renewal date? No doubt the Garda are aware of venues in which drugs are "trafficked" leading to potential death. The owners of dance halls, discos or other such places of entertainment must be held comprehensively responsible for them. It is our fervent hope that all such people will accept their responsibility and assist the Garda in detecting such drug pushers. However, if there are doubts about such occurrences I hope that such evidence will be admitted at the date of renewal of licences and that judges will respond positively by refusing licence renewal.

To deal with existing procedures relating to objections to renewals of licences and so on where they are deemed to be inadequate, the Minister is preparing legislation. He will examine to what extent existing legislation needs to be strengthened in regard to places where large numbers of people congregate, such as public houses, clubs and the like, and how best to deal with the withdrawal of licences if that is deemed necessary for the common good. That is in line with the Minister's stated intention, that in the event of further legislation being required, it will be brought forward.

While welcoming what the Minister of State has said and the reasoning behind Senator Cosgrave's comments, will the Minister inform the House how the figure of £1,000 is arrived at in today's circumstances? Is there some deep philosophical reason for that being considered to be the appropriate figure, or is it merely the first round figure somebody conjures up?

My advice confirms it is the limit usually set and provided for in the case of the District Court, which sum is regarded as being sufficiently high to deter a possible obstructer under the provisions of this section and represents sufficient warning but does not become part of the potential penalty arising from such specific occurrence which is dealt with much more comprehensively in other sections.

The District Court has summary jurisdiction only and none in the case of indictable offences. I am not sure whether it has ever been judicially decided but the maximum custodial sentence that can be imposed by the District Court is two years. A maximum fine in excess of £1,000 might be regarded by the courts as an indictable offence, thus leading to trial on indictment with a right to a jury.

Question put and agreed to.
NEW SECTION.

I move amendment No. 7:

In page 11, before section 10, to insert the following new section:

"10.—(1) At the trial on indictment of any person over the age of 16 for a drug trafficking offence the following provisions of this section shall apply unless he or she pleads guilty, except that subsection (2) shall not apply if

(a) the court holds that there is no case to answer, or

(b) before any evidence is called for the defence, the accused, or counsel or a solicitor representing him or her, informs the court that the accused will be giving evidence, or

(c) it appears to the court that the physical or mental condition of the accused or other mental condition or other substantial reason makes it undesirable or unfair for him to be called upon to give evidence.

(2) Before any evidence is called for the defence, the court shall tell the accused that he may be called upon by the prosecution to give evidence in his own defence and shall tell him in ordinary language what the effect of this section will be if, when so called upon, he refuses to be sworn; and the court may, unless it considers it oppressive or unfair, require the accused to give evidence.

(3) If the accused

(a) after being called upon by the court to give evidence in pursuance of this section, or after he or she or counsel or a solicitor representing him or her has informed the court that he or she will be giving evidence, refuses to be sworn, or

(b) having been sworn, without good cause refuses to answer any question,

the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inference from the refusal as appears proper; and the refusal may, on the basis of such inference, be treated as, or as capable of amounting to, corroboration of any evidence given against the accused.

(4) Nothing in this section shall be taken to render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a refusal in the circumstances described in subsection (3) above.

(5) For the purposes of this section a person who, having been sworn, refuses to answer any question shall be taken to do so without good cause unless

(a) he is entitled to refuse to answer the question on the ground of privilege, or

(b) the court in the exercise of its general discretion excuses him from answering it.

(6) Section 1(b) of the Criminal Justice (Evidence) Act, 1924 shall not apply in any case where the provisions of this section apply.".

At the end of a prosecution case, when the State will have presented all its evidence against the accused and unless the accused is entitled to a direction on the grounds of insufficient evidence, this amendment provides that a judge must inquire whether the accused proposes to participate in his or her trial. If the accused, having been called upon by the court to give evidence, fails to do so, the court or jury is permitted to draw an adverse inference. This amendment takes account of the fact that, because of youth, incapacity or a physical or mental condition, such a decision might be unfair to the accused.

My party tabled two Committee Stage amendments on the right to silence in the Dáil. The Minister tabled an amendment which encompassed one of these. Is it inconsistent to allow a guilty inference to be drawn when somebody produces a new defence at the last minute? On the other hand, if an inference is not allowed to be drawn, if an accused does not give evidence at his or her trial, the procedure outlined in my amendment, would apply and is already in force in Northern Ireland, arising from the 1973 report of the Criminal Law Revision Committee in England, from which the Minister's amendment emanated. Perhaps the Minister would explain this inconsistency? It does not make sense to amend the law to allow a guilty inference be drawn against a person who produces some defence and makes some contribution to his or her trial while, at the same time, allow none to be drawn in the case of another person who effectively remains dumb throughout his or her trial. I am not proposing that an accused should be forced to give evidence or suggesting that he or she be deemed to be in contempt of court by failure to produce evidence or participate in his or her trial. Nonetheless, it is common sense to allow a court and a jury to draw its conclusions from the failure of an accused to participate in the trial proceedings.

The safeguards incorporated in my first amendment would allay the concerns of many people at the curtailment of the right to silence of an accused.

While having a large degree of sympathy with this amendment, I must revert to a word that has gained unfortunate currency due to recent events, that is, "untouchable". There is a huge amount of frustration that certain people who are regarded as "untouchable" seem to be outside the grasp of the criminal justice system and, all of a sudden, we are exercising ourselves to see how such people can be brought within its ambit.

We do not have an inquisitorial system of justice. We have what is referred to as an adversarial system. In other words, somebody puts up a case and somebody else puts up a contrary case and a judge or a jury decides on it. There is a very strong case to be made for making a substantial alteration to the structure of the criminal justice system in so far as it relates to organised criminals and drug traffickers to allow for some sort of inquisitorial system. The United States of America has such a system where the district attorney who has seisin of a case will investigate and, after such investigations, bring his case before the grand jury — the district attorney is both prosecutor and investigator.

What is clear is that in drug trafficking cases and in organised crime cases, of which there do not appear to have been very many in Ireland, our criminal justice system does not seem to have worked well, and there is a feeling abroad that it is because people are using or, in a sense, abusing the right to silence to protect themselves from the scrutiny of the law.

There is no more fundamental safeguard in any criminal justice system than the right to silence. In America it is referred to as the Fifth Amendment. A person can refuse to say anything because he has the right not to incriminate himself. The wording in this Bill relating to the change in the right to silence is a limited intrusion into that right but, because it is limited, I am of the opinion that it is all that should be supported at this stage. As the Minister explained, the intrusion into the right to silence already contained in the Bill only relates to corroboration and does not arise after an accused person has been charged. There is, therefore, a very big difference between having a right to silence before one is charged and having an absolute right to silence after one is charged.

It is frustrating when somebody who is accused of a crime does not give their side of the story. The most remarkable example of that in recent times was the O.J. Simpson case where only one side of the coin was presented and the entire world, it seems, was left guessing as to what Mr. Simpson's side of the story was. His lawyers advised him that he did not have to incriminate himself. He had that constitutional protection and he availed of it. Anybody charged with any offence would find the right to silence, if advised to avail of it, to be a fundamental cornerstone of our protection in any criminal justice system. If we were to fundamentally alter the right to silence we would also, perhaps, have to look at a related concept, the burden of proof, because if the burden of proof is on the State, it might make it much easier for the State if the right to silence were abolished in such circumstances.

I am in sympathy with this amendment because it is trying to deal with the frustration that people feel when crime bosses come into court and do not say anything. However, in amendment 7 (3) (b) it is stated: "... the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inference from the refusal as appears proper;". As I understand the law at the moment, no mention can be made to a jury of the fact that a person has decided to remain silent and the jury can make of it what it wants. However, I believe juries make up their own minds on this issue, no matter what a judge says. If I am accused of a string of heinous crimes and decide not to answer them, I believe the jury will make up its own mind anyway, regardless of what a judge says. In a sense what is sought to be achieved here is already implicitly done by juries. Perhaps that is a little naive and most juries would indeed take the direction of the judge when the judge says they are not allowed to take any inference from the fact that the accused person has maintained his or her right to silence.

My overall feeling about this proposed amendment is that if we change our system of justice it cannot be a piecemeal change. This is proposing a radical change to the right to silence without adjusting the other pieces on the chessboard. Those other pieces on the chessboard would be some sort of inquisitorial system where a district attorney would inquire into a crime in a situation where alleged drug traffickers were forced to make statements, with their lawyers present, in the course of such an investigation. If my reading of the amendment is correct, here we are talking about it in a trial context which is very different; we are pointing out to a jury that a person has decided not to incriminate himself and the jury can take whatever message it wants from that.

I have much sympathy with this amendment, but I am a little worried about it for the reasons I have stated, and my mind will eventually be made up according to the calibre of the Minister's argument against it.

I am not proposing that the accused should be forced to give evidence at his trial. Nor am I saying that the accused should be held in contempt for refusing to participate in the trial. All I am saying is that it is common sense to allow a court or jury to draw their own conclusions from the accused persons's failure to participate. Senator Mulcahy has said that the jury probably does that anyway. However, the law at the moment, under the Criminal Justice Act, 1924, modified by the 1984 Act, is that no mention can ever be made by prosecuting counsel of the failure of the accused person to give evidence, and the judge is obliged to warn the jury not to draw an inference from the failure of the accused to give evidence at a trial. All I am saying is that the jury could draw its own conclusions. The amendment does not propose that drug barons would be forced, in the presence of their solicitors, to answer questions. It just proposes that a jury could draw an inference from the failure of the accused person to participate in the trial.

I sympathise with what Senator Honan is trying to achieve, but I am also very ignorant. I want to ask one or two questions. What sort of evidence do we have about how effective this type of approach is in those jurisdictions where it is the way things are done? I think the Senator said that something like this was in place in Northern Ireland, and there are other jurisdictions which are different from ours. How effective is that deemed to be? That is a general question.

I have a very specific question concerning amendment No. 7; section (10) (3):

... and the refusal may, on the basis of such inference, be treated as, or as capable of amounting to, corroboration of any evidence given against the accused.

Is it possible to think of a situation where the accused may indeed be guilty of something but may also have a number of charges against him of which he is not guilty? If he opens his mouth and tries to refute some charges but does not address another that, in effect, will incriminate him. There is the phrase which refers to the corroboration of any evidence given against the accused. I do not wish to strengthen the hand of the accused in these circumstances but I can see where false or invalid evidence could come to be accepted as valid if the right of silence was interpreted in a particular way.

This matter has been debated both inside and outside the Houses of the Oireachtas over a long period. We have to be particularly cautious in this area because of constitutional requirements. We referred earlier this afternoon to those who would be vulnerable, not the drug barons but their minions, and how they would be treated by this legislation. In this section I argued that the most likely victims of drawing a conclusion on the basis of using the right to silence would be the minions as opposed to the barons. I presume that the drug traffickers, the people who make their livelihood from trafficking in drugs and other people's misery, are capable of having the right to silence removed and actually going into court and winning an argument if there is not sufficient evidence to support the charge in the first instance. There could be a danger of too much emphasis being placed on improving the case for the prosecution by removing the right to silence. That is not necessarily the case in relation to drug barons. It might have the opposite effect and it might seriously militate against the minions referred to earlier. I would worry also about the impact it might have on a person who might not be deemed to be a good witness and who might, by virtue of being forced into a position of having to make a statement, incriminate himself.

What is at issue in this amendment is the question of the person's silence in court. There are provisions in Northern Ireland and in British legislation in relation to silence of the accused which were recently introduced. If the accused chooses not to give evidence or, having been sworn without good cause, refuses to answer any question, the court or jury may draw such inferences as appear proper from the failure. That is an interesting statement. This targets both the accused who fails from the witness box to support positive defence and the accused who simply puts the prosecution to proof by challenging the credibility of the prosecution witnesses. A decision not to testify will not, however, be something that can be taken into account in determining whether there is a case to answer nor will it proper for the court to draw the inference that because the accused refused to give evidence in his or her defence, he or she was, therefore, guilty, although the inference might be drawn in the absence of evidence from the accused, for example, that there is no reasonable possibility of an innocent explanation to rebut the prosecution's evidence and may lead to the conclusion that the accused is, in fact, guilty. That opens up an area which leaves a lot to conjecture and to the manner in which the court proceedings actually took place. The circumstances, the atmosphere, etc., surrounding the hearing at the time could have an impact on the outcome.

There is some uncertainty about the constitutionality of any further encroachment on the right to silence beyond what is already contained in section 7 taken together with the provisions of other enactments, such as the Offences Against the State Act, 1939, and the Criminal Justice Act, 1984. For example, the US Supreme Court has struck down the Californian law which permitted the court to make adverse comment on an accused's decision not to testify and also confirmed that the constitutional protection contained in the Fifth Amendment against self-incrimination guaranteed the individual "the right to remain silent unless he chooses to speak in the unfettered exercise of his own free will whether during custodial interrogation or in court." There is no suggestion that the judgment would be followed here but it gives an indication of the complexities that arise and the thinking that is taking place in jurisdictions where the right to silence has been seriously eroded.

The Minister for Justice is keeping the question of the right to silence under review but does not propose that we go beyond the provisions of section 7 in relation to the right to silence at this stage. As I said earlier, if it is deemed that further amendments to legislation are necessary at a later stage, that will be done. Too great a dependence on the removal of the right to silence could have an adverse effect which, in turn, could bring the legislation we are introducing to improve the situation into contention. Too dramatic a move in that direction at this time might set the legislation back, which is something we would not wish to do.

I have a great deal of sympathy for the thrust of Senator Honan's amendment which attempts to improve the situation in regard to the right to silence. That is commendable but I would be very worried if there was a question about its constitutionality. We do not want to see the Bill fail in the Supreme Court and have to go back to the drawing board. We want to have the provisions of the Bill operational by the Garda as soon as possible.

I share Deputy Neville's concern. My party supports this Bill fully and wants to see it enacted as quickly as possible. I was pleased to hear the Minister is keeping the right to silence under constant review. All Members are concerned about the difficulties in bringing major players in drug trafficking to justice and having them convicted by the courts and sent to prison. I accept the Minister's view point that the removal of the absolute right to silence could have an adverse effect and set the legislation back. That was not what I intended. In this amendment I am trying to improve the situation and make it easier to bring these people to justice. I accept the Minister of State's view that the legislation should be evenly balanced so that it will not fail if it is referred to the Supreme Court.

Amendment, by leave, withdrawn.
Section 10 agreed to.
NEW SECTIONS.
Amendment No. 8 not moved.

I move amendment No. 9:

In page 11, before section 11, to insert the following new section:

12.—(1) The prosecutor shall cause the following documents to be served on the accused—

(a) a statement of the charges against him,

(b) a copy of any sworn information in writing upon which the proceedings were initiated,

(c) a list of witnesses whom it is proposed to call at the trial,

(d) a statement of the evidence that is to be given by each of them, and

(e) a list of exhibits (if any).

(2) Copies of the documents shall also be furnished to the court.

(3) The accused shall have the right to inspect all exhibits.

(4) A prosecutor may cause to be served on the accused and furnished to the court not later than 7 days before the date for trial, or if after 7 days, before the trial not without the leave of the court granted after hearing an application by the prosecutor grounded on affidavit setting out the reason why the evidence was not previously served, a further statement of the evidence to be given by any witness a statement of whose evidence has already been supplied.

(5) On the hearing of an application of the type mentioned in subsection (4) of this Act the court shall not grant leave to serve the further statement of evidence unless it is satisfied that there is a good and substantial reason as to why the evidence could not have been served earlier and that the interest of justice requires that the evidence be allowed.".

I do not wish to dwell on this amendment. It speaks for itself, its import is clear and I commend it to the House.

Subsections (1), (2) and (3) of the Senator's amendment repeat subsections (1) to (3) of section 6 of the Criminal Procedure Act, 1967. The effect of subsections (4) and (5) of the amendment would be to place an obligation on the prosecution to serve any further statement of the evidence to be given by any witness at least seven days prior to the date set for the trial.

If the evidence is to be furnished less than seven days before the trial then it may only be served after the court has been satisfied that it could not have been done earlier and that the interests of justice require that the evidence be allowed.

The question of reform of the preliminary examination in the District Court and related procedures is one which needs careful consideration. The Committee on Court Practice and Procedure, through its chairman, Mr. Justice Blaney, has been asked to look at the matter. In particular he has been asked to review and have recommendations as soon as possible on the following: the preliminary examination procedure including the extent of the delay, if any, occasioned by the procedure; the circumstances in which an accused or the prosecution should be entitled to request sworn depositions and the question of restricting the right to apply to sworn depositions in cases where that option is exercised; the necessity for the current practice with respect to the preparation of books of evidence and the delays occasioned thereby and whether the preliminary examination procedure should be abolished or abolished and replaced with a different system; and any other aspects of the present practice and procedure governing the hearing of indictable offences in the District Court which give rise to unnecessary delay.

I am sure the Senator will appreciate that, in advance of receiving the committee's expert view, any change in current procedures would not be appropriate. The Minister for Justice spoke with the chairman of the Committee on Court Practice and Procedure recently and was assured that its views would be available shortly. I will arrange to have the views which have been expressed on this amendment passed to the Committee on Court Practice and Procedure.

Question, "That the new section be there inserted", put and declared lost.
SECTION 11.
Question, "That section 11 stand part of the Bill", put and declared carried.
Section 12 agreed to.
Title agreed to.
Bill reported without amendment.

Acting Chairman

When is it proposed to take next Stage?

If it is in order, I propose it be taken at 5.20 p.m.

There is a Government amendment which we have not seen.

Acting Chairman

Does the Senator need more time?

I propose next Stage be taken at 5.20 p.m.

Report Stage ordered for 5.25 p.m. today.

Acting Chairman

Will the House agree to a ten minute recess? Agreed.

Sitting suspended at 5.15 p.m. and resumed at 5.25 p.m.