I welcome the Minister of State, Deputy Curran.
Courts and Court Officers Bill 2009: Committee Stage.
Amendments Nos. 1, 2 and 5 are related and may be discussed together by agreement. Is that agreed? Agreed.
Amendments Nos. 1 and 2 refer to the existing section 5 and amendment No. 5 proposes an insertion into the existing section 11. All the amendments are linked.
The first amendment proposes to expand the definition of a holding area officer to include a member in charge in a Garda station, with the second amendment providing a definition for member in charge. The subsequent amendment to the section dealing with the functions of the holding area officer is to allow for all members in charge to assume those powers and functions where a prisoner is transferred to temporary custody.
These changes are included to take account of the fact that, from time to time, prisoners may be brought to a local Garda station and held in custody there pending their court appearance. This tends to happen in particular in rural locations where no holding cells may be available in a small courthouse. This circumstance is given a legal basis in section 1 of the Prisons Act 1956. Once the prisoner is in the Garda station, as Senators will be aware, there is a designated member in charge in every Garda station. Under the 1987 Garda custody regulations, the member in charge has certain obligations and responsibilities for any person in custody in the station.
To distinguish between the existing role of a member in charge and that of a holding area officer I have proposed an amendment to section 11. When a prisoner, for the purposes outlined in section 7, that is, for temporary custody purposes facilitating attendance at court, is placed in a Garda station, the amendment confers on the designated member in charge the powers and functions of a holding area officer. The effect of this change ensures that within a Garda station, the member in charge will always have the duties and responsibilities of a holding area officer. It is important to say that this refers to within a station only, not outside of a station. When a member in charge is handing over his duties to another member in charge, for example, at the end of a shift, all his or her duties and responsibilities transfer automatically to the new member in charge. The amendment provides that his or her holding area officer responsibilities also transfer automatically. That will facilitate the day-to-day management of custody within Garda stations.
The amendment proposed will also allow a member in charge to delegate or transfer holding area officer duties and responsibilities to another garda. The reason this amendment is being proposed is twofold. In the first place, the member in charge, while having all the duties and responsibilities of a holding area officer, may not be the garda physically looking after the detention area. That would be the case, for example, in stations where a number of gardaí are on duty. In such circumstances it is important that the garda in the custody area be authorised to be a holding area officer.
Allowing the transfer of holding area officer powers from the member in charge to another garda is important for the management and smooth operation of the provisions of the Bill within a Garda station. A good example of that is where the member in charge is a male garda and the prisoner in temporary custody is female. In such a circumstance it would be appropriate to transfer holding area officer functions to a female garda for the purposes of a search. It should be noted that transferring holding area officer duties and responsibilities does not relieve the member in charge of those duties and responsibilities. The member in charge will always automatically have those duties and responsibilities when a prisoner is in his or her custody.
Within a station a number of gardaí may have holding area officer duties and responsibilities. Such responsibilities will always apply to the member in charge. They may also apply to the garda who is originally handed the prisoner under section 6, plus any garda to whom the member in charge may transfer or delegate the function. That only applies where the temporary custody provided for under section 7 is taking place within a Garda station.
It is worth stating that where the temporary transfer of custody of a prisoner for the purposes of a court appearance takes place outside of a Garda station, the garda taking temporary custody of a prisoner is the holding area officer. Under the Bill's provisions, that garda cannot transfer his or her holding area officer duties and responsibilities to another garda unless authorised to do so by a superior officer.
I consider this an important provision to retain because it should only be in limited circumstances where a garda will be taking temporary custody of a prisoner outside of a Garda station for the purposes of the Bill. Given that, I consider it appropriate that the transfer of holding area officer functions should only be permissible when authorised by a more senior officer. I believe the House will agree with me in this regard. I propose deleting the current definition of "holding area officer" and replacing it within a new definition which provides for a member in charge assuming the powers and functions of a holding area officer and the delegation or transfer of such powers. I am also defining for the sake of clarity who a member in charge is in the context of the Bill.
I welcome the Bill which facilitates the move to the new criminal courts complex. Most of the provisions deal with the procedures consequent on that move. However, on Second Stage I expressed concerns about Part 2 and the provisions on temporary custody. With regard to the Minister's amendment to the definition of "holding area officer" in section 5, I take the point that much of this is facilitates a transfer of powers. However, given the very extensive powers ascribed to a holding area officer in section 11, I am disappointed that these powers are expressed in very broad terms, for example, to prevent the escape from lawful custody of a person who has been placed in temporary custody, to prevent the commission of an offence and so forth.
Clearly, the holding area officer has extensive powers in practice, yet section 12 does not specify precisely the standards to be employed in the safe keeping of persons. It simply states the Minister may prescribe them. I raised this issue on Second Stage and have tabled an amendment on it. Given what the Minister of State has said and the fact that the holding area officer will, in practice, often be the member in charge, will the Minister of State confirm that the custody regulations which already prescribe a defined role for the member in charge will apply to the person being held in temporary custody, or at least as much of them as is relevant? I am aware that as a large part of the regulations deals with the questioning of persons held in custody pre-charge, that will not arise but other safeguards are provided for such as the provision of food, time to sleep and so forth. Does the Minister of State envisage that these standards will apply to persons held in temporary custody under this legislation, given the very strong link between the holding area officer and the member in charge?
Specifying in detail the authority of the holding area officer and the garda in charge is most important; therefore, I understand the Minister's motivation behind these amendments, with which I have no difficulty in principle. The issues referred to by Senator Bacik are dealt with in her amendment. These amendments do not alter in any way the responsibilities of the Garda Síochána or a holding officer of the Irish Prison Service to treat prisoners in accordance with proper standards.
The purpose is to indicate in a legislative framework what the practice is in rural Ireland from the point of view of small courthouses which do not have the facilities. It would be an omission from the legislation not to deal with the issue at this stage. With regard to the manner in which people are held in temporary custody, whether they are prisoners or in Garda custody, all the normal rules and regulations apply. That is not affected by this section.
I move amendment No. 3:
In page 4, line 40, after "person" to insert "who is lawfully in custody".
This amendment was tabled in the Dáil by Deputy Rabbitte. It seeks to limit the definition of a person who may be placed in temporary custody to a person who is lawfully in custody. I expressed a reservation about the drafting of this section on Second Stage. Section 6 refers to a prisoner who may be placed in the temporary custody of a member of the Garda Síochána. Section 5 gives "prisoner" the same definition as that included in the Prisons Act 2007. Section 2 of that Act defines a prisoner as a person who is ordered by a court to be detained in a prison and includes a person who is in lawful custody outside a prison. Section 6(1) of this Bill refers to a prisoner who may be placed in temporary custody, while section 6(2) refers to a person who is "lawfully in the custody of the Garda Síochána". However, section 7 clearly goes beyond the definitions in section 6 because it refers not only to a prisoner but also includes the term "or other person" without the proviso in section 6(2) of a person who is lawfully in custody. In other words, it allows any person to be placed in temporary custody for the purpose of facilitating either a court appearance or their participation "as a witness or in another capacity". I was slightly troubled by the phrase "or in another capacity". It gives a rather overarching power to deprive somebody of his or her constitutional right to liberty.
On Second Stage I asked the Minister what circumstances were envisaged regarding a person who was not a prisoner and not already in lawful custody. Obviously, it happens all the time that people who are already serving a sentence and in prison or who have been deprived of bail and are remanded in custody and, therefore, are in prison on that basis are brought before a court for appearances as defendants or as witnesses. They are routinely brought in custody. That obviously happens already and it is good that the practice is being placed on a statutory basis in the Bill. I am troubled by the idea that other persons who are not defined as being already in lawful custody might somehow be placed in temporary custody to facilitate a court appearance or participate in another capacity in a court hearing. We have developed laws on bail; therefore, how does this provision tally with the Bail Act 1997 and the constitutional right to liberty? I am trying to see how it can be made workable, which is why I tabled the amendment. The same amendment was tabled by Deputy Rabbitte in the Dáil. I have also suggested in amendment No. 4 deleting the term "or in another capacity", unless the Minister of State can explain the reason for it. I sought such an explanation on Second Stage but did not receive a satisfactory one. That is the reason I tabled the amendments.
As I have the same question, I will await the Minister of State's response.
As Senator Bacik said, the amendment is a variation of a similar amendment proposed on Committee Stage in the Dáil. It was considered by the Attorney General's office but is regarded as unnecessary. "Person" in the context of section 7 of the Bill could never be interpreted as including persons in general. Under section 7, the reference to placement in temporary custody under section 6 can only refer to a person who is lawfully in the custody of the Garda Síochána, as the word "prisoner" is already defined. Section 6 makes clear the persons who may be held for the purposes of section 7. Section 6(2) refers to a person who is lawfully in the custody of the Garda Síochána. "Person" in this instance only applies to somebody who is lawfully in custody under the existing legislative provisions. It does not and cannot create any new custody. This provision operates within the limitations of existing legislative provisions relating to custody and does not create any new categories of persons in custody. The provisions in the Bill relate only to the temporary custody of a person or prisoner in the context of a transfer of that custody from the Irish Prison Service to the Garda Síochána or vice versa. The individuals concerned are already in custody. The Bill does not create custody, it merely allows for a transfer of that custody on a temporary basis.
While I understand what the amendment seeks to achieve, I consider it unnecessary. Such an amendment might unintentionally create an ambiguity as the term "person who is lawfully in custody" could suggest all sorts of persons, for example, a person in military custody, whereas the section is only concerned with persons in Garda custody. I oppose the amendment.
I am glad the Minister of State has confirmed there is no intention in the Bill to create a new power to hold somebody in custody. I do not believe it could do so under the Constitution. The Minister of State referred to existing legislation but it is clear the Constitution overarches that. I do not believe the amendment could create a new category. I was concerned it might, by implication, do so or that the interpretation might extend to that.
I am glad the Minister of State pointed out that in the context of the legislation a person means someone who is lawfully in Garda custody. The Labour Party's amendment on Committee Stage in the Dáil referred to "a person who is lawfully in the custody of the Garda Síochána", which is the same definition as that used in section 6(2). However, the Minister still did not accept the amendment. I do not understand how amendment No. 3 would create an ambiguity, particularly if it was framed in the same way as the amendment introduced in the Dáil. I also do not understand why it cannot be included, given the Minister of State has indicated that is what it means.
I accept the Minister of State's contention that the Attorney General believes the amendment to be unnecessary. I do not wish to labour the point but, as stated on Second Stage, this relates to deprivation of liberty and we are discussing a penal statute. In such circumstances, we must be careful and ensure the wording will not create some unforeseen consequences in the context of increasing the categories of persons who can be in custody.
In light of the Minister of State's explanation and reading section 7 in conjunction with section 6(2), it appears the person will be a person who is lawfully in the custody of the Garda Síochána. I am satisfied, therefore, that the intention behind the legislation is clear.
I re-emphasise that we are not seeking to create new categories of custody. The advice of the Attorney General is clear, namely, that the amendment is unnecessary. In that context, I cannot accept the amendment.
Is the amendment being pressed?
Not at this stage. I reserve my right to reintroduce it on Report Stage.
I move amendment No. 4:
In page 5, paragraph (b), line 1, to delete “or in another capacity”.
This amendment relates to section 7(b), which currently states that a person may be placed in temporary custody to facilitate not only a court appearance by them but also their participation as a witness or in another capacity at a court hearing. As on Second Stage, I wish to inquire as to the sort of capacity which might be covered in this regard. If the Minister of State cannot envisage another capacity, then these words should be deleted because, to echo the words of the Attorney General, they are unnecessary.
If I can envisage such another capacity, will the Senator withdraw her amendment?
I reserve my position in that regard.
Again, I must reject this proposed amendment. If I were to accept it, it would have a limiting effect on the purpose of temporary custody under the Bill. It would limit that purpose to a person's participation in a hearing as a witness only. The intention of the Bill is to ensure flexibility to allow for other reasons for that person's presence in court, such as to observe proceedings, instruct his or her lawyers or even to represent himself or herself in proceedings.
As previously stated, the custody arrangements provided for in the Bill are very limited. They only arise in respect of individuals already in custody, whether that be in the custody of AGS or the Prison Service. Furthermore, they only arise in respect of the purposes detailed in section 7. In other words, temporary custody only arises where a person, who is already in lawful custody, is involved in a court appearance. There is no issue here in relation to infringements of any person's rights or liberty and given that fact, I hope the House will agree it would be unwise to limit the section as proposed in the amendment.
The Minister of State referred to circumstances where a person might represent himself or herself. That instance may be covered under paragraph (a), which relates to court appearances. However, I suppose it could also be for the purpose of appearing in a civil proceeding and a doubt might arise with regard to whether “court appearance” would be the appropriate phrase, particularly if a person was appearing as plaintiff in his or her own right. I accept that other situations might arise. I thank the Minister of State for providing a reassurance that this section is not deliberately drafted in a very broad way in order to facilitate all sorts of deprivations of liberty.
Other than being an observer at or a participant in civil proceedings, I do not see how any other capacity might arise. I am still of the opinion that the section could have been drafted in a much tighter fashion. The Minister of State provided the example of a person who wants to instruct his or her lawyers. Generally, this is done in the prison or as part of a court appearance. It would be extremely rare that a person would be brought to court in order to see his or her lawyer, without their being present also constituting a court appearance.
Unfortunately, the phrase "or in another capacity" is too broad. However, I take the point that using the term "witness" on its own might be too specific. In such circumstances, I will withdraw the amendment.
I move amendment No. 6:
In page 7, line 1, after "prescribe" to insert the following:
", in accordance with the standards already provided for in respect of persons held lawfully in Garda custody or under the Prison Rules 2007 (S.I. No. 252 of 2007)".
The intent behind this amendment is clear and I indicated on Second Stage that I would be introducing it. The amendment relates to the standards to be prescribed by the Minister for the safekeeping of persons who are held in temporary custody. On Second Stage, I inquired as to the type of regulations it is envisaged will apply. Given that standards are already provided in both the prison rules and the custody regulations, would it be possible that we might have some indication that these will be the standards to which the Minister for Justice, Equality and Law Reform will have reference when prescribing what will, I presume, be a new set of regulations in respect of those in temporary custody?
In order to assist the Minister in developing the regulations to provide for standards in respect of persons held in temporary custody, it is suggested in the amendment that the phrase "in accordance with the standards already provided for" be used. This would mean there would be no diminution of the standards provided for in respect of persons held lawfully in Garda custody already. As stated, however, it is clear there will be large sections of both sets of regulations which will not be relevant in respect of someone held in temporary custody. However, reference should still be made to the criteria to which the Minister for Justice, Equality and Law Reform will refer in setting these new standards.
Perhaps the Minister of State is in a position to indicate whether new regulations will be prescribed under section 12. If they are to be prescribed, I do not understand why the amendment could not be accepted, particularly as it merely sets out that such regulations would have to be developed in accordance with existing standards.
I support the amendment. If one reads section 12 as it stands, it appears that it might suggest that different standards may apply in respect of those held in temporary custody. The amendment put forward by Senator Bacik is, therefore, well founded and would improve the Bill.
I understand both the impetus behind the amendment and what the Senator is seeking to achieve. We have given the amendment some careful consideration. The Bill provides for temporary custody in the very limited circumstances outlined in section 7. This temporary custody is sui generis and limited in scope. The most important aspects of a person’s treatment, that is, being kept safe and secure and subjected to defined search powers, are provided for in section 11. Section 12 allows for the Minister to expand on these and add other matters, such as procedures and record keeping, if required.
If I were to accept this amendment, it would have the effect of limiting any future regulations to the existing Garda custody regulations and the prison rules. Such a move might be unwise. While I accept the intention is to operate to those current rules and regulations, I think there is a case to be made to allow the Minister make regulations which may, if required, differ from those rules and regulations. It may be appropriate, given that a person is temporarily transferring custody from one body to another, that very specific records may need to be kept. Such records may differ to those kept under the current custody and prison regimes. The current provisions of the Bill allow flexibility to introduce new regulations if required. For these reasons, I cannot accept the amendment.
I thank Senator Regan for expressing support for the amendment. As he stated, the amendment would improve section 12. The amendment does not require the Minister to apply exactly the same regulations because, as already stated, I am conscious that some of these would not be relevant. It simply allows for a certain minimum standard to be observed in developing any new regulations for persons held in temporary custody. I am also conscious that the need for keeping very detailed custody records would not apply in respect of people in temporary custody.
I am concerned that if the amendment is not accepted, there will be no reference to the criteria the Minister will use when prescribing these standards. I am conscious the Minister of State has already accepted the same principle, in a sense, in section 11(2) where the holding area officer's power of search is specified as being in accordance with the prison rules. That is very important because the power of search has been open to abuse in some cases and has always had to be carefully circumscribed by law in any jurisdiction. It is important, therefore, that in section 11(2) the power of search is specified as being necessarily in accordance with the prison rules.
As I said in the context of an earlier section, section 11(1) gives other extensive powers to holding area officers, including power to prevent escape from lawful custody, ensure a prisoner behaves in an orderly and disciplined fashion and so on. Clearly, there is potential for physical intervention with the person in custody. There must, therefore, be some safeguards or criteria that apply where holding area officers are exercising their powers under section 11(1). The Minister of State may come back and say there are already such safeguards. Certainly, there are the constitutional provisions, constitutional case law and existing regulations. However, I have a concern unless the existing regulations are specified, especially considering the provision in section 11(2). The more I look at it, I find it interesting that section 11(1) does not state that any powers there must be exercised in accordance with any rules or standards. The section 11(1) powers as set out are very broad powers which could lead to some very serious physical intervention on the body of the prisoner. Section 12 seems to be the only section that makes any attempt to offer any oversight of the powers the holding area officer may exercise.
I do not want to labour the point, but it is important we are told what standards will be employed. The amendment seeks to insert some reference to sets of existing standards below which those in temporary custody will not be subjected to. This is in keeping with the Minister of State's approach in section 11(2) which is to circumscribe the power of search so that it must be carried out only in accordance with the prison rules.
In a sense, we have delegated legislation to the Minister and what Senator Bacik is saying is that we in this House are supposed to set out the principles upon which the Minister draws up regulations. I do not find the principles in the Bill. It is all procedural and there is nothing substantive in it. What is suggested in the amendment is that we should define the principles and the standards and the Minister can then act accordingly. Section 11(5) states: "Nothing in this section shall be construed as limiting the powers under the Prison Rules of a holding area officer who is a prison officer". That is all very well, but there is no setting of standards relating to the regulations which the Minister can draw up under section 12. It is incumbent on us to set those standards. The amendment is simple enough and could be accommodated by the Minister of State, especially since we have all been so constructive in this debate.
Looking at the issue simply, there is a definition in section 6 of the people who are to be held in temporary custody. These fall into two categories. The prison rules govern the prisoners and those in lawful custody of the Garda are governed by the custody regulations. Therefore, these are the standards set, but the overriding standard is the Constitution. I do not see the need for the standards to be set out further. If we get into doing that, we may be overcooking the legislation. As the Minister of State said, there may be a need in the future to amend the rules or to enhance them and all relevant legislation will be subject to that. The standards are set out already in our laws, our systems and the Bill.
The only persons this Bill affects are people who are already in custody. They are either a prisoner or a person who is already lawfully in custody of the Garda. The Bill, as I already stated, does not create some new form of custody. If the person concerned is a prisoner, then he or she remains subject to and under the protection of the existing prison rules and regulations. If the person concerned is in the custody of the Garda, then he or she is subject to the Garda custody rules and regulations, notwithstanding the fact that he or she is deemed to be in the custody of another body. Also, as mentioned previously, the Minister may make regulations which may differ from those rules and regulations, if required. Given the fact that custody is being transferred temporarily from one body to another, it may be appropriate that specific records in that regard may be required. However, that does not create new custody. The person is either a prisoner or a person in lawful custody of the Garda and the rules and regulations to which I referred previously would be binding in that regard.
I am grateful to the Minister of State and Senator McDonald for the points they made that the prisoner is in custody and regulations already apply. I would have assumed that. However, section 12 suggests something different. If those rules are already applicable, as they are, to persons who are already lawfully in custody, why is the Minister of State giving himself the power to prescribe additional standards? That is clearly because, as the Minister of State acknowledged, there may well be other regulations provided for.
As Senator Regan said, we as legislators must have regard to the way in which the Minister of State will prescribe such regulations. We are not trying to do the Minister of State's job for him and put in what the regulations would say. We are simply saying that as legislators, we have a duty to ensure the Minister of State is given some direction or criteria by which the regulations would be made. We know there are existing regulations. What I specifically said in the amendment was that any new standards or regulations to be developed would be in accordance with existing standards. The amendment is not trying to be too prescriptive, but trying to provide an overarching policy by which a Minister of State will exercise his delegated power to make the regulations.
Senator Bacik recognises the various regulations that are already in place. This provision for the Minister may be appropriate because of the temporary nature of the custody involved in transferring it from one group to another. As a result of that, I oppose the amendment.
When is it proposed to take Report Stage?
Agreed to take Remaining Stages today.
I wish to draw the attention of Senators to printing errors in the Bill. On page 5, lines 13 and 25 should be further indented. Similarly, on page 7, line 14 should be further indented. Accordingly, as provided for in Standing Order 1, I will instruct the Clerk of the House to make the formal corrections to further indent these lines in the Bill. Is that agreed? Agreed.